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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.

Kashmir: Preparing for a contingency

http://www.foreignpolicyjournal.com/2012/07/21/kashmir-preparing-for-a-contingency/

by Ali Ahmed

July 21, 2012

The latest controversy coming out of the otherwise peaceable Kashmir is a civil-military spat. This has the army’s position, given out by the Srinagar corps commander, of situation in Kashmir as ‘alarming’ ranged on one side. On the other is the position of the head of the unified command in Srinagar, the chief minister, to whom the army general ostensibly reports as part of the unified command and who does not find the situation ‘alarming’. Perhaps both are right to a degree with capricious truth, as usual, being somewhat in-between.

The chief minister is right to the extent that describing the situation as alarming can raise an unwarranted alarm. The corps commander for his part perhaps meant that it is ‘potentially’ alarming, given his reference in his remarks to the continuing of the terror infrastructure across the Line of Control and its readying of 500 odd terrorists for launch.

That the army remains in place despite better security indicators that give the chief minister confidence, suggests a potential for backslide. It is perhaps for this reason that Pakistan too has not dismantled its leverages. This suggests that both states are in a ‘wait and watch’ mode, no doubt waiting to see which way the ‘cookie crumbles’ in ‘AfPak’, given the onrush of Obama’s deadline for departure, one that has been hastened lately to late 2013 from its earlier location in time in 2014.

All indicators are that the negative peace—absence of violence—currently obtaining in Kashmir cannot be mistaken for positive peace—absence of reason for violence. With the three interlocutors failing to enthuse a political initiative towards conflict resolution, alienation persists. A leading separatist has suggested that the youth, having witnessed only turmoil, may be less restrained than their predecessors who took to the gun. The next time round, violence could well have a different face. It could resemble images from Syria and Libya, with an admixture of those from Egypt.

The state response can be predicted along lines of 2010. Then, curfew was clamped in the gaps in the public curfew so as to exhaust public support for the stone pelters. Identified since, many have been taken out of circulation, falling to the PSA. Assuming that next time round, bullets substitute for stones, the army that was in 2010 only ‘on call’, will be back on the streets it last patrolled in the mid nineties. This explains why it favors the ‘draconian’ to some and ‘demonized’ to others, AFSPA (Armed Force Special Powers Act). The Act’s continuance enables the army to be helpfully readily on hand. This completes the circle in that it serves as a disincentive to the government to meaningfully bring about conflict resolution. In light of the threat of the next round being more violent and, catching the state surprised and under-prepared, possibly more bloody, this may not be such a bad thing.

However, it could be worse if some initial thinking on how to mitigate the situation in such a contingency is not done early. While prevention is better than cure, it is by now obvious from the interlocutors’ report being confined to the cyber-world that neither prevention nor cure is on the government’s mind. Here an idea is aired for how to mitigate the consequences of the ‘wait and watch’ folly passing for policy.

Currently, India has viewed the conflicts it has been beset with as domestic affairs, if above the ‘law and order’ level but certainly below that of a non-international armed conflict. This has occasioned its application of AFSPA without resorting to the emergency provisions that would then invite its accountability externally as per the international ‘bill of rights’ covenants.

If under the contingency posited here, of higher order civil turmoil, there is a case for India declaring the ensuing armed conflict as a non-international armed conflict. This will have some advantages for India. It will help in controlling its armed forces engaged in beating back the challenge. A tough military counter is not unlikely since the outbreak could amount to an internal rebellion. This will exact a strategic price in terms of a downward spiral. Civilian control of such operations can be reinforced in case there is an external accountability. This can be brought about by treating the conflict as a non-international armed conflict.

It will enable operation of Common Article 3 of the Geneva Convention to which India has signed up. This finds incidence in Indian domestic law in the Geneva Conventions Act of 1960. Vide this article egregious acts of violence are prohibited, serving as an additional check on the military against disregarding humanitarian concerns for military necessity. This would be important when and if the challenge posed by internal conflict is of an order as to make the use of force in response strategically counter productive. There is no loss in doing so since the article explicitly states that sovereignty is not brought into question.

It has the added advantage of putting Pakistan and its proxies on check. The Article is applicable to both parties to the conflict. Therefore the proxy warriors would also be required to abide by the provisions. Their operatives in Kashmir and handlers across the LC will be held accountable to international humanitarian law, failing which they would be liable under international criminal law. The latter has made some advances since the mid nineties that can be productively used to offset the impunity terror handlers otherwise have from domestic jurisdiction.

Additional Protocol II that is applicable for non-international armed conflict would not be operational since, firstly, India is not a signatory, and, secondly, the higher threshold of violence it envisages is unlikely to be reached. Abiding by the Common Article 3 humanitarian provisions would have a salutary effect of reinforcing domestic human rights law that has otherwise proven tenuous in its sway over security forces in most episodes of armed challenge India has faced.

In bracing for the future, India would do well to ponder such contingencies. If the international scrutiny that results if found to be unthinkable, then this must serve as incentive to India to go meaningfully down the conflict resolution route it has avoided so far.

AFSPA: A question of justice

http://www.kashmirtimes.com/news.aspx?ndid=28532

• Published:2/13/2012 12:05:00 PM
• Updated: 2/13/2012 10:03:24 AM
• By: BY ALI AHMED
• Filed Under: column

  

A report in The Hindu has it that, ‘In the past four years alone, the Home Ministry has rejected at least 42 requests to sanction the prosecution of military personnel found by the police to have engaged in crimes such as murder, homicide and rape in Kashmir…’. Since the government does not have a written policy, its policy has to be inferred from its actions. In this case its action, or inaction, suggests that it is wary of permitting prosecutions of members of its armed forces, even though it has the power to do so under the AFSPA Section 6 (for North East) and Section 7 (for J&K).
The report acquires significance due to the Supreme Court pulling up the Army on the eve of Republic Day for stalling the prosecution in the 2000 Pathribal encounter case, initiated by the CBI against five officers. This is one among a few high profile cases that include Macchel in which three men killed were portrayed as crossing the Line of Control; the Malom case that provoked Irom Sharmila’s fast and the Manorama Devi case that had led to the Jeevan Reddy committee review of the operation of the AFSPA in the North East.
Procedurally, the cases that come up to the Home Ministry for decision have had preliminary investigation done by the police making apparent that the armed force investigated has exceeded its brief in acting in aid to civil authority. The Home Ministry’s hand is possibly held up by the recommendation it receives from the Ministry of Defence, where the Army is concerned. Where the Central Armed Police Forces are concerned, the Ministry has direct accountability for these. Yet it is reticent.
Where the military is concerned, the Army can dispose-off the case under the Army Act in case the Home Ministry does not permit prosecution by civil courts. This can be expected to preserve military cohesion and morale, prevent military men from being prosecuted in civil courts where their rights may be ignored in the surcharged atmosphere and it will strengthen the military judicial system and command authority. Such prosecutions could well have been proceeded with but for the case pending a decision with the Home Ministry. The time lapse makes the case more difficult to pursue, but it can still be opened under military law. In any case, for the Army to proceed, it would first require an indication that the Home Ministry is not permitting prosecution by the judicial system, since a person cannot be tried twice over. This explains why no action is usually taken in some cases of egregious violence: the reason being that that file is awaiting decision.
The problem with such a defence is that it virtually negates the utility of Section 6/7. While the section was to prevent motivated litigation against military men in the performance of duty, insertion of the section enables democratic control over the military. While military law can cope with most acts of omission and commission, where acts are ‘beyond the pail’ or have acquired strategic contours, there is a case for the Home Ministry to exercise of its powers. If the Ministry needs a ‘push’, the parliamentary committee overseeing the Ministry could scrutinise its action and members of parliament can raise parliamentary questions as to the process followed.
The problem that arises in not using the power with the Center is that it sends the wrong message to the people in the disturbed areas. Healing gets postponed. Second, the military gets a feeling of impunity. Allowing prosecutions helps deter violations. This is useful for military discipline. Third, good governance implies upholding the laws and the Constitution. Where it is felt that the military may not do justice adequately for organisational reasons, such as preserving morale, protecting the chain of command, hiding misdemeanours, covering up earlier misreporting etc., then the civil courts must be allowed to step in.
A valid concern would be that the judiciary in affected areas may be more harsh than warranted and the very process, that is bound to be extended and emotionally charged, would expose military men to personal risk. Innocent army men may suffer the indignity of being mishandled by over-zealous policemen, prosecutors and mischievous lawyers of the opposition. This can be addressed by having either fast track courts appropriately located in secure areas, or by moving the trials to a neighbouring state. Alternatively, the Defence Ministry must monitor the cases in question and the results broadcast. Withholding prosecution with the laconic comment that ‘no cause is made out’ does little to inspire confidence in the system.
Another valid concern would be on the consequences of such prosecution. A view is that morale will go down of the armed forces if extremists are allowed to get away with legal hurdles. The rank and file would be less willing to take initiative and risk. This would impede future counter insurgency effort, allowing the insurgent greater space. The problem with this line of argument is that it seems to suggest that cutting corners should be permissible. It disregards the overall counter insurgency paradigm that the means are as important as the ends. Permissive atmosphere for violations only fuels the insurgency. Lastly, it downgrades the premium on leadership. The military leader is expected to deliver on morale, discipline and effectiveness, even while the state must hold his hand. The criterion of ‘good faith’ is a leadership judgment that must be judiciously exercised by the military leader in appraising the act.
Details of exemplary punishments awarded since the start of the insurgency in Kashmir, given on the Northern Command website, are given in the table:
It is clear that only the first serial amounts to a consequential punishment. That the numbers have been released into the public domain suggests that the military is satisfied with its record. A second opinion, of its civilian masters, can be necessary balancer, since it is not self-evident that the military can be relied on entirely for dispensing justice. Its efforts need to be supplemented by the civilian judicial system, for which the two Ministries need to exercise their powers.
One aspect that acts as hold up, liable to be missed, is that some actions are under the rubric of intelligence operations, a kind of reverse ‘propaganda by deed’. For instance, the link made out by, among others, Pankaj Mishra, of the the Pathribal case to the Chittisingpora massacre of Sikhs, and in turn the Clinton visit to India of 2000, suggest an intelligence operation that went wrong in its cover up. It possibly had clearance at a higher level than which it was executed. The government’s reluctance is therefore understandable. It perhaps does not want to allow prosecutions in some cases and not in others.
A suggestion by Siddharth Varadarajan was that the government must give more than a one line answer as to why it is not permitting prosecution. The government could withhold permission in such cases by resort to the ‘national security’ excuse, even as it allows the other cases to go through.
Setting a precedent is important. If the past is guide, India will be faced with similar problems ahead. It must establish a ‘best practices’ scheme now by facing up to the detritus of its otherwise comparatively remarkably successful and humane counter insurgency campaigns.
*(The author is Research Fellow, Institute for Defence Studies and Analyses)

Reconciling AFSPA with the Legal Spheres

JOURNAL OF DEFENCE STUDIES

Ali Ahmed

April 2011

Volume: 

 5

Issue: 

 2

Focus

The present paper analyses and examines the Armed Forces Special Powers Act (AFSPA) in respect of legal aspects. It first discusses it in terms of domestic law, international humanitarian law (IHL) and human rights law. Given India’s obligations under international human rights instruments going beyond domestic law is necessary in any such discussion. Ensuring complementarity between the Act in its application in armed conflicts and IHL, would contribute towards making the Act more ‘humane’. The second part discusses the Act from security perspectives. In doing so, it reaffirms that respect for human rights and humanitarian law in countering insurgency is of strategic import. In conclusion,it makes some recommendations for the military which will enable it ensure that AFSPA and the IHL complement each other.

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AFSPA: The Renewed Debate
http://www.ipcs.org/article/india/afspa-the-renewed-debate-3485.html

The chief minister in Kashmir has presciently identified that Kashmir is at a critical decision juncture. This involves decompression of the state in sync with the violence indicators. This would facilitate a switch from a military dominant strategy to the political prong. Central to this is the status of the AFSPA. The state government can at best provide its inputs to the central government, as Omar Abdullah has rightly stated.

The central government has the diplomatic, intelligence and military input for a well considered decision. The army chief has indicated that the army has sent in its view via the ministry of defence. It is now for the cabinet committee on security (CCS) to take a decision since there appears to be a divergence between the views of the state government and the defence ministry. Even though it is so well known as to amount to being trite, the Clausewitzian principle bears recall that in considerations on conflict the political supersedes the more narrow military.

The army rationale would of necessity be on security grounds, such as the possibility of areas from which the ‘disturbed areas’ status is rolled back being used by terrorists once again as sanctuaries. The military logic in this case would likely be that sanctuaries would be made available to terrorists for hiding out of reach of the military in areas they would not longer be allowed to operate in.

The example of Imphal from which the status of ‘disturbed areas’ was withdrawn has been cited. An instance exists in the manner in which the Hil Kaka area in Surankot served as a sanctuary outside of areas declared disturbed up until 2000. It required the army to launch Operation Sarp Vinash to evict the concentration of terrorists in the area.

Currently, terrorists are under pressure across the state and any let up may give them a lease of life. Some candidate areas where near normalcy has returned have ethnic groups that require protection from incidents such as communal mass killings. Even if the disturbed areas status can be reinstated, it would amount to shutting the barn door after the horses have fled. It would expose the people in such areas to additional pressures once the army arrives to regain control.

Given the weight of this argument, the counter would require to be equally compelling. What are the arguments that can make it persuasive?

Politically, it is fair to argue that terrorism and militancy are amenable only to political resolution. The current juncture at the end of a quiet summer in Kashmir is therefore an appropriate one for a political initiative of this nature.

Diplomatically, there has been considerable ground covered over the past year. The grant of MFN status by Pakistan to India suggests this. The first round of talks not amounting to a ‘composite dialogue’ has been completed. Pakistan seems to be on board.

Pakistan can well appreciate the trouble it is in. In the past two decades of insurgency India has lost 4,800 troops of which some 1,600 have been army soldiers. Officially, over 13,000 civilians have perished. When contrasted with the figures suffered by Pakistan, they have an unmistakable problem at hand. They have lost 12,000 servicemen of which 3,000 have been military men. 30,000 civilians have died. This indicates that the blowback has been twice as costly in half the time. This also suggests that Pakistan would be amenable to the external prong of the strategy, already in play in India and evident at the SAARC meeting and granting of MFN status by Pakistan.

An internal package can include the recommendations of the interlocutors along with the five working groups. Even as some of the economic points have been under implementation for some years now, this winter could see a firming in of peace in case the balances are announced and progressed. The roll back of the AFSPA, where warranted by the security situation, must be seen in this context.

In any case the Supreme Court judgment has left little scope for discretion making roll back inescapable. It had ruled in the Nagaland case:
“It is, therefore, necessary that the authority exercising the power under Section 3 to make a declaration so exercises the said power that the extent of  the disturbed  area is confined to the area in which the situation is such that it cannot be handled without seeking the aid of the armed forces and by making a periodic assessment of the situation after the deployment of the armed forces the said authority should decide whether the declaration should be continued and, in case the declaration is required to be continued, whether the extent of the disturbed area should be reduced.”

Therefore the AFSPA roll back must be as part of a strategy for conflict resolution. It can easily be anticipated that this would not only please the common man, but also indeed, the army.

AFSPA: A Practical Approach
http://www.ipcs.org/article/jammu-kashmir/afspa-a-practical-approach-3244.html

Even as the battle against the AFSPA is set to continue, it is equally clear that the Act is not going to be amended any time soon. The Air Chief in his capacity of Chairman Chiefs of Staff Committee has seconded the earlier statement of the Army Chief on the necessity of the legal cover that the legislation provides soldiers, acting in aid of civil power in counter insurgency. The Northern Army Commander has voiced the Army sentiment on the issue, even if his choice of phrase – ‘pious’ – has come in for uncalled for derision among critics; evidence of frustration at their ineffectual activism.

The spin on current agitations in Kashmir is that these are either about lack of governance or the wider issue of ‘azadi’. A report in the Times of India (Aarti Jerath, ‘On ground it’s a battle for azadi, not against AFSPA’, 25 September 2010) has it that alluding to the AFSPA, as being done by the Chief Minister, is therefore diversionary. At best the Cabinet Committee on Security meeting early this week to discuss the visit of the All Party delegation to Kashmir last week could roll back the application of the Act in areas where it is no longer needed, such as south of the Pirpanjals.

It would be a travesty if this is where the matter is left off, for it is sure to figure in controversy again. This is not because the Army is not cognizant of the need to respect human rights and legal obligations in countering insurgency. Indeed, the need figures prominently in its 2006Doctrine for Sub Conventional Operations. It has since brought out comprehensive stipulations in line with Supreme Court directions in its ruling on the constitutional viability of the Act. The chain of command has been sufficiently sensitized to being severe on this score. There exists a human rights cell at every level of the hierarchy. The statistics periodically released suggest that up to 97 per cent cases proved to be baseless.

These are useful steps. For human rights concerns to be at the fore during the winding down phase of counter insurgency is understandable. The intensity of insurgency and operations having gone down, in any case; the Army can afford to be more circumspect in its footprint. Population control measures are less in evidence as operations are fewer and intelligence based. It is easier to be mindful of human rights in such conditions, especially those under media scrutiny.

It bears questioning as to whether they would measure up to the test of high intensity counter insurgency operations in future. Absent a political initiative, potential for reversion in the situation is very much there, both in Kashmir and the North East. Prospects of deployment in counter insurgency in Central India exist, as also in other areas in future given the multiple challenges a developing India will continue to face.

Precedence, the nature of Indian approach and foreign examples of counter insurgency indicate that the state - perhaps rightly to some - would prioritize self-preservation over human rights of alienated citizens. As before, it would overly monitor the human rights record till the situation is well under control. In effect, security forces would be permitted the leeway necessary to cope. The argument that India’s record has been better than most other militaries in such situations legitimizes such an approach.

However, the counter to the AFSPA in civil society and in the affected areas should provoke the government towards a more practical look at the measures for self-regulation within the Army. The military is not monolithic. A ‘warrior’ subculture tends to accord lesser priority to niceties than winning the martial contest against the militant, viewed as ‘terrorist’ and a proxy of the ‘Other’, the ‘enemy’. Quantification of performance linked to promotion prospects and rewards of unit performance amounted once to an institutional pathology. Considerably controlled since, the current Chief has reportedly ordered a rethink on the quantification of officers’ performance.

Additionally, the recruiting base of the military being confined to North India, makes it difficult for the leadership to comprehend the wellsprings of the challenge to the state. For instance, of the 235 commissioned as officer from OTA, Chennai, on 17 Mar 2007, 149 were from this region (39 - UP, 23 - Rajasthan, 19 - Haryana, 16 - Punjab, 16 - Himachal, 14 - Uttaranchal, 11 - J&K, 8 - Delhi and 3 – Chandigarh). The ratio remains representative. This makes for a ‘mainstream’ perception. Political attitudes in the lower middle classes here end up commanding an inordinate influence.

Credence to the expertise of the Army in its recommendation on the AFSPA is set to carry the day. Yet, even as the Army deepens internal vigilance, its institutional limitations need to be borne in mind. This implies that the onus of human rights overwatch is with the Ministry and state governments. A liberal use of Article six provisions permitting prosecutions is warranted. The bogey of ‘morale’ should be left to ministrations of the hierarchy, for which it is paid.