Do we really need the AFSPA ?

Yogendra Bali *

A special law, enacted by the Parliament of India, to meet very special internal security situations, the Armed Forces Special Powers Act (AFSPA), has become the object of controversy in recent times. It has very strong antagonists and some equally strong protagonists. That raises the question : Do we really need the AFSPA al all ?

The foremost among the AFSPA antagonists are the pro-militant and pro-separatist elements stretching from Jammu and Kashmir in the North to Assam, Nagaland, Manipur, Arunachal and Tripura in the North East.

The protagonists of the AFSPA, first passed by the Indian Parliament in 1958, tend to argue that the militants in different parts of the country exploit popular anger and frustration of the people at the failures of the civil administration on the development and welfare fronts. It has to be stopped.

In order to get to the root of the problem one needs to take a look at the wider scenario where underground outfits have created violent security situations to further their causes and AFSPA had to be enforced.

With failure of laws meant to protect the people, the militant outfits combined with the vicious divide and rule legacy of the British colonial rule sought to turn the unity of India in grand diversity into a bedlam of disintegration and destabilisation. Ironically enough, some of the separatist and militant organizations turned to the some policy of divide and rule as the British masters pursued.

Let us take a look at the background of the AFSPA. The Armed Forces Special Powers Act (AFSPA)-1958 was enacted by the Parliament on 11 September 1958, to provide necessary powers and legal support and protection to the Armed 'Forces for carrying out proactive operations against the insurgents in a highly hostile environment. Since then the Armed Forces have been able to effectively contain insurgency and establish stability in the region.

With the ongoing insurgency in North East, the AFSPA-1958 is currently applicable in the States of Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura and Arunachal Pradesh. Subsequently the Parliament enacted the Armed Forces (Jammu and Kashmir) Special Powers Act 1990 for the State of Jammu & Kashmir which came into effect wef 5 July 1990.

Initially the Government had declared areas falling within 20 km of LC in districts of Rajouri & Poonch and the Districts of Anantnag, Baramulla, Budgam, Kupwara, Pulwama and Srinagar as disturbed. Subsequently in August 2001 the AFSPA was extended to districts of Jammu, Kathua, Udhampur, Poonch, Rajouri and Doda when these were declared disturbed.

An analysis of ground realities vis-a-vis situation in early 1950's makes it evident that the fighting capability of insurgents and militants in the North East and Jammu & Kashmir have considerably improved over the years. They possess sophisticated weapons, modern communication equipment and have moral and financial support from across the borders. Many groups even have, women cadres. Areas close to the International Border or Line of Control witness trans-border move of militants from their camps/hideouts in neighboring countries.

Armed Forces have to operate in varied terrain environment such as thick forests in far flung areas and also in the built up areas ranging from small hutments and villages to towns/cities where the insurgents have established their training camps and support bases. "Hence, the troops have to operate in a hostile terrain and population environment exposing themselves to grave dangers demanding very high degree of operational effectiveness.

At the same time the Armed Forces are required to be extremely cautious in avoiding any collateral damage and loss of innocent life or property. Thus the Armed Forces are under pressure and have to exhibit extreme caution in conducting operations in populated areas. Any violation or perceived violation attracts media attention and that of the factions with vested interest. On most occasions, the allegations are false and fabricated. Operating under such environment requires a protective law which is not overarching as it is perceived to be.

It is the duty of the State to harmonize the rights of the individual on one hand and with the requirement of the community on the other. The Central Government vide Art 355 of the Constitution of India is duty bound to protect every State not only against the external aggression but also internal disturbances and to ensure that the governance of every State is carried out in accordance with the provisions of the Constitution of India.

It is also an established fact that the judiciary is the custodian of the Constitution. An independent judicial system performs better than any other agency to maintain prefect equilibrium between the liberty of the. individual and the powers of the State. It is in this light, it is emphasized that the Hon'ble Supreme Court of India has upheld the constitutional validity of the Armed Forces (Special Powers) Act. The court further observed that the instructions issued by the military authorities in the form of 'DO's' and DON'Ts' while acting under the AFSPA are to be treated as binding instructions which are required to be followed by the members of, the Armed Forces.

Adequate checks and safeguards are built in the AFSPA to prevent the Armed Forces from assuming sweeping powers. Violations of its provisions are liable for legal action and prosecution. The DO's and DON'Ts issued to the units having found approval of Apex Court have acquired legal status, are binding on the troops which are restraining factors to ensure the guidelines are taken very seriously and promt disciplinary action is taken against the defaulters under Army Act 1950.

It is reiterated that the Armed Forces of the Union deployed in aid of the Civil Powers have to operate in the State concerned in co-'operation with the Civil Administration to deal with the situation affecting maintenance of public order which has necessitated the deployment or Armed Forces so that normalcy is restored. Thus the governance of the State yet remains in the hands of Civil Administration and not taken over by the Armed Forces, as is wrongly perceived by many people.

From bare reading of the Act, it appears that security forces enjoy vast powers, which are akin to the powers vested in the local police, yet power to investigate the offences remains reserved with the police alone.

By analysing the issue of safeguard further, it would transpire that the protection envisaged is for only those persons, who act in good faith in discharge of their official duties and not otherwise. Acting in good faith would mean to act without any malice in the discharge of the official duties, i.e., exercising due care and caution. Sec 7 of the Act reads thus :-­
"Protection of persons acting in good faith under this Act. No prosecution, suit or other legal proceeding shall be instituted except with the previous sanction of the Central Government against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act."

The protection under Section 7 would not be available to a member of the security forces, who commits acts which constitute criminal offences not in the discharge of his official duties even in the area which has been declared as disturbed. The sine qua non for the applicability of Section 7 is that the offence charged, be it one of commission or omission, must be one which has been committed by the member of section forces in his official capacity.

In the stringent operating environment it is but human to make mistakes. While mistakes do occur the guilty must be justly punished. Army has been unilaterally taking disciplinary actions against defaulters under the Provision of the Army Act.

Prosecution Cases. Cases where J&K Home Department has sought sanction from Central Government for prosecution of Army personals under AFSPA :­
a) Total cases received since 1990 - 38
b) Cases investigated - 36
c) Under investigation - 02