Armed Forces Special Powers Act in J&K

The AFSPA was carefully drafted in 1958 to equip the forces with legal powers to respond swiftly and without encumbrance in counter-insurgency situations. The AFSPA was extended to J&K in 1990, where even the CrPC is not applicable

Issue: 2 / 2017By Lt General V.K. Kapoor (Retd)Photo(s): By Illustration: Anoop Kamath

The debate on the removal/retention of Armed Forces Special Powers Act (AFSPA) from certain districts of Jammu and Kashmir (J&K) has once again taken the centre stage. Political parties in J&K have traditionally come to power on positions of sympathy. Both Omar Abdullah’s National Conference and Mehbooba Mufti’s People’s Democratic Party (PDP) have always projected themselves as representing Kashmiri interests to the Centre. Both blamed an obdurate Centre for their failure to remove AFSPA from the state. While Omar Abdullah found himself backing off from his promises, pushed from revoking AFSPA altogether to removing it from a few areas to not at all, the PDP, which had always made the repeal of AFSPA an article of faith, found itself meeting the BJP halfway to form a state government in 2015. In the “Agenda for Alliance” signed off by the two parties, it cautiously agreed to “examine the need for denotifying disturbed areas”.

What is AFSPA and Why was it Enacted

AFSPA was enacted in 1958 to bring under control what the Government of India considered disturbed areas. It was first implemented in Manipur and Assam in 1958, following the Naga movement. The Central Government empowered the Governors of the states and administrators of union territories to take a call whether the areas of that particular state or union territory is disturbed or not.

The armed forces were meant to fight external aggression. Internal employment was meant to be only in exceptional circumstances. Thus, they were not equipped with any powers — like the police forces are — for internal situations. The AFSPA was carefully drafted in 1958 to equip the forces with legal powers to respond swiftly and without encumbrance in counter-insurgency situations. The AFSPA was extended to J&K in 1990, where even the CrPC is not applicable. J&K has the Ranbir Penal Code wherein, unprotected by an alternative legislation, Army personnel could be arrested for virtually any perceived excesses. Soldiers would be literally forced to confine themselves to the barracks!

In the case of AFSPA (Manipur and Assam) 1958, the Government of India used Article 355 of the Constitution to confer power in the hands of Governors. “Keeping in view the duty of the Union under Article 355 of the Constitution, inter alia, to protect every State against internal disturbance, it is considered desirable that the Central Government should also have power to declare areas as ‘disturbed’, to enable its armed forces to exercise the special powers”. Later “The Armed Forces (Assam and Manipur) Special Powers Act, 1958” were substituted by “The Armed Forces (Special Powers) Act, 1958”, getting the acronym of AFSPA, 1958.

Jammu and Kashmir Disturbed Areas Act

The Jammu and Kashmir Disturbed Areas Act, which extended legal immunities to the state police in notified areas, had lapsed in 1998. And the last time the J&K Government had notified disturbed areas under AFSPA was 2005, which meant a six-month review was long overdue. But the legalities are blurred in practice anyway. For instance, the J&K AFSPA stipulates that the power to declare areas disturbed lies with the Centre or the State Governor. But officials in the Union Home Ministry claim the Centre had only notified a few areas and the state government had spread the scope of the law across J&K. So it was in the state administration’s power to withdraw it from these districts, they said.

Winning Hearts and Minds

The quibbling over legalities and the blame games cover up for a worrying displacement. In spite of the government’s protestations, armed forces are no longer used merely in aid of civil power. In many areas of J&K, the army has become the face of the state.

Sadbhavana project of the Army has taken on economic and developmental roles that should have been reserved for governments, laying roads, starting schools, doling out scholarships, providing employment and skills training. Many of these schemes were aimed at “winning hearts and minds”, making the army more people friendly. Even senior generals have protested, however, that the task of reaching out to hostile groups and disaffected sections of the population lies with politicians. Yet it is common knowledge that the GOC Corps in Srinagar is in touch with the civilian government and its ministers. This becomes more pronounced because the homegrown militants are often known to the political hierarchies of all political parties and the political leaders with their local contacts are some of the best sources of information.

Over the years, the civilian leadership has ceded space to men in uniform and slowly lost legitimacy in Kashmir. It is a tall order, then, to expect this leadership to cut down on powers and immunities granted to the armed forces. Moreover the militancy graph has waxed and waned over the years and at no time has the political leadership expressed its desire to take over the reins of the government completely and send the army back to the barracks. The truth is that in the current situation normal governance is not feasible and the political parties are aware of this fact even though from time to time they do make media statements regarding the removal of AFSPA. However to acquire a proper understanding of the AFSPA, one needs to study the circumstances prevailing in J&K and the need for the Act. The AFSPA can be revoked by the Governor of J&K or by the Central Government at the recommendation of the J&K cabinet. For this to occur the Chief Minister has to win the confidence of her entire cabinet.

Police and the Army

They are simultaneously engaged in similar or related roles. If you compare the powers of the police under the CrPC vis-à-vis the Army under the AFSPA, it’s evident the police enjoys more encompassing powers relating to arrest, search, summoning of witnesses, and preventive detention. Similarly the Central Police Forces function under the State Director General of Police and have the same powers and protection as the State Police where as the Army is in “Aid to Civil Authorities”, including riots and agitation. They can only act on the written orders of a civil magistrate. In fact, this illustrates the difficulty in anti-terrorist operations. Can you imagine soldiers waiting for the magistrate’s written permission to open fire while terrorists strike and disappear?

Major General G.D. Bakshi (Retd) writes in an article in the Times of India on November 18, 2011: “The scale of militarisation of the current internal conflicts is not generally understood. In J&K alone, the Indian Army has since 1990 recovered over 80,000 AK series rifles; over 1,300 machine guns; over 2,000 rocket launchers; some 63,000 hand grenades and 7 million rounds of ammunition.”

Impact of Withdrawing the AFSPA

The situations in J&K or the North East are in no way a consequence of the AFSPA, which is merely an instrument that helps the Army keep a lid on conflicts born from socio-political and economic causes. The withdrawal of the act from Manipur saw the return of terrorists, and the state has become virtually ungovernable. Withdrawal of the AFSPA from J&K, as is being demanded from time to time will bring all military operations to a dead halt and any hurry on our part to dismantle the apparatus which has brought near normalcy to the state is fraught with danger. Moreover if it is withdrawn from certain areas of J&K, those areas will become the stronghold of the terrorists because the Army will not be able operate without the protection enabled by the AFSPA. Some senior political leaders have contended that the Army does not operate in Srinagar but this is incorrect. Each morning the Army and a few companies of the Central Reserve Police Force (CRPF) sanitise the strategic road through the city for the logistic convoys of the Army to move to Kargil and Ladakh for the critical winter-stocking tasks. The road and an area of nearly 3 sq km on either side has to be sanitised. The airfield in Srinagar has to be sanitised to ensure that no surface-to-air missiles (SAMs) or remotelypropelled grenades (RPGs) are fired at the aircraft.

Srinagar is the hub of all political activity in J&K and crucial intelligence, even about line of control (LoC) crossings, is gathered in these urban centres. Premature removal of the act from these areas would be highly counterproductive. Once removed, AFSPA cannot, in practice, be reimposed in a hurry.

The AFSPA is enforced only in exceptional circumstances. So the only occasion to modify, dilute or withdraw the Army’s powers can be when you agree that such circumstances have ceased to exist. Wholly or partially withdrawing AFSPA is rightly a political call, but the consequences must be understood. Like in Manipur, such areas would turn into terrorist havens and politicians, so vociferously calling for withdrawing the act, would find themselves totally impotent!

State-sponsored Proxy War by the Neighbour

Many argue that despite the act being in force for years the situation remains unchanged. To that the Army rightly points out that in J&K, the jihadi terror camps are located in the neighbourhood and a statesponsored proxy war is being waged by our neighbour. The entire terror infrastructure is intact and this fact drove Foreign Secretary S. Jaishankar to say on February 14, 2017, that Pakistan needs to shut down “terrorism factory” and there is now international concern about it.

The military can at best prevent the situation from getting out of control but has no powers to destroy the terror camps deep inside unless the nation decides to strike well beyond the borders and is prepared to go to war. Surgical strikes in September 2016 jolted Pakistan and their Army as it showed the change strategy on part of India. However, neither country wants a war at this time and hence even surgical strikes just across the LoC can have limited gains at best. If on the other hand the situation in Jammu and Kashmir is seen as an internal conflict then in any case military intervention can never be the solution to internal conflicts. Imposition of the AFSPA can only be a means to achieving a measure of stability after which the political leadership needs to get its act together. But sadly, opportunities have repeatedly been squandered. J&K and the North East are essentially political and bureaucratic failures — the gentlemen who sit behind desks in protected rooms are the ones to blame. Unfortunately, they have all become conveniently accustomed to govern through military force.

Sanctions to Prosecute Army Personnel in Human Rights Violations

In J&K, barring a few, the majority of the complaints have been duly dealt with. Moreover in a large number of instances the complaints were proved to be false and fabricated. The Army is obviously not very good at managing public perception. But the one thing they can be proud of is that in the Army never allows a rogue to exist amongst their ranks, and act ruthlessly the moment one is noticed. However, one cannot deny that some cases may have gone unnoticed or unproven. The Army will need to be even more vigilant in this regard.

Impact of Dilution or Removal of the AFSPA

The Army is of the opinion that they have to act whenever ordered. But what this will lead to is rendering it as ineffective or inefficient as police forces. It is a choice the politicians must make because no soldier in his right senses would be willing to take the necessary risks unless he was protected. After all, these men are called upon to engage highly motivated, battle-hardened terrorists.

Amendments to the Act

The Justice Jivan Reddy Commission has gone into precisely this, and has made its recommendations. The report was submitted to the government in June 2005. But our feeling is that this legislation has stood the test of time. We must understand that things are much worse now than when AFSPA was legislated. Dilution is not recommended, if anything, the act must be revisited to see how it can be strengthened to meet emerging challenges, perhaps also including means to deal with the rogues. The Army would be only too happy to be kept aloof from these operations which they call “dirty operations”. It is a fact that most state police forces have been literally emasculated by politicians, and the nation has no other option but to fall back on using the only apolitical force there is.

Conclusion

India has already experienced the era of the early 1990s when the Soviets had just left Afghanistan, and a large number of trained and unemployed terrorists were diverted to J&K. There is no gain-saying that it won’t happen this time due to withdrawal of US/NATO forces from Afghanistan. Constant vigil is the need of the hour.