Armed Forces (Special Powers) Act

If the armed forces are going to be used within the country to deal with insurgencies and other serious internal disturbances, it is reasonable to expect that they must have the right to use force. But the requirements of democracy and even military discipline make it imperative that this right be exercised at all times and places in a lawful and reasonable manner. Regardless of what specific statutes may authorise, the use of force in both international and municipal law is considered reasonable only when it satisfies the twin tests of necessity and proportionality. It goes without saying that rules governing the use of force are meaningful only when there is some mechanism to ensure compliance. International law is often criticised for the absence of such a mechanism, especially when it comes to disciplining powerful states. But there is no excuse for civilised societies failing to take action when the laws that define what kind of violence is permissible are wilfully violated. By this yardstick, India is not doing well at all. The Armed Forces (Special Powers) Act, 1958, which grants soldiers far-reaching powers to arrest and kill, has impunity scripted into it. In line with Section 197 of the Criminal Procedure Code, Section 6 of AFSPA prohibits the prosecution of a soldier accused of misusing its provisions unless the central government grants sanction.

In Kashmir, the Army brass has used this section to protect its men from going to trial even in incidents where they stand accused of heinous crimes such as the abduction and murder of unarmed civilians. In States like Manipur, so powerless have the civilian authorities become in the face of the Army presence that no one is even willing to take cognisance of serious crimes allegedly committed by soldiers. In 2004, Prime Minister Manmohan Singh promised the people of Manipur that he would seriously consider replacing AFSPA with a more humane law. He appointed a committee headed by Justice B.P. Jeevan Reddy to examine the functioning of the law; and the committee, noting the way in which the law was being abused, suggested its replacement by an amended version of the Unlawful Activities (Prevention) Act. In the face of the Defence Ministry's objections, however, the report was quietly shelved. Now, in the wake of the resurgence of mass protest in the Kashmir valley, the central government has once again started making vague promises about amending AFSPA. The time to make these changes is now. Section 4 should be amended to explicitly incorporate the principles of necessity and proportionality and Section 6 must be changed to allow for the prosecution of illegal acts in all cases except where the government is able to convince the courts otherwise. Expedient steps like taking some districts out of the ambit of “declared areas” just won't do.

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There is an intense discussion in the media on the pros and cons of the Armed Forces (Special Powers) Act. Most of the participants are not aware of the provisions of the Act which they want withdrawn from Kashmir and the northeast. The Act empowers the armed forces to search and arrest without a formal warrant. This power is important, because by the time a formal search or arrest warrant is obtained, the suspect would get ample time to make good his escape. That Act also permits an Army NCO to fire at a real or suspected insurgent, without fear of being taken to court. When the right of self-defence is available to all citizens, is it fair to deny the same to the army personnel?

If the demand of Chief Minister Omar Abdullah to withdraw AFSPA from parts of Kashmir is accepted, it will embolden the insurgents and affect the functioning of the forces.

Col. Abhay Rishi (retd.),

New Delhi

If, by withdrawing AFSPA, normality will indeed return to the troubled State of Kashmir, by all means abrogate it. Those who oppose it should guarantee that insurgency and militancy across the country will be sorted out by them with a humane approach.

In the first place, the army should not be called to restore law and order in a State. Let it manage the borders. Let us withdraw AFSPA for one year and see how the States concerned cope.

Lt. Col. Ravindranathan K.V. (retd.),

Palakkad

The army is trained to guard the nation's borders, and to kill the enemies of the nation swiftly and efficiently. The tragedy is that across India, the police forces have been politicised and corrupted beyond redemption. Our politicians at both the Centre and the States, therefore, increasingly turn to the army to perform police duties.

As one who spent the first two decades of my life in Meghalaya and Assam, I can say with confidence that the antipathy of the people of the northeast towards AFSPA is rooted in a simple fact — the army, to them, is the most visible face of mis-governance by the GoI.

R.P. Subramanian,

New Delhi

National security is more important than anything else. When it is ensured, some people may suffer more than others. We hear many citizens complaining of security checks in and outside the country but we hear no such complaint from foreigners.

We enjoy complete freedom. Terrorists and other anti-social forces exploit it. The law-abiding common man is at the receiving end because the police, out of fear of the media and rights activists, hesitate to act against such forces.

Rajan Vairavan,

Thiruvananthapuram

The existence of laws such as AFSPA is deplorable. It shows the inability of our system to address the problems of the masses in a democratic way. It is time AFSPA was repealed. We won our independence through a non-violent struggle led by Mahatma Gandhi. It is a shame that we use severe and inhuman laws against our own people. AFSPA's immediate withdrawal is a sine qua non for the protection and promotion of human rights.