Prosecuting soldiers. Understanding AFSPA.
After the media reports that the Magisterial enquiry by the J&K state government has blamed the army jawans for indiscriminate killing of innocent civilians in Sopore, the new CM, Omar Abdullah has come out with a very strong statement.
“Exemplary punishment will be handed over to the Army men, if found guilty, in the killing of two civilians in north Kashmir Bomai village… If the inquiry, as per the media reports, indicts any troopers, I will carry the report personally to the Union Home minister and the Defence Minister to ensure that the guilty are given exemplary punishment,” the CM said. “Bringing those responsible for the innocent killings in Bomai to book is a matter of credibility for this government.”
As Kashmir has been under the Armed Forces Special Powers Act [AFSPA] since 1990, the prosecution of any armed forces personnel can only be with the executive sanction of the Central government. The start of the silly season of elections means that the current dispensation would take no decisions, even if the CM were to beg of them. And even the new government can defer the decision to sanction prosecution indefinitely (as in the Afzal Guru hanging case).
So what exactly is AFSPA? A little backgrounder on the AFSPA makes for an interesting and educative reading.
To counter the Naga separatist movement in the early 1950s, the Indian Army and other paramilitary forces were deployed in the then Naga Hills. The introduction of the AFSPA was the outcome of this armed conflict.The AFSPA was passed by the Indian Parliament in 1958 (later amended in 1972), to enable effective counter-insurgency operations in Nagaland. But it drew largely on a draconian ordinance of the British era. When the Congress gave the call for Quit India on August 8, 1942, the then Viceroy, Lord Linlithgow declared emergency all over British India and promulgated the Armed Forces (Special Powers) Ordinance, 1942 on August 15, 1942, conferring vaguely defined special powers to the armed forces to arrest and use force against (even kill) civilians on mere suspicion.
However, in its new avatar, the AFSPA made certain modifications to the ordinance. The provision for declaration of emergency was replaced by the term ‘disturbed area’; more vaguely defined powers were added (including the power to use force to even kill any person on suspicion of disturbing public order or carrying weapons, ‘to search any place without warrant or destroy any place on suspicion of being used by armed groups) to the old Ordinance; and the power to take action, given to an officer of the rank of Captain and above in the old Ordinance [Remember that the substantive rank of Major was at nearly 20 years of service then, compared to 6 years now], was delegated to lower ranks including Junior Commissioned officers and Non-commissioned officers.
The AFSPA was amended in 1972 giving the Centre the sole power to proclaim the act or to order its removal in any part of the country. The state government was left with no control in AFSPA after this amendment. In fact, the legality of the act was challenged in the Supreme Court. In 1998, Supreme Court unpheld the legality of the act, but with many riders, including a six-monthly review and clearly enunciated justifications for imposing or continuing with the AFSPA in any part of the country.
To quote Shakespeare, desperate situations need desperate measures. Without the powers of the Act, the security forces could not have opened fire until fired upon — a passive reaction, where pro-active action was the perceived need of the hour against terrorists. The AFSPA enabled the security forces to strike first. In the hostile and war-like situation prevailing in counterinsurgency operations, the AFSPA gave the army sweeping powers to protect the interests of national integrity and stability.
There is no doubt that the AFSPA, like many other strong government measures with sweeping powers, is liable to misuse. However, in today’s terror ridden times, disbanding the AFSPA altogether would amount to throwing the baby with the bathwater. A credible six-monthly review process, based on inputs from the state government and contingent on specific security related benchmarks, could perhaps be the right answer.