By Arsh Rampal
The Army Chiefs, over the years, have been known to be against the dilution/repealing of Armed Forces Special Powers Act (AFSPA) in disturbed areas in India. The current Army Chief General Rawat has joined the long list of such Army Chiefs. Recently, he said that the time has not come for a reconsideration of AFSPA or making some of its provisions milder. The Army Chief added that the army is taking adequate precautions to protect human rights while operating in these disturbed areas.
The statements come at a time when there are reports of several rounds of high-level discussions between the defence and home ministries about the need to remove or dilute some provisions of AFSPA.
Provisions of the Armed Forces Special Powers Act
The Armed Forces Special Powers Act (AFSPA) grants special powers to the Indian Armed Forces. The Act was first applied to the Naga Hills in 1958 which slowly spread to other parts of the Northeast. It has been in force in the state of Jammu & Kashmir since 1990.
Under the Act, once an area is declared as a disturbed area by the Governor of the state or the Central Government, the army can be deployed in these areas to control law and order. The precondition for declaring an area as disturbed is that conditions in the state should require the use of the armed forces to aid civilians. In the case of the AFSPA (Jammu & Kashmir) 1990, it can be imposed when terrorist activities or anti-national activities are taking place in the State.
Immunising the army
Section 6 of the AFSPA (Assam & Manipur), 1958 and Section 7 of the AFSPA (Jammu & Kashmir), 1990 grant immunity to the Armed Forces for their actions. The immunity is from prosecution, suit or other legal proceedings for anything done in the exercise of powers under the Act. Legal proceedings can be brought against the armed forces only with prior sanction from the central government.
Under the Act, the armed forces personnel can fire upon civilians by providing a due warning, even causing the death of civilians in the process. If there exists a reasonable suspicion in the mind of the officer that a person has committed or is about to commit a cognizable offence, he can arrest the person without a warrant. Officers can conduct searches and seizures of property without any warrant based only on a reasonable suspicion. Under the AFSPA (Jammu & Kashmir) 1990, the officer also has the power to break open locks if the key is withheld from him. The AFSPA provides immunity to the armed forces for any action done in the exercise of these powers.
Adequate precautions by the army
The Army Chief acknowledged that AFSPA has strong provisions. He said that the army keeps this in mind and is concerned about collateral damage and ensures that no inconvenience is caused to the local people. He assured that the army is taking adequate measures in order to ensure human rights are not violated. He stated that The AFSPA is an enabling provision which allows the army, in particular, to operate in such difficult areas and let me assure you that the army has got quite a good human rights record.
Are they really adequate?
The statements made by the Army Chief are hard to believe as they came a day after an FIR was filed against the army in Jammu & Kashmir. The FIR has been filed after two civilians were killed by an army firing in Shopian district of Jammu & Kashmir. The state police filed the FIR against the personnel of 10, Garhwal unit, of the Army under sections 302 (murder) and 307 (attempt to murder).
The army was under discussions for similar reasons last year when Major Gogoi tied up a civilian to a jeep in order to tackle stone pelters in Jammu & Kashmir. The particular act was in violation of Indian Armys Standard Operating Procedures, Rules of Engagement, and COAS Commandments. It also did not follow the Supreme Court Guidelines for application of the AFSPA. It violated the fundamental right of the civilian guaranteed under Article 21 of the Indian constitution. The act is an offence under Army Act Section 63 and Section 69, read in conjunction with the IPC. Major Gogoi, however, was awarded Chief of Army Staff (COAS) Commendation Card, the second lowest award in the hierarchy of Gallantry awards.
With many such incidents having taken place continuously since the time the AFSPA has been enforced in states, General Rawats comments carry little value. They fail in proving to be a reason to not dilute or repeal the AFSPA in these areas.
Repealing AFSPA
The states in which the Armed Forces Special Powers Act has been imposed have been asking for its repeal for a long time. The act which was supposed to be a temporary measure to restore law and order has been in effect for decades in these areas. The armed forces have caused irreparable damage to the life and property of civilians residing in the AFSPA imposed regions. The number of disturbed areas in the country has only been increasing since it was first imposed. The Act in its current form has clearly not helped restore law & order in the regions after such a long period of time.
The Act has been said to go against Indias democratic values. The Armed forces arent trained to operate like the police and granting them powers of the police can damage the enforcement of law and order, instead of restoring it. Many international organisations have called the Act undemocratic and in violation of international law. The Supreme Court has stated that an inquiry should be done for the death of every individual killed by the army under AFSPA, regardless of their background.
Dilution, if not repeal
There is a lot of pressure from all sides on the Central Government to repeal the act. The stance of the government and the Chief of Armed Forces on Armed Forces Special Powers Act makes it seem unlikely that the act will be repealed anytime soon. The second best option is to dilute certain provisions of the Act. The judiciary may be laying out guidelines for AFSPAs implementation but the legislation and executive should be the one working on this task. The discussions between the home and defence ministries are one step in that direction. These discussions provide some hope to the civilians in these disturbed areas. The restoration of law & order in these regions shouldnt come at the cost of human lives and property.
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