Revisiting AFSPA Don’t blame it for Kashmir problems

by Gen (retd) V P Malik

KASHMIR is burning. Political leaders from the state, civil and human rightists, even the media will have you believe that the Armed Forces (Special Powers) Act 1958 (AFSPA) is responsible for this situation and should be revoked or diluted to help resolve the crisis. The Centre, after looking at the situation in a holistic manner and listening to the armed forces’ advice, finds it difficult to decide.

What is the AFSPA? Why is this Act necessary? But first, let me narrate a real situation that took place 20 years ago. In early 1990 I was commanding a division that had troops deployed for counter-insurgency operations in Manipur, Nagaland and a part of Arunachal Pradesh. During the run-up to the Manipur Assembly elections, a political party leader, in order to garner students’ support and votes, made the removal of the AFSPA a major electoral issue. When he won the elections and became the Chief Minister, I went to call on him. I asked him what he planned to do about the AFSPA. He said that in view of the “popular demand”, he would write to the Home Ministry and have it removed from the state. I told the Chief Minister that it was OK with me. I will pull out troops from the 60-odd posts, concentrate them outside Manipur and train them for their primary role of fighting a conventional war.

“But you cannot do that! What will happen to the law and order situation?” he said. I appreciated his concern and told him politely but firmly that I couldn’t help him to maintain that without a proper legal cover. I said: “I cannot have my subordinates hold me responsible for giving them any unlawful command.” Then, very respectfully I stated, “Sir, the best way out is to create conditions in the state wherein the AFSPA is not necessary. If you and the Centre do not consider and declare Manipur state to be a ‘disturbed area’, the AFSPA cannot be applied. Please do not blame the AFSPA for the problems of Manipur. The fact is that despite several elections in the state, we have not been able to create conditions when this Act need not be applied in Manipur. The armed forces cannot create those conditions. These are primarily of political, ethnic and socio-economic nature, under your charge now.”

The AFSPA was enacted by Parliament in 1958 for the “disturbed areas” of the North-East. Later, it was extended to “disturbed areas” declared anywhere in India. It has four essential paragraphs. Para 3 states that if the Governor of a state/Union Territory or the Central Government is of the opinion that the whole or any part of the state/Union Territory is in such a disturbed or dangerous condition that the use of the armed forces in aid of the civil power is necessary, the government by an official gazette notification may declare the whole or affected part to be a “disturbed area”. Para 4 states that “a commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces in a disturbed area may:

• Fire upon/use force, even causing death, against any person contravening law and order or carrying weapons, ammunition or explosives, if in his opinion it is necessary for maintenance of law and order and after giving due warning.
• Destroy an armed dump or fortified position or a shelter from which armed attacks can be made or can be used for training by hostiles, if necessary to do so.
• Arrest without warrant any person who has committed a cognizable offence and may use suitable force, if necessary to do so.
• Enter any premises without a warrant to arrest a terrorist/suspect, or to recover a wrongfully confined person, stolen property, or arms/explosives wrongfully kept.

Para 5 of the Act lays down that the arrested persons will be handed over to the nearest police station “with the least possible delay”. Para 6 states that “no prosecution, suit or other legal proceeding shall be instituted except with the previous sanction of the Central Government, against any person in respect of anything done under this Act”.

The need for the AFSPA for counter-insurgency and counter-terrorist operations is unquestionable. The 1958 Act may have been described as a ‘special power’. But those of us who have commanded troops in such situations have always looked upon it as a legal protection to conduct effective operations.

Terrorists’ activities in J & K have been curtailed substantially but their attempts to infiltrate from POK and cause mayhem in the Valley and elsewhere continue. It is the public order which has become fragile in the last four months due to street protests, stone throwing by mobs and casualties due to firing by the police. In that, there has been no involvement of the Army except on one occasion when troops going in a convoy had to return fire in self-defence. The Army is not deployed operationally in Srinagar. It operates there only when called upon to assist the police in a counter-terrorist action.

The J&K crisis is primarily political in nature caused due to political confrontation, separatists’ increased influence and lack of engagement with sections of the populace and of governance. The problem is not the AFSPA but the excessive and prolonged deployment of security forces, particularly in the urban areas. Their number and visibility goes up further during the Amarnath Yatra period. The policemen and Army personnel wear similar combat uniforms and badges of rank (despite repeated protests by Army HQ) and are clubbed as security forces. Since the real thorn in the flesh of the terrorists and separatists is the Army, they deflect public anger to it and the AFSPA.

A dilution of the AFSPA, which will require Parliament’s approval, is bound to affect operational effectiveness. Revoking it in districts like Srinagar and Gandarbal will have the following security implications:

• These areas are likely to become a safe haven for terrorists. After carrying out activities in areas outside, the terrorists may escape to find shelter in such areas.
• Many Army units are located in Srinagar. There is a frequent movement of troops and convoys within and outside the city. Convoys to Kargil and Leh have to pass through Gandarbal. In the event of any terrorist act, troops will not be able to conduct a seamless operation.

Due to its prolonged promulgation in the North-East and J&K, people often ask as to what has been achieved with the AFSPA. We must understand that the AFSPA is not and cannot be a solution to our internal security caused by ethnic, social and governance problems. It is only a political instrument to enable the armed forces to bring the level of insurgency or terrorism under sufficient control. When such a situation is achieved, it is for the political authority to negotiate a conflict resolution as has been done in the North-East and Punjab. In J&K it has enabled us to create conditions wherein we could hold free and fair elections and allow the state to be run by its elected representatives. And what if such military operations had not been possible or successful?

Defending the need for the AFSPA does not mean that anyone should condone human rights violations anywhere. If any such acts are committed, it would be in the interest of the armed forces to take strict disciplinary action against the offenders as prescribed by the civil and military laws. The military law is prompt and strict in meting out punishment to the guilty.