Domesticating the AFSPA

That the Armed Forces Special Powers Act (AFSPA) is unlikely to be repealed or ‘diluted’ in face of the Army’s objection, voiced no less than by it’s Chief, is fairly certain. This owes less to the credibility of the Army’s position than to other factors such as current state of political will and strength. Not wanting to have the status of civil-military relations under cloud in circumstances when beset by other controversial matters, not taking a decision may be the decision to take.


However, the second order matter of the extent of ‘disturbed areas’ in which AFSPA is operational up for consideration. Confabulations between the Center and the state are ongoing and it seems to be just a matter of who will bell the cat. This is in keeping with the legal requirement of justification of areas declared disturbed being sites of internal disturbance. Statistics justify the move to draw down extent of areas declared as ‘disturbed’.


The Army for its part is clear that even this is not advisable in light of little movement in progressing the Pakistan end of the Kashmir problem. The impending impetus to the process from cricket diplomacy and the meeting of the Home Secretaries is promising but results would only be obvious by the time the foreign ministers meet in the middle of the year. The military would therefore prefer to wait and watch, rather than make moves that may prove premature.


Nevertheless, thinking on which areas have returned to near normalcy should be done in order that in case the three interlocutors come up with recommendations in their report on this, the government is able to move in implementing these. Withdrawing the declaration under Section 3 of the Act from areas where military special powers are no longer warranted by the extant situation can then provide ballast to the report. It could a game changer in terms of preempting any disturbances in the Valley this summer if it is timed for the purpose.


Since the AFSPA is here to stay and is operational even in the North East, there are measures that can help alleviate its baleful presence. These are military, legal and political.


Military measures could be in reformulating the rules of engagement as has been done in Kashmir recently after the Handwara incident. Reportedly the troops are required to issue a fair warning before opening fire. ‘Due’ warning is to be given under Section 4 of the Act. This implies that under conditions of higher order foreign terrorists presence as once obtained in the Valley, ‘due’ warning could even be minimal or no warning depending on the situation. There is no call on troops to endanger their own lives inordinately in first issuing warning and then acting. This would have enabled foreign terrorists to wrest the initiative or to run away. Given that the situation has changed for the better on this score lately, the rules have been reformulated to reflect this as part of a wider ‘Chinar’ doctrine of reaching out for hearts in the Valley under the Corps Commander. Other military measures are dispensing with the area denial tactics such as mass cordon and search etc in favour of intelligence-based pin-point operations. Additionally, Justice Jeevan Reddy committee’s idea of having multiple-level ‘grievance cells’ can be taken up.
Legal measures are under consideration in the law, home and defence ministries. These center round the riders in the Supreme Court judgment in the Nagaland case of 1997. The Court had made four points: employ minimum force; punish transgressions of the parameters of use of force under the Army Act of 1950; grant permissions for prosecution where warranted and give reasons in writing when denying these; and that a review of the ‘disturbed area’ status be done every six months. There are other more ambitious suggestions such are enlarging the ambit of the NHRC by reworking its Article 19.
The Army would not be averse to the formulation ‘minimum necessary force’ since it alone is qualified to judge what is ‘necessary’. It is not averse to excesses being punished and in fact routinely reacts to criticism of its human rights record by statistics of punishments meted out. Currently the offenses are punished under sections such as ‘disobedience’ and the catch-all Section 63 on ‘violation of good order and military discipline’. The Northern Command website on punishments mentions that a mere 13 persons have been cashiered and received rigorous imprisonment over the past two decades in J&K. Insertion of provisions in the Army Act has the advantage that higher order punishments can be mentioned alongside.
The Army is positively against cases where the Section 6/7 immunity from prosecution is removed being tried in the affected states. This would be to leave the fate of the arraigned individuals to a suspect and possibly prejudiced judicial system. This difficulty can be worked around by conducting prosecutions in neighbouring states or under the rubric of the Armed Forces Tribunal. The provision can be inserted into AFSPA. For the latter the Armed Forces Tribunal Act of 2007 can be suitably amended since currently its jurisdiction is restricted to disputes and complaints with respect to commission, appointments, enrolment and conditions of service and appeals arising out of orders, findings or sentences of court martial.
At the political level, there is much that can and needs be done. The review the disturbed area status every six months or one year has been done routinely thus far, making for deepening of vested interests in such areas. An ad hoc parliamentary standing committee can be set up for each area under the AFSPA, i.e. the North East and J&K. This is over and above the standing committees on defence and home affairs. This would ensure a deeper scrutiny of government efforts, including non-military that are underway in such areas. Likewise, every state assembly must have an assembly committee to oversee the multidimensional operations in such areas. This will ensure greater accountability of the government at both levels and enable legislators a greater degree of involvement in resolution efforts. Extension of disturbed areas status would then come under critical scrutiny, requiring the government explanation.
A further step could be the requirement of the principal actors in these areas such as state secretary, police chief and army commander deposing before the committees at both levels. This would ensure that a coordinated plan exists to tackle such situations and the actors can explain how they intend materializing the plan. This is to borrow from the US system in which, for instance, the commanding general in AfPak theatre deposes before the Senate Armed Services Committee periodically. In a recent precedent set, the Services chiefs deposed before the parliamentary committee on defence for canteen stores department related queries. Their interaction with legislators may be more useful on more consequential themes such as the idea here.
The Army’s position indicates that the AFSPA is necessary. Equally, the status quo is not acceptable. A modus vivendi, along lines mentioned here, needs to be arrived at broadly acceptable that can balance military necessity with humanity.
—(W – 1182)
(The author is a Research Fellow, Institute for Defence Studies and Analyses, Delhi).