by Yogendra Bali
On September 11, the Armed Forces Special Power Act, enacted this day by the Indian Parliament in 1958, completed 52 years of its existence. The Act, served the civil administrations in Jammu and Kashmir and the North East effectively in combating cross-border terrorism. However, it has in, recent times, become target of criticism. Demands for its withdrawal have been raised, specially from Jammu and Kashmir in the North and Manipur in the East. Are these demands justified? Or are they the product of some ignorance and confusion about the word “Power” which is part of its formal nomenclature?
In order to be impartial between sense and nonsense, it is necessary to understand that the Armed Forces Special Power Act, gives no police powers to Army. The Army cannot enforce its presence in any state for internal security purposes on its own without the civil government concerned declaring a particular area in its jurisdiction as ‘disturbed area’ and ‘requesting’ the Army to come to its aid.
The critics, however, have never lost any opportunity to indulge in Army bashing on issues of “high handedness” and “violation of human rights”. Of course such criticism is countered by others as “politically motivated” and “voice of the vested interests”. They point out that wherever the Indian Army has gone, it has taken the welfare of the local people as its first priority also, using “heart as a weapon” and Sadbhavna or goodwill as the spirit. They point out to the surrender of several militant groups in the North East and the popular Kashmir Premier League Chinar Cup project as outstanding examples. They also underline the Indian Army contribution to UN peacekeeping missions in several parts of the world.
Demands for repeal or amendment of AFSPA specially come from areas infested by separatism combined with militancy that seldom talk of senseless killing and continuous “violation of Human Rights” by terrorists and militants. If a bomb blast outside the Delhi High Court kills several innocent litigants and lawyers or innocent citizens lose their lives in Mumbai blast, no voice is heard condemning the known and unknown killers of violating human right to live. Why?
The antagonists of AFSPA are ever active and widely reported in the media. It would be fair to listen to the protagonists too.
The case of the protagonists is that The Armed Forces Special Powers Act (AFSPA) was enacted in 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 different 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 from 5 July 1990. Initially the Government had declared areas falling within 20 km of LC in districts of Rajouri and Poonch and the districts of Anantnag, Baramulla, Budgam, Kupwara, Pulwama and Srinagar as disturbed.
Subsequently in Aug 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 and Line of Control witness trans-border move of militants from their camps and 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 and 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.
The essence of the important Sections of AFSPA is as under :
(a) Sec 3. lays down the authority which has power to declare areas to be disturbed. These authorities are the Central Govt and the State Govts.
(b) Sec 4. gives the Army powers to search premises and. Make arrests without warrants, to use force even to the extent of causing death, destroy arms/amn dumps, fortifications, Shelters and hideouts and to stop, search and seize any vehs.
(c) Sec 6. stipulates that arrested persons and seized property is to be made over to the police with least possible delay.
(d) Sec 7. offers protection of persons acting in good faith in their official capacity. Prosecution is permitted only after sanction of the Central Govt.
The mere fact that the provisions of AFSPA have to be invoked with regard to a particular area ex facie establishes that the law and order situation in the said area had degenerated to such an extent that the State Govt with the aid of Police power at its disposal was unable to maintain peace and tranquility. A natural corollary to the above would be that if the Armed Forces, who are called upon to assist the State administration in restoring normalcy, have to succeed in their task, they enjoy at least the similar powers as the Police force if not wider ones. A perusal of the various powers available to the Police authorities under the provisions of the CrPC vis-a-vis those available to Armed Forces under AFSPA would reveal that the police authorities still enjoy more encompassing and wider powers relating to arrest, search, seizure, summoning of witnesses, preventive detention etc than the powers enjoyed by the Armed Forces.
One of the most important task in promoting, human progress is to maintain a proper balance between the interest of the individual and those of the democratic society. Individual freedom has to be balanced with the freedom of other individuals and with reasonable demands of the community and general public. 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. Then is unwanted criticism of AFSPA contempt of court.
Then what is wrong with AFSPA? The word “Power”? Then why not rename the Act, the Armed Forces Special Services Act.