AFSPA debate: What could be a possible solution?

By Lt Gen Syed Ata Hasnain (Retd)

We need to restore confidence on both sides and ensure an atmosphere of reasonable operational freedom without harming people, whom the military also treats as its centre of gravity.

Every few years, the debate on the Armed Forces Special Powers Act (AFSPA), its provisions and applicability to certain regions and areas becomes more clamorous. People’s opposition to it is because they feel that in a functional democracy, there cannot be an open-ended legal provision that gives wide-ranging powers to the military for use in insurgency-like situations, with immunity from prosecution and no limits on the longevity of its application. That is one end of the debate. On the other end lies the perception of those who are empowered by the AFSPA and do not oppose the above belief but wish that it is seen in the right context. Their perception is about the presence of fissiparous trends in a multi-ethnic, multi-faith, multi-cultural and multi-caste nation, a realistic expectation. 

The existence of neighbouring adversaries and their involvement in proxy wars in India through support to anarchists causes major concern for the nation’s integrity and unity. Such threats, which are proliferating through emerging technologies and new generations of warfare, cannot be countered by the police forces alone. The AFSPA is simply the empowerment of the military to assume the lead role in countering these trends through legislated authority to conduct operations without reference to civil administration. There are two modes by which the military comes in to support the civil authority. The first is for assistance to the local police to conduct flag marches, quell mobs and protect public property in law-and-order situations—during a reservation-based agitation, for example. 

A local magistrate has to authorise the use of military force at every stage. The second is when the situation is a ‘public order’ one, threat lethality is of a higher order and akin to the launch of a new generation of warfare. In that case, the military under the AFSPA is empowered, like the police, to conduct operations without reference to a civil authority. Soldiers receive protection from prosecution in the event of mistakes committed in the pursuit of duties; they can only be prosecuted with the permission of the Central government and not by local initiation.

The entire debate hinges on the allegation that the AFSPA is draconian because it sanctifies the use of violence to quell or control violence. There is another way to view the provisions of the AFSPA—that the wordings of the Fifties, which were used to describe the powers contained in the Acts of 1958, 1983 and 1990, were unduly harsh. In today’s world, harsh language of this kind is not taken kindly and it gives a perception of lack of sensitivity towards fellow citizens. 

There appears some kind of awkward belief in civil society that the military uses its empowerment under the AFSPA to maximise violence, never realising that ‘minimum force’ is its mantra. The very unfortunate recent incident in Mon district of Nagaland, leading to the mistaken identity killing of six innocent citizens by an Army ambush and eight more after the local people responded in anger, has added to the clamour to rescind the Act. The government has taken a call to extend the AFSPA for six months in Nagaland even as a high-power committee is examining its further validity in the light of the existing situation.

Perception is so divided today that it is best to place facts for better understanding than express opinion. The first of the facts needing clarification is about the AFSPA being applied only in border states. Many are questioning why it has not been imposed in the Red Corridor. My brief explanation for this is that heartland insurgencies, even if externally sponsored, may not pose threats as serious as rimland ones in the border states.

The objection of the people and rights activists is that the partial immunity emboldens the military to take risks in the course of which inadvertent mistakes are made, promoting a sort of impunity. While that mistake can be written off as an unfortunate incident by the military, it causes anguish amongst our own society, something unacceptable and against the principles of human rights. The military on the other hand claims that it does the job of fighting terror and insurgency, not out of own volition but due to a call of duty for the sake of national security, especially when others have been unable to do the same, and the Forces are the nation’s last resort. 

There is no doubt that proxy wars will see new and more audacious ways as technology proliferates and India’s adversaries find more ways of targeting it. With the military’s proactive operational philosophy, mistakes are only human. So how do we restore confidence on both sides and ensure an atmosphere of reasonable operational freedom without harming the people, whom the military also treats as its centre of gravity?

Forgotten is 1997 when the Supreme Court gave one of its finest directions: the Dos and Don’ts of the AFSPA, based upon a representation. These were guidelines to the military and I remember the degree of seriousness with which we follow it in J&K. A few years prior to this, the ten commandments of the Army Chief for functioning in counter-insurgency areas were announced and each soldier was required to carry a copy and imbibe these. The SOP of the Northern Command for the conduct of search operations is a meticulous treatise on sensitivity that forbids infringement of any rights during the exercise. 

Along with it are the concept notes and 24 years of experience in handling Operation Sadbhavna; this is the Indian Army’s annual military civic action programme, a lesson in humanisation of conflict. I consider it appropriate to remove all seven sections of the AFSPA and re-enact it with just two sections—‘empowerment’ and ‘protection’ in two sentences each, devoid of negative detail. Add 20 pages of appendices with the above four concepts. It will prove to detractors that there exists no legislation for coercive practices and the human aspects are given maximum priority. 

The ‘protection’ clause could be considered with another proviso—a period of one year or so for the decision to either deny prosecution of soldiers or accept it, in grave circumstances that are proven beyond mistake. The latter is to cater for deliberate action established by a suitable inquiry. Threats to the nation will persist and the military will always be needed for counter-insurgency operations. The public will need to be convinced of the fairness of the military, which is something the latter always strives for, mistakes notwithstanding.

Lt Gen Syed Ata Hasnain (Retd)

Former Commander, Srinagar-based 15 Corps. Now Chancellor, Central University of Kashmir

(atahasnain@gmail.com)