Armed Forces Special Power Act and Army

THE Ministry of Home Affairs has drafted amendments to the Armed Forces Special Power Act The Army and the Ministry of Defence have been opposing any such amendments. It is unfortunate that even the government has made no effort to educate the public about the true nature and necessity of retaining the AFSPA. Instead the Act has become a political football.
AFSPA was invoked in Kashmir in July 1990 consequent to the total failure of the state administration and the police in controlling insurgency in the Valley. It was applied in Manipur in September 1980 when the situation had deteriorated to such an extent that it had become impossible to run the administration, maintain law and order and provide peace and tranquility to the public.
To understand AFSPA, one needs to have an insight into the background. Law and order is the responsibility of the state government which it maintains through the state police and, if required, with the of the central police organisations. If they fail, the army is brought in. Even when the army is deoployed, the responsibility for coordination between security agencies remains with the civil administration. To assist the army, magistrates and police personnel are attached to it and the onus for any action taken for combating the situation remains that of the administration.
In areas afflicted with insurgency and terrorism, as is evident in J&K, Manipur and Assam, conditions of maintaining law and order are grave. Terrorists are organised, equipped with sophisticated weapons and well trained. They operate from bases located in extremely difficult terrain like mountains, jungles and snow, where no police or magistrates are present. They also operate from urban areas where, by their militant action, ensure collapse of the civil administration. The police is neither equipped or trained to fight such situations. The army has no legal authority to operate on its own without the presence of a magistrate and police. The AFSPA was conceived to assist the army to operate in such an environment.
AFSPA is made applicable by specific orders of the central government in extremely grave situations where the police has not been effective, where the civil administration has been paralysed and where there is serious danger to national security. There is yet another rider. The state government must notify the affected region as "disturbed". Without this, AFSPA cannot be made applicable. The state government, after notifying, refers the case to the central government, which, based on intelligence inputs available to them, assesses the situation in consultation with civilian and military authorities and takes a conscious decision whether to enforce the AFSPA.
AFSPA confers four special powers upon the army. First, the army can use force, including opening fire, for maintaining public order in areas where assembly of five or more persons is prohibited. Second, it can arrest without warrant any person who committs or is about to commit a cognisable offence and hand him over to the police. Third, it can enter and search premises without a warrant. Fourth, it can destroy arms dumps or fortified positions from where armed attacks are made. The law also provides protection to armed forces personnel acting under the spirit of the AFSPA, in that no prosecution or legal proceedings can be instituted against them for anything done in exercise of AFSPA powers without prior sanction of the central government. Proposed amendments to the Act suggest that arrest warrants are secured in advance and grievance cells set up to address citizens' complaints against the armed forces. The Union Home Ministry has also proposed to abolish the powers that allow armed forces to open fire.
Imagine what will happen if AFSPA is not imposed and the security forces receive a tip-off about the presence of terrorists in a village or insurgents committing crimes against law-abiding citizens. Although an army unit may be located close by and in a possibly favorable position to apprehend the terrorists, they would have to, by law, wait for the magistrate to arrive to issue a warrant. It would involve loss of time and the tactical advantages of conducting an immediate raid will be jeopordised.
The army has a difficult and sensitive task to resolve situations created by bad governance on the part of politicians, bureaucrats and the police. The army must have strong legal protection for the dirty work it has to perform, lest a stage comes when soldiers start questioning the legality of orders to avoid subsequent harassment at the courts. There are about 450 current court cases against the army in the Northeast. An equal number, if not more, are also being contested in the courts of the J&K. If a soldier has a duty to safe guard his nation and he is ready to sacrifice his life for it, the nation owes him a responsibility to protect him for performing his duties in extremely difficult circumstances.