Wednesday, Jun 19, 2019 | Last Update : 03:12 PM IST

AFSPA: A law that is little understood

Syed Ata Hasnain, a retired lieutenant-general, is a former commander of the Srinagar-based 15 Corps. He is also associated with the Vivekananda International Foundation and the Institute of Peace and Conflict Studies.
Published : May 23, 2019, 12:25 am IST
Updated : May 23, 2019, 12:25 am IST

In anticipation of all this, a little analysis and basic information will be good for better understanding of actions.

AFSPA empowers the Army to work without any reference to civil authority and provides protection from prosecution to those soldiers who may inadvertently make mistakes in the course of duty.  Photo: Representational/PTI)
 AFSPA empowers the Army to work without any reference to civil authority and provides protection from prosecution to those soldiers who may inadvertently make mistakes in the course of duty. Photo: Representational/PTI)

Every few months the Armed Forces (Special Powers) Act, or AFSPA, rises like a phoenix from the ashes, to be bandied around, beaten and pummelled, placed on a pedestal or cast into the bin and finally gets stored for recovery another day. The public understanding about it remains poor, the political community never goes to the depth to determine why it is such a contentious issue each time and even the Army, for whom it exists, does not really care to educate its ranks sufficiently about it. The ill-informed perception with which it is discussed and the lack of documented military experience about its application over 30 years does nothing to enhance the degree of understanding. That leaves it open to perception problems too. A classic example is the ignorance with which the government in J&K once felt it was within its purview to remove it without reference to any other authority. The truth is that AFSPA is a Central law. Its application comes into effect once there is a notification of “disturbed area” status, either in the entire state or in some affected districts. The Centre can delegate its powers to the state to recommend removal of the “disturbed” status which will then entail automatic annulment of AFSPA in that district or tehsil.

The issue of AFSPA, under international human rights scrutiny, is likely to go back to its contentious status once the new government comes to power at the Centre later this month, for a couple of reasons. First, the law is proposed to be withdrawn from the entire state of Assam, where it was imposed on November 27, 1990 in the wake of the Ulfa insurgency. This is likely sometime after July 31, 2019, the last date for the process of the National Register of Citizens (NRC) to be completed. Second, the AFSPA remains in force in three and a half other states — Nagaland, Manipur, three districts of Arunachal Pradesh and J&K. Sooner than later, issues around the justification of this will get thrown up. The Congress Party has placed two issues related to AFSPA in its manifesto; one that AFSPA be removed from some districts of J&K, but only in consultation with the Army, and two, that the law be comprehensively reviewed; but it does not give details on what the review should involve. In anticipation of all this, a little analysis and basic information will be good for better understanding of actions.

Just remember that AFSPA is a legal provision to overcome the weakness of the law when the Army comes out on requisition for “aid to civil authority”. In that status, it functions in supervised mode under the civil authority and can use firearms on its own only in self-defence. That is no good for situations involving organised anti-national activity. AFSPA empowers the Army to work without any reference to civil authority and provides protection from prosecution to those soldiers who may inadvertently make mistakes in the course of duty. The protection is not a blanket one, as many allege, but is conditional inasmuch that only the Central government can sanction prosecution.

Removing AFSPA from Assam can be justified especially since intelligence agencies probably certify that the networks which support anti-national activities have been neutralised. In addition, the much-improved relationship with Bangladesh now prevents safe havens for the separatist and terrorist leaderships. However, if any post-NRC actions are likely with the potential breakdown of order, then the government will have to cater for Army support only through the clause — “aid to civil authority”. With reference to AFSPA in the other Northeastern states, there is only a single insurgent group, the NSCN (IM), with whom a ceasefire is in place and an unreliable seizure of operations with a few others in Manipur. The border with Myanmar poses a challenge due to the terrain offering much advantage to the plethora of insurgent groups. The golden rule is that where networks exist or have potential for resurgence, the terrain and border-related issues are against the security forces and deep-set alienation exists, the necessity of AFSPA will be felt. The two Northeastern states remain on the cusp and could swing either way to normality or chaos, necessitating its continuation. The same is true of Jammu and Kashmir, where in addition to the conditions outlined above there is the existence of a proxy war by Pakistan. None of the terror training camps, launchpads and other infiltration infrastructure has been wound down and the separatist leaders continue to remain adamant with alienation of the local population at a high. Removing AFSPA means disempowering the Army and returning it to the Line of Control, a measure that the Congress party also wishes to pursue as part of its manifesto. When it consults the Army, as it has promised to do, it will be clearly told that nothing having changed on the other side of the LoC and the intent of Pakistan remaining intact, the potential of resurgence to levels which threaten the integrity of J&K remains alive. The presence of the Army on the grid is necessary because J&K is vulnerable even to potential conventional conflict and the Army’s lines of communications cannot have compromised security at any time. The aspect of removal of “disturbed” status from two districts of Kashmir and two of Jammu, as a political sop, is not acceptable in security terms because the presence of the Army is necessary to secure the airports, lines of communications and large garrisons which fall within.

Most of AFSPA’s problems revolve around perception. Its original draft catered for the security environment of the time (1990 in J&K, 1958 for others), but contingencies have overtaken it. No one could perceive that the harsh language of empowerment of the 1990s would assist the detractors to label the law as draconian. The truth that the Army and the government have never been able to project is that the maximum powers AFSPA places with soldiers have seldom been employed and the principle of “minimal force” continues to dictate. It is also not realised that manipulated accusations against the Army are being executed through a focused system of psychological and information warfare. The Congress Party’s proposal to review AFSPA should not be taken as a political ploy; it should be used as a national need by whosoever is in power. In fact it should be a more comprehensive review of the J&K strategy, which must also include the strengthening of information and influence strategy. AFSPA’s content need not have any extraneous details except the issues of empowerment and protection because more the detail the greater the accusations. No one seems to remember that the Supreme Court in 1997 had restricted the Army through its directions called “Do’s and Don’ts”. The Army’s standard operating procedures make it even more restrictive and the military civic action that the Army follows religiously, under the label of “Sadbhavna”, bring greater humanisation to its operations. All this needs to be placed as explanatory notes in the reviewed AFSPA draft to tell the world and people within India how the Indian Army follows the principles of respect for human rights — all under AFSPA.

Tags: afspa, national register of citizens