AFSPA: Between battlelines


The new Army Chief has given out his mind on the Armed Forces Special Powers Act (AFSPA). He has said that, "Any dilution of the Act will impinge adversely on the manner in which the armed forces operate.'' To him ‘in constrained and trying circumstances, the armed forces need requisite legal protection' and on that account the Act ‘cannot be disputed’. Having come in from Kolkata after command of the Field Army deployed in countering insurgency in the North East and being an infantry officer with counter insurgency experience at the grassroots and at the operational level, his is a considered opinion.


This explains the Army’s reservations on the draft of an amended version of the AFSPA that the Ministry of Home Affairs had sent for concurrence.

See indiatogether.org for full article.


Specifically, an amended AFSPA was to have had the Do’s and Don’ts incorporated. The Supreme Court judgment had stated that the Army, ‘shall strictly follow the instructions contained in the list of ‘Do’s and Don’ts” issued by the army authorities which are binding and any disregard to the said instructions would entail suitable action under the Army Act, 1950.’ It had required that ‘the instructions contained in the list of ‘Do’s and Don’ts” shall be suitably amended so as to bring them in conformity with the guidelines contained in the decisions of this Court and to incorporate the safeguards…’


Second, but more importantly, was in respect of Section 4 (a): ‘if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area…’ This clause has been considered ‘draconian’. The draft under preparation for tabling an amended law in parliament this session had perhaps watered this down. But the Army has not proved agreeable to results of half a decade long exertions in the MHA and Law ministry.


Why this is so is because the Army prefers to see itself as the force of last resort in internal security situation. The role is itself seen as a secondary one to its primary role of fighting and winning the nation’s wars. Therefore, if the situation is bad enough, it feels it requires the powers necessary to cope with it including legal cover for its soldiery. This is especially so given the information war that surrounds insurgency, in which allegations of human rights violations are a weapon.


This perspective is not problematic. Extraordinary situations require extraordinary powers to cope, lest the republic unravel. What is problematic instead is the Army’s insistence that it would deploy only under the legal cover of the Act in areas declared ‘disturbed’ under Section 3 of the Act. Thus even where the situation is not bad enough to warrant Army deployment with such powers, the Act is invoked to enable the Army’s deployment. This position of the Army is not without logic in that by insisting that the law be invoked protects it from being used as a default option in internal security, as yet another paramilitary.


The issue is therefore on how to identify situations that warrant Army deployment under the Act and how to cope with those that are less critical. Understanding, if not agreeing with the Army’s position has led to the government’s position on a consensus, with the Army on board, before any further move is made. In the interim however much can be done.


Firstly, in areas where the Army’s efforts, among other reasons, have brought down the insurgency to manageable levels, a review of whether Army deployment is necessary needs be done. The J&K government has been asking for this for better part of last decade. The political dividend of this would be more useful in making balance of the insurgency recede than anything the Army is currently doing by remaining deployed. Even if this may not be readily possible in the Valley, an experiment can be done with withdrawing both the AFSPA and Army deployment in districts south of Pirpanjal. Such areas primed for vacation include Assam also, in particular lower Assam and the autonomous councils. The state has been amiss in extending Army deployment even where not required. Therefore a proportion of the blame must go to elected representatives in state legislatures, rather than the Army.


Secondly, the Center need not be as protective as it has been over granting permissions for the Army to be investigated where it is remiss. The Army in any case follows up on allegations and takes pride in delivering justice where warranted. However, as the Manorama case indicates institutional interest may at times over ride higher considerations. The Supreme Court has required the government to be strict, stating, ‘A complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act shall be thoroughly inquired into and, if on enquiry it is found that the allegations are correct, the victim should be suitably compensated and the necessary sanction for institution of prosecution and/or suit or other proceeding should be granted under Section 6 of the Central Act.’ For instance, the J&K state government made 38 requests to prosecute soldiers but no permission was granted by the Centre. Defence Minister A K Antony told Rajya Sabha that 133 complaints were made against army between 2004 and 2009. In case the Ministry is less reticent, the Army can be expected to be doubly conscious of observing its obligations.


The AFSPA is perhaps necessary to deal with extreme situations. Such situations are a rarity. Therefore, the Act needs to be withdrawn where not necessary. However, in case the Army is still needed in such cases, then it can be deployed under cover of the relevant Code of Criminal Procedure sections. This may deprive of its extensive powers, but since these would not be necessary in less critical situations, it can afford to forego them. Army deployment in any case must be made judiciously. For instance the Chintalnar incident indicates that it may be required in select areas of Dantewada for a specific purpose of dislodging the PLGA and for that limited duration only, rather than across the board in Central India indefinitely.


It would appear that the truth lies somewhere between the battle-lines of the Army and the NGOs against the AFSPA.