Intro : The Armed Forces Special Powers Act (AFSPA) is the Act which immunises military personnel from prosecution of laws in J&K. It is promulgated in those areas which have been identified as 'disturbed' and are slipping out of control of the civil administrative machinery.
The debate over ‘Armed Forces Special Powers Act’ (AFSPA) in J&K and parts of North-Eastern states has been raging in the media and political stake holders for quite some time. Even as the unprecedented alliance between PDP and BJP surges to form government in Jammu and Kashmir, AFSPA has been the bone of contention between the new allies. Hopefully, the tangle would be resolved soon. Nevertheless, while the AFSPA critics have been vociferously painting the enabling provisions of the Act as 'draconian', official response from the Government and the Army has been rather muted and grossly inadequate. This has lent credence to the critics' propaganda that the promulgation of AFSPA is invasion on civil liberty.This notion, to say the least, is grossly fallacious.
Far from being ‘draconian’, the provisions of the Act only ‘enable’ the military to carry out its assigned role in aid of civil authority. Briefly, 'special powers' bestowed upon the military officials by the AFSPA are:-
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Statutorily, AFSPA is promulgated only in areas, which have been identified as 'disturbed' and so declared by the government because of the deteriorating situation slippingout of control of the civil administrative machinery. The Army is then requisitioned to control the situation because military is rightly believed to be a more potent and competent force than the local police for several reasons like organisational structure, training, equipment, operational techniques, working ethos and leadership style. Yet, in the absence of AFSPA, even the best ofmilitary units in terrorist dominated areas would be sitting ducks with no powers to search, question or arrest anyone. All their military assets, training and fitness would be rendered defunctin such a scenario. Instead of protecting the masses and arresting or killing insurgents, the soldiers would themselvesbecome easy targets for the terrorists they were expected to fight and vanquish.
The real dimensions of this proxy war unleashed by Pakistan are lostin the din kicked up by the media, the separatists and activists affiliated with Human Rights organisations. The number of soldiers sacrificed (7,443) in fighting terrorists in J&K over the last 25 years is more than the total combined death toll (6387) of three wars (1965, 71, and 99-Kargil) between India and Pakistan.This implies thousands of young brides suddenly widowed and their kids orphaned for no fault of theirs. And yet, no Human Rights organisation has espoused their cause as zealously as they take up the cause of terrorists, rapists and murderers from time to time!The heart-wrenching exodus of thousands of families of Kashmiri Pandits from Kashmir Valley was the largest since India's partition in 1947. Forced to abandon their properties in the Valley, they became refugees in their own country. Little, if at all, has been said on their behalf by the so-called champions of human rights.In contrast to this, an odd death of a civilian killed in crossfire during an encounter or an accidental death in a mishap with the Army raises a crescendo of hues and cries. Afzal Guru's case was more eloquently publicised than these refugees and thousands of bereaved families of martyrs.The high tech modern communication systems today enable enemy agents to feed false and exaggerated information to whip up public passions. Obviously, it is part of enemy's strategy to insert anti-India and anti-Indian Army propaganda as an essential component of proxy war. Some sections in the media, activists and politicians give away enough to arouse suspicion about their pro-secessionist leanings.
It is frequently expedient for the security forces to plan and conduct search and cordon operations at short notice based on the information available to isolate and apprehend the culprits.Availability of magistrate or local police to accompany all Quick Reaction Teams (QRTs), patrols and sub-units in remote areas in hilly terrain is not practicable. Also, the local officials including the police do not want to be seen ‘assisting’ the Army. Quite often, the very people who arrange ‘safe houses’ and hideouts for the terrorists secretly contact and inform the Army units of meetings and movements of the ultras. Legally, ‘harbouring’ criminals/absconders/terrorists is an offence under the Indian Penal Code (IPC) and the harbourers could be prosecuted for playing host to terrorists. But the Army understands their plight. Even an unwilling villager would find it hard to say 'no' to gun-wielding killers whose writ prevails unchallenged in the area.
Even though the Act immunises military personnel from prosecution in courts of law, the military authorities have not tolerated misuse of powers, howsoever rare such misconduct might be. Cases of misdemeanour have been dealt with swiftly and so severely that the appellatejudiciary hasalmost always found court martial verdicts too harsh leading it to either quash or significantly mitigate the same granting relief to the convicted military personnel.
In J&K, since the Army has to operate across valleys and mountains in chase of terrorists, the idea of obtaining warrants for search or arrest would be ridiculousin the midst ofsudden and swift engagements and pursuit of fleeing terrorists in forests and ravines. Justifiably, therefore, the Act empowers the military officials at the scene to go by their prudence and carry out the operational tasks without magisterial warrant.In the absence of these enabling provisions, military deployment will be meaningless.It would be like tying the hands of a boxer behind his back and asking him to knock out his opponent who is free to play evil and foul.
No Kashmiri politician should be more concerned about the menace of terrorism in J&K than Mufti Mohammad Sayeed whose daughter Rubaiya Sayeed was kidnapped and kept hostage and freed only after the five hard-core militants were released from jail in 1989. The situation in the state deteriorated in the following months forcing the State and Central Government to declare 'disturbed areas' and promulgate AFSPA in the state. BJP and PDP are the two leading parties with mandate from the electorate that shows up a clear divide in the two regions of the state.
Such an alliance in today's circumstances will also bring about convergence of different viewpoints in the regional politics and foster confidence among the masses. It shall pave the way for long awaited development plans in the state by isolating the separatists. Political necessity might not allow the PDP leadership today to favour continuance of AFSPA in the disturbed parts of the state but having been India’s Home Minister earlier and a past victim of terrorism, the Mufti will need the Army to improve the security environment in the state. And while the Army can fight an open war without the AFSPA, it cannot fight terrorism in the state without this Act.
Karan Kharb (The writer is the author of 4-Star bestsellers in ‘Indiatimes Rating of International Bestseller’ books on leadership and a social worker)
