Friday, 1 April 2022

Armed Forces Special Powers’ Act

AFSPA is part of the problem

The Home Ministry makes a virtue of a necessity in the withdrawal of the Armed Forces Special Powers’ Act (AFSPA) from some areas of its extant across North East. That this is a response to the Oting killings in Mon District of Nagaland last December is self-evident. Had that botched operation not taken place, periodic routine extensions to AFSPA would have continued, just as was the case in Assam only last month. Since AFSPA is part of the legal landscape in the North East and Jammu and Kashmir (J&K), the Act is center stage when there is some or the other egregious violation of human rights. The remainder of the time it whirrs away in the background, covering up violations that do not clutter headlines.

It is not as if AFSPA has not been consigned to the dustbin when warranted. The legislation for Punjab was jettisoned when it outlived its utility sometime late nineties with the passing of the Khalistani insurgency. The one in Tripura was wrapped up in mid 2010s by the Left administration there when its enlightened policies brought peace to tribal areas. However, it has continued unabated in the North East and J&K, even where the indices of insurgency have been negligible. This has been the case not only in areas in J&K, such as south of Pir Panjals, more or less all through, and also in Assam since the insurgency there abated in the early 2000s. That AFSPA continues in place by mere genuflection to an unsettled situation, rather than any rigourous due process by way of which it is extended, shows it up as a tool of centralized control over the periphery; a colonial instrument, if you will.  

The Courts have twice-over taken a deeper look at it. In the late 90s, the challenge to AFSPA on constitutional grounds was laid to rest in the Courts decreeing it as constitutionally compliant. The judgment was sugar-coated with homilies to be applied by the armed forces during operations, which in the event proved to be lip-service to a set of commandments, themselves revised soon thereafter. Then in the mid 2000s, there were the upheavals in Manipur, stemming from wanton disregard by some armed forces elements of the provisions that Supreme Court had required be kept in mind during operations. The government of the day - bearing a liberal orientation - sought to quieten the backlash by appointing a commission. As with most such reports, the Commission’s otherwise enlightened report was confined to dusty file cupboards. The then home minister later ruefully recalled – referring to another report by three interlocutors dealing with the effects of the AFSPA in Kashmir - that an opportunity was passed up to rectify matters.

The highest Court continues to be ‘seized of the matter’ – in ways typical to courts – following up with an investigation of some 1500 cases of disappearance in Manipur. Of the six sample cases investigated at its behest by a central agency, all deaths were found to be in fake encounters. Premises vacated by a departing military unit threw up human remains, testifying to an effort a clandestine disposal. In J&K, unmarked graves number up to some 3000, while the number of disappeared are pegged just short of 5-digit figures.

While wheels of justice clank on, their din has forced at least two counter insurgents to commit suicide. One Avtar Singh, on the run for killing a human rights activist in Kashmir, killed his family before shooting himself, way out in California where he was hiding out. A Pakistani author provides a fictional account of the murder-suicide. In the other case, the major allegedly involved in the alleged rape and murder of Manorama Devi allegedly died in a firearm ‘accident’ on the field firing range. This is not how it was envisaged in the AFSPA to deal with violations of its provisions. Poetic justice after a fashion, but this should have, first, been deterred by the State; and, second, it should have deployed its disciplinary powers instead.

Indeed, AFSPA does confer disciplinary powers. These have been remarkable only for absence of will to use them. The Act would have perhaps had less ignominy had the Article that confers these powers on the Central government been exercised as envisaged, when and where warranted. That power under this Article has been deliberately ignored, while powers under other Articles have been abused tells its own story. Not a single prosecution has been initiated since the Union government has declined to sign off on its approval for such action, even when warranted. Where the army’s judicial system has stepped up, justice delivery has been casualty. Machhil and Pathribal are cases to point. This puts the onus on the government, but with two ministries involved – Defence and Home – there is little chance of decisions emerging.  

This owes to a division of labour in which the bureaucrat-assisted political level of military control has abdicated its responsibility of oversight altogether. The lessons of 1962 were over-learnt. Both doctrinal and operational aspects of military affairs are taken to be the realm of the military brass, while it is kept out of the higher order decision making. This is a symbiotic relationship, with the brass not unhappy to have a field-day operationally. Lately, cosmetic strides have been made to get the military on the high table, though mostly this is high on propaganda than substance.

As a result, counter insurgency has been largely unsupervised, with the military being only self-regulating only up to a point. The doctrinal cover it has is that a kinetic resort is only to bring down levels of insurgency to manageable levels. This is compounded by a definition of insurgency that has it that insurgency is only if unassisted from outside. This puts the troubles in Kashmir into a proxy war basket, whereupon militant action is taken as terrorism, inviting a liberally-dispensed wrath of the State.

Whereas the military has projected that it is loath to be involved in aid to civil authority in tackling internal security, the circumstance has been rather beneficial for the military. It has expanded its footprint across J&K in particular, raising a whole Force, the Rashtriya Rifles (RR), to enable it do so. Thus, when calls, impelled by ‘healing touch’ sentiment, come up for rewinding AFSPA, these are promptly shot down by the military, the custodians of expertise on insurgency and national security. No national level politician can second guess that, while provincial politicians can be derided as having an axe to grind. Thus, AFSPA acquired institutional stakeholders interested in its longevity.

There are institutional checks in place, such as a human rights cell at the headquarters level. Recently, a police officer stands posted to the headquarters with a remit to oversee processes dealing with violations. However, the interpretation of the mandate is such by the military appointees that they think their job is to preserve the military from external scrutiny. This is of a piece in a system where the apex human rights body organizes debates with topics such as: "Are human rights a stumbling block in fighting evils like terrorism and Naxalism"?

In such milieu, not only will AFSPA be willfully misinterpreted, but its tenets stretched. For example, it allows for destruction of hideouts. However, that was apt for when it was promulgated: when in jungles hideouts could be destroyed so that these were not reused. These days it is interpreted to mean any place militants are found, including houses they take shelter in. Thus, there is a virtual policy for destruction of houses in which militants are found. This replicates what Israel does, hardly apt for a country dealing with its own citizens. AFSPA provides benign cover for turning India into a softer copy of that Apartheid state.  

Though the government, known for milking military-related measures for its political purposes, will go to town over the retraction of AFSPA from certain areas in the North East, it is unlikely to be replicated in J&K any time soon. This could be done easily if violence indices are the only barometer. That it needs being done is not so much as to stay compliant with the Court’s requirements, but to be strategic. The AFSPA feeds resentment and high-handed actions under it, alienation. If partially withdrawn, it would serve as a useful confidence builder and gimmick to initiate a peace process. Retracting AFSPA can do more for J&K peace, than divisions-worth of RR. But the government, having shot its bolt with Article 370 voiding, is hardly likely to be looking at politically-driven conflict resolution. It is instead election oriented. It could well give indicators of turning back the AFSPA clock if the ruling party gets elected in the forthcoming elections. Reaping the harvest in installing a Bhartiya Janata Party-led government under a Hindu chief minister, it can rescind its promise at will or remove it selectively. AFSPA, thus, is plenty-faceted, to be juiced at will.

One thing it certainly does is to hand over – figuratively – the situation to the army. For the vast majority of counter insurgents doing a professional job of a distasteful responsibility - not an infanteer's primary job but only an infanteer can do it - they would soldier on regardless of the Act; so don’t quite need it. What the Act does is makes it business-as-usual for politicians and bureaucrats. There is thus no urgency to resolve matters politically. The Naga peace process is to observe its silver jubilee soon, with not comprehensive peace agreement in sight as yet. As a result India has been criticized – for instance by David Smith - for being a soft state, unable to wrap up insurgencies for decades on end. The critique, though taken amiss by the military and its veterans, bites.

What escapes the military is the cost it pays for maintaining the cover of AFSPA. It remains a ‘mass’ military – a grid-based counter insurgency being manpower heavy. This has impacted its financing; the revenue budget eating up the capital budget. It is also not conventional war oriented enough, having been caught flat-footed at Kargil and, most recently, in Ladakh. That courage has bailed it out is at best a back-handed compliment. Thus, AFSPA has a price the military is unwilling and/or unable to see.

Even so, AFSPA does serve the purpose of providing cover for deploying the army in circumstance of straitened internal security. That the enabling provisions are also available in other legal instruments has not made a dent on the army’s adamantine stand. Its powers could also be inserted into a revised Unlawful Activities Prevention Act (UAPA). Since the much reviled UAPA is applicable across India, it does not suffer arraignment as AFSPA does of being discriminatory.

Nevertheless, AFSPA is not going to go away. The only purpose it can perhaps serve someday is that it can provide cover for army deployment elsewhere. No, not in Maoist areas - though it’s discipline might protect the tribal communities there better than that afforded by the central police forces - but across India if and when right wing extremists - whose political violence is the primary threat to the Republic’s Constitution - are to be rolled up and wrapped away.