The AFSPA Debate

April 8, 2019 By Lt. General P.C. Katoch (Retd) Photo(s): By Indian Army
The Author is Former Director General of Information Systems and A Special Forces Veteran, Indian Army

 

The Armed Forces Special Powers Act was enacted in September, 1990 on the basis that the whole or any part of the State can be declared 'Disturbed Area' and call for deployment of Armed Forces

The Congress Manifesto for Lok Sabha Elections 2019 asking for a review of the Armed Forces Special Powers Act (AFSPA) has created a ruckus. The Congress manifesto made a specific proposal related to national security in J&K, with the party stating, "The Armed Forces (Special Powers) Act and the Disturbed Areas Act in J&K will be reviewed. Suitable changes will be made in the text of the laws to balance the requirements of security and the protection of human rights." The BJP's response has been through multiple political leaders through different platforms. But most significant one was by Union Home Minister Rajnath Singh. Addressing an election rally in Gautam Buddha Nagar recently, he said that Armed Forces Special Powers Act can be withdrawn from Kashmir once normalcy is restored, adding, "We have strengthened the hands of our soldiers with AFSPA in disturbed areas where extremists and terrorists run their activities. But Congress wants to weaken our soldiers and security forces. We will not let this happen." Rajnath also said that the Centre had already withdrawn ASFPA in Tripura, parts of Arunachal Pradesh and Meghalaya. Commenting on the recent outcry over the possibility of scrapping Articles 370 and 35A, which vests special powers to J&K, and how such a move may trigger widespread resentment in the Valley, he said that the government has not said anything on the matter yet. "Are they dreaming that we are abolishing it? We haven't said anything on it as yet. Why are they hallucinating?

Separatists there will have to cooperate in the development of Kashmir. Whatever we will do, will be in the best interests of Kashmir." But Rajnath's claim "we have strengthened the hands of our soldiers with AFSPA in disturbed areas" is yet another joke for which political leaders have become quite famous. The AFSPA was not invoked in J&K by Rajnath Singh or the BJP-led NDA II. In fact, the infamous Shopian Incident of January 27, 2018 was just a sample of how the Defence and Home Ministers let down and failed to stand by the soldiers as the state administration continued to side with terrorists and their abettors. The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 was enacted in September, 1990 on the basis that if the Governor of Jammu and Kashmir or the Central Government, is of opinion that the whole or any part of the State is in such a disturbed and dangerous condition that it can be declared 'Disturbed Area' and call for deployment of Armed Forces, then this Act can be imposed. Declaration of 'Disturbed Area', if the Governor or Central Government, in its opinion, thinks there exists a dangerous situation in the said area which makes it necessary to deploy armed forces in the region to prevent:

  1. Terrorist acts aimed at overthrowing the government, striking terror in the people, or affecting the harmony of different sections of the people, and;
  2. Activities which disrupt the sovereignty of India, or cause insult to the national flag, anthem or India's Constitution.

To put it simply, AFSPA comes into play 'after' a state or part of a state is declared "Disturbed Area" and the Armed Forces are called in. Most importantly, an area is declared 'Disturbed Area' when the state administration has become defunct and cannot control the situation with police forces. The fact unknown to the public is that the AFSPA was NOT drafted by the Armed Forces, either for Northeastern States or for J&K. AFSPA was enacted for J&K after due deliberations and debate in Parliament. There is no denying that the situation in J&K is volatile, particularly in the five-six districts of Kashmir Valley, aggravated by the BJP-PDP coalition government while Pakistan continues to fan radicalization and terrorism. Any dilution in AFSPA will assist Pakistan, terrorists and separatist forces. A close examination would establish that factually AFSPA is as humane as it is possible. Yet, time and again, it is the Armed Forces, particularly the Army, that is under fire with respect to AFSPA. The Army certainly doesn't enjoy being used against own citizens but any dilution of AFSPA will imply reducing Army's effectiveness to that of police.

Continuation classification of any area as 'disturbed' must be questioned and the state administration needs to be put under the knife, not physically but for the lack of administration. Take away the 'Disturbed Area' tag and the problem of AFSPA will be resolved, with the Army reverting to its primary task of defending the borders. The Army anyway is being forced to shed some 1,00,000 manpower. The state administrations can look after themselves with police forces, augmented by Central Armed Police Forces.