Lt Col Krishan Chand (Retd)
This short act was passed by parliament on 11 September, 1958 to enable and empower the armed forces of the union, deployed to restore law and order and civil administration in areas, where the situation has gone beyond the resources available with police and civil administration due to militancy, insurgency and, such like armed agitations/ movements. The British, during their reign first invoked act of this kind in 1942 through an ordinance to deal with the ‘Quit India Movement’. In 1958 the need for such an act to deploy and enable the armed forces in Assam and Manipur was felt and the act was passed and promulgated.
Since then it has been invoked in Chandigarh and Punjab, Jammu and Kashmir and, is still in force in many areas in North East and J&K with strident demands for its revocation/ partial withdrawal from some areas. United Nations Human Rights organisations as also many human rights activists and organisations in the country have been pressurising the govt to repeal/ withdraw this act on the ground that it has led to many tortures, human right abuses, disappearances and even murders and, is inconsistent with democratic governance, human rights etc. Many prominent citizens of the country too have wanted the withdrawal of the act. There are ongoing strident movements and demands for its withdrawal in Manipur and Kashmir valley. People,s Democratic Party (PDP) is also known to have made a strong case for withdrawal of AFSPA at least from some areas.
Let us now examine the necessity for the act and what enabling/ empowering provisions it has. The armed forces of the union are not trained in law, civil administration and police procedures and whenever they are deployed to restore law and order due failure of the civil administration, have no wherewithal to cope with legalities arising out of their actions. They also have no familiarity with police and court procedures and local forces at play at the root of insurgent/ militant movements. They also have no vested interests at stake and have merely the mandate to restore/ help restore normalcy to enable civil administration to function. In our country, it should be amply evident to everybody that our administration, policing, criminal justice, public awareness and even citizen commitment and loyalty to nation’s integrity is not of the level of developed countries.
Our polity too unfortunately, has in many disturbed areas thrived on divisive and separatist feelings fuelled by regional/ religious considerations. In the absence of AFSPA, which has following provisions and enabling powers to armed forces deployed in disturbed areas, the nation’s unity and integrity, is at serious risk:-
* After due warning use force which may lead to arrest, bodily harm and even death.
* Destroy arms/ ammunition/ supply dumps/ hideouts/ vessels etc used by militants/ insurgents.
* Enter any premises without warrant to search/ apprehend.
* Stop/ search any vehicle/ vessel.
* Handover apprehended persons etc to the police with minimum delay.
* Legal immunity against prosecution while acting under the act in good faith and prosecution only after sanction of central govt. Govt power to promulgate the act is also not subject of judicial review.
The issue assumes significance in the light of apprehension in public mind about premature withdrawal/ dilution of the act when new coalition Government led by Mufti Mohd Sayeed is at the helm of affairs. The BJP and the Prime Minister Narendra Modi ,have been strident supporters of the act and, rightly so, to maintain unity and integrity of the country in the face of separatist forces operating with support and in concert with countries and forces inimical to India and, till such time we have these threats, it is imperative not to do anything that may reduce the effectiveness of the armed forces deployed in disturbed areas.
The right course for those who want withdrawal of the act is to channelize their energies and resources to dissuade militants, miscreants and separatists from resorting to armed violence/ waging war against the state and to motivate the public to not provide shelter, food, recruits and other enabling resources for sustenance to them. The state and central govts in concert too need to improve administration and criminal justice to the levels that give no cause for disaffection to common people. Our polity and judiciary too need to shed their fear of losing power/ favour of influential and powerful people in society and deal with high and mighty among them, leading separatist movements on grounds of religion/ region/ ethnicity with an iron hand and not provide them with all kinds of facilities, security, resources that give them importance in the public eye, and saps the will of the patriotic and nationalist forces to unite in fight against separatism. The BJP govt in power at the centre must not let itself be blackmailed/ browbeaten by any one on this account and must not be seen compromising with nation’s unity and integrity. Its greatest strength and appeal derives from perception of nationalism, national unity and power, high regard for armed forces, development and the like and, it shouldn’t compromise on these under any circumstances.
The BJP govt so far has aconducted itself well on all counts. The opposition is ganging up to not let it consolidate its hold on governance delivery for fear of being consigned to dark pages of our history and, it must hold its ground and correct course where it realises it has erred.
The media has so far been supportive of AFSPA and the govt too must do all it can to prevent abuse and excesses of the act. Partial removal of the act from select areas is also fraught with serious consequences as the armed forces in the affected areas have to transit through and contend with militants who have the freedom of movement, shelter and support in these areas.
It is therefore hoped that AFSPA will not be withdrawn from the valley till such time, Pakistan ceases support to militancy and our police and administration are effective in the interior areas with the armed forces minding the border and only occasionally required in aid of civil authority like elsewhere in the country. After about a decade of good governance, the Act’s need may be reviewed , but, not now.
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