De-fanging the Armed Forces Special Powers Act

The Armed Forces Special Powers Act (AFSPA) has come in for some sharp criticism in recent years. Its provisions are being reviewed at the highest levels and a decision by the Cabinet Committee on security is expected shortly. While the Ministry of Defence (MoD) and Army HQ are said to be opposed to changes in the basic provisions of the Act, the Ministry of Home Affairs is reported to have recommended a major overhaul of the Act to bring it in line with egalitarian human rights practices.
Commenting on the demands of some political parties and human rights activists to dilute the provisions of AFSPA, General V. K. Singh, the Chief of the Army Staff (COAS), said recently that those who demand its dilution “probably do so for narrow political gains”. Earlier, as the COAS-designate, he had stated: “Any dilution of the Act will impinge adversely on the manner in which the armed forces operate… While operating against terrorists, insurgents and anti-national elements in constrained and trying circumstances, the armed forces need requisite legal protection.” 
Lt Gen B. S. Jaswal, GOC-in-C, Northern Command, responsible for all operations in Jammu and Kashmir (J&K), has likened the Act to a holy book. “I would like to say that the provisions of AFSPA are very pious to me and I think to the entire Indian Army. We have religious books, there are certain guidelines which are given there, but all the members of the religion do not follow it, they break it also… does it imply that you remove the religious book…?” Quite obviously, the Indian Army sees AFSPA as a capstone Act that gives the army the powers necessary to conduct counter-insurgency operations efficiently, without having to wait for civilian magistrates to arrive on the scene of action. The Act also provides its personnel with Constitutional safeguards against malicious, vindictive and frivolous prosecution and considers its provisions mandatory for conducting active counter-insurgency operations. If it is repealed or diluted, the army’s leadership is of the view that the performance of its battalions in counter-insurgency operations will be adversely affected and the terrorists or insurgents will seize the initiative.
Demands for Repeal
However, certain sections of civil society view AFSPA as a draconian Act in today’s day and age and consider it an Act that violates the fundamental rights granted by the Constitution to all the citizens of the country. It has even been dubbed as a license to kill by Syed Shah Geelani, a hard-line separatist Kashmiri leader who is believed to take his orders from his handlers in Pakistan’s ISI. He allegedly masterminded and coordinated the actions of some of the stone-throwing youth of the Valley through his cohorts in June-July 2010. 
The Act has been opposed in the north-eastern states as well. Even before Manorma Devi, a member of the outlawed People’s Liberation Army, was allegedly raped and murdered by soldiers from a battalion of the Assam Rifles in 2004 – allegations which were found to be false, activists in the north-eastern states had been demanding repeal of the Act. Irom Sharmila, a Manipuri civil rights activist, has been on a political fast unto death since November 2000 to force the government to repeal AFSPA from Manipur and other north-eastern states. She is being force fed through the nose in a hospital in Imphal.
Chief Minister Omar Abdullah said in a recent interview, “The perception of the average resident of J&K is that the AFSPA is abused while there is a sense that it is indispensable for the security forces. The Need is to address both views.” Mehbooba Mufti, President of the People’s Democratic Party (PDP) has demanded immediate revocation of AFSPA and the withdrawal of the army from J&K. In her view, the situation does not justify further operations by the army. This runs counter to the fact that infiltration has increased substantially in the summer months of 2010; there is a heightened sense of tension in Kashmir Valley; and, the army had to be called out to enforce a curfew after 15 Kashmiri youth had died in CRPF firing. Various other Kashmiri leaders have also made demands for the repeal of AFSPA. 
Contested Provisions
The Act was promulgated in 1958 in Assam and Manipur and in 1990 in Jammu and Kashmir. The main criticism of the Act is directed against the provisions of Section 4, which gives the armed forces:
The power to open fire and even cause death, if prohibitory orders are violated.
The power to destroy structures used as hideouts, training camps or places from where attacks against security forces could be launched.
The power to arrest without warrant and to use force for the purpose if necessary.
The power to enter and search premises without warrant to make an arrest or recover hostages, arms, ammunition or stolen property.
Human rights activists object on the grounds that these provisions give the security forces unbridled powers to arrest, search, seize and even shoot to kill. They accuse the security forces of having destroyed homes and entire villages merely on the suspicion that insurgents were hiding there. They also point out that Section 4 empowers the armed forces to arrest citizens without warrant and keep them in custody for several days. They also object to Section 6, which protects the security forces personnel from prosecution except with the prior sanction of the Central Government. Critics say this provision has on many occasions led to even non-commissioned officers brazenly opening fire on crowds without having to justify their action.
The criticism is mostly ill-informed and baseless. Critics forget that Section 5 of the Act mandates arrested civilians must be handed over to the nearest police station ‘with the least possible delay’ along with a report of ‘circumstances occasioning the arrest’. Army HQ have laid down that all suspects who are arrested will be handed over to civilian authorities within 24 hours. This instruction is strictly adhered to. As for firing on civilians, the internal instructions are that firing may be opened only in self defence and that too when the source of terrorist or militant fire can be clearly identified. If soldiers were allowed to fire indiscriminately, there would have been hundreds of more civilian casualties and thousands of refugees would have deserted their home and hearth in Kashmir over the last 22 years.
Justice Reddy Committee Report
A committee headed by Justice Jeevan Reddy was appointed in 2004 to review the provisions of AFSPA. Though the committee found that the powers conferred under the Act are not absolute, it nevertheless concluded that the Act should be repealed. However, it recommended that essential provisions of the Act be inserted into the Unlawful Activities (Prevention) Act (UAPA) of 1967. The Second Administrative Reform Commission headed by Mr. Veerappa Moily, now the Union Law Minister, also recommended that the AFSPA should be repealed and its essential provisions should be incorporated in the UAPA. If this course of action is adopted, it would be a retrograde step that will substantially harm the national cause.
The key recommendations of the Reddy Committee were as under:
In case the situation so warrants, the state government, may request the Union government to deploy the Army for not more than six months. If it is considered necessary to extend the army’s deployment, the details of the case should be tabled in the State Assembly. 
The Union government may also deploy the armed forces without a request from the state. However, the situation should be reviewed after six months and Parliament’s approval should be sought for extending the deployment. 
Non-commissioned officers may continue to have the power to fire.
Arrested persons should be handed over to the civil police. 
The Union government should set up an independent grievances cell in each district where the Act is in force.

Indian Army’s Track Record
In over 40 years of counter-insurgency operations in various parts of India, the image of the Indian Army has not been tarnished with the equivalent of a My Lai massacre where an entire village was razed to the ground and most of its inhabitants were tortured and killed in cold blood by an American Lieutenant’s platoon that had gone berserk in Vietnam. The Indian Army has never had a prison like Guantanamo Bay or an interrogation facility like Abu Gharaib. While there have been some individual excesses, committed by soldiers in the heat of the moment – and these have been swiftly punished – the army as an organisation has maintained an exemplary record, in keeping with its professional ethos and venerable traditions. 
The army fights with one hand tied behind the back. Its “iron fist in a velvet glove” counter-insurgency doctrine emphasises the use of minimum force, people friendly operations and simultaneous development work to win hearts and minds. Unlike the scenes from Afghanistan and Pakistan’s NWFP and FATA, seen on television scenes almost every day, heavy weapons like fighter aircraft and artillery are not used for counter-insurgency operations in India. Even a rocket launcher can be fired only with the permission of a senior officer, who invariably assesses the situation personally before giving such permission. Maj Gen (later Lt Gen) Inder Varma almost lost his right arm during a personal reconnaissance of the house in which militants were holed up in Baramulla District in 1993. His Colonel general Staff died on the spot.
The army follows a ‘zero tolerance’ policy towards human rights violations. The army’s determination to bring individual violators of human rights to justice is without parallel. Since 1990, the security forces have been accused of 1,511 cases of human rights abuse. All of these were thoroughly investigated, including by the National Human Rights Commission. 1,473 cases were found to be completely false and had been possibly instigated by terrorist organisations. Where culpability was established, 104 soldiers, including 40 officers, have been punished in 35 cases so far. (Source:  
Lt Gen Harwant Singh (Retd) has written: “Abrogating the AFSPA or removing some of its key provisions in an attempt to make it ‘humane’ could place the security forces at a great disadvantage in their fight against a vicious insurgency. Any watering down of the Act will result in de-motivating the troops whose lawful actions may expose them to decades of litigation in civil courts.”
Extraordinary situations require special handling. As the army does not have any police powers under the Constitution, it is in the national interest to give it special powers for operational purposes when it is called upon to undertake counter-insurgency operations. The promulgation of the AFSPA along with the Disturbed Areas Act is inescapable. Army personnel must be given immunity for any act done in good faith. However, such immunity must not be absolute, nor is it so under the present AFSPA. The Central government can and has sanctioned prosecution where prima facie cases existed. Without these powers, commanding officers and young company commanders are likely to follow a wait-and-watch approach rather than go after terrorists and militants with zeal and enthusiasm and risk prosecution.
On it part, the army must make it mandatory for its battalions to take police personnel and village elders along for operations which involve search of civilian homes and the seizure of property. The practical problems encountered in ensuring transparency in counter-insurgency operations must be overcome by innovative measures. The army must be completely transparent in investigating human rights allegations and bringing violators to speedy justice, with exemplary punishment being meted out where the charges are proved. 
(Gurmeet Kanwal is Director, Centre for Land Warfare Studies (CLAWS), New Delhi.)