Reflections :- AFSPA – The Irony With in

Background :-  There has been a considerable amount of debate on the Armed Forces Special Powers Act (AFSPA) as long as we can remember.It has been extensively covered by both news media and print media.Views from various corners and writings by many learned man conclude that it should be repealed , yet irrespective of  who is in Government , it has not been repealed, even though few representatives of Government  are in favor to repeal AFSPA.Hence , it lets one think why it has not been repealed and will it ever be repealed ? In this context , we at UPSCTREE  tried to explore this irony , given it’s importance in public administration , it has to be inquired with due care.

Intorduction :-

  • The Armed Forces (Assam and Manipur) Special Powers Ordinance came into force on May 22, 1958. It was adopted by the Indian parliament on September 11, 1958
  • The AFSPA was based on a 1942 British colonial ordinance that was intended to contain the Indian independence movement  in the midst of the Second World War
  • In the decade that followed, the northeast was divided into separate states to accommodate the ethnic claims of various tribal and other ethnic groups. In 1972, the AFSPA was amended to extend to all the new states
  • In 1983, an almost identical law was enacted to counter militancy in Punjab state.While the law was allowed to lapse in Punjab once violence ended, a similar law has remained in force in Jammu and Kashmir state since 1990.
  • Though the law was initially intended to be a short-term measure, for five decades many areas of the northeastern states have routinely (now every six months) continued to be declared “disturbed” so that the law can remain in force.
  • Irom Chanu Sharmila who is also known as the “Iron Lady of Manipur” is a civil rights activist, who has been in a hunger strike for nearly 15 years. Her primary demand to the Indian government has been the repeal of the AFSPA.

Provisions in AFSPA:-

  • Section 3 of the AFSPA provides that the government can decide  ,whole or part of a state “is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil powers in necessary.”
  • The maintenance of law and order is the responsibility of the state government under the Indian Constitution.As originally enacted, the power to declare an area to be “disturbed” was conferred only upon the state government. In 1972 the AFSPA was amended to provide that same power concurrently to the central government. An elected state government thus cannot refuse the deployment of federal armed forces.
  • On the other hand, the state government has no authority to reprimand or prosecute those members of the armed forces that commit human rights violations against citizens of that state as this power is reserved for the central government
  • The AFSPA provides broad powers to military officers to use force, including lethal force. Section 4(a) empowers any commissioned or non-commissioned officer in the armed forces, to:-

    If he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances

    Human rights activists say that this section of the law effectively provides security forces operating under the AFSPA with a “license to kill.”

  • Section 6 of the AFSPA provides government security forces with immunity from prosecution.

Supreme Court’s  observation:-

  • The AFSPA has been challenged in the courts. In 1980, a Manipuri group named the Human Rights Forum filed a public interest litigation in the Supreme Court, challenging the constitutional validity of the AFSPA. The Naga People’s Movement for Human Rights and the People’s Union for Democratic Rights also moved separate writ petitions on the same issue in 1982. However, the Supreme Court did not proceed in the matter for 15 years.
  • In 1997, a five-member bench headed by Chief Justice J.S. Verma finally ruled on the petitions challenging the act. The various petitions were combined into the case of Naga People’s Movement of Human Rights, etc. vs. Union of India
  • The Supreme Court upheld the Armed Forces (Special Powers) Act in its final verdict on November 27, 1997. However, while concluding that parliament had the right to enact such a law, the judges ordered measures for the protection of human rights, ruling that the armed forces should “use minimal force required for effective action” and “strictly follow the instructions contained in the list of “Do’s and Don’ts” issued by the army authorities which are binding”

Justice Jeevan Reddy Committee on AFSPA:-

  • The Jeevan Reddy committee recommended that while the AFSPA should be repealed, some provisions should be incorporated into the Unlawful Activities (Prevention) Act, 1967.
  • The proposed amendments include a provision for an independent “Grievances Cell” to inquire into complaints of human rights violations, and a requirement that the commander or local headquarters of the unit or appropriate police authorities furnish relevant information to the Grievances Cell within 24 hours of receiving a request.
  • The recommendations are rejected by the government.

Various facet of AFSPA : –

  • To sum up , AFSPA gives enough power to the army to act in disturbed areas .The core debate surrounding this act is the alleged human rights violations by Army from time to time.
  • Idealism vs Realism
    • Most of the arguments against AFSPA  are idealistic in nature i.e. the arguments does not include the concerns of army , it only displays the concerns of one side, thus while journalists label it as a  ” Draconian law” or “Right to kill”  , the adjectives  are far too sensational in nature , which selectively excludes the sensitivity of the issue.
    • First principle of security is to accept the reality as it is and not what one wants it to be . Thus , Army has  taken a pragmatic stand and advocated that AFSPA  as sine qua non for counter insurgency operation in disturbed areas.
    • The disturbed areas for eg- Jammu & Kashmir or North-East region , have not been peaceful as yet due to various secessionist movements.These areas have convergence of  both India’s internal  and external security .Thus given the strategic importance of these regions and the huge international porous border , AFSPA becomes the necessary tool in the hands of Army.It is an evil but a necessary one.
    • The disturbed areas are far from peace and cross border terrorism and secessionist movements are active , thus making it hard for the Government to repeal AFSPA.
    • Retired General Bikram Singh’s Observation on AFSPA :-
      • He holds that the time is not right to repeal AFSPA.He comments that the decision  has to be taken in the backdrop of violence profile, in the backdrop of what can happen in future, in the backdrop of futuristic contours.
      • Army is there as the state govt. does not have adequate apparatus to deal with issues  that have cross-border implications .Many army men have made the supreme sacrifice to uphold the national interest and national security in these regions.
  • On the contrary, it is undoubtedly clear that human rights violations have taken place and in a Free Society like India , it is necessary that this concerns are addressed too.

Conclusion:- From the above observations it is clear that , to repeal AFSPA , there are few per-requisites , such as – end of secessionist movements, effective management of border and end of cross-border terrorism.Hence , indifferent to our wish, AFSPA is going to stay in the near future. In the same vein, it will be a blunder to completely ignore the human rights issues arising out of this provision. To contain the human rights violation and to uphold national interest  is a walk on a two-edged sword,which needs perfect balancing act. Measures by Army to sensitize its soldiers and make them sensitive to the people’s cause is of paramount importance.A learned soldier with a higher degree of empathy is the necessity of the hour and it  can be achieved by the Army itself.  Soldier’s emotional intelligence profiling for sensitive posting , should be inculcated by the Army. It is often said that a good man can run a bad institution better and this is what is needed of Army  now , to  post good men  , who can exercise self-restraint in sensitive operation and see to it that human rights are not violated. From futuristic perspective, AFSPA should be repealed or replaced with a law that has greater protocols and addresses the human right needs. 

P.S :- Please note that we try to be as objective as possible in our analysis , the conclusions written in Essays and Reflections are exclusive to UPSCTREE .If you have any suggestions , kindly write to us  – . Thank you.

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By | 2017-02-13T20:05:56+00:00 November 6th, 2015|editorials, Essays, polity|20 Comments
  • ranjit

    Thanks ….for such wonderful analysis

  • Skm

    thanks for this unique analysis,..
    one doubt:- Are you deliberately going against popular notions and percieved analysis (like in this case and India-Nepal issue) for the want of being unique in your analysis?
    Anyways its nice to read these unique perception of all issues.

    • Thank you SKM. We do analysis and take views from all side, not just from what is only said by media, we listen to bureaucrats and replies from Govt.s .For eg – In case of Nepal , Today MEA spokesperson also gave the same statement that it is an internal and political issue , inclusive constitution is the solution.

      We are trying to be bureaucrats and not journalists, so view will certainly differ. Moreover, if you look at Indo-Nepal analysis, we gave the principles of geopolitics before getting in to reasoning. We accommodate views from all corners and then analyse.

  • jagadeesh

    That was a good analysis.But i have a few points.

    I don’t understand the wisdom of the govt. behind using CAPFs against Maoists but deploying military in the ‘disturbed areas’ of north east and J&K.It sends a wrong message to the people of those regions and incites a feeling of alienation among them. Shouldn’t the state apparatus be strengthened alongwith augmentation by CAPFs for dealing with terrorist elements in these areas instead of conferring the Army with special powers and using it.It also frees up the resources of the Army.If we look around the human history of violence and war,we can deduce the conclusion that Human Rights violations are bound to happen when a group, be it army or any other ,is conferred with absolute powers.When a solution was not so successful in bringing peace to a region in a period of five decades, don’t u think there is something in the solution that needs to be changed.Violence cannot stop violence instead it adds up to it.

    • Thank You Jagdeesh.What you said is absolutely true . Winning hearts and minds is the way . But there are few concerns. Here are the explanations that we tried to provide , kindly go through it and let us know if it helps.we have divied in to Q & A section , hope you don’t mind.

      Q- I don’t understand the wisdom of the govt. behind using CAPFs against Maoists but deploying military in the ‘disturbed areas’ of north east and J&K.It sends a wrong message to the people of those regions and incites a feeling of alienation among them —

      A – It is true that it alienates the people , for few acts by very few in the army , paints the whole army as a devious force.However as mentioned in the article , these are the regions where there is convergence of internal and external security. The insurgency or terrorism here is funded from across the border , these are not only internal disturbance , instead these are separatist movement, which stands against sovereignty of India.These are not just maoists but separitists.They are not only pursuing an ideology but pursuing for different nation altogether.Due to its international dimension and inability of the state govt to deal with the issue, the military is there.

      Q- Shouldn’t the state apparatus be strengthened alongwith augmentation by CAPFs for dealing with terrorist elements in these areas instead of conferring the Army with special powers and using it .

      A- State could have dealt the situation if it was only an internal security matter.The Central Armed Police Forces (CAPF) refers to uniform nomenclature of five security forces in India under the authority of Ministry of Home Affairs. They are Border Security Force, Central Reserve Police Force (CRPF), Central Industrial Security Force (CISF), Indo-Tibetan Border Police (ITBP) and Sashastra Seema Bal (SSB). If you look at the essence , both are masculine force, if both are deployed heavily , it makes no sense as long as lives of the inhabitants are concerned.Moreover, police are not trained to fight terrorism or insurgency , hence the presence of CAPF with its specialized force is necessary to deal with this kind of situation.

      Q-If we look around the human history of violence and war,we can deduce the conclusion that Human Rights violations are bound to happen when a group, be it army or any other ,is conferred with absolute powers.

      A- This is absolutely true. But India , unlike any other country, does not force its laws. The law has created by the people who represent India through a democratic manner.Moreover, state has capacity to withdraw an area from disturbed ares if the normalcy returns.And Indian force is one of the most moral force across the globe. They don’t behead enemies or mistreat the prisoners – this is true in a broader sense. However there are issue of human rights violation and for this reason we have said the article that emotional intelligence profiling and sensitization to local situation training are required for the army personnel deployed there.Lets us take a hypothetical situation, if India withdraws all its forces from this reason – will human peace will prevail ?? The answer is no, given our volatile neighbourhood ,more innocent lives willl be lost once we life our safety net form this areas.History is proof to it.

      Let me give you another example, Ashoka taught peace, Buddha taught peace. But if you look closely , Ashoka though preached peace, maintained an army and fough wars when required ,- Why – the reason is simple – he was not only a preacher of peace , he was also a ruler and to save his subjects was his first duty. On the contrary, Buddha became ascetic and taught peace – he had no one to take care of , no one to answer to – so he has the leverage of preaching absolute peace. In the same parlence, if you compare Govt and Erudites from sifferent sections of society – The GOVT is Ashoka and the erudites are Buddha. The journalist , professors etc have no responsibility to protect the state or its subject hence they have the leverage to preach idealism and absolute peace. But GOVT has another responsibility – i.e to protect the citizens as well its sovereignty.
      Remember ,India is the most difficult nation to lead, and our leader since independence have stood for their humanistic principles. Think over this – When Manmohan Singh was PM of our country , he went great length to say that we should demilitarize Siachen , but he never lifted AFSPA from the disturbed areas – WHY ? Why America is keeping its troop in Afghanistan even though it had lost its geopolitical objective in the region. Simply becuase , if they are withdrawn , more innocent people will fall victim to it.

      Q-When a solution was not so successful in bringing peace to a region in a period of five decades, don’t u think there is something in the solution that needs to be changed.Violence cannot stop violence instead it adds up to it.

      A- True. But solution was successful to some degree , may factions in NE have signed peace accord and the region is relatively stable now. These are complex issues, so to argue with the idealistic point of view needs some blending or realism too.Development seems solution to it. But then socio-economic-educational empowerment does not stop one from being a terrorist.For eg- Look at the European kids who joined the extremist group – they were educated , they were socially and economically well-off, yet they chose the path of violence. Now this brings another question, can development be the solution to this kind of issue – the answer is not a perfect yes or a perfect no- it simply baffles the contemporary sociologists.The solution , thus, while we have the safety net of army , the GOVT should promote development and education in the region and morality and nationalism should be promoted through various means.

      • jagadeesh

        Thank you for the replies…..they broadened my perspective on the issue..

        • Thank you Jagdeesh.. Its a two way process. By answering your query – it helped us too, to delve deeper into the issue. We look forward to your continued engagement 🙂 it really helps us.

      • swati

        This is my first visit here and I am really impressed.
        After reading stuff everywhere, I was also against AFSPA, but today I got a new dimension for this issue.
        Thanks 🙂

      • Hi , I have worked in the CI Ops environment for five years when I was posted in Nagaland…..
        The real picture I put forth about the AFSPA…
        It look very anti human or gross violator of human rights but on ground its not much draconian .Its an immunity given to armed forces without which CIOPS not possible at all…second aspect about the ceasefire agreements…whenever you apprehend or kill any suspect, it is claimed that the person belonged to a ceasefire group….now see the morale of troops..police and politics also gamble with local people,their bread n butter…armed forces left solo to deal with the situation..
        second point regarding human rights violation…sexual harassment cases..maximum are fake cases , regd only to create a chaos affecting op efficiency…
        Its rightly SIN QUA NON with ciops….

  • this is my first day on this tree of knowledge…great work sir

  • 4p3rcu

    Delighted and enlightened! Thank you so much, team! 🙂

  • question directly asked in the mains exam this year…..however I could not recollect the exact provision number dealing with the “causing the death”…..though narrated in detail…
    thank you so much
    It came handy…..

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  • hindolsen gupta

    first time seen a different perspective from the usual leftist rants against afspa.true account of taking army men situation into consideration

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