Without AFSPA, the Army will be at the mercy of malevolent forces
A must: No army in the world gets involved in tackling insurgency without a legal cover.
Lt Gen Raj Kadyan (Retd)
Ex-deputy Chief of Army Staff
In a development that is unprecedented and unfortunate, over 300 Army personnel have petitioned the Supreme Court, seeking legal protection while carrying out counter-insurgency operations. The reason for this unusual step is, of course, the prosecution of defence personnel by the civil agencies.
The debate about the Armed Forces Special Powers Act (AFSPA) keeps surfacing, mainly at the behest of some rights activists. The background of AFSPA and its broad provisions need to be understood before we can examine the issue objectively.
Independent India’s trouble began in the Northeast when the Naga National Council (NNC) boycotted the first General Election in 1952. New provisions were needed to deal with the situation. Initially, the Assam Maintenance of Public Order Act was enacted in 1953. With the situation deteriorating further, the Assam Rifles were deployed and the Assam Disturbed Areas Act of 1955 came into force. It provided a legal framework for the paramilitary forces and the armed state police to combat insurgency. However, the situation could not be contained and the NNC formed a parallel government on March 23, 1956. The Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 was then promulgated by the President on May 22, 1958. It was replaced by the Armed Forces Special Powers Act on September 11, 1958. Since then it has also been applied to other places.
There is unfortunate misinformation that AFSPA gives the Army complete immunity for its actions. Simply put, it gives the armed forces the power to maintain public order in ‘disturbed areas’. This mainly includes prohibiting a gathering of five or more persons; using force if they feel a person is in contravention of the law; arresting without warrant if reasonable doubt exists; entering or searching premises without warrant; and banning the possession of firearms.
AFSPA comes into force only in an area notified as disturbed area by the Central or the state government. Such a notification is issued when the situation deteriorates beyond the control of the state’s integral resources. The Act also stipulates that before prosecuting Army personnel the sanction of the Central Government is required.
The Kashmir situation has deteriorated greatly. The local population, including the civil judiciary, has been intimidated. Militants can today produce hundreds of ‘eyewitnesses’ to prosecute any soldier who acts effectively against them.
AFSPA is an Act of Parliament enacted in national interest. It is an enabling Act designed to give legal cover to soldiers for actions taken in good faith. Significantly, no Army in the world gets involved in tackling insurgency without a legal cover.
Of late, there has been an increased clamour for the removal of this Act. Some of it, in J&K for example, is instigated by inimical forces across the border. The aim is to demoralise soldiers by tying them down in endless litigation, which would happen if AFSPA is removed.
In our Constitution, legislature and judiciary have distinct functions. Broadly, while the legislature makes laws, the judiciary ensures their correct application. The judiciary’s role to safeguard rights is unquestionable. However, care needs to be taken to ensure that judicial judgments are not construed as a domain outreach. Unfortunately, in the case of AFSPA that perception is palpable among those involved in combating insurgency. AFSPA has been passed by Parliament as part of their functions. By retaining sanction for prosecution with the Centre, the intention of the legislature is clear that it does not want soldiers being prosecuted unjustly for actions carried out in good faith. The judiciary’s role is limited to interpreting that intention and not to override it. If any lacuna is noticed in the law, the judiciary can bring it to the notice of the executive or Parliament for rectification, and in extreme cases, declare it ultra vires of the Constitution. At all costs, the perception of judiciary legislating from the Bench must be avoided.
AFSPA has already been diluted. The apex court has made an FIR mandatory in case of death even in disturbed areas. The FIR may be a routine legality, but it evokes great scare among the soldiers. The legislators are answerable to the electorate and they would themselves remove or modify the Act if the sentiment against AFSPA is popular in the country. Since the elected government has the ultimate responsibility for national security, it should also have the authority to decide on the modalities of the Act.
Let us remember that the Army has the highest stake in ensuring that the soldiers remain disciplined. Every infringement of law is investigated promptly under the Army Act and punishment meted out swiftly. We need to trust the force.
The Indian Army is known to be one of the most disciplined in the world. We have tasked them to tackle a highly volatile and risky situation. The soldier on the ground gets only a fraction of a second to decide whether to shoot or get shot, there being no third option, or a second chance. When we scrutinise his action in a detached environment, there is a danger of technicalities overshadowing ground reality. The Army that has been (involuntarily) involved in handling insurgency almost continuously since Independence needs our support and solidarity. Let us not push the soldier into a situation where the legal shackles impose an undue caution on him to operate. Of all the institutions the Army stands apart for its result-oriented ethos and for always delivering. There is no wisdom in picking at our healthiest tooth needlessly.
The debate about the Armed Forces Special Powers Act (AFSPA) keeps surfacing, mainly at the behest of some rights activists. The background of AFSPA and its broad provisions need to be understood before we can examine the issue objectively.
Independent India’s trouble began in the Northeast when the Naga National Council (NNC) boycotted the first General Election in 1952. New provisions were needed to deal with the situation. Initially, the Assam Maintenance of Public Order Act was enacted in 1953. With the situation deteriorating further, the Assam Rifles were deployed and the Assam Disturbed Areas Act of 1955 came into force. It provided a legal framework for the paramilitary forces and the armed state police to combat insurgency. However, the situation could not be contained and the NNC formed a parallel government on March 23, 1956. The Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 was then promulgated by the President on May 22, 1958. It was replaced by the Armed Forces Special Powers Act on September 11, 1958. Since then it has also been applied to other places.
There is unfortunate misinformation that AFSPA gives the Army complete immunity for its actions. Simply put, it gives the armed forces the power to maintain public order in ‘disturbed areas’. This mainly includes prohibiting a gathering of five or more persons; using force if they feel a person is in contravention of the law; arresting without warrant if reasonable doubt exists; entering or searching premises without warrant; and banning the possession of firearms.
AFSPA comes into force only in an area notified as disturbed area by the Central or the state government. Such a notification is issued when the situation deteriorates beyond the control of the state’s integral resources. The Act also stipulates that before prosecuting Army personnel the sanction of the Central Government is required.
The Kashmir situation has deteriorated greatly. The local population, including the civil judiciary, has been intimidated. Militants can today produce hundreds of ‘eyewitnesses’ to prosecute any soldier who acts effectively against them.
AFSPA is an Act of Parliament enacted in national interest. It is an enabling Act designed to give legal cover to soldiers for actions taken in good faith. Significantly, no Army in the world gets involved in tackling insurgency without a legal cover.
Of late, there has been an increased clamour for the removal of this Act. Some of it, in J&K for example, is instigated by inimical forces across the border. The aim is to demoralise soldiers by tying them down in endless litigation, which would happen if AFSPA is removed.
In our Constitution, legislature and judiciary have distinct functions. Broadly, while the legislature makes laws, the judiciary ensures their correct application. The judiciary’s role to safeguard rights is unquestionable. However, care needs to be taken to ensure that judicial judgments are not construed as a domain outreach. Unfortunately, in the case of AFSPA that perception is palpable among those involved in combating insurgency. AFSPA has been passed by Parliament as part of their functions. By retaining sanction for prosecution with the Centre, the intention of the legislature is clear that it does not want soldiers being prosecuted unjustly for actions carried out in good faith. The judiciary’s role is limited to interpreting that intention and not to override it. If any lacuna is noticed in the law, the judiciary can bring it to the notice of the executive or Parliament for rectification, and in extreme cases, declare it ultra vires of the Constitution. At all costs, the perception of judiciary legislating from the Bench must be avoided.
AFSPA has already been diluted. The apex court has made an FIR mandatory in case of death even in disturbed areas. The FIR may be a routine legality, but it evokes great scare among the soldiers. The legislators are answerable to the electorate and they would themselves remove or modify the Act if the sentiment against AFSPA is popular in the country. Since the elected government has the ultimate responsibility for national security, it should also have the authority to decide on the modalities of the Act.
Let us remember that the Army has the highest stake in ensuring that the soldiers remain disciplined. Every infringement of law is investigated promptly under the Army Act and punishment meted out swiftly. We need to trust the force.
The Indian Army is known to be one of the most disciplined in the world. We have tasked them to tackle a highly volatile and risky situation. The soldier on the ground gets only a fraction of a second to decide whether to shoot or get shot, there being no third option, or a second chance. When we scrutinise his action in a detached environment, there is a danger of technicalities overshadowing ground reality. The Army that has been (involuntarily) involved in handling insurgency almost continuously since Independence needs our support and solidarity. Let us not push the soldier into a situation where the legal shackles impose an undue caution on him to operate. Of all the institutions the Army stands apart for its result-oriented ethos and for always delivering. There is no wisdom in picking at our healthiest tooth needlessly.
