An Argument in Favour of AFSPA

By RS Jassal *

Free Medical check up in Longmei bazaar at Nonei by AR on April 18 2011 :: Pix - PRO Def Wing Imphal

Introduction

1. A soldier on joining any stream of Armed Forces gives undertaking on completion of his basic training, by oath or allegiance to the Constitution, "I pledge to obey the command of the President under national flag as ordered by my superiors on land, air and sea even at the risk of my life". This is for the security and territorial integrity of our nation. There is no other service where one has to sign such an undertaking. On joining the allotted Regt, his Battalion commander popularly called as CO takes upon him all his cares from toe to head, pocket to bread and home to thread. Same is the case with officers on commissioning and he/she undergoes the same drill.

Govt of India (MOD) takes care for sacrifices made and privations suffered at the IBs, But when called upon to perform duties like to fight the under-grounds/Terrorists/Insurgents/anti nationals, the Arm-ed Forces have to face them, most of the times, with bullets and IED blasts both in urban/towns/built up areas and in ravines, hills and dense jungles.

At the times some security personnel encounter their relatives/friends too from other side but they have to continue to perform their duties even if he has to be apprehended/Killed. Hence Parliament has enacted one civil Act called AFSPA 58 to cover the activities of Armed For-ces to obviate any harassment to them in civil court (s).

2. Aiding the Civil Administration

(a) If civil administration requisitions services of Armed Forces for assisting them to restore miserably strewn law and order by fighting out the insurgents/terrorists till the time their lethal power is blunted or the civil administration gets confident to contain/fight them out with their Police Forces, the areas, zones or the entire state is declared disturbed and Disturbed Area Act is promulgated which means Armed Forces are moved in with cover of AFSPA. The AFSPA provides Armed Forces 'enabling power' to carry out their tasks in good faith and without fear of unnecessary drags in the court(s).

(b) The other occasion when Armed Forces can be called in other than counter insurgency are: if civil riots erupt out on any grounds in any part of India or if civil Police revolts and refuses to perform their duties as had happened in UP under NDA rule and Punjab Police had refused to face armed Khalistani Kharkoos (Kharkoos in Panjabi term is for a terrorist). This service called 'Aid to civil power' is requisitioned at the highest level and Magistrate (normally class one) accompanies Army troops on all occasions. Absolutely controlled situation is restored to the DC who takes over and relieves Army with clearance certificate indicating time & date such service dispensed with. No criminal case is registered in any court even on occurrence of collateral damages, injuries/deaths.

3. Territorial Integrity Saved

Important Internal security operations carried out successfully by Armed Forces against Naxalites were in Andra Pradesh and Orissa in a distance past and in Punjab against Khalistani insurgents in recent past when Punjab continued to be placed under PR for 08 (eight) years and above. At occasions, Army troops had to operate wearing Khaki uniforms too, to boost the sagging morale of civil Police who used to almost refuse to confront Kharkoos (Terrorists)/their sympathizers and to avoid media eye. Ultimately net result, the Army had assisted the civil administration to achieve a win win position.

During most disgusting and trying times when Golden Temple the highest venerated seat of the Sikhs faith was held by Sikh Terrorists under late Sant Bhindrawale control and advance of Infantry was stalled inch by inch in extricating terrorists out of Golden Temple was made a difficult task, Lt Gen RS Dayal was ordered to rid Golden Temple of terrorist's control. He was to take care of the sanctity of sanctro-sanctrum. A tough task indeed! He moved the troops in and taking shelter of armoured tanks had silenced the heavy automatic gun fire from directions Akal Takhat & Darbar Sahib World eyes and ears were fixed on the ongoing operation (Op Blue Star).

Had the AFSPA not been in favour of Armed Forces, such Generals and other officers would have been facing the courts like some other SSP(s) and other Police Officials faced after democratic Govt was placed in position. CrPC was also not found protective enough. No Army officer was harassed after their withdrawal other than allegations put forwarded about removal of Gurudwara Sahib properties/precious possessions but no case was allowed to be made Allegations whether correct or otherwise were difficult to prove but Panjab was put back on democratic rails. Presently Army is operating a Chhattisgarh in a different manner since Centr-al Police were getting devastated by the Maoists there.

4. Situation special to Manipur

In the past three decades, specially since 2004, many military operations against insurgents/terrorists were launched. It was experienced no where any pitched battle was heard to have been fought by any group of UGs, holding to the ground. Their strike power stands blunted as in 2011. Govt of Manipur has relaxed AFSPA by removal from municipal limits.

Picketing by UGs in State Secretariat and other corporate houses to monitor the annual budget for percentage cuts has been neutralized. Important UG leaders have been arrested. Inter State operations to nab UG leaders have picked up momentum and leaders from cosmopolitan cities and from foreign soils are being nabbed and some are facing trial. Many UG organisations have signed SoO. Yet the major and threatening activity creating Psycho fear is on ie EXTORTION.

Coercive threats are given to some politicians not to contest elections. Wresting of supply orders and contracts from the Govt are still on. The State Cabinet is therefore not only hesitant to lift AFSPA from other areas but sometimes thunder out to re-impose it in city areas too on occurrence IED blasts and killings. However its prolonged imposition is also not a healthy sign.

5. Factors affecting L/O causing insurgency environs in Manipur

(a) Myanmar (upper North-West) has Kachin Independent Army Controlled Areas. It is further closer to Kumning and Yunnan (Tibet now China). It is central home to all Insurgents groups of NE and nodal communication point for move of arms, narcotics needed for the terrorists/insurgents to keep insurgency pot boiling. It influences activation of Ledo road for ULFA & NSCN (K) through Sadiya-Tinsukia–Dibrugarh to all directions.

(b) Other than this, entire IB with Nagaland, Manipur, Mizoram and Eastern wing of ArP (Changlang and Tirap), are stimulated for negotiated shelter to UG groups as and when Army operations take place on Indian side, Porous nature of IB and availability of miles together similar ethnic asylums from North to south along IB with Myanmar are other factors affecting military operations.

(c) Bangladesh's hop-changing political hands between BNP and Awami league; BNP generally goes into hands of fundamentalists and thus eroding our border peace giving upper hand to ISI – Chinese forays which juvenates our UG groups whose socio-political and economic demands are difficult to be met Continuous ISI efforts to circulate fake currency into NE and converting ethnic Muslims of Manipur (Pangal Meities) and of Assam to work for larger Islamic Agenda is another ever increasing threat as it can make second base for separatist Islamic fundamentalists of South Asians specially Thailand (Aceh Province) Survival of PULF in Manipur is a warning bell for the combined command in Manipur and Assam. It can also keep communal tensions on the high.

(d) On socio economic front illegal arms and drugs trafficking through Myanmar ie White Mafia will keep on adding to the health of insurgency and it suites many with different comotations.

(e) Political administrative discrimination, divide between hills, valleys, unequal land laws, integrity-cum- disintegrity struggle of valleys and hill people, monetary loot through proliferation of UG organisations with protection from important politicians and influential suits the insurgents to carry on.

(f) Impartial Police Force is always the unifying force for any State/Nation. In Manipur it is visibly doubtful. Hence perforce bureaucracy and No one(s) of the State (Governor and CM) also look to Central Forces (CISF) to take care of their protection. One does not have to have a bigger proof than this.

(g) Merger agreement 1949 for Manipur UGs on one side, unfulfilled point 13 of Sixteen point Agreement NNC/FGN (now NSCNs) for Nagaland on the other side is good enough for insurgent causes as reasons never to close.

(h) Lastly, though not the least, UG groups in Manipur getting proliferated as many as big and small almost 36, Manipur State strategically located on easy route to Golden triangle boosts wishes of many to get rich quick and to the Kachins of Mytkiyana State (Myanmar) which has attained the Status of NE UGs brooding and recouping centre will keep on dictating law and order inside Manipur. KCP from valley openly admitting as Maoists linkage, ULFA and NSCN too with them is another wheep wheep of the times.

6. Permanent Irritant

Some UG groups have taken upon themselves the cleansing of politics task too during local self, State and general elections. All above factors amalgam are responsible for causing continuous serious law and order disturbed blaming insurgency as the root cause on one side and deplorable law and order situation blaming administration for causing insurgency on the other hand. It is a vicious circle.

7. Twin situations and AFSPA : Two regions are inviting AFSPA to be imposed and also to be removed partially as well as to be repealed totally in one case. Kashmir as is known mercenary insurgents and terrorists in support from various Islamic Countries are active there just to keep the tag of international issue tag hanging. Conventional fight at IBs is not possible for them and every time they tried they got beatings badly.

8. Inventing Argument in favour of AFSPA

(a) AFSPA is a Civil Act enacted by the Parliament of India for deployment of Armed Forces to meet violent internal situations created by underground militant outfits to further their illegal and unconstitutional causes. The law provides necessary powers and legal support to the Armed Forces for carrying out proactive operations against the militants in a higher hostile environment.

(b) The AFSPA in general and of Sections 3, 4 and 6 in particular, came up for scrutiny before Constitution Bench of the Apex Court in a case titled 'Naga People's Movements for Human Rights Vs UOI'. The five judges Constitution Bench elaborately dealt with the challenge to the legality of deployment of the Armed Forces in aid to civil power.

The court unambiguously ruled that AFSPA cannot be regarded as a colourable legislation or a fraud on the Constitution. The Apex Court considered and opined that the conferring of powers vide Sec 4 of AFSPA could not be held arbitrary or violative of Art 14, 19 or 21 of the Constitution.

In fact having considered the role and circumstances under which the Armed forces have to operate, the Hon'ble Court extended the scope of powers vested vide 4 and 6 of AFSPA so as to include by implication, the power to interrogate the person arrested. It also allowed the Armed Forces to retain the weapons seized during the operations in their own custody rather than to hand over to police authorities.

(c) Indian Army has well established operational doctrines and have earned the reputation of best Army in duties abroad as well within the Nation. Its secular role in nation building activities stands aloftly upright. Campaign of various organisations/individuals against AFSPA without analysing the implications if AFSPA is removed is to seek weakening of the ultimate law enforcing authority left with Govt of India once it goes beyond capabilities of civil police to handle.

This anti-campaign assists external forces who are hell bent for dampening morale of Armed Forces in achieving their heinous aim. The antecedents of such campaigners need probity and investigation since situation in Manipur is known to them as well which is highly volatile and explosive.

(d) Constitutional Government decides whether a situation warrants Army deployment or otherwise. AFSPA automatically rolls back once Army returns to barracks. Moreover unified central commands with Police – Armed Forces and civil administration under Chief Secretary are paying good dividends and situations in both Kashmir and NE regions are being brought under control.

(e) Partial withdrawal may not prove good. It must be either invoked or completely revoked. How proportionate withdrawal can help? Insurgent is unlawful. Armed Forces trooper is bound by law. If he is chasing some unlawful in his area covered by AFSPA & that UG enters in zone declared 'not covered under AFSPA' will he have to abandon the chase. It puts him to questions of inefficiency, hobnobbing with UGs, blame of assisting insurgents to escape and putting life of his informer(s) in danger at the hands of UGs.

(f) Unified Central Command is the right authority to recommend for withdrawal of Army/AFSPA or otherwise. However period of engagement of Armed Forces on IS duties needs examination and reduced by workable viable.

(g) Critics should not forget Army is moved in only to deal with extra-ordinary situations which definitely needs extra ordinary legislation and AFSPA meets both military as well civil prescriptions.

Conclusion

9. How can India's fresh LE policy options for changing South East Asian region can fructify if its domestic foundations go weak with functioning of groups of people from within its soil inimical to India are allowed to function openly and unopposed within its International Border States like Manipur and Kashmir.

I feel particularly sad about the confusion on AFSPA shot open without capitulating that its invokement and withdrawal is a political expediency to be decided by PMO Secretariat particularly in view of 16th Amendment of the Constitution in 1963 which makes it clear that no activity can be allowed or even advocacy of secession will not have the protection of the freedom of expression.

And what happens when terrorist activity starts bang with loud slogan of secession as in case of Kashmir & Manipur! Will you not deploy Army and if so why Army should not have cover of AFSPA in the same name or similar powers under changed name?