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.

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.

Why AFSPA is necessary?

The proposed amendments to the Armed Forces Special Powers Act (AFSPA) will greatly reduce the effectiveness in counter-insurgency and counter-terrorism operations. If battalion, company and platoon commanders of units engaged, who have been fearlessly leading from the front in such operations, start becoming apprehensive about being legally proceeded against for killing terrorists mostly externally instigated supported, then we will lose the valuable cutting edge.

This, in a nutshell, is what said by a number of serving officers currently engaged in these operations and retired officers with long standing experience of the same.

Army authorities have to be taken into confidence and their nod was necessary for amending or withdrawing the AFSPA. If Government gives weightage only to political opinion it could invite problems for it because there are fears that in the absence of any legal protection the security forces may be forced to be on the defensive which could leave a free space for militants to operate. Has any government agency or committee suggested how to deal with the contentious issue?

The Armed Forces Special Powers Act (AFSPA)-1958 was enacted by the Parliament on 11 September, 1958 to provide necessary powers and legal support/protection to Armed Forces for operations against insurgents in a highly hostile environment and it has enabled them to effectively contain insurgency and establish stability in the region. AFSPA-1958 is currently applicable in Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura and Tirap and Changlang districts of Arunachal Pradesh.

Subsequently, Parliament enacted the Armed Forces (Jammu and Kashmir) Special Powers Act 1990, effective since 5 July 1990, initially to areas falling within 20 km of the Line of Control with Rajouri, Poonch, Anantnag, Baramulla, Budgam, Kupwara, Pulwama and Srinagar districts declared as disturbed. In August 2001, it was extended to Jammu, Kathua, Udhampur, Poonch, Rajouri and Doda, when these districts were declared disturbed. What is interesting to note that people of last 6 districts have not called for it’s repeal. Unlike parts of Kashmir, population of these areas is predominantly pro-Indian and actively resists terrorists which try to sneak in across LOC.

The fighting capability of terrorists in J & K and the North East and has considerably improved over the years in terms of increasingly sophisticated weapons, high tech gear and finance.. Many groups even have women cadres also.

Troops and Central constabulary forces are operating in a hostile environment, in tough terrain and weather conditions, exposing themselves to grave dangers, maintaining a high degree of operational effectiveness while they are simultaneously, required to be extremely cautious in avoiding any collateral damage and loss of innocent life or property.

For sake of an example, lets talk about tactics of terrorists in Kashmir. One of their favourite modes of attack is to blend in civilian population and attack while taking cover behind human shields or from civilian houses. Kashmiris wear a long loose robe like garment called firan which covers whole body from neck to toes. What these terrorists do is to dress in same firan and hide a few grenades and gun inside the robe which effectively hides the bulge of weapons, allowing them to walk up to security check points and ambush unsuspecting security personnel. Another tactic is to attack convoys or soldiers on patrol from civilian houses, then try to run away.

Operating in such conditions often surrounded by hostile population demands that security forces do have special powers. They need to act fast without going through the hassle of obtaining proper paperwork. Wasting time on such frivolities will do nothing except provide terrorists with a heavens sent means of escape.

Successes in operations and any violation or perceived violation attract attention of overground anti national factions / elements with vested interests and also the media, which in a democracy, they should. After some of the current exposes which including Radia tapes, Cash for Votes, ISI’s Fai among many others, one should always be sure of loyalty of people who are making noises about removal of this act. Many of the people supporting removal of this act have been proven guilty of associating with ISI’s spy Fai and also taking money from dubious sources.

While most of the allegations made 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 :

(a) Section 3 empowers the Central and State Governments to declare areas as disturbed.

(b) Section 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/ammunition dumps, fortifications/ shelters/hideouts and to stop, search and seize any vehicles.

(c) Section 6 stipulates that arrested persons and seized property is to be made over to the police with least possible delay.

(d) Section 7 offers protection of personnel 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 there had degenerated to such an extent that the State Government 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.

However, close perusal of the various powers available to the police under the provisions of the CrPC vis-a-vis those available to Armed Forces under AFSPA would reveal that the police still enjoy more encompassing and wider powers relating toarrest, search, seizure, summoning of witnesses, preventive detention etc than the Armed Forces.Adequate checks and safeguards are built in the AFSPA to prevent the Armed Forces from assuming sweeping powers. Violations of its provisions are liable for legal action/prosecution. DO’s and DONTs issued by the Army, duly approved by the Supreme Court are binding on all ranks.

Then what is wrong with AFSPA? The word “Power”? Then why not rename the Act, the Armed Forces Special Services Act.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.

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.

Why AFSPA is necessary?

The proposed amendments to the Armed Forces Special Powers Act (AFSPA) will greatly reduce the effectiveness in counter-insurgency and counter-terrorism operations. If battalion, company and platoon commanders of units engaged, who have been fearlessly leading from the front in such operations, start becoming apprehensive about being legally proceeded against for killing terrorists mostly externally instigated supported, then we will lose the valuable cutting edge.

This, in a nutshell, is what said by a number of serving officers currently engaged in these operations and retired officers with long standing experience of the same.

Army authorities have to be taken into confidence and their nod was necessary for amending or withdrawing the AFSPA. If Government gives weightage only to political opinion it could invite problems for it because there are fears that in the absence of any legal protection the security forces may be forced to be on the defensive which could leave a free space for militants to operate. Has any government agency or committee suggested how to deal with the contentious issue?

The Armed Forces Special Powers Act (AFSPA)-1958 was enacted by the Parliament on 11 September, 1958 to provide necessary powers and legal support/protection to Armed Forces for operations against insurgents in a highly hostile environment and it has enabled them to effectively contain insurgency and establish stability in the region. AFSPA-1958 is currently applicable in Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura and Tirap and Changlang districts of Arunachal Pradesh.

Subsequently, Parliament enacted the Armed Forces (Jammu and Kashmir) Special Powers Act 1990, effective since 5 July 1990, initially to areas falling within 20 km of the Line of Control with Rajouri, Poonch, Anantnag, Baramulla, Budgam, Kupwara, Pulwama and Srinagar districts declared as disturbed. In August 2001, it was extended to Jammu, Kathua, Udhampur, Poonch, Rajouri and Doda, when these districts were declared disturbed. What is interesting to note that people of last 6 districts have not called for it’s repeal. Unlike parts of Kashmir, population of these areas is predominantly pro-Indian and actively resists terrorists which try to sneak in across LOC.

The fighting capability of terrorists in J & K and the North East and has considerably improved over the years in terms of increasingly sophisticated weapons, high tech gear and finance.. Many groups even have women cadres also.

Troops and Central constabulary forces are operating in a hostile environment, in tough terrain and weather conditions, exposing themselves to grave dangers, maintaining a high degree of operational effectiveness while they are simultaneously, required to be extremely cautious in avoiding any collateral damage and loss of innocent life or property.

For sake of an example, lets talk about tactics of terrorists in Kashmir. One of their favourite modes of attack is to blend in civilian population and attack while taking cover behind human shields or from civilian houses. Kashmiris wear a long loose robe like garment called firan which covers whole body from neck to toes. What these terrorists do is to dress in same firan and hide a few grenades and gun inside the robe which effectively hides the bulge of weapons, allowing them to walk up to security check points and ambush unsuspecting security personnel. Another tactic is to attack convoys or soldiers on patrol from civilian houses, then try to run away.

Operating in such conditions often surrounded by hostile population demands that security forces do have special powers. They need to act fast without going through the hassle of obtaining proper paperwork. Wasting time on such frivolities will do nothing except provide terrorists with a heavens sent means of escape.

Successes in operations and any violation or perceived violation attract attention of overground anti national factions / elements with vested interests and also the media, which in a democracy, they should. After some of the current exposes which including Radia tapes, Cash for Votes, ISI’s Fai among many others, one should always be sure of loyalty of people who are making noises about removal of this act. Many of the people supporting removal of this act have been proven guilty of associating with ISI’s spy Fai and also taking money from dubious sources.

While most of the allegations made 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 :

(a) Section 3 empowers the Central and State Governments to declare areas as disturbed.

(b) Section 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/ammunition dumps, fortifications/ shelters/hideouts and to stop, search and seize any vehicles.

(c) Section 6 stipulates that arrested persons and seized property is to be made over to the police with least possible delay.

(d) Section 7 offers protection of personnel 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 there had degenerated to such an extent that the State Government 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.

However, close perusal of the various powers available to the police under the provisions of the CrPC vis-a-vis those available to Armed Forces under AFSPA would reveal that the police still enjoy more encompassing and wider powers relating toarrest, search, seizure, summoning of witnesses, preventive detention etc than the Armed Forces.Adequate checks and safeguards are built in the AFSPA to prevent the Armed Forces from assuming sweeping powers. Violations of its provisions are liable for legal action/prosecution. DO’s and DONTs issued by the Army, duly approved by the Supreme Court are binding on all ranks.

Then what is wrong with AFSPA? The word “Power”? Then why not rename the Act, the Armed Forces Special Services Act.

Author: Robin, Guwahati