Lt Col Mukund Singh Jamwal (Retd)
Armed Forces Special Powers Act or AFSPA as it is commonly known has always been in the news and it is now more so because of the ongoing elections in J&K state. Political Parties of all hues especially those who are valley based or valley centric want to score points over this very convenient subject which is handy for army bashing as also for centre bashing by the leaders of these parties. While Omar Abdullah of National Conference blames Centre for not removing AFSPA , Mehbooba Mufti of PDP blames Omar Abdullah for not doing enough to have the act removed. For the general public in Kashmir , the army in any case is an unwelcome guest and the opponents of AFSPA appear to make it more so.
An impression has been created amongst general public in Kashmir that the army is a monolithic organization functioning independently , without any control and empowered with AFSPA it is behaving like an army of occupation. This impression has been mostly created by the separatists , the so called human right (of militants) activists , politicians with vested interests and the arm chair specialists who have never ventured from the comfort zones of their surroundings to the killing fields of terrorism. The army in J&K is not simply fighting militancy but a full scale war unleashed by Pakistan which is unique in the sense that the casualities in this war are either Kashmiris or foreign militants or renegade Pakistanis who in any case are expendibles as far as Pakistan is concerned and the Indian armed forces. The Pakistan ISI and the army who nevertheless are directors of this unending epic suffer no casualities.
It must be understood that the Indian army’s main role is external security . Internal security is the responsibility of the Police forces who are vested with adequate powers for arrest and for maintenance of law and order under various sections of Indian Penal Code (IPC) and Criminal Procedure Code (CrPC). The army has no such powers and even when the internal situation worsens to an extent as to warrant calling of army in aid of civil power, the army is still not authorized to open fire or arrest any citizen. They can open fire only on the written orders of the magistrate who is supposed to be on call along with the army during such times.
However , when the law and order situation deteriorates to such an extreme that in the opinion of Central or State Government / Governor , use of armed forces in aid of civil powers is considered necessary , the authorities concerned declare a particular area or the whole state as disturbed area and Disturbed Areas Act is promulgated. Whenever army is called to operate in areas where Disturbed Areas act has been promulgated , it is vested with certain powers e.g. to search , arrest and even to open fire after giving due warning. The act that grants these powers to the army is known as Armed Forces Special Power s Act (AFSPA). AFSPA , thus empowers the armed forces to operate legally within the internal security environment and grants immunity to the concerned officials for acts committed in discharge of their duty.
According to AFSPA , in an area that is declared as disturbed , any Commissioned Officer/ Junior Commissioned officer/ Warrant officer/ Non Commissioned officer or any other person of equivalent rank in the armed forces has powers to , after giving due warnings , fire upon or use any other kind of force even if it causes death , against any person who is acting against law and order. He can destroy any armed dump , hide outs , prepared or fortified positions , shelters or training camps from which armed attacks are made by the armed gangs. He can arrest without warrant , anyone who has committed cognizable offence. He can stop and search any premise in order to make such arrest or to recover any person wrongfully restrained. He can stop and search any vehicle or vessel reasonably suspected to be carrying such persons and weapons.
Any person arrested or taken into custody under this Act shall be made over to the Officer incharge of the nearest police station with the least possible dela y. Officers acting under AFSPA have legal immunity for their actions. Protection has been granted of persons acting in good faith under this act from prosecution , suit or other legal proceedings except with the sanction of Central government in exercise of powers conferred by this act.
In J&K the then Governor had invoked the Disturbed Areas Act in Kashmir first in 1990 , which was renewed in 1992 and then in 1997. Since then it has been renewed on yearly basis. Disturbed Areas Act was promulgated in Jammu in the year 2000. The armed forces as well as the armed police forces operating in areas under disturbed areas act are empowered with AFSPA. Unless the armed forces are so empowered ,they can neither carry out any search , nor arrest any person or kill any militant. Whenever there is a killing in Kashmir , there are a lot of demonstrations and protests mostly incited by the separatists blaming the armed forces. A deeper look into the allegations against the misuse of AFSPA by the armed forces would prove that except for an odd Patharibal case or recent shooting of two car borne youth in Anantnag district , hardly any accusation has been found true. It needs to be kept in mind that in army , accountability is the key. And any aberration in discipline is dealt with strictly. So whenever the troops have acted indiscriminately , they have been dealt with swiftly and appropriately.
A few years back a case of rape was reported in the valley in which a Capt of the army and an ASI of J&K police were allegedly involved. The Capt was court martialled and sent to prison within six months whereas the status of the ASI , last heard was simply suspended.
Perception that AFPSA encourages human rights violations is not based on facts. During a debate on AFSPA , held at the Institute of Defence Studies and Analysis (IDSA) during 2012 , a comparison of custodial deaths that occurred in areas not covered by AFSPA vis a vis those covered under AFSPA was made. It was brought out that between 2001 to 2010 , UP had 174 police and 2171 judicial deaths while Maharashtra had figures of 250 police and 1176 judicial deaths. Compared to this , there were only 5 cases of human rights violations by security forces in the year 2011 as per Omar Abdullah’s statement.
It has been argued that militarized approach to militancy has proved inefficient and counter productive. It must , however , never be forgotten that the armed forces are not fighting a simple militancy in J&K. As already brought out , India is fighting a proxy war unleashed by Pakistan. AFSPA infact enables the armed forces to fight both external and internally aided forces which threaten the security of the state as well as of the whole country. Such an extra ordinary situation demands extra ordinary measures.
Another argument against the AFSPA is that army has developed a vested interest in operating with the safeguards and has become insensitive to local aspirations. It must be remembered that the army in J&K is not on a picnic. They are there because all the other apparatus of the government has failed to contain the militancy and the armed forces have been called as a last resort. They cannot afford to fail. In confrontation with the terrorists , it is often a question of who kills first. You either kill or get killed. What must be seen is the remarkable record of Indian army in upholding the human rights contrary to what the separatists say.
According to the views expressed in the debate on AFSPA held at IDSA , most of the negative perceptions over misuse of AFSPA by the armed forces in J&K are as a result of the politicians trying to score political points or create pressure on the leadership or playing to the gallery. This is achieved through inspired leaks or use of media by opinion makers. Another reason for negative perception about the armed forces is the propaganda and false accusations that are constantly levelled against these fores by the separatists whose aim is to demoralize them by painting them as villian.This is further aggravated by the army’s lack of communication regarding misperceptions about the law and the army’s role amongst general public.
Politicians in the valley , especially Omar Abdullah have been pressing even for partial revocation of AFPSA from those areas of the valley where militancy has subsided. Such politicians are not being practical. Those dealing with militancy would know that the militants generally don’t create problems in areas which are used by them for transit or rest or for hideouts. How do the armed forces deal with the situation when they are in hot pursuit of the militants and they enter an area where there is no AFSPA or when the armed forces get information about the militants hiding in such an area? They will have to first go and get permission from the magistrate to search the area and have an element of the civil police with them to arrest the offender. If in the meanwhile , the militant tries to run , the armed forces will have no powers to fire as without the AFSPA , they can open fire only on the orders of the magistrate or in self defence which becomes difficult to prove subsequently.
Those opposing AFSPA in J&K are mostly doing it for public consumption and that too based on past experience. Realities on the ground have changed .There has hardly been any violations of the law in the past few years. The army has issued guidelines in the form of Dos and Donts for operations in the areas where it is working under AFSPA. These guidelines have been approved by the Supreme Court and are binding on the armed forces. They are quite elaborate and lay down the actions to be taken before the operations , during the operations and after the operations. These Dos and Donts incorporate some of the measures prescribed in the IPC and CrPC regarding arrests. These guidelines ensure that inconvenience to the people is minimized and that human rights are respected.
At the end of the day it needs to be remembered that ‘ AFSPA is put in a place after the area has been declared as “Disturbed”and under the disturbed areas act the enabling provisions of law , which facilitate summoning of the army to the aid of civil authority who are unable to control armed insurrection’. This is ultimately the call of the State Government or the Centre. The nation needs to remember that removal of AFSPA is likely to be counterproductive and would give a fillip to the militancy. It is likely to result in increased casualities amongst the armed forces. A soldier who gets killed is also a son , husband and a father to someone. For the politicians especially of the ruling party his death may give opportunity for some photo session. Beyond that nobody remembers the martyred or wounded soldiers whose families face the double whammy. They have to contend with the loss of their dear ones and then run around to get even their just dues from Ministry of Defence which makes them fight every inch of their way uptill the Supreme Court.
Trending Now
E-Paper
Follow our WhatsApp channel