1. AF { Jammu and Kashmir } SPA 1990 was drafted taking leads from AFSPA1958
The provision / concept that under acute emergencies of the disturbed conditions the setting of the norms for “Do’s and Don’ts” for the men working under Armed Forces Special Powers Act AFSPA be left to army authorities has been questioned by some people. Considering the conditions that may exist, though rarely , raising questions may not be that fair. On the other hand Lt General Arvind Sharma { his press conference at Kolkata on 3/1/ 2005 } had pleaded that the provisions of the AFSPA are “absolutely essential” to tackle insurgency in the country. Mr. Sharma had said that as per his assessment without the AFSPA, the Army will not be able to function in insurgency situations. He had gone to the extent of saying that without AFSPA the army will be a only a reactive force. Similarly PTI has quoted Army’s Northern Command chief Lieutenant General B S Jaswal as having said { 5/9/2010} that "For special circumstances you require special laws. There are special circumstances in Jammu and Kashmir and that require special laws to deal with it, My troops are the finest in the world and whatever they do, they do it with good intentions. And if that good intention is questioned time and again, that will make their function difficult. It is very very important that they have AFSPA..Some people call these provisions of AFSPA as draconian. I would respond by saying that if you want to feel the heat, be in it. When you function in these special circumstances, you will realise that these laws become imperative for carrying out smooth operation. Certain amount of immunity is imperative. It empowers the Army to act firmly in certain circumstances that exist in this case. If Army has to get in to carry out searches, etc, .In case we don’t have this tool for immunity, then who will act." The opinions and experienced observations of such senior people can not be set aside so casually. Rather , need for such like laws has become a need for all peace loving countries.
No doubt simple impunity for human rights offenders seriously undermines the rule of law. Any default could be feared to widen the gap between those who hold the power and those whose rights could be abused. Instances have there that human rights violations are encouraged, as perpetrators feel that they are free to act in a climate of impunity. But it is also a reality that individuals could be there any where in any organization who may violate the law and misuse the law. So the needs of the Society / Nation can not be under rated simply under the principle that we could let free 1000 real culprits instead of wrongly punishing one innocent person under an error of Judgment. Such principles could hold under normal circumstances but not when a war is lodged by the any one against a Nation through direct or indirect methods. While replying to a question of enquiry regarding Machhil encounter in Jammu and Kashmir in which one Colonel and two Majors have been charge sheeted by civil police for allegedly killing three youths in a fake encounter CNC Northern Command had informed that there have been 1,535 odd cases registered against Army personnel in Jammu and Kashmir only 35 cases have proved right.
In 1950s violence almost became a way of life in north-east. State administration and civil police was not capable of controlling internal disturbances and could not even provide social and material security to the common citizen e of India. So the Armed Forces (Assam and Manipur) Special Powers Ordinance was promulgated by the President on 22nd May of 1958. Special powers were given to the members of the armed forces in disturbed areas in the State of Assam and Union Territory of Manipur. Later the Ordinance was replaced by Act. Section 3 of the Ordinance powered the Governor of Assam and the Chief Commissioner of Manipur to declare the whole or any part of Assam or the Union territory of Manipur, as the case may be, to be a disturbed area. Any Commissioned Officer, Warrant Officer, non-commissioned officer or any other person of equivalent rank in the armed forces may exercise, in the disturbed area, the powers conferred by section 4 and 5 of the Ordinance. Later a bill was enacted by the Parliament to replace the Ordinance. The Bill { THE ARMED FORCES SPECIAL POWERS ACT, 1958 , Act No 28 of 1958} was passed by the Parliament and it received the assent of the President on 11th September 1958).AFSPA 1958 enabled certain special powers to be conferred upon members of the armed forces in disturbed areas { State of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. W e f 20 Feb 1987 } . Later came Armed Forces Special Powers (Extension to Union Territory of Tripura) Act, 1970. Armed Forces (Assam and Manipur) Special Powers (Amendment) Act, 1972 (7 of 1972), State of Mizoram Act, 1986 (34 of 1986), State of Arunachal Pradesh Act, 1986 (69 of 1986). Then after mass exodus of the people for Kashmir valley and violent emergence of militants in JK came The Armed Forces { Jammu and Kashmir } Special Powers Act 1990, No. 21 OF 1990 [10th September, 1990.]. This Act was to enable certain special powers to be conferred upon members of the armed forces in the disturbed areas in the State of Jammu and Kashmir. The Act was to come in force retrospectively on the 5th day of July, 1990. With the passing of this Act by Parliament and receiving assent of the President on 10th September 2010 The Armed Forces (Jammu and Kashmir) Special Powers Ordinance, 1990 of 5 July 2000 was repealed. The AFSPA so specifically refers under section 2 to "armed forces" as the Military forces and the air forces operating as land forces, and includes any other armed forces of the Union so operating and the "disturbed area" as an area which is for the time being declared by notification under section 3, to be a disturbed area; So there should be so difficulty for any one in understanding the spirit and need for delegation of emergency authorities to the forces operating in declared disturbed area.
It had been 32 years since AFSPA 1958 was issued. Circumstances had changed, concepts had changed , the techniques of enemy warfare had changed . Hence the needs had changed. So while enacting the AF { Jammu and Kashmir } SPA 1990 some change / modification in the descriptions and sections was incorporated { Section 3,4,5,6 in particular }. In Section {3} disturbed and dangerous conditions were more elaborated as (a) activities involving terrorist acts directed towards overawing the Government as by law established or striking terror in the people or any section of the people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people; (b) activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India from the Union or causing insult to the Indian National Flag, the Indian National Anthem and the Constitution of India,….. In this section, "terrorist act" has the same meaning as in Explanation to article 248 of the Constitution of India as applicable to the State of Jammu and Kashmir. This Act was specially drafted in view of aggression like conditions and issues like Nationalities that have been then and are also in 2010 inflicting damages on JK. Similarly Section 4 Special powers of Armed Forces more description on seizer was given and sub section {e] was also added { stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is a proclaimed offender, or any persons who has committed a non-cognizable offence, or against whom a reasonable suspicion exists that he has committed or is about to commit a non-cognizable offence, or any person who is carrying any arms, ammunition or explosive substance believed to be unlawfully held by him, and may, for that purpose, use such force as may be necessary to effect such stoppage, search or seizure, as the case may be. }.. Similarly under Section 5 Power of search was included in more specific manner { to include powers to break open locks, etc. Every person making a search under this Act shall have the power to break open the lock of any door, almirah, safe, box, cupboard, drawer, package or other thing, if the key thereof is withheld. }. Similarly changes were made in Section 6 regarding handing over of the arrested persons and seized property to be the civil police. And the Clause regarding protection of persons acting under the Act was re written as Protection of persons acting in good faith under the Act. From the changes and elaborations made it could be well seen that the draft committee for the Act was very serious regarding the drafting of provisions.
So , better would be to suggest some changes that would make the Act more effective, reduce the scope for misuse and would ensure that the Armed Forces are not humiliated while on temporary duty in the civilian areas. We must understand that Indian Armed Forces have to protect the borders from enemy aggression as their prime duty. Their Moral has to be kept high. No doubt civil administration too needs to work for reducing the local resentments so that the enemy / insurgents do not get local support.
2. Armed Forces are called from barracks temporarily to clear the enemy and his hide outs from inlands.
Army once called for internal duties has to finish the job and return to barracks. Armed forces / army is not expected to leave the job half done. Hence did emerge the need for delegation of special emergent civil / magisterial short term powers to the armed forces men deployed in civilian areas. The Armed forces Special Powers Act 1958 { for Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura } and armed Forces { Jammu and Kashmir } Special Powers Act 1990 { for Jammu and Kashmir} of Parliament were enacted only keeping in view such requirements. No doubt both the Acts rest on the same spirit in general .B some more requirements had emerged over three decades in view of the interferences from across the borders. Therefore, the AF{JK}SPA 1990 was incorporated with some additional explanations and Sections. { Section 3, Section 4, Section 5, Section 6, Section 7 }
AFSPA Armed forces special powers Acts { AFSPA } enacted by Parliament of India, have been accused of being a maligned law. Some have called these draconian laws. Much could be heard about controversies on AF {JK} SPA as regards the State of Jammu and Kashmir. Some Human Right organizations too have expressed that AFSPA has been generally misused in India and hence advocated its abrogation / repeal. It has been alleged that the authorities and legal immunities granted to the Armed Forces under Section 4 of the Act go against the basic principles of rule of law { natural} . No doubt it can not be denied that zero level misuse of the authority can not be guaranteed. But does it mean that there should be no enforcement agency of any type even where integrity & security of a nation is in question? .The wise men who have entered into the race for abrogation of AFSPA appear ignoring some basic points. Armed Forces Special Powers Acts and circumstances under which some areas are declared as disturbed areas are not a routine matter. On exceptional occasions temporary deployment of armed forces may be required to rescue the civil security / law and order / civil administration from extraordinary pressures of insurgents / militants / terrorists who may not honor the law of the land . Very often such elements may be using military methods and may be backed with the policies and resources of some foreign / enemy agencies { extra territorial agencies} . So instead of out rightly negating the provisions of the Act it would be appreciated in case they suggest measures / modifications that could be made to check some armed personnel mis using the Act. Otherwise any such uni directional unmindful campaigns would only help the cause of Anti National / Anti social elements who are bent upon to cultivate adverse opinion about the armed forces / defence forces amongst the common civilian people.
Similarly the Human right organizations / and the reformists should create pressures on the local civil governments to provide routine social security , just law / order . honest governance and honest administrative infrastructure so that the common people do not fall in the traps of those who may be engaged {i} in disturbing / weakening the local government {ii} or promoting even internal insurgency. Local resentments too at occasions are exploited the enemies of a country / nation. The modern day Proxy War concept could be quoted here. Better civil governance too would make the task of insurgents/ militants / terrorists difficult. So there shall be lesser need for calling the Armed Forces from the barracks to civilian areas / internal duties.
AFSPA is not for general use , it is for meeting the needs of the emergency. This Act empowers armed forces with the powers of Civil police in special emergent needs. At occasions it may not be possible to carry the civil police magistrate along with. In case the conditions go peaceful, the State Government assesses that there are no anti national / foreign elements / destructive elements there and the armed forces { particularly Army and para military forces } shall be no more required. Hence then there shall be no need to weed out the enemy as well as enemy agents hiding amongst the ordinary civilians . So there would be no armed forces and emergent compelling circumstances. And hence there shall be no AFSPA in use. Any law could be misused but it does not mean that the laws should be abolished for ever .Even local individual police officers could misuse the IPC or RPC. Armed forces are rarely required to be called for civil duties. But the civil police and executive machinery has to stay in on regular basis. These days it is so common to here that the people in India have lost faith in the truthfulness of the police. Many are even scared to go to a police station for getting an FIR registered. Why do not those who are so critical and abusive about the Armed Forces demand that the police officers need be stripped off all the powers for investigations / summoning people for interrogation. All these years the way the AFSPA has been campaigned against , more of frustration / discouragement has been caused to security / army men . So discussions on such issues should not be done in a casual manner. Omar Abdullah should come out of the local pressures and Union Home Minister too should be careful while addressing to the questions raised on AFSPA...
Similarly the declaration of disturbed area under the Act could be done by the Governor and or the Central Government where ever needed. In case State Government assesses that some areas are not disturbed let the government with draw the requisition for deployment of armed forces in those areas and manage the affairs with its own civil police.. When there shall be no deployment of armed forces , there shall be no need to act under the provisions of the AFSPA. Those who are asking for outright undoing the effectiveness / abrogation of AFSPA do not appear that sincere to the security of common man / country.
The most important thing that need be addressed to is that the political leaders and civil government must work on the ground to restore the confidence of the common man in the intentions of those who are managing the public affairs. The armed forces can only reduce the pressures of foreign militants / terrorists and provide working space for the civil infrastructure. There after it is the duty of the political and social leaders to win the confidence of the masses and create backpressures on the insurgents / militants/ terrorists / enemies. In case it is not done , the armed forces may have to stay for more time in civilian areas and that is not good for the moral and prestige of the Army / defence forces.
The intentions in deploying the Armed forces are temporary could be well seen from the Section 6 of Armed Forces { Jammu and Kashmir } Special Powers Act that lays down that any person arrested and taken into custody under this Act and every property, arms, ammunition or explosive substance or any vehicle or vessel seized under this Act, shall be made over to the officer-incharge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest, or as the case may be, occasioning the seizure of such property, arms, ammunition or explosive substance or any vehicle or vessel, as the case may be.
Similarly a declaration for nominating an Area as a Disturbed Area under Section 3 could be made by the Governor of the State or the Central Government. Yes there is some scope for amendments here like incorporating a clause for review of conditions / requirement after three months or six months or one year. Similarly from political angles it could be considered to lay down that declaration could be made by Central Government in consultation with concerned State Government.
Some people argue that alternative laws are also available and hence plead abrogate AFSPA. They could be asked that would not those laws be misused?
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