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both news media and print media.Views from various corners and writings by many learned man conclude that it should be repealed , yet irrespective of who is in Government , it has not been repealed, even though few representatives of Government are in favor to repeal AFSPA.Hence , it lets one think why it has not been repealed and will it ever be repealed ?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- The maintenance of law and order is the responsibility of the state government under the Indian Constitution.As originally enacted, the power to declare an area to be “disturbed” was conferred only upon the state government.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 – upsctree@upsctree.com . Thank you.
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Steve Ovett, the famous British middle-distance athlete, won the 800-metres gold medal at the Moscow Olympics of 1980. Just a few days later, he was about to win a 5,000-metres race at London’s Crystal Palace. Known for his burst of acceleration on the home stretch, he had supreme confidence in his ability to out-sprint rivals. With the final 100 metres remaining,
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]Ovett waved to the crowd and raised a hand in triumph. But he had celebrated a bit too early. At the finishing line, Ireland’s John Treacy edged past Ovett. For those few moments, Ovett had lost his sense of reality and ignored the possibility of a negative event.
This analogy works well for the India story and our policy failures , including during the ongoing covid pandemic. While we have never been as well prepared or had significant successes in terms of growth stability as Ovett did in his illustrious running career, we tend to celebrate too early. Indeed, we have done so many times before.
It is as if we’re convinced that India is destined for greater heights, come what may, and so we never run through the finish line. Do we and our policymakers suffer from a collective optimism bias, which, as the Nobel Prize winner Daniel Kahneman once wrote, “may well be the most significant of the cognitive biases”? The optimism bias arises from mistaken beliefs which form expectations that are better than the reality. It makes us underestimate chances of a negative outcome and ignore warnings repeatedly.
The Indian economy had a dream run for five years from 2003-04 to 2007-08, with an average annual growth rate of around 9%. Many believed that India was on its way to clocking consistent double-digit growth and comparisons with China were rife. It was conveniently overlooked that this output expansion had come mainly came from a few sectors: automobiles, telecom and business services.
Indians were made to believe that we could sprint without high-quality education, healthcare, infrastructure or banking sectors, which form the backbone of any stable economy. The plan was to build them as we went along, but then in the euphoria of short-term success, it got lost.
India’s exports of goods grew from $20 billion in 1990-91 to over $310 billion in 2019-20. Looking at these absolute figures it would seem as if India has arrived on the world stage. However, India’s share of global trade has moved up only marginally. Even now, the country accounts for less than 2% of the world’s goods exports.
More importantly, hidden behind this performance was the role played by one sector that should have never made it to India’s list of exports—refined petroleum. The share of refined petroleum exports in India’s goods exports increased from 1.4% in 1996-97 to over 18% in 2011-12.
An import-intensive sector with low labour intensity, exports of refined petroleum zoomed because of the then policy regime of a retail price ceiling on petroleum products in the domestic market. While we have done well in the export of services, our share is still less than 4% of world exports.
India seemed to emerge from the 2008 global financial crisis relatively unscathed. But, a temporary demand push had played a role in the revival—the incomes of many households, both rural and urban, had shot up. Fiscal stimulus to the rural economy and implementation of the Sixth Pay Commission scales had led to the salaries of around 20% of organized-sector employees jumping up. We celebrated, but once again, neither did we resolve the crisis brewing elsewhere in India’s banking sector, nor did we improve our capacity for healthcare or quality education.
Employment saw little economy-wide growth in our boom years. Manufacturing jobs, if anything, shrank. But we continued to celebrate. Youth flocked to low-productivity service-sector jobs, such as those in hotels and restaurants, security and other services. The dependence on such jobs on one hand and high-skilled services on the other was bound to make Indian society more unequal.
And then, there is agriculture, an elephant in the room. If and when farm-sector reforms get implemented, celebrations would once again be premature. The vast majority of India’s farmers have small plots of land, and though these farms are at least as productive as larger ones, net absolute incomes from small plots can only be meagre.
A further rise in farm productivity and consequent increase in supply, if not matched by a demand rise, especially with access to export markets, would result in downward pressure on market prices for farm produce and a further decline in the net incomes of small farmers.
We should learn from what John Treacy did right. He didn’t give up, and pushed for the finish line like it was his only chance at winning. Treacy had years of long-distance practice. The same goes for our economy. A long grind is required to build up its base before we can win and celebrate. And Ovett did not blame anyone for his loss. We play the blame game. Everyone else, right from China and the US to ‘greedy corporates’, seems to be responsible for our failures.
We have lowered absolute poverty levels and had technology-based successes like Aadhaar and digital access to public services. But there are no short cuts to good quality and adequate healthcare and education services. We must remain optimistic but stay firmly away from the optimism bias.
In the end, it is not about how we start, but how we finish. The disastrous second wave of covid and our inability to manage it is a ghastly reminder of this fact.