Lift AFSPA wherever possible, don't repeal it

Two developments in Kashmir during the past fortnight have brought the focus back on the Indian Army and the much-misunderstood Armed Forces (Special Powers) Act, 1958.

First, the killing of two teenagers in Badgam by troops of Rashtriya Rifles and the subsequent admission by the Northern Army Commander, Lt Gen DS Hooda that ‘our boys made a mistake,’ has given a handle to the critics of the AFSPA fuelling once again the oft-repeated demand to repeal the law.

However, the verdict in the high-profile Machil fake encounter case of 2010 that sentenced 5 Army men to life under the Army Act, 1950 (the punishment will have to be confirmed by the Northern Army Commander) within days of the Badgam incident has silenced—even if momentarily—critics of Army’s justice system.

But going beyond the immediate, a closer look is needed at the AFSPA and the circumstances under which it has come to acquire such negative connotations. Discussion on the law however gets clouded by emotions, distrust and even lack of understanding about the circumstances under which it is applied.

Remember, the AFSPA, when promulgated in 1958 to empower the Army in combating the nascent Naga insurgency, was meant to be an emergency law. Unfortunately, in the all-round mishandling of the aspirations in the north-east and the multitudinous rebellions it spawned in the region, the AFSPA, and not the all-round failure of the Indian state, been demonised. Instead of being used in short spurts, the AFSPA has been allowed to be applied continuously for 56 years. Who is responsible for this state of affairs? Not the Army, surely. After all, it is deployed after the police and other agencies fail.

So who is to be blamed? It must squarely lie with the political executive.

Take the case of Assam. For the past decade at least, the Tarun Gogoi government could have let the police and the central police forces handle the remnants of insurgency still active in some parts of the state. But he has repeatedly resisted any move to drastically reduce or even end the Army’s counter-insurgency role. And if the Army has to operate in an internal security scenario, it needs the protective umbrella of the AFSPA just as the police operate under the IPC and CrPC.  

The mere fact that the provisions of AFSPA have to be invoked in a particular area ex facie establishes that handling the law and order situation had gone beyond the control of the state government.  The Army personnel, operating in those circumstances need to enjoy at least similar powers as the Police force if not wider ones.  So, just as Section 45 of the CrPC disallows arrest of public servants (read police and CPAF personnel in this context) and just as Section 197 provides impunity against prosecution, Section 7 of the AFSPA gives similar protection to the Army personnel. Nothing more, nothing less. And yet, most opponents of the AFSPA have chosen to either downplay or completely ignore this similarity. In the case of J&K, the Army needs legal protection all the more since applicability of CrPC is disallowed in the state that operates under a different set of law called the Ranbir Penal Code.

The circumstances too were different than those in the North-east.

When the AFSPA was made applicable in the state of J&K in 1990, India was fighting a proxy war fuelled by an implacable adversary. In the past 25 years, the country’s collective efforts have brought down all known parameters of violence down to manageable levels with the help of the Indian army.  For a quarter century, the Army was the only functioning government agency in most parts of Kashmir. But it’s certainly time for the Army to ‘step back’ a little in J&K and allow the civil administration to start playing their part in providing good governance.

That said, while there may be a comparative decline in terrorist violence, there is no change in the Pakistani ideology and will to support proxy war in J&K. The infrastructure to support such a proxy is all intact and being regularly upgraded.  Between 35 and 42 training camps are active in Pakistan-Occupied Kashmir. Moreover, counter terrorist operations by the army are not restricted to the Line of Control but cover the entire state.  Administrative support including convoys carrying Army personnel and stores moving to the LoC pass through urban areas in the hinterland and are vulnerable to terrorist attacks. Hence AFSPA cannot be applied in pockets of J&K along the LoC while withdrawing the Act from the remaining areas, as is being advocated by Chief Minister Omar Abdullah or even former Home Minister P. Chidambaram.

The army has sound reasons to resist withdrawal of AFSPA. For instance, it says lifting of AFSPA from urban areas / large towns in J&K will result in terrorists seeking shelter in such areas and rebuilding their bases, as has been witnessed in Manipur’s capital Imphal, post-2004.

Moreover, all lines of communication in J&K pass through population centre and have to be kept open at all cost. The Army garrison / strategic assets are spread over in population centres and de-notification will render them vulnerable to terrorist action and hence require separate security arrangements. Any action taken by the Army personnel in these areas will be governed by Ranbir Penal Code which does not confer immunity from arrest will further complicate the issue.

The revocation of AFSPA from any area needs a concerted view of all organs of the State and Centre. A suggested way is to convert these areas into Police administered areas/ Police districts as was done for Srinagar initially without revoking AFSPA. Subsequently as the situation improves, while evolving the revocation, an exit strategy needs to be worked for gradual withdrawal of armed forces from the specified area leading to smooth transition.

Lifting the AFSPA can certainly be attempted but the provisions of the AFSPA, as an emergency law that empowers the Army—the nation’s instrument of last resort-- must however continue to remain on the statute books given the increasingly violent and uncertain times that the sub-continent is likely to face in coming years. When needed, it must be applied in small doses. Every country has to balance the need for a stringent law with the basic principles of ensuring human dignity and human rights. Therein lies the challenge for India’s leadership.