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30 May 2012, Gateway House

AFSPA: National necessity or human rights violation?

The Armed Forces Special Powers Act (AFSPA) confers special powers upon the Indian army in disturbed areas, and legitimizes any actions they may take. The law, however, has been misinterpreted by many. Are calls for the revocation of the AFSPA warranted or misplaced?

Brigadier (retired)

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Among the recommendations released on May 24 by the government-appointed interlocutors for Kashmir, is a review of the Armed Forces Special Powers Act (AFSPA). Its recommendations are reflective of the rising public ire against the Act and the presence of the army in Kashmir and India’s north east.

Over the years, there have been several voices of protest. There is the 11-year-long fast of Irom Sharmila, a Manipur activist demanding a repeal of the law, which has recently received much media attention. In 2004, various civil society groups in Manipur launched an intense agitation after the death of Manorama Devi, a civilian, while in the custody of the Assam Rifles. In 2005, following her death, the then Union Home Minister visited Manipur and instituted a commission under Justice Jeevan Reddy, which also asked for the modification or repeal of the AFSPA. In 2011, the chief minister of Jammu and Kashmir (J&K), Omar Abdullah, too asked for the AFSPA to be lifted from the state. In March this year, the UN and other organisations, both nationally and internationally, have also jumped into the fray, asking for the repeal of AFSPA in the North East and Jammu and Kashmir.

The law, however, has been misinterpreted by many to mean that it allows the army to commit “atrocities” against the Indian people. Are these calls for the revocation of the AFSPA warranted or misplaced?

To determine that, it is necessary to examine the context in which the AFSPA is used.

During exceptional situations of internal disturbance in India, the Indian Army is called in to quell the potential and actual violence. In such a context, the army is given extraordinary powers under the Armed Forces Special Powers Act. According to the Indian Constitution, the armed forces cannot be deployed against Indian citizens unless a local government or the central government asks the army to intervene in a situation that the government is unable to handle. In short, the army is called in only after local police action has failed and insurgents have gained an upper hand. The danger in such a situation is that it is possible for insurgents to take over and make a state secede from the Union. This is obviously unacceptable in any democracy.

The AFSPA was first enforced in the North East in 1958; due to the extreme law and order situation, the central government classified the North East as a “disturbed area.” After 1958, the AFSPA has been incrementally applied to cover the seven states in the North East. The law has also been in force in large parts of Jammu and Kashmir from the 1990s.

The AFSPA grants the army “special powers” which have to be used with extreme care. The law gives the army powers to shoot to kill, destroy property and temporarily detain suspects. Army personnel acting under the AFSPA are immune from all actions taken under other laws of the Indian Penal Code, the Criminal Procedure Code and civil suits, unless otherwise sanctioned by the central government.

By any reckoning the AFSPA enables harsh powers, but tough situations require tough measures. Critics of the AFSPA may not recognise that insurgents are now often well-trained. Insurgent or rebel groups may be funded and armed by foreign powers with the intention of creating a secessionist movement within India. The trained rebels carry modern arms and munitions which are often better than what the local police carry, and they use this fire power to inflict huge casualties on the security forces. A case in point is the massacre, in a single ambush, of more than 70 men of the Central Reserve Police Force by Maoist rebels in Dantewada in the state of Chattisgarh in April 2010.

The army is called in only when secessionist violence crosses the threshold of being a law-and-order problem that the police cannot handle. The armed forces are trained to be aggressive, to fire for effect, to be lethal; it is this training that makes the army more successful than the police in counter-insurgency operations.

The army’s efficiency translates into pressure on rebels, and the insurgents may force the local population to agitate against the “draconian” AFSPA. Unlike many in the general population, the insurgents know that revoking the AFSPA would mean withdrawing the army – which is exactly what they want.

On its part, the army has a poor and archaic public information system. The inadequacy of the information system comes from the army’s ostensible need for “secrecy” which requires hierarchical sanction at various levels. The army’s explanation for what occurred after an incident is usually defensive and too little, too late.

The human rights aspects of this law also need to be clearly understood. Civilian casualties in areas of insurgency tend to be cited as “atrocities” committed by the army. It is important to remember that in most counter-insurgency situations the rebel fires first, he also almost always takes cover behind innocent bystanders, he is not in uniform and the weapon is the only thing that differentiates him from a civilian. In such crossfire, civilians will be injured or killed as in any war zone. The army cannot be faulted for this.

This does not mean that atrocities or human rights violations should be condoned. The differentiator should be casualties caused in the heat of battle versus those caused in cold blood to gain awards or recognition.  Killing to gain recognition does occur on occasion, but when seen as a percentage of the quantum of troops deployed, the duration of their deployment and the number of times they have been in violent situations, such casualties are too small a number to justify revoking the AFSPA in the name of “gross misuse.”

The army is more than fair about investigating abuses and if they err, it is usually against their own men. In an analysis done in 2011 of human rights violations involving army personnel, the army demonstrated that only 54 out of 1511 reported cases since 1994 were found to be true; 129 persons have been punished by the army in these cases. The punishments awarded by the army are severe and exemplary, including dismissal from service and life imprisonment.

The army has become a target of criticism by default, when the real responsibility rests with the government. Deploying troops under the AFSPA is aimed at preventing secession of strife-torn states from the Indian Union. Keeping potentially separatist states in the Union by deploying the army is always a political decision.

Without the army’s counter-terrorism measures under the AFSPA, India could have lost Jammu and Kashmir in the 1990s. The government at the time had almost given up, but the army stood firm in its constitutional duty to safeguard and retain every inch of Indian territory. This remains the standing order for the army to this day.

The army could work on building an informed and broad-based consensus on the dangers of secession through a more effective public information system. In many instances, once the insurgents get across their version first—and this has happened in Sri Lanka, J&K, the North East, and Punjab in 1984—it becomes very difficult for the army to correct the picture already painted and to rectify the information imbalance.

The debate then should focus not on whether to invoke, modify or dismantle the AFSPA, but on how best to use the army in situations of internal conflict. When the army is used, the nation needs to see the use of military power as a fa
ilure of governance. Secessionist movements in the country signify the failure of politics, and it is up to the government to resolve the root causes. Until then, the AFSPA keeps the army empowered, and the law remains a necessary weapon of last resort.

Xerxes Adrianwalla is a retired Brigadier of the Indian Army and a regular contributor to Gateway House: Indian Council on Global Relations.

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