Come, let's call the bluff on the AFSPA

The Armed Forces (Special Powers) Act, 1958 (AFSPA, for short) is very much in the news. And so are a host of officers of the Armed Forces, both retired and serving, who have voiced their desire for the Act to continue. It needs to be seen why they are being strident about an Act that has been repeatedly called “draconian” by many who are knowledgeable about it. What also needs to be exposed are the deceptive arguments they have been dinning into our ears.

The Chief of Army Staff, Gen VK Singh, has been recalling a Supreme Court ruling on AFSPA saying that it is neither arbitrary not unconstitutional. He is certainly right, for once. The SC did hold the validity of the Act. But what Singh has not been saying is that the judgment is not an endorsement of the desirability or advisability of the Act. The two things are different. As the BP Jeevan Reddy Committee had noted, when the constitutional validity of an enactment is challenged in a court, the court only examines whether the Act is within the legislative competence of the Legislature which enacted it, and whether the enactment violates any of the provisions of the Constitution. The Act is right only in terms of a technicality. The Act is not arbitrary or unconstitutional, but what security forces have been doing with it certainly are.

Air Chief Marshal PV Naik, who is also the chairman of the chiefs of staff committee, said on Wednesday that a soldier deserves all the legal protection that he can get. Oh yes? For what? To operate with impunity? If security forces indeed require some provisions to operate in a hostile counter-insurgency environment, as its advocates have been incessantly arguing, they need to be reminded that most of the provisions already exist under various Acts. Even the Jeevan Reddy Committee had pointed out that it would be more appropriate to recommend insertion of appropriate provisions in the Unlawful Activities (Prevention) Act, 1967 (as amended in the year 2004),which is a cognate enactment, instead of suggesting a newpiece of legislation.

The ULP Act does contemplate, by necessary implication, the use of armed forces of the Union as well as the other paramilitary forces under the control of the Union to fight and curb the terrorist activities in the country. It is for this said reason that the Act has expressly barred,in Section 49, any suit, prosecution or other legal proceedings against "any serving or retired member of the armed forces or paramilitary forces in respect of any action taken or purported to be taken by him in good faith, in the course of any operation directed towards combating terrorism". In other words, the legal provisions already exist in a law of the land.

For those who are unaware, the ULP Act is a comprehensive law designed to ban unlawful organisations; to curb terrorist activities and the funding of terrorism; and investigation, trial and punishment of persons indulging in terrorist acts. The AFSPA, on the contrary, deals only with the operations of the armed forces in a disturbed area. What the Jeevan Reddy Committee had proposed was an amendment to the ULP Act to include one more chapter. This would have made it more comprehensive in that it would expressly permit deployment of armed forces and paramilitary forces to curb terrorism. The AFSPA was not needed at all.

Naga voices: An anti-AFSPA protest in Kohima in the early 1990s. Photograph: NPMHR

 

The BP Jeevan Committee report

The demand for the repeal / withdrawal of the AFSPA is nothing new to the Northeast. There have been vociferous demands and passionate protests for decades. The Indian government never took cognisance of any of these. It conveniently turned a blind eye and a deaf ear to the screams of despair of the people of the Northeast. Be it in Nagaland, or Assam, or Manipur. But after the extrajudicial murder of Manorama Devi at the hands of the Assam rifles in mid-2004, the state of Manipur was rocked by unprecedented mass protests. It went on for days, weeks. None of the words of the people of the state made any impact on the thick-skinned demagogues sitting in far away New Delhi.

And then something happened. A group of women stripped themselves bare and protested in front of the Assam Rifles headquarters in Imphal. The landlocked state, no longer disconnected with the rest of the world now that the Internet was here, managed to get its word out to the mainland. Photos were splashed across. The world was shocked. And the government of India lethargically pulled itself out of its stupor. It blinked for a moment, yawned at the protestors of Manipur, and did what it can always do – set up a committee.

The Manmohan Singh government in November 2004 set up a five-member committee under the chairmanship of Justice BP Jeevan Reddy, a former judge of the Supreme Court. The other four members were Dr SB Nakade, former vice chancellor and jurist; P Shrivastav, former special secretary to the ministry of home affairs; Lt Gen (Retd) VR Raghavan, former Director-General (Military Operations); and Sanjoy Hazarika, journalist and Northeast affairs expert.

This committee had its mandate quite clearly laid out:

"Keeping in view the legitimate concerns of the people of the North Eastern Region, the need to foster Human Rights, keeping in perspective the imperatives of security and maintenance of public order to review the provisions of the Armed Forces (Special Powers) Act, 1958 as amended in 1972 and to advise the Govt. of India whether-
(a) To amend the provisions of the Act to bring them in consonance with the obligations of the Govt. towards protection of Human Rights; or
(b)To replace the Act by a more humane Act.

The Committee may interact with representatives of social groups, State Governments and concerned agencies of Central Govt./State Govt. legal experts and individuals, as deemed necessary by the Committee in connection with the review of the Armed Forces (Special Powers) Act, 1958 as amended in 1972. The Committee will meet as often as required and visit the North Eastern region, if felt necessary".

The committee submitted its report in June 2005. It recommended that the AFSPA be repealed. Then the government did what it is wont to – go back to sleep.

And all of a sudden it has woken up because of the fervent cries for the repealing of the AFSPA in Jammu and Kashmir where it was promulgated in 1990. The demands are the same as it had been in Manipur. And the response of the government is the same – it doesn’t want to.

For the record, the Second Administrative Reforms Commission, and the Working Group on Confidence-Building Measures in Jammu and Kashmir, too had recommended AFSPA’s repeal.

Terminator too: Indian Army soldiers patrol a deserted street in Srinagar. The Army and other security forces have been frequently charged with excesses. Photograph: AP

 

An inconvenient truth and a question of convenience

Given the context that the Jeevan Reddy Committee was set up and the terms of references that were laid down for it, the Manmohan Singh government should have acted in 2005 itself instead of sleeping over it for five long years. The government had asked the committee to see if there were grounds for repealing the AFSPA; the committee had worked hard on finding out the ground truths and said yes. Shouldn’t the government have acted on it?

True, no recommendations of any committee is binding on any government. In other words, it works like this: I will accept your recommendations if it suits me, I won’t if it doesn’t. And that’s what it has been. The setting up of the committee was a farce since, at the end of the day, its findings and recommendations was not convenient for the government.

That’s what the AFSPA is all about – it is a question of convenience.

The Army needs it because it otherwise cannot satiate the gory desires of its bloodthirsty jawans and officers who need extreme measures to solve moderate problems. The Bharatiya Janata Party (BJP) needs since it has, in turn, traditionally wanted whatever the Army has.

If you care to step back and take a bird’s eye view of what is happening, you will realise that those braying for the AFSPA to stay are essentially people who have never been at its receiving end. Be it those callous politicians (both in Jammu and Kashmir, and elsewhere), or those jingoistic journalists you read in newspapers or see baring their fangs on television. Or for that matter, the displaced Kashmiri pandits who have sprung up from nowhere as far as the AFSPA is concerned. It’s a question of convenience, you see.

All blaring of rhetoric about India being a great democratic country falls flat if it is the people of the land who have to pay the price for the errors of omission and commission of others. The last time I heard, democracy is supposed to be all about people. Have things changed, or what?

Any contention that the repeal of the AFSPA is also convenient for those seeking it is an empty-vessel argument that only makes noise. It has no substance. The call for the AFSPA’s repeal comes from hapless citizens of this country who have to bear its brunt. And for any insinuation that terrorists are trying to use such demands as a cloak to hide, the answer is this: they can try to hide, but they can’t. Because the existing ULP Act is enough to deal with them. And with the suggested amendments, the Army doesn’t need the AFSPA.

If these people still say it’s needed, their bluff has been called.