The Armed Forces Special Powers Act: An Army View-Point

The ongoing debate on the Armed Forces Special Powers Act (AFSPA) needs to be understood in the correct operational context. While the Ministry of Home Affairs is reported to have recommended a major overhaul of the Act to bring it in line with egalitarian human rights practices, the Ministry of Defence (MoD) and the Army are opposed to changes in the basic provisions of the Act. General V K Singh, the Chief of the Army Staff (COAS), had commented that those who demand its dilution “probably do so for narrow political gains”. He had also stated: “Any dilution of the Act will impinge adversely on the manner in which the armed forces operate…While operating against terrorists, insurgents and anti-national elements in constrained and trying circumstances, the armed forces need requisite legal protection.”

There is no denying the Army Chief’s contention that the Army requires enabling provisions to operate in conditions where all other instruments of the state have failed. The police forces have constitutional safeguards which enable them to operate in such conditions but similar provisions were not made for the Armed Forces as the founding fathers of the Constitution did not visualise the Army being called in to quell disturbances within the state. It was precisely for this reason that the AFSPA was subsequently promulgated. In the face of insurgencies in many of the North Eastern states and in J&K, it is the Army which has maintained the nation’s integrity by creating a stable security environment to enable the democratic process to flourish.

The Indian Army sees AFSPA as a capstone enabling Act that gives the Army the powers necessary to conduct counter insurgency (CI) operations efficiently, in an environment where the terrorists and insurgents are armed with sophisticated weaponry, equipped with state of the art communications means, and are well trained and supported by inimical forces from across the border. The situation thus cannot be viewed as a simple law and order problem. Had that been the case, the local police forces would have been able to handle the situation by themselves. Without the enabling provisions of the Act, the Army will not be able to provide to its personnel the requisite safeguards against malicious, vindictive and frivolous prosecution. We will come to a state where the Army will be totally embroiled in legal cases foisted by hostile anti national forces which will lead to a loss of morale and unwillingness to take on the insurgent. With erosion in the cutting edge, it would be but a matter of time before the insurgents gain the upper hand and take over the reins of power from the state. Obviously, such a situation is only in the interest of those who are hostile to India. We cannot allow that to happen.

Some sections of civil society view AFSPA as a draconian act and consider it a violation of fundamental human rights granted by the Indian Constitution. Syed Ali Shah Geelani, a hard-line separatist Kashmiri leader dubbed it as a license to kill. Mehbooba Mufti, President of the People’s Democratic Party (PDP) has demanded immediate revocation of AFSPA and the withdrawal of the Army from J&K several times. These demands run counter to the facts on the ground. The local population where the Army is deployed is supportive of the Army presence. An analysis of statistics clearly indicates that most civilian killings in the state have been done by the terrorists. Sometimes innocent civilians do die in the cross fire between terrorists and the Army but here too the Army takes extreme measures to ensure that civilian casualties do not occur. This is the reason why the Army has had a very high percentage of officer casualties in operations.

Objections by activists stating that the provisions of AFSPA give the Army unbridled powers to arrest, search, seize and even shoot to kill are motivated and ill founded. The operational philosophy of the Indian army places a very high premium on preservation of human rights and guarding the local population. The focus of operation is against the insurgent only. In any case, all allegations of human rights violations are investigated by the National Human Rights Commission. Over 97 per cent of such cases have been found to be false. Where the allegations had merit, the Army has been swift to act and punish the defaulters. Since 1990, the security forces have been accused of 1,511 cases of human rights abuse. Out of these, 1,473 cases were found to be completely false. Where culpability was established, 104 soldiers, including 40 officers, have been punished in 35 cases so far.

It should be remembered that AFSPA is only an enabling provision for the Army to fight the insurgents. It is not the cause of insurgency. We need to look into political, economic, administrative and social fault lines which are the prime causative factors and seek to eliminate them. The Army in its operations fights with one hand tied behind the back. Its “iron fist in a velvet glove” Counter Insurgency doctrine emphasises the use of minimum force, people friendly operations and simultaneous development work to win hearts and minds. Every soldier is provided with guidelines in the form of the ‘Ten Commandments’ for conducting operations. Heavy weapons like fighter aircraft and artillery, routinely used by Pakistan against its own people and by the US in Afghanistan have never been used by the Indian Army. Even a rocket launcher is fired only with the permission of a senior officer. Which country can ask for more from its Army? 

Gaurav Sharma is a Research Assistant at the Centre for Land Warfare Studies (CLAWS), New Delhi

Views expressed are personal