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Raging Debate on Armed Forces Special Powers Act in J&K

By General V.P. Malik (Retd)
By General V.P. Malik (Retd)
Former Chief of the Army Staff

 

A lot has been written about the Armed Forces Special Powers Act (AFSPA) in Jammu and Kashmir (J&K). Should we start its gradual revocation, or wait till overt and covert security threats in the State are further weakened or eliminated? The raging debate through social and regular media has not only politicised a sensitive security issue and made it more difficult to decide, it has also created an undesirable confrontation like situation between political leaders of the State (some outside also!) and the Army, and further demonised the AFSPA and maligned the Army in public perception. This would also make it difficult for the Central Government to promulgate AFSPA anywhere in future and thus restrict its ability to call for Army assistance for counter militancy operations.

Counter militancy operations are conducted in three stages. In the first stage, when secessionists’ activities and militants’ violence are at their peak-as was faced in Kashmir Valley in 1990 and the law and order situation does not permit adequate governance, the affected area is declared a ‘Disturbed Area’ by the State and the Centre. This legality paves the way for application of the AFSPA in the affected area to enable the Army to conduct effective anti militancy operations. In the second stage, military pressure on the violence perpetrators enables return of administration and resumption of constitutional processes. The third stage sees full-fledged functioning of governance and civil administration and return of the Army to barracks.

There are no clearly defined dividing lines in these stages due to frequent setbacks in counter militancy operations and the law and order situation. These stages, therefore, tend to merge into each other and require informed and perceptive decisionmaking at strategic and operational levels. During transition, particularly between the second and third stages, it is not uncommon to see a hot politico-military debate on the employment of the Army or the application of AFSPA in affected areas.

So, the first point I wish to make is that the current debate on the removal of the ‘disturbed area’ tag, and thus revocation of AFSPA from parts of J&K, should be viewed in that light and not as a confrontation between State political leadership and the Army. A public debate on such a sensitive security issue is best avoided.

In this context, let me narrate some personal experiences.

In early 1990, I was commanding a division that had troops deployed for counter-insurgency operations in Nagaland and Manipur. A political party leader, in order to garner students’ support and votes, made the removal of the AFSPA a major electoral issue. After he won the elections and became the Chief Minister, I called on him and asked what he planned to do about the AFSPA. He said that in view of the popular demand, he would write to the Home Ministry and demand its revocation from the State. I told the Chief Minister that it was OK with me. I will pull out troops from the 60-odd posts, concentrate them outside Manipur and train them for their primary role of fighting a conventional war. “But you cannot do that! What will happen to the law and order situation?” he said. I told him politely but firmly that I couldn’t help him to maintain that without a proper legal cover for my troops. Despite several elections in Manipur since then, the State, unfortunately, continues to have a ‘disturbed area’ tag on it and continues to have Army deployment on counter military missions.

In late 1993, when I was commanding a Corps in Punjab, we assessed that the law and order situation was adequately under control and we could pull out a brigade from an area for conventional training and redeployment. The Chief Minister and the Director General of Police expressed serious concern but went along with me when I told them that Army would be made available at short notice if required. Fortunately, there was no such requirement.

In late 1997, then Chief Minister of J&K asked 15 Corps to remove Army deployments within Anantnag, Badgam, Baramula and Sopore towns. We agreed and re-deployed troops outside these towns. There was near normalcy in Kashmir Valley in 1998. Next year, however, despite the Lahore Declaration, Pakistan Army intruded into Kargil sector and forced us to go to war. After a resounding defeat and loss of face in Kargil, Pakistan pushed foreign militants into the Valley and managed to intensify militancy. Sopore became a militants’ stronghold. It took a division size operation to get rid of them from this town and three more years to bring back militancy in the Valley to the 1998 level.

AFSPA

The AFSPA has been much demonised by civil society groups and the media in recent years. Two aspects need to be noted. Firstly, the AFSPA can be applied only after an area is declared a ‘disturbed area’ by the State/Centre. Secondly, it provides a legal cover for Army personnel in carrying out ‘effective’ counter militancy operations. Under the AFSPA, in a ‘disturbed area’, a commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces can:

  • Arrest without warrant any person who has committed a cognizable offence and may use suitable force, if necessary to do so. Enter any premises without a warrant to arrest a terrorist/suspect, or to recover a wrongfully confined person, stolen property, or arms/explosives wrongfully kept.
  • Fire upon/use force, even causing death, against any person contravening law and order or carrying weapons, ammunition or explosives, if in his opinion it is necessary for maintenance of law and order and after giving due warning.
  • Destroy an armed dump or fortified position or a shelter from which armed attacks can be made or can be used for training by hostiles, if necessary to do so.

The Act lays down that the arrested persons will be handed over to the nearest police station ‘with the least possible delay’, and no prosecution, suit or other legal proceeding can be instituted against any person in respect of anything done under this Act except with the previous sanction of the Central Government.

The AFSPA may have been described as a ‘special power’. But those of us who have commanded troops in such situations have always looked upon it as a legal protection to conduct effective operations. On the flip side, whenever law and order situation improves in a ‘disturbed area’ and we have elected representatives governing the state, they find it difficult to continue with this Act. The reasons are:

  • Democratic societies all over the world abhor large scale and extended deployment of troops in their midst.
  • Human rightists and the media over the years have dubbed the AFSPA as a ‘draconian’ power given to the military against the civilians. It has become a convenient tool for the secessionist elements, and those in opposition, to embarrass the government and demand withdrawal of troops.
  • Despite strict discipline and training, there are aberrations of human rights violations by troops. These aberrations can be reduced but seldom eliminated in the kind of operational duties which have to be performed.

AFSPA, Human Rights and the Army

Keeping in view the incidents of human rights (HR) violations by some personnel when AFSPA is applicable, the Army, over the years, has taken several preventive measures. These include setting up of human rights cells at Army, Command and Corps headquarters to monitor, seek factual details and take follow up action on all HR related cases (received from any source) and to maintain records. These Cells, after investigations, prepare a ‘Detailed Investigation Reports’ (investigation is conducted jointly with civil authorities sometimes) for submission to higher headquarters and preparation of affidavits to the National Human Rights Commission.

According to statistics made available to me in July 2011, 1,485 cases of human rights violations were reported in Kashmir Valley from 1990 to July 2011. Out of these, 1,439 cases (96.9 per cent) were proved false. In 43 cases proved true, 96 personnel were punished. As punishment, four officers were cashiered/awarded rigorous imprisonment (RI), 33 personnel dismissed from service, 17 personnel reduced in ranks/awarded imprisonment in military custody, one person forfeited seniority for promotion, and 14 personnel were awarded ‘Severe Reprimand’. I doubt if any civil court would have acted faster or stricter on this issue.

There has also been a strong drive on continuous training and briefing of troops employed in such operations to respect human rights and avoid collateral damage. A ‘Code of Conduct’ (appreciated by the Supreme Court) is issued to every individual. The ‘Rules of Engagement’ have been modified. Wherever possible, operations are conducted jointly with the civil police and made accessible to the media. In the last year and a half, beside preventing infiltration and conducting only intelligence based joint operations, the Army in Kashmir Valley under Lt Gen Ata Hasnain, has taken some extraordinary people-friendly initiatives. These include reducing visibility of personnel and convoys on roads during the day, ‘Jee Janab’ (cultural sensitivity) and ‘Awam aur Jawan, Aman Hai Mukam’ (the soldiers and populace want peace as their objective) and the Kashmir Premier League matches to engage the youth. These initiatives have made substantial contribution in improving civil military relations and ensuring peaceful summer.

Notwithstanding the above-mentioned civilised measures, there is still a need for the Army to become more transparent on human rights violation cases and where necessary, expedite sanction from the central government to prosecute personnel guilty of deliberate human rights violations. That would be in the interest of Army discipline as well as for creating confidence in public.

AFSPA in J&K

The Chief Minister of J&K, supported by his political heavyweight father, the Left Front and some other party leaders have made a strong pitch for revocation of AFSPA from selected districts in the State. The political view point is that these districts are no longer considered ‘disturbed’, our relations with Pakistan are improving, and the AFSPA-considered as ‘an oppressive military regime’ needs to be selectively revoked to provide the requisite atmospherics of bringing peace to the State. The Chief Minister is justified in considering the issue although it is apparent that under the cover of this demand, there is also an element of political expediency to hijack the AFSPA agenda from opposition parties and separatists.

Unfortunately, there is considerable confused thinking about the AFSPA. A member of the Centre appointed interlocutors on J&K has stated publically that “in a free India, which attained freedom by practising non-violence, laws like the AFSPA, which jeopardise democratic and human rights, have no relevance”. One wonders if the Union Home Minister would agree with such an argument! The interlocutor stated further that “despite various suggestions made from time to time to the State government, there is no worthwhile monitoring mechanism to ensure effective implementation of recommendations for ameliorating the condition of the people.” And yet, the same interlocutor opines that “programmes like Operation Sadbhavna, designed, managed and financed by the security forces for providing education and healthcare facilities, should be ideally left to the local bodies, as has been the practice in other states.” In the current governance environment in J&K, it is difficult to see any linkage between implementation of State development programmes and the AFSPA.

The Army, opposed to selective revocation of the AFSPA, believes that Pakistan Army has not given up its efforts to support militancy and terrorism in the State. The current run of peace is, at best, fragile. The secessionist elements in the State have not been adequately neutralised. They continue to provide logistic support to anti-national elements and have used, or created, opportunities during many summers in the past—except last summer—to raise ‘azadi’ flags and slogans. Selective revocation of AFSPA will make its assets (including Srinagar Airfield) and convoys vulnerable. Selective revocation of AFSPA may also revive overt and covert militancy in these areas, as has been experienced in Imphal in the past. The Army feels that more time and effort is required to bring about normalcy in the State.

Pakistan Army and the ISI have always been a major factor in the militancy swings of J&K. They treat and nurture Jehadi terrorist groups as a strategic asset and a hedge on Pakistan’s Eastern and Western borders. The ISI continues to support these groups, their training and communication networks in POK despite its pre-occupation on the Afghan border. The Army believes that there is no change in Pakistan Army’s strategic agenda. Continuing military-terrorists nexus in Pakistan has been confirmed in the latest ‘Memogate’ exposure.

Conclusion

I have no doubt that every Indian would like to see the end of terrorism and militants’ violence in J&K. More so the security forces, who have lost 6,013 personnel since 1988 due to such violence in the State. This is possible only through a synergetic effort of the political leadership, state administration and the security forces including the army, on the ground. The synergetic effort has to be focused on public; to restore its confidence in the polity and administration; to ensure that it denies support to militants and enables their isolation. The militants will then either fall in line or get eliminated.

While it is desirable to give more and more political space to the State leadership, the AFSPA is necessary till we are fully confident of checking infiltration from across the border and the overt and covert support to the militancy in the State is reduced considerably. The need for legal cover to soldiers conducting counter militancy operations is unquestionable. Due to changed circumstances, it is essential to review the conduct of operations in the areas suggested for revocation of the AFSPA. My suggestions would be to (a) further reduce army footprints in all civil areas. Let the civil police take over operations in the areas recommended by the State Chief Minister and call for military only when the operation is beyond its capability (b) military convoys passing through these areas should continue to be protected (c) the Army should be more transparent in its dealing with human rights aberrations, and (d) the Central Government should explain reasons whenever permission to prosecute a person accused in human rights violations is not given.

I believe that it is incorrect and unfair on the part of political authorities to put pressure on the Army through social and regular media. This is not in the interest of objective decisionmaking or cordial civil military relations. Political leaders in ‘disturbed areas’ need to assess the security situation and resolve such issues through a consensus in Unified Command instead of making sensitive security issues a public agenda.