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Posted at: Apr 16, 2019, 7:33 AM; last updated: Apr 16, 2019, 7:45 AM (IST)

Tinkering with AFSPA can be counterproductive

Lt Gen Raj Kadyan (Retd)

Lt Gen Raj Kadyan (Retd)
The proposed dilution of the Armed Forces Special Powers Act betrays unjustified lack of confidence in the Army’s internal justice system. The Army’s result-oriented approach would suffer and its operational effectiveness stand degraded. The Army needs our support, not our suspicions and sniping.
Tinkering with AFSPA can be counterproductive
Mandate: The Act empowers the Army to maintain public order in disturbed areas.

Lt Gen Raj Kadyan (Retd)
Former Deputy Chief of Army Staff

THE 2019 election manifesto of one of the main political parties promises to amend the Armed Forces Special Powers Act (AFSPA) to “remove immunity for enforced disappearance, sexual abuse and torture”. While no one condones such offences, nor does the perceived immunity exist. The issue needs comprehensive discussion so that populism does not sideline pragmatism.

The Armed Forces Special Powers Ordinance of 1942 was promulgated by the British on August 15, 1942, to suppress the Quit India Movement. The Act in its present form — The Armed Forces (Assam and Manipur) Special Powers Act, 1958, was passed by Parliament on September 11, 1958, and was applicable to the Naga Hills. In subsequent years, its territorial scope expanded to cover other north-eastern states. It was also applied in Punjab between 1983 and 1997. Since 1990, AFSPA is in force in Jammu & Kashmir.

The Act is applied only in ‘disturbed areas’. A state government is empowered to declare an area as ‘disturbed’ when the scale of unrest or instability becomes too large for its integral forces to handle. In such cases, the state government calls for Central help. By Act 7 of 1972, the power to declare areas as ‘disturbed’ was also extended to the Central Government.

In a civilian setting, soldiers have no legal tender. This is where and why AFSPA comes to bear — to legitimise the presence and acts of armed forces in emergency situations which have been deemed war-like.

The Act empowers the Army to maintain public order in disturbed areas. They assume the authority to prohibit a gathering of five or more persons in an area, and to use force, including opening of fire after giving due warning, if they feel a person is contravening the law. On reasonable suspicion, the Army can also carry out the arrest of a person without a warrant; enter or search a premises without a warrant; and ban the possession of firearms.

No army in the world gets involved in handling a civil situation without legal cover. It is a common misperception that AFSPA provides total legal immunity to soldiers to act wantonly outside the ambit of law. Instead, it is only an enabling Act and implies that the state authorities require permission from the Central Government before legally trying soldiers for acts committed while being deployed in areas covered by AFSPA. In addition to the civil law, the soldiers continue to be concurrently covered by the Army Act.  The Indian Army has a very proud record on discipline. No commanding officer can run a disciplined unit if the soldiers under his charge are ‘let loose’. The Army does not overlook any act of indiscipline. Major Leetul Gogoi’s case is illustrative of the Army’s fairness and impartiality. When he displayed commendable ‘out of the box’ thinking that saved human lives, he was duly rewarded. However, when he committed an offence by leaving his operational post without permission, he was punished.

It is well known that Pakistan’s aim in its proxy war is to demoralise the Indian Army and erode its operational effectiveness. One of the methods they have adopted continually is to level false allegations against soldiers and get them embroiled in legal cases. This is done through the supporters and sympathisers of the militants making false allegations.  In some cases, locals, even if not in sympathy with the militants, are pressured into filing fake charges against Army personnel. Statistically, more than 97 per cent of the allegations made against soldiers in J&K have been found to be false.

The infamous incident of Kunan Poshpora is an example. On February 23, 1991, an Army unit had launched a search and interrogation operation in the twin villages of Kunan and Poshpora in Kupwara district. It was alleged that at least 100 women were gang-raped by soldiers that night. The Human Rights Watch put the number to be as high as 150. The incident received wide media coverage.

In response to continued criticism, the Army requested the Press Council of India to investigate the incident. Their team concluded that the charges against the Army were a “well-concocted bundle of fabricated lies” and “a massive hoax orchestrated by militant groups and their sympathisers and mentors in Kashmir and abroad for re-inscribing Kashmir on the international agenda as a human rights issue”.

Let us see the two-fold effect the dilution of AFSPA would have on soldiers individually and on the Army as an organisation. A soldier is ordered to move to insurgency-affected areas without his consent, and possibly, against his will. Once there, he is ordered into operations that may involve inter alia search of individual houses suspected of harbouring terrorists. This renders him vulnerable to allegations. If he is also told that some of these allegations would require him to defend himself in civil courts, which could drag on for years, his reluctance to operate heartily is easy to visualise. He would rather play safe and avoid actions that could get him into legal trouble. The Army’s result-oriented approach would suffer and its operational effectiveness stand degraded. The proposed dilution of AFSPA also betrays unjustified lack of confidence in the Army’s internal justice system.

Since Independence, the Army has remained embroiled in tackling internal security problems. It has always done the country proud. They face a daunting task and need our support, not our suspicions and sniping. The scare of prolonged legal entanglement and the resultant over-cautiousness can prove seriously counterproductive in the overall context.

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