AFSPA: A soldier's perspective

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Over the past few weeks there has been a raging debate about the relevance and the effectiveness of the Armed Forces Special Powers Act of 1958 in the insurgency affected states of Jammu and Kashmir and the Northeast. There are three distinct positions that have been taken in this debate: those who favour annulment of the Act; those who like to see it amended; and those who prefer the status quo.

Most civil society activists condemn the Act on the grounds that it violates basic human rights and values, and therefore call for its abolition. Another view held by a mix of people argues that the law needs to be amended to align it with the values of a free, liberal and democratic Indian state. The security forces assert that the law is critical for the conduct of counterinsurgency operations. In its absence, they fear they will be significantly hobbled from carrying out routine CI operations.

This debate creates an odd predicament amongst the common citizenry, who while clearly appreciating the role of the security forces, do not seem to recognize its acute legal necessity.

India's Insurgencies

This commentary attempts to explain as to why this law is necessary if the security forces are to resolutely contain the internal unrest and insurgencies that threaten the nation's cohesion and integrity. It is not implied that the other two views are irrelevant; but the argument needs to be viewed in the context of the enormity of security challenges confronting the country. Successive insurgencies have necessitated the deployment of the security forces to contain them.1 And the Indian state consciously decided, and rightly so, to legitimise these deployments through legislation.

In the given circumstances, the Security Forces' perspective can be argued at three broad levels: the administrative necessity of the Act; its relevance at the tactical level; and the risks of dilution in terms of undermining national security.

Necessity

It is often simplistically argued that the security forces need the Act. This is actually quite misleading since the State alone can under a constitutional statute declare an area as "disturbed" and decide upon the "deployment" of the central paramilitary or the armed forces. It is invariably seen that the following circumstances drive the employment of the security forces:

Administrative failures have time and again contributed to insurgencies in the past. Once they have erupted, the local functionaries and the police forces have proved inadequate in coping with them. As a result, the states are simply forced to turn to central paramilitary forces or the army for protection of life and property.

Having undertaken concerted counterinsurgency operations over time, the affected states have simply failed to make capital out of the "peace dividend" delivered by the security forces. This has often resulted in their extended presence with no signs at all of return to normalcy.

Consequentially, the security forces have a right to seek legal provisions to undertake operations for three fundamental reasons. One, a soldier unlike a policeman is not empowered by the law to use force. Next, while operating in far flung areas, it is simply not possible to requisition the support of magistrates every now and then. Lastly, their employment is an instrument of `last resort` when all other options have been exhausted.

There is no gainsaying the fact that political necessity drives deployment of the security forces for internal security duties. The forces are aware that they cannot afford to fail when called upon to safeguard the country's integrity. Hence, they require the minimum legislation that is essential to ensure efficient utilisation of combat capability. This includes safeguards from legal harassment and empowerment of its officers to decide on employment of the minimum force that they consider essential. The absence of such a legal statute would adversely affect organisational flexibility and the utilisation of the security capacity of the state.

Legalities at the Tactical Level

It is equally relevant at this stage to examine the legal challenges at the tactical level. The Act, passed in the context of secessionist and separatist movements, confers certain "special powers" upon members of the armed forces in areas declared "disturbed" in the insurgency affected states of northeast, namely Nagaland, Manipur, Mizoram, Tripura, Assam and Arunachal Pradesh, and the state of Jammu and Kashmir.

2 The principal articles of the Act, namely 4(a), 4(b), 4(c) and 4(d) empower the armed forces to undertake counter insurgent operations at the tactical level. Article 4(a) authorises any officer, commissioned and non-commissioned, to use force for maintenance of public order. Article 4(b) empowers the forces to destroy a fortified position, cache or an arms dump. Article 4(c) empowers the arrest, without warrant, of a person who has committed a cognisable offence, but with the caveat (stated under Article 5) that the individual be handed over to the local police at the earliest possible opportunity; and Article 4(d) permits search, without warrant, of suspected premises to recover arms, ammunition and explosive substances.

Obviously, the absence of these four legal provisions would render the security forces incapable of fulfilling their assigned role. In brief, it would imply that a soldier cannot fire upon a terrorist, take necessary action to destroy a hideout, arrest a suspect when in doubt, and lastly search any premises to recover arms and ammunition. It is therefore not at all surprising that while several activists often raise their voice against the law, the affected states are hesitant in recommending the annulment of the Act. They realise the consequences of dilution in governance in the absence of an effective law and order enforcement capacity.

Risks of Dilution

The annulment of the Act, as being debated by sections of the civil society, could prove disastrous at the central and the state government levels. Three issues merit attention:
Firstly, it would dilute the capacity of an important instrument of the state – the armed forces - to tackle the security challenges faced by the country.
Secondly, it would motivate the insurgent leadership, field cadres and their over ground supporters to engage in reckless damage to public life and property. It may well result in a security situation which slides beyond redemption, necessitating major political compromise.
Thirdly, the annulment of the law and the resultant lack of security cover would adversely affect the governance and development capacities in the insurgency affected states, and the eventual redress of local grievances.

Even the mere dilution of the Act could have serious repercussions at the tactical level. It could result in loss of morale and reluctance amongst the security forces to undertake operations fearing litigation, thereby leading to a slow tempo of operations.

A frail legal standing would embolden the insurgent/terrorist organizations and their over ground workers (OGWs) to level frivolous allegations resulting in the military leadership appearing more often in courts rather than in leading counter-terrorist operations. The judiciary too is likely to be targeted by the insurgents/terrorists to make them pliant thereby posing an additional security burden. Also, over a period of time judicial standards and rectitude could deteriorate leading to a loss of faith in the system.

In the absence of legal provisions, the state and the soldier would be vulnerable, and in turn fail to provide the security, development and governance needed to prevent the insurgency affected states from descending into greater chaos.

Looking Ahead

It is therefore extremely important that the security forces' perspective is not lost in the clamour for annulment of the Act. A soldier makes significant personal sacrifices in his life, and all that he wishes is that the nation accepts his contribution in difficult conditions, and does not drag him to court for undertaking a task assigned to him. He surely seeks reasonable immunity while acting in good faith to prevent destruction to life and property.

It would also be important to put to rest the much overstated argument that the security forces shelter errant personnel from prosecution. The prosecution figures speak for themselves. 3 Stringency in conduct of operations has been an imperative in the past and unequivocally emphasised by the country's political and armed forces leadership in recent times.

Given the stakes involved, the need for reasoned, honest and informed debate is nothing short of critical. It is important to appreciate that polemical charges against the armed forces will do little to either enhance the cause of human rights or improve the quality of counterinsurgency operations.

The principal losers, in the process, will be the law-abiding citizenry of the country, and the state itself, in which we all pride ourselves so much.

1. These include Naga insurgency in the 1950s and 60s, Naxal movement in 1970s, Sikh extremism in 1980s, Assam unrest in late 1980s and early 1990s, Jammu and Kashmir in 1990s and the emerging red terror in India's heartland.

2. Article 1 list out the title and extent of the Act; Article 2 explains a few generic definitions; Article 3 elucidates on the constitutional powers of the state to declare an area as disturbed; Article 4 devolves upon the security forces special powers to undertake operations at the tactical level; Article 5 explains the lawful disposal of arrested persons; and Article 6 provides legal immunity from prosecution.

3. An article titled, 'The Age Debate: Diluting for Immunity?' in The Asian Age, Delhi, 3 June 2010 states that, that out of the total 950 allegations recorded by the National Human Rights Commission, a mere 28 cases (0.02 per cent of the total allegations levelled) involving some 50 personnel (as against the strength of 1,100,000 personnel) have been found viable enough to proceed against legally.