July 15, 2010
1363
By Centre for Land Warfare Studies |
Introduction Welcome Address: Brigadier Gurmeet Kanwal (Retd), Director, CLAWS The Director welcomed the participants to the seminar. He stated that the Indian Army has been involved in counter insurgency operations since late fifties and AFSPA was enacted to provide legal cover to Army to tackle Naga insurgency. Subsequently, the army has been deployed in counter insurgency operations in various parts of the country under the legal cover of this Act. The following points were highlighted: Chairperson: Lt Gen R K Sawhney, PVSM, AVSM (Retd), former DGMI The prime task of army is to deal with external threats and take on internal disturbances once all other instruments of power have failed. Contrary to perception of some people, the Army would prefer not to get involved with internal security duties. However, it will never shy away from any task. While undertaking CI operations, the Indian army has never utilised anything more than small arms, essentially so that collateral damage is avoided. But the army needs to be protected when tasked to operate in areas where angels fear to tread and thus needs legal protection as provided by the AFSPA. Maj Gen G D Bakshi, SM, VSM (Retd), Dy Director, Vivekananda International Foundation The army is operating in a very intense CI environment as is evident by the large quantity of weapons captured from terrorists since 1990 in J&K. The provisions of the AFSPA are essential if the army has to operate in such an environment. This point has been underscored by the Supreme Court when the Act was challenged. The Highest Court upheld the Act and even extended scope of powers to include power to interrogate persons arrested and retain custody of weapons seized. Some of the important aspects emphasised were: - • Army has to operate in highly dangerous situation where everyone else has failed therefore requires special powers/legal cover to deal with the situation. • In a Unified Command, the army functions under the chief minister thereby ensuring adequate checks and balances in its operations. • Unlike rest of the world which follows war justice model , India follows criminal justice model with stresses on preservation of democratic principles even at the expense of reduced effectiveness of counter terrorists operations. • Of the 1511 allegations of human rights abuse levelled against the army, 1486 were found to be false by the Human Right Commission. In the 35 cases where abuse took place, all the guilty persons were punished. The army has thus set for itself very high standards of conduct while undertaking such operations. • Secessionist elements in three district of J&K cannot dictate terms for the whole state. Demilitarisation is part of the agenda radicals want for their vested interest. Maj Gen Dhruv Katoch, SM, VSM, (Retd), Addl Director, CLAWS The views of COAS and GOC-IN-C Northern Command were put across in defence of the provisions of the AFSPA as also the views of some sections of civil society which felt that a major overhaul of the Act is necessary to bring it in line with egalitarian human rights practices. The recommendations of the Justice Jeevan Reddy Committee which was constituted to replace the act by a more humane Act were also highlighted. The following points were highlighted: - • The Army is not averse to review of AFSPA provided its concerns are addressed. The Army would require special powers to combat terrorism as all other instruments of state to restore normalcy have failed. • The civil government still retains control as they would have to declare an area as ‘disturbed’ under the ‘disturbed area act’ before AFSPA can be applied. • Why dilute the Act which provides legal cover to the Army to operate. If the Army is not required, the area should not be declared as ‘disturbed’. • Since Army is called in only when the situation has deteriorated to unacceptable levels, the requirement of very strict enabling provisions is necessary. • Army is aware of its responsibilities and its outstanding human rights record reflects the same. It must be remembered that “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.” The following points were also raised for consideration: - Shri Sanjoy Hazarika, NE Expert The issue is difficult to resolve but we cannot have a special law for some, as no one is above the law. The AFSPA has not solved the insurgency in the North East and is hated by public which is sufficient ground to look for a review. In fact, the decision to review the act after public agitation speaks of Indian democratic strength; however failure to take this further indicates government weakness. The following points were highlighted: - • Grievances cell be established to look into the problems of people concerning army. • A test of a law is its effectiveness. The AFSPA has failed to deliver, is discriminatory and is also a most hated law. Its review is hence essential. • Cannot have a law that defends a guilty person with impunity. The government has to give a call on this Act. It is in the Army’s interest to have the Act reviewed.. Discussion • For army image is paramount and it is essential that the Force be respected and not ridiculed/ humiliated in courts on false allegations (Report prepared by Col Rishi Chhikara, SM, Senior Fellow, CLAWS)
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