The larger Issues concerning AFSPA

The Chief Minister of J&K Omar Abdullah has, in a recent interview, called for amendments in the Armed Forces Special Powers Act (AFSPA) towards making it more transparent. Earlier the Chief of Army Staff, General VK Singh had, prior to his first visit to J&K on assuming his new appointment, cautioned against the revocation of AFSPA since this would adversely impact conduct of operations in the state. This did not go down well with the separatists and opposition parties like the PDP who have, ever since, consistently called for immediate revocation of the act. These elements can, of course, be dismissed as pursuers of a policy of blatant political opportunism, but there is a need to look at the larger picture that guides the continuance or revocation of AFSPA in J&K.

There is no doubt that restricting legislations like the AFSPA have no place in a democracy but the extraordinarily vicious security environment of J&K fuelled by foreign sponsored terror is hardly the ideal democratic space. There is no denying that AFSPA gives some special powers to the security forces but it also has to be understood that extraordinary situations can be dealt with only through extraordinary measures. The Act is essential for the army to function proactively in counter terrorism and counter insurgency situations. When the enemy has penetrated within the civilian population it is he who has curbed the liberty of the people and not the security forces who are, in fact, trying to ensure that the right to life and dignity of the civilian population is not compromised by such mercenary and criminal elements. No person on earth can function without the assurance that his actions will not draw punitive retribution by the State and the AFSPA ensures just that for the soldiers. It also has to be ensured that terrorists do not misuse civil laws to get away with their nefarious activity, hence the need to fortify counter terrorist operations with special powers for search, arrest and detention.

The AFSPA does have provisions that curtail prosecution, or prevent other legal proceedings against a person functioning under the Act except with the previous sanction of the Central Government and this definitely does not imply that the soldier is placed above the law of the land. It only implies that he will function under a different set of laws. In any case the Indian Amy soldiers are subject to the Army Act 1950 which is invoked while investigating all cases of excesses committed in areas under the jurisdiction of the AFSPA and the Army Act is by no means less stringent than the criminal procedure code of the Indian Constitution.

There is a perception that continuation of the AFSPA can be reviewed in the light of significant improvement in the security environment and applicability of the Act can be removed from those districts of the state where militant or insurgent activities are minimal or insignificant. It has oft been said that there is a popular sentiment for revocation of the Act. This is a credible option but it will not serve the purpose . In any case, there are no voices heard against the Act in the Jammu region (including Poonch, Rajouri, Reasi, Doda or Kishtwar), the Ladakh region and the higher reaches of Kashmir. The most stringent calls for its repeal are emanating from only a few districts of the Kashmir valley which are under the influence of the separatist and divisive ideology. In fact, a majority of people across the state feel more secure with the presence of the security forces in their vicinity and would protest if the status quo is broken. As such, this cannot be perceived as an overwhelming aspiration of the people of the state.

The way ahead is to create an environment which makes the Act redundant for which two factors are significant; a well thought out political process and empowerment of the J&K Police. Politically there is a need to identify those who have vested interests in revocation of the Act and expose their nefarious agenda. Their vested political interests have so clouded their vision that the danger that is lurking in the shadows is not visible to them. They are oblivious of the fact that the security forces are loosing precious lives to ensure that there is no resurrection of terrorism that has plagued the Valley. Such politics are divorced from reality and detrimental to the cause of security of the state, they are also building barriers in the logical thought process which can create an environment for the ultimate revocation of the Act.

The State Police also has to be geared up to take on more responsibility. The first step would be training, morale and professional efficiency of the force that is expected to take on this burden of fighting terrorism. For long it has been in the background with dependency on the Army and the para-military forces to perform these functions. It will have to demonstrate its capability to function independently. A word of caution for the security forces, there can be no smoke without fire and under the prevailing circumstances wherein the influence of terrorism has waned the leadership should reconsider the existing standard operating procedures and make them more people friendly regardless of the provisions of the Act.
 

Jaibans Singh is a Defence Analyst specialising in matters relating to Jammu & Kashmir and Pakistan

(Disclaimer: The views expressed in this article are those of the author and do not represent the views either of the Editorial Committee or the Centre for Land Warfare Studies).