Note: The Cabinet Committee on Security (CCS) is once again likely to discuss (debate?) the contentious Armed Forces (Special Powers) Act–AFSPA in popular parlance–later today. The standoff between the Defence and Home Ministries on this issue has been on for almost two years now.
Defence Minister AK Antony has resolutely backed the Army’s stand point while Home Minister P. Chidambaram has supported–used–Chief Minister Omar Abdullah to try and dilute the provisions of the AFSPA.
The CCS may or may not agree to any changes in the Act. But here’s a glimpse of the main points of differences that the two ministries have.
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MAJOR DIFFERENCES ON
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MHA VIEW
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MOD VIEW
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SEC 4D
POWERS TO ARREST & SEARCH
WITHOUT WARRANT
QUANTUM OF FORCE USED
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PRIOR WARRANT FOR SEARCH NECESSARY
MINIMUM FORCE TO BE USED
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IN A PROXY WAR AND WAR-LIKE SITUATION THESE TWO FUNCTIONS CANNOT BE SPLIT
‘MINIMUM FORCE’ PRONE TO BE MISINTERPRETED
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SEC 5
HANDING OVER OF SUSPECTS TO CIVIL AUTHORITIES WITHIN 24 HOURS |
HANDING OVER SUSPECTS TO POLICE & MAGISTRATE WITHIN 24
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HANDING OVER TO POLICE SHOULD BE IN 24 HOURS AFTER END OF OPS EXCLUDING JOURNEY TIME
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SEC 6
REDRESSAL MECHANISM
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FORMATION OF GRIEVANCE CELLS AT SUB-DIVISION & STATE LEVEL
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PRONE TO MISUSE AND ABUSE. ALREADY WITHOUT THIS MECHANISM, ARMY IS HARASSED WITH FALSE CASES
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For additional reading here is the 2011 piece I wrote for Purple Beret magazine giving the Army’s point of view on why it is premature to withdraw or repeal AFSPA.
Jammu Kashmir Chief Minister Omar Abdullah may have announced his intention to lift or partially revoke the contentious Armed Forces Special Powers Act but the Army in Kashmir is very clear that the time is not yet ripe for rolling back the AFSPA even if there was relative peace in the state, in summer 2011. The Northern Command has pointed out the quiet months so far have been a direct outcome of the excellent synergy developed by the state administration and the security forces (SF) in formulating and executing the joint strategy against militants and their handlers in Pakistan. But intelligence inputs and internal assessment by various agencies suggests that infrastructure and the will to support proxy war by Pakistan is still intact.
The Army feels that the separatists and radical or extremist elements in the state have consolidated their capabilities during the current deceptively calm summer. In the words of a senior General, “The time is not appropriate to dilute or revoke AFSPA from any part of the state. This will result in surrendering the operational advantage to the inimical elements, will be to our total disadvantage, and may cause a major setback to our attempts at restoring normalcy in the state and ensuring a peaceful 2012.” And he gives several reasons for this assessment.
The Army feels that the separatists and radical or extremist elements in the state have consolidated their capabilities during the current deceptively calm summer. In the words of a senior General, “The time is not appropriate to dilute or revoke AFSPA from any part of the state. This will result in surrendering the operational advantage to the inimical elements, will be to our total disadvantage, and may cause a major setback to our attempts at restoring normalcy in the state and ensuring a peaceful 2012.” And he gives several reasons for this assessment.
Retention of AFSPA
While there may be a comparative decline in terrorist violence, the number of terrorists killed and reduction in number of successful infiltration by terrorists during the current year is a reality, the number of attempts to infiltrate have only gone up since there is no change in the Pak ideology and will to support proxy war in J&K while showing it as an indigenous struggle. The infrastructure to support such a proxy war in terms of terrorist training camps, supply of weapons and ammunition, hi tech communication assets to continuously guide, monitor and motivate terrorists operations on Indian soil, fake currency racket, overt and covert support to terrorists and separatists groups operating in J&K are all intact and being regularly upgraded. A number of camps – 34 out of 42 training camps are active. Pakistan is in the process of reorganising camps in PoK to bring in deniability factor in abetting proxy war in J&K. Number of terrorists in training camps are approximately 2000-2500. The number of terrorists poised for infiltration are about 700-800 while the number of attempted infiltrations – 35 attempts by 230 terrorists. As per the MAC report 54 terrorists succeeded.
So one outwardly peaceful summer does not spell a return of peace to the state. Counter terrorist operations by the army are not restricted to the Line of Control but cover the entire area from the LoC where a terrorist initially crosses over to India, the sparsely populated areas adjoining the LoC where terrorists initially establish their reception areas and the hinterland with populated areas from where the terrorists finally operate and draw their support. Administrative support including convoys carrying Army personnel and stores moving to the LoC pass through urban areas in the hinterland and are vulnerable to terrorist attacks. Hence AFSPA cannot be applied in pockets of J&K along the LC while withdrawing the Act from the remaining areas, as is being advocated by Omar Abdullah. The Army has put forward many reasons why AFSPA should not be partially lifted at the moment.
The emergence of sanctuaries Lifting of AFSPA from urban areas / large towns in J&K will result in terrorists seeking shelter in such areas and rebuilding their bases. Eviction of terrorists from such built up areas sanitized after sacrifices by the army and police forces is likely to result in civilian causalities, damage to civilian property and a renewed cycle of violence. Tactical space once conceded to terrorists, will be extremely difficult to regain. If the Army is recalled to restore an adverse situation, restoration would be at a prohibitively high cost and manpower intensive.
Military Lines of Communication All Lines of Communication pass through population centre and have to be kept open at all cost. The Army garrison / strategic assets are spread over in population centres and de-notification will render them vulnerable to terrorist action and hence require separate security arrangements. Any action taken by the Army personnel in these areas will be governed by Ranbir Penal Code which does not confer immunity from arrest will further complicate the issue.
Intelligence Bases:
De-notification of AFSPA will render the painstakingly established sound intelligence bases untenable. Army carries out seamless operations across districts of J&K. Partial revocation of AFSPA will hinder such seamless operations and hence, is impractical. While SF will operate within distinctly delineated boundaries in areas where AFSPA is applicable, same is certainly not true for terrorists. In addition, movement between AFSPA and Non AFSPA area makes chasing / tracking of terrorists difficult. In non-AFSPA areas, action by terrorists can be acted upon only as part of self-defense but not as coordinated operations such as Cordon and Search Operations (CASO), Search Operations etc.
De-notification of AFSPA will render the painstakingly established sound intelligence bases untenable. Army carries out seamless operations across districts of J&K. Partial revocation of AFSPA will hinder such seamless operations and hence, is impractical. While SF will operate within distinctly delineated boundaries in areas where AFSPA is applicable, same is certainly not true for terrorists. In addition, movement between AFSPA and Non AFSPA area makes chasing / tracking of terrorists difficult. In non-AFSPA areas, action by terrorists can be acted upon only as part of self-defense but not as coordinated operations such as Cordon and Search Operations (CASO), Search Operations etc.
Restoration of AFSPA
Even if situation worsens in areas where AFSPA has been revoked, politically it is unlikely that the decision can be reversed/ or at best it will take months. Experience of Manipur is a pointer in this regard.
Even if situation worsens in areas where AFSPA has been revoked, politically it is unlikely that the decision can be reversed/ or at best it will take months. Experience of Manipur is a pointer in this regard.
An argument to justify revocation of AFSPA is that violence parameters in the state of J&K are better than those in other states of the nation. This is specious if Army had not killed 55 terrorists attempting to infiltrate during this year alone, won’t the statistics have been different. Large number of weapons and warlike stores, IEDS etc have been recovered by the security forces under the provisions of AFSPA. The revocation of AFSPA from the State needs a concerted view of all organs of the State and Centre. A suggested way is to convert these areas into Police administered areas/ Police districts as was done for Srinagar initially without revoking AFSPA. Subsequently as the situation improves, while evolving the revocation, an exit strategy needs to be worked for gradual withdrawal of armed forces from the specified area leading to smooth transition.
April 12, 2012 -
Reacting to this blog entry, a friend in the Army–a serving officer–who has had three long stints in JK sent this reaction. For obvious reasons his identity will remain concealed.Proposed Amendments to AFSPA1.Responding to UN Rapporteur Christof Heyns' suggestion to repeal the Armed Forces Special PowersAct (AFSPA), the Home Minister Mr Chidambaram said that the ministry had taken note of this view and addedthat his ministry had proposed three changes to this law. .2.While Chidambaram did not spell the amendments, sources in the Ministry said the amendments includetaking arrests warrants in advance, taking away the power of the armed forces to open fire causing death andsetting up of a grievance redress cell.The following issues related to the proposed amendments to AFSPA merit consideration:-Advance Warrant for Arrest.(i)Circumstances of arrest are entirely different in law and order situations dealt with bypolice and counter terrorist operations or public order situations for which Army is employed.(ii)Secrecy and speed of operation is paramount if arrest of dreaded terrorists and antinational elements is to be successfully executed. Seeking arrest warrant imposes time delay andmay compromise security.(iii) Armed Forces operate 24×7. Magistrates are generally not available on Sundays / publicholidays or during off duty hours.(iv)Arrests may need to be affected on LC/uninhabited jungles. Availability of magistrate insuch areas is questionable.(v)In any case under section 6 of AFSPA, arrested person are required to be handed over topolice at the earliest by not later than 24 hrs(vi) Adequate safeguards exist in the form of COAS Ten Commandments and Do’s andDon’ts to ensure no misuse of powers of arrest and detention.Taking Away Powers to use Force even to the extent of causing death(i)Powers given by Act of Parliament are keeping in view the nature of threat likely to befaced by Armed Forces in disturbed areas.(ii)Use of maximum force Not mandatory to meet all situations. Training and leadership ofArmed forces ensure moderation and use of minimum force.Such powers available to all armed forces employed in insurgency/terrorist environment.(iv)Removal of power to open fire causing death will make armed forces impotent andineffective,No instance of excess use of force by Army in last five yrs.Civilian causalities will occur due to error of judgment. Collateral damage is a cost thenation has to accept.Grievance Redressal Mechanism.Redressal Mechanism already exists in the form of Army and civil Courts and NHRC.Persons found guilty of excesses have been punished by the Army.(iii)Procedures laid down with respect to jurisdiction of Courts and for obtaining sanction forprosecution needs to be followed.(iv)Conflict of jurisdiction with Courts and NHRC likely if new statutory Body establishedfor grievance redressal.