Change the blanket ban on trials without official sanction to one where the government has the power to bar prosecution in individual cases provided it satisfies the courts that its reasons for doing so are valid.
The Armed Forces (Special Powers) Act has come in for widespread criticism in Jammu and Kashmir, Manipur and other parts of the northeast because of the human rights abuses that have come to be associated with its operation. So strong is the sentiment against AFSPA in Kashmir that in recent months Prime Minister Manmohan Singh, Union Home Minister P. Chidambaram and Jammu and Kashmir Chief Minister Omar Abdullah have all spoken of the need to re-examine the law. The Army, on the other hand, says this is unnecessary.
The Army Chief, General V.K. Singh, has gone so far as to say that the demand for the dilution of AFSPA is being made for “narrow political gains.” On his part, Lt. Gen. B.S. Jaswal, GOC-in-C, Northern Command, has compared the Act to scripture. “I would like to say that the provisions of AFSPA are very pious to me and I think to the entire Indian Army. We have religious books, there are certain guidelines which are given there, but all the members of the religion do not follow it, they break it also … does it imply that you remove the religious book …?”
On paper, AFSPA is a deceptively simple law. First passed in 1958, it comes into play when the government declares a particular part of the northeast (or Jammu and Kashmir under a parallel 1990 law) a “disturbed area.” Within that area, an officer of the armed forces has the power to “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 prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances.”
Even though activists have made this the focus of their criticism, giving soldiers the “right to kill” is not, in my opinion, AFSPA's principal flaw. After all, if a ‘law and order' situation has arisen which compels the government to deploy the Army, soldiers have to be allowed to use deadly force. Even a private citizen has the right to kill someone in self-defence, though the final word on the legality of her or his action belongs to the courts. Similarly, a civilised society expects that the use of deadly force by the Army must at all times be lawful, necessary and proportionate. Here, the Act suffers from two infirmities: the requirement of prior sanction for prosecution contained in Section 6 often comes in the way when questions arise about the lawfulness of particular actions. Second, AFSPA does not distinguish between a peaceful gathering of five or more persons (even if held in contravention of Section 144 of the Criminal Procedure Code) and a violent mob. Firing upon the latter may sometimes be justified by necessity; shooting into a peaceful assembly would surely fail any test of reasonableness.
Leaving this issue aside, however, it is important to recognise that AFSPA does not give an officer the unqualified right to fire upon and cause the death of any person in a Disturbed Area. At a minimum, that person should have been carrying weapons or explosives. The shooting of an unarmed individual, and the killing of a person in custody, are not acts that are permissible under AFSPA. Force is allowed in order to arrest a suspect but the fact that the Act authorises the use of “necessary” rather than “deadly” force in such a circumstance means the tests of necessity and proportionality must be met.
Over the years that AFSPA has been in operation, the Army has opened fire countless times and killed hundreds, if not thousands, of people. Whenever those killed have been armed insurgents or terrorists, there has been little or no public clamour against the Act. It is only when the armed forces violate the provisions of the law and indulge in the unlawful killing of persons — especially unarmed civilians — that voices get raised against AFSPA. The protests in Manipur in 2004 reached a crescendo because of the death in custody of Th. Manorama and scores of others like her. In Kashmir, sentiments against the Armed Forces Act got inflamed because of fake encounter incidents like Pathribal and Macchhil.
If today people are questioning General Jaswal's “religious book,” it is not so much because of its provisions as because of the failure of its custodians to act when the law is flouted. The Lord's Word threatens sinners with fire and brimstone, eternal damnation or the endless cycle of births and deaths. But AFSPA holds out no such horrors for the soldiers who violate its provisions. Section 6 says “no prosecution … shall be instituted, except with the previous sanction of the Central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.” This requirement confers de facto impunity on all transgressors. Thus the CBI may have indicted army officers for the murder of innocent civilians at Pathribal in 2000 but their trial cannot take place because the Central government refuses to give sanction. What is worse, the Minister concerned does not even have to give any reasons.
The ostensible logic behind this Section, a variant of which can be found in Section 197 of the CrPC and in many Indian laws, is to protect public servants from frivolous or vexatious law suits. But though it has not ruled on the ambit of AFSPA's Section 6, the Supreme Court has often declared that the object of Section 197-type protection is not to set an official above the common law. “If he commits an offence not connected with his official duty he has no privilege.”
In the Pathribal case, the CBI took the view that abducting and killing unarmed civilians in cold blood could not be considered part of “official duty.” Not only did the MoD reject this logic, it moved the Supreme Court for quashing of the case on the ground that it has not granted sanction to prosecute. At no time has it been asked to furnish reasons for denying sanction.
A government which has faith in the actions of its officers and the robustness of its judicial system ought never to shy away from allowing the courts to step in when doubts arise. And yet, in case after case, legal proceedings get stymied by the denial of official sanction.
In a democracy, this requirement of previous sanction should have no place. But given the balance of political and institutional forces in India today, it is utopian to believe it can simply be done away with. What I am proposing, therefore, is a modest remedy. Let us not tamper with the government's ability to protect officers from criminal proceedings. But instead of the default setting being ‘no prosecution without official sanction,' let the blocking of a prosecution require official action.
Section 6 could thus be amended to read: “No prosecution … shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act where the Central government provides reasons in writing and the competent court upholds the legal validity of these reasons.”
Such a provision would prevent good officers from being prosecuted for killings which result from acts of good faith while allowing the bad apples to be prosecuted for their crimes. The government would still have the right to intervene on behalf of a soldier who has committed an illegal act. But this would require a Minister to take personal responsibility for a decision that would, after all, be tantamount to denying justice to the victim's family. In the Pathribal case, for example, Defence Minister A.K. Antony would be compelled to inform the trial court of his reasons for opposing the prosecution of soldiers indicted by the CBI for murder. And the court would get to rule on whether Mr. Antony's reasons were valid or not.
There is no reason why this inversion of the “previous sanction” provision cannot be replicated across the board in all Indian laws to cover situations where human rights abuses are alleged. Such a provision would not disturb the basic provisions of AFSPA. But it would bring that “religious book” in closer conformity with an even holier tome, the Constitution of India.
Keywords: Armed Forces (Special Powers) Act, national security, Indian constitution, Defence Ministry, A.K. Antony
AFSPA may not be a bad law intrinsically. The problem lies with the misuse/abuse by security personnel and subsequent inaction. Many misadventures of security forces have gone unpunished under the law of the land. The real problem/face of AFSPA is felt/seen on the ground level. Imagine someone being being questioned for having a Che Guevara tattoo or any other tattoo for that matter. People get slapped for no reason. People are asked to take a dip in water during winter. The worst nightmare happens during 'combing operations'. Sometimes made to think if the universal law of 'right to life' exists or not. A friend posted in Srinagar (CRPF) said that they have to be very careful as they cant slap civilians. What he did not realized is that he doesn't need to slap the civilians. Just happened to be in a queue to withdraw money from an ATM. There was secutity presence there understandably to secure the ATM machine from terrorists/separatists. Overheard some ladies heaving a sigh of relief when the security forces went away for some time, even called them with names. This is how civilains feel about the security forces posted to protect them. Added to this, instances of rape, torture and fake encounters and we have a heady mixture. Agreed that security forces are at distinct disadvantage fighting against the millitants due to the usage of unconvetional tactics by the millitants. It seems like they are using AFSPA to offset that disadvantage at the cost of the civilians. Although abuse of AFSPA my be perpetrated by few it needs to modified at least in its present form to stop the dealination of the peaople of north-east and the J & K. To those who are absolutely fine with the present form of AFSPA, i advice them to spend considerable time in these above mentioned troubled regions to experience the security foeces at work on the ground level.
It's a hard decision but Govt should do something on this direction before it is late.
thanks mr. siddharth for writing an article based on reason rather than virulent jingoism of most indian penpushers.
@Steve,
There are thousands of such resolutions lying idle in UN!
What UN fails is to address is the policy to protect the interest of a country. It never comes to support a country when terrorist kill innocents and disturb the peace. Unfortunately these resolutions are never revisited by UN to find out if they are really viable in ages or if they at all make any solid ground to be implemented at all. UN is just a monitor with tied hands, no proper representation from emerging countries and authority given to permanent members to pass or veto any resolutions. A simple example is China, a permanent member which has vetoed all those resolution which are not in its interest. Have you ever asked who are these 5 permanent members to address some problems of country, perhaps you should look at that first.
And so India is doing what is in its Best interest.
AFSPA should not be removed completely. It should be broken down in various degrees.All security agency and the government should make it transparent to the public. The people should be educated on these laws. Also this is a dangerous tool and there should be an independent body to monitor if its effective, if its not being misused.
It should be reviewed from time to time.
Cowardice runs in the veins of most policy makers ,bureaucrats,media personnel or rights activists. The best camouflage is to take on a moral high ground and blame the true victims when pressing problems demand action. This is the history of India and its leaders since times immemorial. This is feeding Islamic terrorism all over the country. This unfortunate nation has a surplus of cowards in all walks of life.
In J&K revoking, twisting, turning or churning AFSPA is not going to work. Because people of Kashmir are demanding implementation of -RESOLUTION ADOPTED BY THE UNITED NATIONS COMMISSION FOR INDIA AND PAKISTAN ON 13 AUGUST 1948. (DOCUMENT NO. S/1100, PARA 75, DATED THE 9TH NOVEMBER, 1948) . Only then can peace prevail.
While there are many for and against AFSPA, we need to examine what it has achieved. In the Northeast, it has succeeded in alienating large populations from the country, who now see India as an oppressive force. So is the case in Kashmir. We are caught in a chicken and egg situation - AFSPA leads to discontent, which in turn leads to the need for AFSPA. Remove it and at least we can reduce the discontent, which in the longer run will serve us well. In any insurgency, a military solution needs to pave the way for a political solution. Repealing AFSPA will be a step in the latter direction.
Virtually everyone denouncing the AFSPA,refers to the miscreants provoking the security forces as 'innocent citizens'. Hours of protest footages on channels tell a different story. Do we want our soldiers to be sacrificial goats for those seeking to harm the country. All those innocent child protestors who get killed are used in the frontline by clever seperatist leaders just to gain public sympathy. This happens daily in palestine as well, where innocent unsuspecting familes are lodged in the buildings that are in the firing line of the Israeli army. De-fanging the army is top on the agenda of the separatists and apparently the UPA govt is falling prey to their designs as has happened with j & K in all its endeavors since independence.It will be inviting chaos if AFSPA is diluted it will be the beginning of the end of Indian Kashmir.It has been a story of total sellout by congress govts since decades.The so called secular and liberal brigades are adding oil to the burning pyre.
I very much condemn the killing of the innocents but at the same time I would plead with the well wishers of the young stone pelters to advise them to immediately stop such acts and come for discussions to readress their grievances and thereby save the precious lives. Alas! Nobody talks about the hapless Kashmiri pandits and their untold misery.
Loss of life may have good many reasons. But it is duty of Government to extend all possible survival strategies to prevent loss of life. Death provokes spontaneous out break of many more incidents. Timely healing is always good for nation. At the same time agitating Kashmir youth must not resort to any such activity to offer themselves to an international controversial status, rather they must come forward to rejoin national stream and participate in the talk process with Government.
In parts like J&K, where disturbance has been recognised since 1958, an act like AFSPA must not be routed out. Exegencies happen in a jiffy and at those specific moments Army must be empowered with 'powers' that allow them to tackle with the reprobates at the grass root level itself and thus helping the Army to avoid another big scale mishap.
Peace of a region and amongst its people is of the topmost priority and I agree with the author to amend AFSPA accordingly.
Dear Mr Varadarajan,
I was delighted to read your article, in the sense that here we have someone speaking about AFSPA, where it actually seems that the person writing the article has read the act and understands the act as it is. Otherwise, more often than not we have people commenting on the act, without even having bothered to read it.
Now about your suggestion in the article, seeing the pace of how govt officials work, any officer or jawan of the armed forces against whom a human rights case has been made, will just be running pillar to post to get somebody to stop the action against him and in this case even the genuine cases may land up with undeserved punishment. To support what I am saying, a few days back we saw Ms Barkha Dutt discussing AFSPA where we had an eminent journalist rattle out figures which showed that out of the human rights cases filed against army personnel in counter insurgency operations, a very miniscule percentage was found to be correct, and of those found correct, the army is taking stern action, unlike what happens in every other govt setup where it takes a lifetime to get the guilty punished ( that too generally after a lot of help from the media, as we have seen in the case of a former IPS officer molesting a school girl). Also, by inverting the law, it will give another tool to our bureaucrats and politicians to have an upper hand on the armed forces.
Speaking objectively, AFSPA was not a droconian act but was supposed to be the last resort of a man in uniform to tackle with extreme violent activities and a solider's self defence in intense conditions for life but as we know in this part of the world, every thing is misused and used for profit,fun and entetainment,tool for legalising oppression,supression and atrocities and so well do our soliders day in and day out.
It's a sorry tale for India that it's unable to protect its own people and instead has indulged in state administered killings by employing draconian laws like AFSPA. The country proud of being the biggest democracy in the world is not able to save her people and could not frame such laws which value human life and simultaneously don't disgrace the security forces.
Laws like AFSPA must go if peace has to prevail in India
The AFSPA is used to fight terrorists and is must for Indian state's integrity.
The army is trained to defend the country against enemy aggressions. It should not be used as a political weapon and turned upon its own people whom it has pledged to defend. No Law and logic justifies the right to kill without prior sanction of the established laws.
Army bashing is the latest hobby of all intellectuals.
..." General Jeswal statement that extraordinary situations require extraordinary laws. " Example is Sri Lanka where the situation was brought back to normalcy by the sheer use of power. " The Hindu " supported the moves of Rajapakse. Why it is not batting for the same in Kashmir where the security forces are doing the duties assigned to them. There may be some violations. But that doesn't mean to say that we should leave the army and CRPF at the mercy of separatists who enjoying all benefits ,question the very foundation of Indian constitution and its secular credentials.
I believe most of the times its not the system but the people in it that are the problem.
In any case the army uses no heavy weapons or air raids. Thus I believe this special protection must stay. If you have any doubts you can always see TV grabs of a number of armies the world over using even 155 mms in counter insurgency ops. Diluting afspa would be like tying both their hands behind their back.
Yes, I do agree with the author's view of keeping a official track but, not with the manner in which it is suggested. It is not possible for Army officials to take everything in written. Sometimes, things happen so quickly that you've got to be on your toes to curb it. You can't predict these sudden bursts of anger, and wait for someone sitting miles away to sanction orders. It has to be done at the spot, not at the 11th hour when things go out of control.
The fact that the AFSPA gives soldiers immunity from prosecution is clearly ridiculous. Soldiers, as Indian citizens, are not above the law. Certainly we ought to ensure that the killing of unarmed civilians comes to a complete stop. However, from the soldiers perspective, we must consider the extreme situations which they have to undergo and their reactions under these conditions. Given the volatile environments mistakes are, unfortunately, likely to happen. Let us also be clear about the term "unarmed civilians". Does a mob of people intending to kill a soldier with their bare hands count as "unarmed civilians"? I think not. It is the gross injustice caused to genuinely innocent civilians which must be prevented by law.
@Aasif khanday
Today it's Manipur and Kashmir, if we go on granting autonomy on the basis of "diverse national regionalities", we'll have to grant autonomy to each and every district of the country. By supporting such claim you are indeed contradicting the very idea on which India is founded - Unity in Diversity. Why can't Kashmir and Manipur integrate with the rest of India like Tamil Nadu and Kerala?
A modest proposal is not what the people demand nor does the modification but its the total abolition or removal from the region is the need of the hour..!!
Dear Sir,
Armed Forces Special Power Act is required and needs no amendment as proposed above. As J and K is very delicate subject and outside factors are playing important role already citizen are protected by special article of constitution and that protection is not availabel to other state resident in rest of India. J and K and other states shall be treated on equal footing.
I feel Siddharth's suggestion to 'inverse' the said provision in many Indian laws is not workable(I might be wrong). This is because no politician would be willing to commute a political blunder by blocking a lawsuit explicitly. And no Defence Minister would take the blame for another Defence Minister's mistake. But I would still like to do some research about similar laws (if they exist) wherein Ministers by law can block lawsuits against soldiers and what were the impacts of these laws. I would still like to see a bigger and better India with less violence. As a matter of cliche, China is a prime example of a large country with multiple autonomous regions. People of India as a whole should accept and support each other without blaming others unless they have a 'good reason', not just 'any reason' and fringe politicians should be marginalised through media (which itself should portray impartiality) for the better good. I know this is utopian but there are small steps that can be taken in this direction. This would signal the end of all controversial laws and certain sections of other non-controversial laws.
AFSPA in the hands of the Indian army helps the Indian state to hold on to those territories which either would like to remain independent, autonomous or different-from what India would like them to be-on the basis of their separate history, culture or economic set-up from that of the Indian state. The same is true of Kashmir, Manipur and some other north-eastern states. So the people in these states are getting killed for simply one reason:to perpetuate India's bogus unity-why could it not be a federal state because of such a diverse regional nationalities-at the cost of enormous tax-payer's money and the loss of precious lives in these disturbed areas. So instead of talking about amending AFSPA-by the way Kashmiris don't simply want the repeal of AFSPA but the army in whole-why don't we take the discussion to the broader level and save the precious lives of the innocent persons in these areas and save the Indian integrity and its economic resources...
Sophistry over AFSPA continues. Trial balloons going up all over in the media over possible dilution of AFSPA.
First in Kashmir Valley, and the inevitability of the Indian Army's use after all options are exhausted and many are dead, in the maoist Theatre too, makes AFSPA critical to protecting the Armed Forces.
If AFSPA goes, so should the Indian Army. The dhotiwalas and their sycophant babu's can fight themselves then. Enough is enough!
People of Manipur, NE State of India and J&K must be given the same privileges like any Indian states to live a “NORMAL LIFE” and the Government of India should protect each precious life, not only to North, West, South and East India, and importantly their institutions should honestly maintain corrupt free Law and Order.
A nice piece of writing. Nonetheless, I strongly feel that issues of Kashmir and certain North-Eastern territories of our country go beyond technicalities and prevailing laws of the land. I am no right wing nationalist, and do share deep concerns about innocent losing lives, but we should consider the sentiments of our soldiers also. They are dealing with such lethal circumstances on a day to day basis. I am sure we all understand that between two incidents lot else happens in the affairs of public, separatists and the army. Although, rape committed by a soldier and children losing their lives is one thing that I cannot accept.
By a cursory opinion, yes, I would agree with Mr. Varadarajan that toning down the AFSPA would bring in reasonable accountability and proximity to the Indian Constitution. However, AFSPA is not a utopian dogma that should be meddled with. It's sheer necessity has kept Kashmir within the realms of Indian constitution. If not, they would have long detached themselves from civility and degenerated into a typical Islamist State. It would be an added threat, a potential one too, along with Pakistan. A state of war would have become the norm along that border and our Army would continuously be losing able and efficient officers.
Hence a dilution of AFPSA should not be entertained under any circumstances.
Our central Government should act on this occassion and modify AFSPA, otherwise government is going to be in deep crisis in north eastern parts of India especially Jammu and Kashmir. Government has to accept there is a genuine uprise in Kashmir youth ,which is against India. This is not especially good since they are the future citizens and can easily diverted to Pok camps.I think this is crucial moment. Government should take stern actions without any hesitation for fruitful wellbeing of united India.
The Armed Forces Special Powers Act per se might have outlived its utility. It is also time that the security forces are not allowed a free run, at least not in a country which aspires to become a super power. Having said that separatists need to be sensitive to India's fears and aspirations. If Azadi is what they are looking for then it is war with India and as they say all is fair in love and war.
An excellent suggestion. However, how will it provide immunity from legal prosecution for officers who are part of covert operations within India. According to AFSPA, a soldier is in his right to kill a person carrying a weapon but in that case even stones can be considered a weapon. Then why is hue and cry?
The problem though appears as a public issue is not. It is a war in cloak. The idea behind inciting and masquerading people against government and officials and making them use stones instead of bombs has a reason and is an excellent gambit where the demagogue gains whether the Govt. acts or not. If the security professionals did not respond, they will get killed and it will only lead to bigger problems like anarchy, separatism, insurgency, etc. If they did respond, some casualties will occur which can again be used as a fuel for further unrest. The situation is not black and white. It is a grey. Sometimes, officers had to involve themselves in covert actions within our boundaries to stem those influential but bad eggs. In this case, I'm curious to hear the author's solution.
However, I'm not saying fake encounters is correct. Instead, a soldier should have the right to kill anyone if he or she individually or collectively indulges in any act that can disrupt peace or cause loss of properties or involve directly or indirectly in sedition against the government. The security forces should have the right to kill those who indirectly support separatism through, but not limited to, funding, logistics, etc, or maintain close contacts with enemies of India or citizen of India. In which case, the soldier may furnish conclusive evidence before acting but need not wait for an order from his superiors. To facilitate this, the security forces should also be able to tap into anyone conversation or conduct surveillance without the need or permission of the court. But, if a soldier kills a person friend or foe for personal gains, direct or indirect, he should be considered a murderer and treated as such and also be booked under the misappropriation of official resources act and he has to serve both the sentences.
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