Omar’s bold gambit

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.


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12 Responses to Omar’s bold gambit

  1. Eats Shoots and leaves March 6, 2009 at 9:47 am #

    Another Kashmiri mentioned a time for ‘full measure..substantially’

    Another who did a ‘full measure’ equivalence was KPS Gill:
    It is routine in India for the Police (read security forces) to latch onto
    ‘innocent’ relatives of non caught criminals. So somebody will pay the price.

    right or wrong. Who bothers about being correct if a solution is required ?

  2. Venkat March 6, 2009 at 2:26 pm #

    It’s a chicken or egg story – will J&K [and NE to some extent] return to peace and normalcy like other states if AFSPA and army are removed or will they be removed only after normalcy returns?

  3. ANSHUJ March 6, 2009 at 7:33 pm #

    Fortunately this country still has a Judiciary which does not function on the dictats of Omar Abdullah.
    If soldiers have done wrong,let the Judicial System take its due course.
    Stop this media trial .Its in “INDIAN NATIONAL INTEREST”.

  4. Liberal March 7, 2009 at 12:29 am #

    Acts like AFSPA are really the licence to kill and should not have a place in a liberal civilized society which is comitted to Universal declaration of human rights and principles of natural justice, what so ever be the excuse.

    When ever any incidence regarding involvement of men in uniform take place,(there are numerous- almost every month in NE region , in J & K in railway stations in area out side cantts at shops in sadar bazars). They promptly say we are ordering a court of inquiry. Why not a civil megistrial Inquiry ? Why they are afraid of a megistrial Inquiry ? Are AF not under the law passed by the country which are applicable to each and every citizen of the country? Why accuded are not subjected to ordinary law which govern every citizen of this country. And every time they get away with the crime. When the AF personnels are the accused, and the people conducting are their own bosses also from AF , can there be any hope of justice? The vicitim has no faith in their court of inquiry. But the vicitim’s voice is never heard, it is always suppressed in the name of national honour and prestige of armed forces.

    If we really have to built a society based on the principles of natual justice and respect for human rights then all such laws (including MOCOCA) have to be scrapped, which give the AF licence to kill and get away with it without any question.

    and who are the victims- weaker and venerable sections of the societies, minorities, people fighting for their share of development (you call them naxalites). Every person who is killed is immediately branded as a terrorist (even by media !!! ). Stage managed cold blodded murders are given the name of encounters , and killers actually being awarded rather then put to justice.

  5. Keshav March 7, 2009 at 12:37 am #

    Throwing out AFSPA altogether is wrong but as a reward for the non-violent elections, it seems very reasonable to change it in order to make it easier for people to protest the violence of the security forces as well as standardize the procedure by which AFSPA determines who is a terrorist and who isn’t.

    Standardizing it will make it easier to protest and make the forces more efficient in their peacekeeping operations.

  6. citizen March 14, 2009 at 8:57 pm #

    Repealing AFSPA may not be the solution but what is equally true is that military presence and atrocities will not help in the assimilation of Kashmir n north-east in the main stream. The situation calls for a concerted dialogue with the home grown territories and building capabilities to give a befitting reply to those from across the border.

  7. Kat March 15, 2009 at 12:44 am #


    AFSPA is enforced by GOI not by the Armed Forces. Such a decision is not taken lightly. Inputs from IB, State Govt and Armed Forces are taken before a sit is evaluated. Section 3 mandates that the the Governor of the State or the Administrator of the Union territory or the Central Government decide. Surprising as it may seem to you, Nadir Shah does not dictate armed forces thinking and policy. (Though Nero has a place in our Pol/Mil leadership)The aim is definitely not to allow the Armed Forces to rape and kill and plunder.

    Off course, any rational mind will find fault with AFSPA. For instance Section 4 (a) confers the power to open fire even to the extent of causing death on an NCO. A case for review definitely.

    But then it would do good to you to understand any act, law or policy is only as good as the system or individuals that enforce it. UN peacekeepers enforce peace under stringent ROE but still peacekeepers from the Western World have been found guilty of gross violations such as roasting a kid over a fire and locking up a boy in a tin can.

    Similarly, there are learned working out road construction policies in India. check this link. But most of our roads still fall in the Simulated Lunar Surface category. Why? The rules are there. But there is near zero implementation.

    Psychologists say that in a prolonged conflict sit, troops enforcing peace start viewing even local sympathizers as the enemy. So logically you should rotate troops regularly. But 60% of India faces an IS threat.

    So what are you gonna do Jack ?!

    That is why armed forces pers should not be deployed in IS sits. First, they are not trained for this. (It will surprise you that CI Ops requires trg unlike rape kill plunder). So you waste time in handling CI through special trg. Next, they are not equipped but have to adapt. You need Non Lethal Weapons when engaged with own country men esp in FIBUA. No, that’s not just jargon. Then, it turns their own countrymen against them. ..I could go on and on.

    Finally, please……. nobody is against a civil magisterial inquiry. Ask the disgraced ex-army Tehelka guilty who are behind bars right now. They would have loved to face the music in a civil inquiry like their civilian co-accused.

    Mil Courts dispense swift justice. Admittedly, their procedures need a review, but they are Courts of Law. They definitely ensure that justice is neither delayed nor denied.

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  1. Pragmatic Euphony » Why AFSPA can be reviewed in Kashmir - June 17, 2009

    [...] Indian government and can not be opposed by any well-meaning Indian in the name of patriotism. But an extended army deployment under the AFSPA is no panacea for separatism as our experiences of North-East so clearly tell [...]

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