'Army
personnel must be given immunity but such immunity must not be absolute, nor is
it so under the present Armed Forces Special Powers Act.' Brigadier Gurmeet
Kanwal (retd) lists why India must not do away with the controversial AFSPA,
but ensure enough transparency to avoid confrontation with human rights.
Referring to the
continuation of the Armed Forces Special Powers Act, senior political leaders
no longer in government have insinuated on national television that the Indian
Army has been given a veto over the decisions of the Cabinet Committee on
Security. Can this ever be true?
The army, navy and
air force chiefs are not even permanent invitees to meetings of the CCS; they
attend only those meetings to which they are invited by name.
It is the army
chief's rightful responsibility to give his recommendations on issues on which
his advice is sought by the defence minister and it is up to the latter and the
prime minister to accept or reject it.
The army has been and
continues to remain scrupulously apolitical and senior political leaders,
whether in the government or not, must not create false perceptions.
As for AFSPA, the Act
has been under review for quite some time.
While the defence
ministry and Army headquarters are opposed to changes in the basic provisions
of the Act, the home ministry is reported to have recommended a major overhaul
of the Act to bring it in line with egalitarian human rights practices.
The Army clearly sees
AFSPA as a capstone enabling Act that gives it the powers necessary to conduct
counter-insurgency operations efficiently.
The Act provides army
personnel with Constitutional safeguards against malicious, vindictive and
frivolous prosecution.
These powers are
available to the police under the Criminal Procedure Code, CrPC.
If AFSPA is repealed
or diluted, it is the army leadership's considered view that the performance of
battalions in counter-insurgency operations will be adversely affected and the
terrorists or insurgents will seize the initiative.
However, certain
sections of the civil society view AFSPA as a draconian Act.
It has been dubbed as
a license to kill by Syed Ali Shah Geelani, a hardline separatist Kashmiri
leader.
The Act has been
opposed in the north-eastern states as well. Irom Sharmila, a Manipuri civil
rights activist, undertook a long fast that began in November 2000 to force the
government to repeal AFSPA from Manipur and other north-eastern states. (Sharmila
ended her fast on August 9, 2016 and declared her intention to become the chief
minister so that she could repeal AFSPA.)
AFSPA was
promulgated in 1958 in Assam and Manipur and in 1990 in J&K. 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.
It also confers 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;
and, 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 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 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.
Critics forget that
Section 5 of the Act already mandates that 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 has laid down
that all suspects who are arrested will be handed over to civilian authorities
within 24 hours.
Regarding firing on
civilians, the army's instructions are that fire may be opened in towns and
villages only in self defence and that too when the source of terrorist or
militant fire can be clearly identified.
If soldiers had been
opening fire indiscriminately, there would have been hundreds of more civilian
casualties in J&K since 1989-1990 when the insurgency had begun.
A committee
headed by Justice Jeevan Reddy was appointed in 2004 to review 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 of 1967.
The key
recommendations of the Reddy Committee were:
- In case the situation so warrants, the
state government may request the Union government to deploy the army for
not more than six months.
- 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.
- The Second Administrative Reforms
Commission headed by then Union law minister M Veerappa Moily also
recommended that 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.
- 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 in disturbed areas. Hence, the promulgation
of AFSPA along with the Disturbed Areas Act is inescapable.
Army personnel must
be given immunity but 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 actively pursue hardcore terrorists with
enthusiasm and risk being embroiled in long-drawn litigation, which may be
based on false allegations.
On its part, the army
must make it mandatory for its battalions to take police personnel and village
elders along for operations which involve the search of civilian homes and the
seizure of private 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 allegations of violations of human
rights and bringing the violators to speedy justice. Exemplary punishment must
be meted out where the charges are proved.
Brigadier Gurmeet Kanwal (retd) is Distinguished Fellow, Institute for
Defence Studies and Analyses, New Delhi.