AFSPA and the way forward

- September 6, 2018
| By : Lt Gen H S Panag |

The armed forces, the government and the Supreme Court have not focused on the refinement of the AFSPA On September 10, the unprecedented petition of 356 officers and soldiers against the dilution of the Armed Forces Special Powers Act (AFSPA), without specific amendment to that effect—and the perceived prosecution and persecution by the CBI for […]

Indian army soldiers stand guard near the site of a gun battle between Indian government forces and rebels at Khudwani area of Kulgam, south of Srinagar on April 11, 2018. Three civilians were killed on April 11 in Indian-administered Kashmir during clashes with government forces, following a gun battle with rebels that also left three militants and a soldier dead, police said. / AFP PHOTO / Tauseef MUSTAFA

The armed forces, the government and the Supreme Court have not focused on the refinement of the AFSPA

On September 10, the unprecedented petition of 356 officers and soldiers against the dilution of the Armed Forces Special Powers Act (AFSPA), without specific amendment to that effect—and the perceived prosecution and persecution by the CBI for alleged human rights violations—will come up for hearing before the Supreme Court. Ironically, this is exactly 60 years after the AFSPA was enacted on September 11, 1958.

The AFSPA is an Act of Parliament, and the government is responsible for its application and withdrawal in areas covered by the Disturbed Areas Act. The government can move Parliament to amend the Act or legislate a new Act and frame appropriate rules for its application. Despite the controversies in relation to the application of the Act since 1958, no government has thought it fit to take any action to amend it or legislate a new act.

The Act was controversial in application from the beginning, primarily due to its brevity and ambiguity. As Justice BP Jeevan Reddy observed in his report, “The Act is too sketchy, too bald and quite inadequate in several particulars…”

The pattern of insurgencies and its trademark tool—terrorism—have undergone dramatic changes in the last 60 years, as also the approach of the public and the courts to human rights violations. The AFSPA has simply not kept pace with the times. The debate has generally centred around its application, removal and the alleged violation of human rights. The armed forces, the government and the Supreme Court have not focused on the refinement of the act.

Notwith standing the emotional nationalistic rhetoric, the military battle in Jammu & Kashmir and the Northeast has been won. Violence levels are at 10 per cent of what it used to be in the bygone era. It is empirical wisdom that once this happens, the focus shifts to the violations of human rights under the “draconian laws” as perceived by the affected public. The prolonged deployment of the Army—for which the AFSPA is an enabler despite the changed ground situation—is the root cause of the problem. This has brought the Army and AFSPA into direct conflict with the constitutional rights and the law of the land.

There should be no doubt that that the AFSPA protects only the bonafide and good faith actions of the armed forces personnel operating under it. It does not provide absolute impunity, and bad faith or rogue actions of soldiers have to be dealt with as per the law of the land—which includes military law. Most armed forces have dealt with such rogue and bad faith actions under military law, to avoid conflict with the law of the land. In the last few years, the credibility of the military justice system to deal with human rights violations has become suspect.

Political-nationalist sentiment has identified the Army with every facet of public life and deified it to virtual inaction with respect to human rights violations. This sentiment has also made deep inroads into military minds.

Over the years, the Supreme Court has categorically upheld the constitutional validity of the AFSPA and—to a great extent—refined its application by issuing guidelines and even incorporating in its order the commandments issued by the Chief of Army Staff (COAS). The Supreme Court has examined the AFSPA in detail in a number of benchmark cases. While it has upheld the constitutional validity of the act, it has categorically ruled that the immunity provided to soldiers is only for “good faith” actions and is not absolute.

Actions of the troops can be investigated, keeping in view the law of the land, COAS commandments, rules of engagement, and the “dos and don’ts” laid down by the Army. It did not question the government’s powers to deny permission for prosecution of soldiers operating under AFSPA in criminal courts. To date, the government has never given such a permission. No soldier has ever been prosecuted for any alleged offence committed under the AFSPA in a criminal court.

Whenever alleged human rights violation takes place, the registration of an FIR is within reason and is in the interests of the Army. It is just a narration of circumstances, and hundreds of FIRs have been lodged to investigate the alleged violations of human rights in J&K and the Northeast against unknown military personnel or investigate specific actions of individuals and units by name.

In fact, experienced commanders always insist that an FIR is filed in all cases of deaths caused by the use of force by security forces, irrespective of whether the local police had filed one or not. This is to ensure proper investigation and legitimate closure of the case.

In all legitimate cases of use of force, the police close the case and it remains on record to avoid future opening of cases—as has happened many times earlier. In controversial cases, the police carry out its investigations and a parallel Court of Inquiry is conducted by the Army. When the charge sheet is filed in the court and both the inquiries are in consonance—that a wrong has been done—the Army takes over the case under Section 125 of the Army Act and conducts a trial by court-martial.

In cases where only the police investigations find that an offence has been committed, the Army informs the court about its own inquiry and invokes the AFSPA. In most cases, the matter ends there. In rare cases, the court decides to proceed with the case under Section 126 of the Army Act. However, under the AFSPA, central government permission is required to proceed with such cases. This has never been granted till now.

Some cases do linger and go up to the high court and even Supreme Court, but there is not a single case where the Army’s stand has not been upheld. The appearance of individual soldiers in courts is exceptional. The above procedure was and is still the law based on the judgements of the Supreme Court. However, during the hearings on a plea regarding 1,528 cases of alleged fake encounters in Manipur, certain observations of the Supreme Court have contradicted its earlier judgement, creating more ambiguity with respect to the AFSPA and investigations of alleged human rights violations. In July 2016, the Supreme Court observed that “there is no concept of absolute immunity from trial by criminal court”. In July this year, the apex court came down heavily on the CBI director for the slow pace of investigations and asked him to “arrest and hold custodial investigations” of the accused, if required.

In its 2016 judgment, the Supreme Court had also observed, “In the enquiry, it might turn out that the victim was in fact an enemy and an unprovoked aggressor and was killed in an exchange of fire. But the question for enquiry would still remain whether excessive or retaliatory force was used to kill that enemy.” The Supreme Court also ruled that every case of death in an encounter will be investigated.

Though these observations were not part of the specific orders of the Supreme Court, they have created apprehensions in the minds of the soldiers with respect to conduct of operations in the disturbed areas. The Supreme Court needs to clear the air and review the manner in which the investigations in the Manipur cases must be carried out. It would be prudent to follow the existing system which has withstood the test of time.

The Army on its part must reopen its own investigations rather than take a rigid stand based on its past alleged cover-ups. It is better to re-establish the credibility of the military justice system than defend past deviations. The quantum of force to be used in operations should best be left to the Army. It would be a sad day if soldiers have to undergo custodial interrogation for actions in the line of duty in disturbed areas. The Supreme Court must redress these aberrations that have crept in during the course of the hearings.

In the interests of the nation, the 356 officers and soldiers must withdraw their petition. The government and the Army must not abdicate their responsibility and must file a petition in the Supreme Court for a review of its recent observations and directions that have created apprehensions among soldiers.

Parliament must amend the AFSPA or bring out a new Act within six months to make it more comprehensive, with elaborate rules particularly with respect to the manner of investigations of alleged human rights violations.