A sense of proportion on AFSPA, Army, anyone?

Updated: 10 Jul 2016 06:11 PM
Not unexpectedly, the turmoil in Kashmir Valley is grabbing all the headlines for the past 48 hours in the wake the killing of Burhan Wani, a 21-year old local terrorist who had become popular on social media but for me, a bigger headline is the observations of the Supreme Court over the much-maligned, Armed Forces Special Powers Act, 1958 or AFSPA in short. In a judgement delivered on Friday, the Supreme Court questioned the prolonged continuation of the Act in Manipur, the north-eastern state that has been witness to insurgency and ethnic strife in some cases since the late 1970s.

A two-judge bench said: “Ordinarily our armed forces should not be used against our countrymen and women” and that “every person carrying a weapon in a disturbed area cannot be labelled a militant or terrorist or insurgent,” and be killed without any inquiry. While I agree on the first part of the statement—that armed forces should not be used against our countrymen—I am not sure if  the honourable judges have thought through the latter part of their observation?  Pray, how do security forces conduct an inquiry if a person carrying a weapon shoots first?

Another observation I found intriguing was about the term ​'​excessive force​'. Stating that any death caused due to “use of excessive force or retaliatory force… is destructive of the rule of law and plainly unconstitutional”, the court said that each instance of an alleged extra-judicial killing would have to be examined to determine the facts. “In the​ inquiry, it might turn out that the victim was in fact an enemy and an unprovoked aggressor and was killed in an exchange of fire. But the question for enquiry would still remain whether excessive or retaliatory force was used to kill that enemy,” noted the bench.

In an ideal world, a perfectly legal and humane approach but who decides what excessive force IS and what is not? By taking away the right of the man on the spot to decide when to fire, how much to fire and how to neutralise armed militants/terrorists/insurgents, the courts may be treading on dangerous grounds.

It is nobody’s case that all suspicious cases must not be thoroughly probed and the guilty not be punished but a sense of proportion is expected from the apex court. The Armed forces, especially the Army too doesn’t condone extra-judicial killings. Conduct a probe by all means but don’t demonise the AFSPA or the Army. The Army is a kinetic force, trained to kill the adversary at a cost if necessary. It is not a primary instrument for restoration of normalcy or arresting a deteriorating law and order situation. That is the job of the police or central armed police forces. But the very fact that the army gets called in means the situation has gone beyond the control of the police and CAPFs.

The AFSPA remember was and is an emergency provision. It should have been applied in small doses but most state governments have chosen to use the AFSPA over extended period because it helps them largely wash their hands off the business of counter insurgency and let the army carry out the operations. The raging debate on AFSPA has often ignored this aspect.

The State Governments and not the Army impose AFSPA in a given area. To be applied in conjunction with the Disturbed Areas Act, the AFSPA can be withdrawn by the state government when it wishes to, as Manik Sarkar, the Tripura Chief Minister demonstrated a couple of years ago. His government was confident enough to say, we can do without the army for the moment at least. Can other states in the north-east follow Tripura’s example? They certainly can but it requires resolute leadership and confidence in the state police forces. While an inquiry into what alleged ‘fake’ encounters must be encouraged, it should not come at the cost of blunting the edge that a well-trained, disciplined army like India’s.

​On another note, critics have often chafed at the provisions under Sections 3, 4, 6 and 7 of the AFSPA for being ‘draconian.’ What exactly are these provisions?

Section 3: It lays down the authority which has power to declare areas as ‘disturbed’.  These authorities are the central and the state governments. So the army does not declare the area as disturbed.

Section 4: It gives the army powers to search premises and make arrests without warrants, to use force even to the extent of causing death, destroy arms/ammunition dumps, fortifications/shelters/hideouts and to stop, search and seize any vehicle.

Section 6: It stipulates that arrested persons and seized property are to be made over to the police with least possible delay.

Section 7: It offers protection of persons acting in good faith in their official capacity. Prosecution is permitted only after sanction by the central government.

These provisions came up for scrutiny before a constitution bench of the Supreme Court in a case titled ‘Naga People’s Movement of Human Rights Vs UOI’.  The five-judge bench elaborately dealt with the challenge to the legality of deployment of the armed forces in aid to civil power. The court had then unambiguously ruled that AFSPA cannot be regarded as a colourable legislation or a fraud on the Constitution.

The apex court said that the conferring of powers vide Section 4 of AFSPA could not be held arbitrary or violative of Article 14, 19 or 21 of the Constitution. In fact, having considered the role and circumstances under which the armed forces have to operate, the Supreme Court extended the scope of powers vested vide 4 and 6 of AFSPA so as to include by implication, the power to interrogate the person arrested.

It also allowed the armed forces to retain the weapons seized during the operations in their own custody rather than to hand them over to police authorities.

The mere fact that the provisions of AFSPA have to be invoked in a particular area ex facie establishes that handling the law and order situation had gone beyond the control of the state government. The army personnel operating in those circumstances need to enjoy at least similar powers as the police force if not wider ones. So, just as Section 45 of the CrPC disallows arrest of public servants and just as Section 197 provides impunity against prosecution, Section 7 of the AFSPA gives similar protection to the army personnel. Nothing more, nothing less.

And yet, most opponents of the AFSPA have chosen to either downplay or completely ignore this similarity. So what is the way forward?

The revocation of AFSPA from any area needs a concerted view of all organs of the state and Centre. A suggested way is to convert these areas into police administered areas/police districts as was done for Srinagar initially without revoking AFSPA. Subsequently, as the situation improves, while evolving the revocation, an exit strategy needs to be worked out for gradual withdrawal of armed forces from the specified area leading to a smooth transition. On this count, the learned judges who gave Friday’s judgement are right: That the Army has to be used for such a prolonged period is indeed a blot on our democratic processes.

Lifting the AFSPA can certainly be attempted but the provisions of the AFSPA, as an emergency law that empowers the army -- the nation’s instrument of last resort -- must continue to remain on the statute books given the increasingly violent and uncertain times that the subcontinent is likely to face in coming years.

When needed, it must be applied in small doses. Every country has to balance the need for a stringent law with the basic principles of ensuring human dignity and human rights. Therein lies the challenge for India’s leadership.​