[Reader-list] Reg: Set-1 on Laws of India

[Rakesh Iyer]

Link: http://indiatogether.org/2010/apr/fah-afspa.htm

Article:

INTERNAL CONFLICTS
*AFSPA: Between battle lines *
Despite two high-level recommendations to repeal the Armed Forces Special
Powers Act, the law remains in place. The Army is right to insist on its
view, but there are things that can be done to improve matters, writes Firdaus
Ahmed.
*29 April 2010* - The new Army Chief has spoken his mind on the Armed Forces
Special Powers Act (AFSPA), which gives the military special powers of
arrest and operation in certain 'disturbed' parts of the country. "Any
dilution of the Act will impinge adversely on the manner in which the armed
forces operate," he said recently, adding that "in constrained and trying
circumstances, the armed forces need requisite legal protection". He knows
what he's talking about - his immediate past experience was in command of
the Field Army deployed in countering insurgency in the North East, and he
has been an infantry officer with counter insurgency experience at the
grassroots and at the operational level.

The chief's view explains the Army's reservations on the draft of an amended
version of the AFSPA that the Ministry of Home Affairs had sent around for
concurrence. The changes were intended to make the Act more 'humane',
stemming from the promise of the prime minister during his visit to Manipur
in the wake of agitations over the alleged killing of Manorama in mid 2004.
The Army had then stalled appearing before the Upendra enquiry into the
episode, citing that under the Act special permission would be needed for
any such probe. That further fueled the attacks against the Army by human
rights groups and other NGOs, who rightly demanded more accountability for
the Army's actions.

The BP Jeevan Reddy committee, appointed after the PM's visit, recommended
outright repeal of the Special Powers Act. The Second Administrative Reforms
Commission headed by K Veerappa Moily in its report on Public Order seconded
Reddy's opinion. But for the moment, the Act remains well and truly in
place, and continues to be a point of major contention between rights
organisations and the State.

*Key revisions*

The proposed amendment to the AFSPA was specifically intended to have a list
of Do's and Donts incorporated within it. The Supreme Court judgment on the
constitutional validity of the AFSPA had directed that the Army, "shall
strictly follow the instructions contained in the list of 'Do's and Don'ts"
issued by the army authorities which are binding and any disregard to the
said instructions would entail suitable action under the Army Act, 1950." It
had required that "the instructions contained in the list of 'Do's and
Don'ts" shall be suitably amended so as to bring them in conformity with the
guidelines contained in the decisions of this Court and to incorporate the
safeguards ..."

A second, but more important change, was needed in respect of Section 4(a)
of the Act, which reads: 'if he is of opinion that it is necessary so to do
for the maintenance of public order, after giving such due warning as he may
consider necessary, fire upon or otherwise use force, even to the causing of
death, against any person who is acting in contravention of any law or order
for the time being in force in the disturbed area ...' This clause has been
considered draconian. But the Army has not proved agreeable to half a decade
of exertions in the Ministry of Home Affairs and the Law Ministry on this
point.

Why? Because the Army prefers to see itself as the force of last resort in
internal security situation. The role is itself seen as a secondary one to
its primary role of fighting and winning the nation's wars. Therefore, if
the situation is bad enough, it feels it requires the powers necessary to
cope with it including legal cover for its soldiers. This is especially so
given the information war that surrounds insurgency, in which allegations of
human rights violations are a weapon.

This perspective itself is not problematic. Extraordinary situations require
extraordinary powers to cope, lest the republic unravel. What is problematic
instead is the Army's insistence that it would deploy only under the legal
cover of the Act in areas declared 'disturbed' under Section 3 of the Act.
Thus even where the situation is not bad enough to warrant Army deployment
with such powers, the Act is invoked to enable the Army's deployment.

The Army may have its own logic for such insistence - namely, by insisting
that the law be invoked protects it from being used as a default option in
internal security, as yet another paramilitary. The challenge, therefore, is
to identify situations that warrant Army deployment under the Act and how to
cope with those situations that are less critical. Understanding, if not
agreeing with the Army's position has led to the government's position on a
consensus, with the Army on board, before any further move is made. In the
interim however much can be done.

*Set exit conditions, strengthen prosecutions*

Firstly, in areas where the Army's efforts, among other reasons, have
brought down the insurgency to manageable levels, a review must be carried
out to determine whether continued Army deployment is necessary. The J&K
government has been asking for this for better part of the last decade. The
political dividend of this would be more useful in making balance of the
insurgency recede than anything the Army is currently doing by remaining
deployed. Even if this may not be readily possible in the Valley, an
experiment can be done with withdrawing both the AFSPA and Army deployment
in districts south of Pirpanjal.

Similarly, there is a strong case to be made for vacating the Army from its
deployment in Assam also, in particular lower Assam and the autonomous
councils. Here, the state government has continued with Army deployment even
where not required. Therefore a proportion of the blame must go to elected
representatives in state legislatures, rather than the Army.

Secondly, the Center need not be as protective as it has been over granting
permissions for the Army to be investigated where it is remiss. The Army in
any case follows up on allegations and takes pride in delivering justice
where warranted. However, as the Manorama case indicates, institutional
interest may at times override higher considerations. The Supreme Court has
required the government to be strict, stating, "A complaint containing an
allegation about misuse or abuse of the powers conferred under the Central
Act shall be thoroughly inquired into and, if on enquiry it is found that
the allegations are correct, the victim should be suitably compensated and
the necessary sanction for institution of prosecution and/or suit or other
proceeding should be granted under Section 6 of the Central Act."

For instance, the J&K state government made 38 requests to prosecute
soldiers, but no permission was granted by the Centre. Defence Minister A K
Antony told the Rajya Sabha that 133 complaints were made against the Army
between 2004 and 2009.

The AFSPA is perhaps necessary to deal with extreme situations. Such
situations are a rarity. This must first be recognised, and wherever the
situation start becoming normal, the Act needs to be withdrawn. However, in
case the Army is still needed in such cases, then it can be deployed under
cover of the relevant Code of Criminal Procedure sections, rather than the
AFSPA. This may deprive of its extensive powers, but since these would not
be necessary in less critical situations, it can afford to forego them.
*⊕*

*Firdaus Ahmed* <http://indiatogether.org/opinions/fahmed/>
29 Apr 2010

*Firdaus Ahmed is a freelance writer on security issues and a regular
contributor to India Together. *