By Adfar Shah
August 6th, 2015
The decision by Tripura’s Manik Sarkar government on recently revoking the Armed Forces (Special Powers) Act (AFSPA) was much hailed in public and intellectual circles, however, the ripple effect as expected was the fresh revival of the incessant demand for its revocation in Jammu and Kashmir.
While it was argued that the much hyped, much maligned and controversial law in Tripura was revoked through a consistent effort by the State government on the basis of decreasing militancy (violence) related incidents, it is now expected by the masses in Kashmir that such a positive development should pave the way for the Mufti Mohammad Sayeed led PDP-BJP coalition government to get the law repealed either fully or partially at least from the less or no vulnerable areas.
For an impact assessment the key questions that arise are how often has AFSPA been used by Armed Forces as a shield against the violation of Human Rights and other aberrations, or is it the excessive politicization of the issue in the State by the mainstream as well as the separatist ideologies which keeps the AFSPA tussle always fresh, and lastly why is it that the people still view AFSPA through the prism of the past and as a symbol of constant oppression?
The questions are many, but with no clear answers. It would not be wrong to maintain that irrespective of the merits and demerits of AFSPA, the act has been highly politicized and therefore perceived as a draconian law by all except the army and the establishment. Perhaps the Centre and the Armed Forces have not done enough to explain the real essence of the act or the fact that despite the act being in place, what measures have been adopted to ensure that there are no misuses of the act. The Army has time and again said that over 97% of the allegations made against them have turned out to be false and actions have been taken against those who erred — however there has been no proactive effort to substantiate these claims and the trust deficit and sustained enemy perception among the masses has also played a disastrous role thereby sustaining confusion and distrust.
Contrary to this, and adding fuel to the fire, the Defence Ministry finds it proper to opine that the law is a must if the Army is to operate in the State. Partially due to the lack of communication and partially due to past acts of omission and commission or excessive politicization, a tremendous trust deficit has been generated between the people and the security apparatus which should be addressed as a priority. This perceptual difference, particularly conflicting views on AFSPA, negate all other people friendly efforts that the Army has undertaken to bridge the Army-Civilian dichotomy. As peace permeates through the minds of the people, the demand for dividends of peace including scrapping of the law, even if partially, as yet another people-friendly step, is increasing and therefore needs a serious rethink.
People-friendly voices also opine that the AFSPA revocation should find space in the Prime Minister’s promise of delivering Insaniyat (humanity) and Jamhooriyat (democracy) in the State of Jammu and Kashmir. However, security experts maintain that before analyzing the arguments and counter arguments, it would be proper to take a look at the similar contemporary provisions existing in other countries besides ground realities where insurgency undoubtedly has come declined, as well as active militancy, but the intensity of threats across the border and the terror machine have remained constant. Having seen the provisions adopted by various countries for dealing with insurgency, it would be apt to analyze the views of the Army on AFSPA and its repeal. The Army somewhat seems to believe that AFSPA is neither as draconian as it has been made to look nor it has been used in the manner as it is projected. Any excesses it believes, that may have taken place in the past have been verified and actions against erring personnel have been taken as per the law of the land.
However, for reasons of empowerment, morale and fear of excessive caution on part of the troops operating under life threatening conditions, such a provision is important. While forces believe that to check misuse of the powers bestowed on Armed Forces, there are do’s and don’t’s, the Army Chief’s ten commandments and force ethos that various levels of headquarters have been enforced and there is no question of any violations. However, in the chaos ridden valley numerous violations have occurred in the past and innocents have suffered. Moreover, if the Army believes that it cannot and it should not operate without the enabling act, there would be a need to build a political consensus between the State and the Centre on the needs of today’s security situation. Also two elements of the nation’s executive cannot have opposite views on such a crucial provision of the security domain. Even as Kashmir reaches the stage of conflict stabilization, fresh threats loom before it in the form of the effects of the turbulent situation in Afghanistan, increasing radicalization, the entry of the Islamic State and the new trend in Kashmir-young educated joining militant ranks.
Therefore a general opinion is held that considering the magnitude of the perceived false allegations, it will be impossible to handle the cases without having serious implications on operational efficiency and morale. However, with the rising consciousness of human rights the very language of the law is considered offensive and treated by civilians as simply against human rights. Arguments about dwindling number of active militants and counter arguments about the uncertainty of turbulence continue to occupy the mind and media space of Kashmir, however without much clarity of thought and action but just a sea of perspectives and battle of perceptions.
AFSPA Tussle: Some Questions
Why was the law enacted is not difficult to answer. From 1989 onwards Kashmir witnessed a collapse in law and order and the circumstances in the State turned so grave that Army had to be called in, which needed enabling legal provisions such as the AFSPA. The question of why is it considered draconian, simply citing certain acts of excesses and mishandlings by the Armed Forces justifies the label.
The question of who does it suit to label it draconian, not only all those who like to whip up the emotions of the public for their vested interests, but those who suffered under its garb. Given the labels it clearly seems that AFSPA supporters have failed to portray the act correctly. The question also arises whether the Army and the Centre has lost the perception battle on AFSPA and If so, why? We know that the main protagonist in the perception battle is the Army which is pitched against host of key players like mainstream political parties and the parallel ideologies but army should never take AFSPA revocation debate like an attack.
The question also arises that can a fresh perception battle be undertaken on a different set of ideas? The supporters argue that it is rather an issue of information and awareness and not a perception battle but has become a perception battle today, rather a clash of egos. While sane minds understand the excess of hue and cry on the AFSPA as propaganda and politicization, but they equally acknowledge the people’s suffering over the past 26 years amid laws like AFSPA and PSA and therefore a fresh debate is needed on the subject. Also the pressing question arises that would a fresh legislation with less offensive language pass muster, along with a fresh label?
I think the Army must not be averse to any such move as it is true that AFSPA employs objectionable terminology. Also the question of the Supreme Court’s Do’s and Don’ts, the SOPs of the Army incorporated in 1994 and the Force Ethos of formations? Can they be used to dilute perceptions of the law being draconian? Possibly this is a direction that could lead to acceptance. The Do’s and Don’ts enunciated by the Army, the SOP’s for conduct of operations, the Rules of Engagement of the Army and various Force Ethos that are adopted need to be clearly explained to the people which is yet to be effectively done. The Army has been traditionally shy of media and therefore partially responsible for the lack of adequate knowledge of people about information which could be game changing.
The last question is how much has the situation changed from 1990 when it was first enacted? Is it sufficient to warrant removal of the law? The issues that need to be addressed at this juncture are not AFSPA but at societal level, radicalization especially of youth needs to be curbed. At political level, a lot including rehabilitation of ex/surrendered/released/returned militants, development of opportunities, management of education, generation of more economic infrastructure, etc, must be addressed. At diplomatic level, India must use the diplomatic channels to force its hostile neighbor to shun terror as an instrument of foreign policy.
Last but not the least, resolution of Kashmir issue as such is a must for lasting peace. The State Government needs to enhance the capabilities of the Police and allied security agencies to take on the Public Order challenges. The question remains that how many times has AFSPA issue been discussed in the Unified Headquarters Meetings or Corps Group Meetings?
On the legal front, it is believed that the law was enacted based on the definition of ‘disturbed’ , thus giving security forces a mandate and enabling powers to achieve the national security objectives. There is also a feeling that such an unneeded hue and cry is for political diatribes and such a message has gone across and needs to be corrected. However, given the fact that Kashmir has already suffered for decades together sustaining peace and public relief is far more vital than political rhetoric or AFSPA in itself. Therefore, the Centre and Army must adopt a pragmatic approach towards the necessity and possibility of revocation of AFSPA from the areas where it is no more needed.
We must acknowledge that any Act of this nature cannot remain in force for ever and the fallouts of the prolonged continuation of the law on the society and even on the image of the Army. Constant army-civilian trust deficit in Kashmir needs to be abridged, and that will only happen if the concerns of the people are addressed and at the moment the AFSPA issue is perhaps the biggest.
Simultaneously, the real concerns of the people relate to the PSA, due to which large number of youths has been subjected to arbitrary and prolonged detention, often without trial. The state government need to take a serious view of this and at the same time needs to pursue the issue of revocation of AFSPA seriously in collaboration with the army leadership and the Centre .Amnesty international recently recommended the scrapping of the law in its report titled, “Denied: Failures in accountability for human rights violations by security force personnel in Jammu and Kashmir” calling AFSPA as the primary facilitator of impunity and stated that it does not behove a democratic country like India to have such an act in any of its parts. The perception battle exists as AFSPA has not been portrayed correctly to the people perhaps not reflected well by the forces initially and with the result is has been assumed as draconian and needs a rethink.
Notwithstanding the arguments and counter-arguments on revocation of AFSPA, there is surely a need to review the Act. Perhaps enacting a new law that takes into account the past experiences, mishandlings and issues of the Army as well as the Human Rights concerns of the people, is the need of the hour.
Keeping the fallout of the prolonged continuation of the law in view, it has been time and again maintained that AFSPA in the State needs a rethink given its tenure, relevance, past human rights violations, mounting public anger, crisis mishandlings and aberrations and constant army-civilian trust deficit. Simultaneously it is being argued by masses and analysts that in case the uncertainty and chaos or violence returns, who can stop the Centre to reinstall the law again. While the Home Ministry seems considering reduction in possible deployment of central forces in North east states, it should not close its eyes on Kashmir (and Nagaland) and not just focus on development packages but be serious on the delivery of justice in the sensitive State of Jammu and Kashmir.
(The article first appeared in Pointblank7 and has been slightly edited)
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