The unending debate on AFSPA | chandigarh | Hindustan Times
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The unending debate on AFSPA

The debate on discontinuing with the Armed Forces (Special Powers) Act, diluting it, or applying it selectively, within a state appears to be unending. Lt Gen Harwant Singh (retd) writes.

chandigarh Updated: Feb 03, 2014 09:46 IST
Lt Gen Harwant Singh (retd)

The debate on discontinuing with the Armed Forces (Special Powers) Act, diluting it, or applying it selectively, within a state appears to be unending. Every now and then, the subject comes alive, either when a case of a fake encounter is brought forward or human rights activists revisit the Act and call it draconian and worse. At other times, it is imputed that the army has vested interest in its continuance, even when insurgency is on the decline. More recently, some newspaper writers have even called AFSPA as a sort of free hand to the army to kill.


To link the AFSPA provisions with CrPC and the use of minimum force, as advocated by Wajahat Habibullah, a former J&K bureaucrat, betrays lack of understanding of the Act and the very nature and dimensions of violence that prevails during peak periods of insurgency and the methods and means required to combat these. Insurgency in its virulent form totally paralyses the administration and results in collapse of law-and-order machinery in the affected areas. When such a state is reached, first Disturbed Area Act is promulgated and then only the army is deployed and AFSPA brought in. Habibullah has merely displayed his confusion in this argument that such a situation can be handled as a normal law-and-order problem, where the army may be called in to assist the civil administration and principle of the use of 'minimum force' made to apply.

Problem of insurgency

Problem of insurgency in the north-east has existed for more than half a century and in Jammu and Kashmir for more than two decades. And yet peace has eluded these areas. It may be argued that in the case of J&K there is an external dimension. There could be a number of causes for a region or state slipping into insurgency, but the more fundamental cause is the failure to draw the region and its people into the national mainstream, by generating inclusive growth and being alive to the sensitivities of the people of the region. Essentially, it is failure of policy to effectively deal with the causes of alienation and prevalence of poor and corrupt administration.

The main opposition to the continuance of AFSPA is its alleged misuse and consequent call for its dilution and/or withdrawal. Counter-insurgency operations are a messy affair and chances of the innocent coming in the crossfire between the army and insurgents are always high. Since the army does not have even the ordinary police powers, AFSPA essentially works as an enabling law for the military to carry out operations against the insurgents. Mistakes can take place due to the very nature of the operations, but deliberate acts of excesses or fake encounters must never be condoned. The military, on its own, has acted in innumerable cases against such offenders and scores of military personnel have been court-martialled and sent to prison or cashiered and that includes a number of officers. Perhaps there are a few cases where the army did not take action and two such incidents are the encounters at Machill and Pathribal.

The Pathribal encounter was a combined operation, between the police and the military, with the police playing a major role in this action. As soon as it was alleged to be a false encounter, military authorities should have taken action, as per the military law.

Unfortunately, this did not happen, but a civil inquiry was held and police personnel concerned, including the senior superintendent of police of Anantnag, were suspended. Interestingly, no case was made against them and the senior superintendent of police was subsequently promoted and became inspector general of police. In the case of military personnel, in the more recent inquiry, nearly 80 witnesses were examined and no conclusive evidence of encounter being fake surfaced. Therefore, no further action could be taken. This has ignited agitations in Kashmir with the chief minister also jumping into the fray, forgetting that in the same incident where his police had played a major role, the inquiry had absolved the police of any wrongdoing! In the case of Machill, military is currently conducting a court martial of the military personnel concerned.

To contend that some features of AFSPA directly contravene democratic ethos is self-defeating in its contextual relationship to a state of murder and mayhem, which by itself is against the very essence of democracy. AFSPA provides a sort of shield against frivolous and motivated accusation and consequent prolonged litigation.

Army's role

The argument that army vetoes its withdrawal from counter-insurgency tasks is without any merit. Army is there to carry out government policies and render professional advice, as it did against its deployment in anti-Maoist operations and withdrawal from Siachen.

The chief minister of Jammu and Kashmir has been advocating partial withdrawal of AFSPA from certain areas (districts) of the valley.

Insurgents are not tethered to any specific area or district and logically will shift their operations to the area from where it is lifted. Once the AFSPA is lifted, the army must be pulled out of those areas and state and central police take over. However, those who are to take this decision to remove AFSPA from J&K must take into account possible future developments more so with the 'draw-down' of American troops from Afghanistan on the one hand and Pakistan's continued policy of pushing insurgents into J&K on the other.