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Why AFSPA exists

🔴 Rajendra Prakash writes: It allows soldiers to carry out military operations which would otherwise, in the absence of any legal mandate, be legally and morally questionable

Written by Rajendra Prakash | New Delhi |
Updated: December 31, 2021 8:32:20 am
An Indian Army convoy travels through Kohima. (Photo: AP)

With the Kashmir Valley continuing to remain, sporadically, on the boil, and with violence re-emerging in the Northeast, the public and political discourse on the Armed Forces (Special Powers) Act (AFSPA) has taken on unusual stridency. But a debate which is swayed by emotion, prejudice or cultivated ignorance, instead of resting upon a bedrock of facts and realities, becomes an exercise in mere sophistry.

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Before embarking on a re-examination of the AFSPA, a word about the Indian soldier is necessary. The soldier is a citizen with equal obligations and the same rights as any other Indian citizen; she/he is neither a “slave” of the state, nor is she/he a “dummy” to be manipulated by the exigencies of politics or populism. However, as long as a soldier wears the uniform, she/he voluntarily denudes herself/himself of three fundamental rights granted by Article 19 of the Constitution — the right of free association, the right of political activity and the right to communicate with the press and media. Further, a soldier voluntarily places her/himself under the statutory rigours of military discipline (under the Army/Navy/Air Force Acts) and swears an oath to obey all “lawful commands” of her/his military superiors “unto the peril of death”.

Next, the armed forces are the servants of the Indian state and its ultimate resort. They are duty-bound to do all that is necessary for the “safety, honour and welfare” of our nation and to this end, faithfully and efficiently execute all lawful commands, directions and policies of the government with fidelity and to the utmost of their ability. Reciprocally, it is the bounden duty of the state (i.e., the legislature, judiciary and the executive) to provide the armed forces the means and wherewithal essential to perform the responsibilities and tasks assigned to them.

Coming now to the AFSPA — except in war, or when guarding the international border, the Indian Army has no constitutional authority or legal powers to use force or firearms against anyone whosoever. Like any other Indian citizen, the only legal right a soldier has is the right of “private defence” (of life or property), which must be proved post-facto in a court of law, and this takes many years of court hearings. The only other possibility of such use of force by the armed forces is when called out in “aid to civil authority”, for which a magistrate must be present at each spot to authorise the use of force in writing on a particular form. Only after completing these formalities/procedures can troops be “lawfully” ordered to use “minimum force” against civilians.

The current modus operandi of terrorists, insurgents and militants does not allow the luxury of a magistrate’s presence at the time and place of an operation or encounter. Moreover, unless the security forces are quicker and forestall the adversary’s actions, they are likely to suffer heavy casualties. Thus, any military commander, army chief downwards, ordering his troops to operate in a counterinsurgency role (cordons and searches, ambushes, counter-ambushes, pitched battles) against folks of this ilk, would be giving an “unlawful command”, not liable to be obeyed. If obeyed, it could land all commanders, right down the chain — from corps, divisions, brigades, battalions, companies and, platoons to infantry sections — before the courts of law on charges of murder, assault, injury and destruction of property. Defending such cases, in courts, would, obviously, leave no time or resources for any other military responsibilities, for years.

To avoid such situations, and to ensure that the Army is able to perform its basic function of external defence and internal security of the nation, pragmatic lawmakers, in the 1950s, devised the AFSPA, exclusively for operations in the Naga Hills. Regrettably, it is now invoked as a “fire-fighting” measure, elsewhere too; not by the Indian Army but by the government when the civil administration is unable to cope and police forces fail to restore normalcy.

In a democracy, only the elected government is mandated to govern. If it fails or cannot find political solutions and needs to exert state power to enforce its writ, then the Army may be called in. Under such circumstances, ordering a soldier, who is also a citizen, to carry out counterinsurgency operations in the absence of any legal mandate, is to order her/him to commit murder and mayhem. This would not be a “lawful command” and is legally and morally open to disobedience.

However, once the AFSPA (or other enabling legal measure) is invoked, and it becomes a duly authorised operation, it will be executed in a military manner, with restraint and responsibility. Stringent rules, guidelines and advisories are in existence, regarding respect for human rights. However, soldiers are human, and aberrations do occur. When they do, military justice is dispensed swiftly and without bias.

In closing, some advice for all those frantically urging the removal of AFSPA. Abolish the AFSPA, humanise it or whatever, but before doing so ensure the resolution of issues, whether socio-political or governance-related, which compelled the state to invoke this Act in the first place. In other words, create conditions which will convince the insurgents to stop insurgency, militants to stop militancy, terrorists to stop terror, Naxalites to stop mayhem and Kashmiri youth to stop hurling stones.

From the Army chief downwards, no one can order a soldier to obey an unlawful command, i.e., to inflict violence without legitimate legal sanction. Thus, debates based on ignorance of ground realities are harmful for the community — akin to banning a book without having read it.

This column first appeared in the print edition on December 30, 2021 under the title ‘AFSPA in perspective’. The writer is a retired Major General

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