The Army and special powers

THE current debate over the use of the Armed Forces (Special Powers) Act (AFSPA) has to be one of the most extraordinarily insubstantial exchanges in recent history. The Army argued that the AFSPA was the cornerstone of its functioning in terroism-hit areas, and that fighting low-intensity wars without it was near impossible. Human rights groups, in turn, insisted the Act offered a licence to kill and rape. Neither side produced much evidence to back its proposition - a sign of just how decisive the triumph of polemic over fact is in debates on security issues in India.

It has long been clear that the Indian Army sees the AFSPA as the keystone of security management in terrorism-hit States. In November 1998, Lieutenant-General Vijay Uberoi, the then-head of the Army Training Command in Shimla, presented a 37-page concept paper called Management of Internal Conflict to Defence Minister George Fernandes. The paper outlined existing and emerging threats in various parts of the country, notably Jammu and Kashmir and the northeastern region, and argued that the Army had been forced to plough a "lone furrow" in these areas.

Among the most important components of the ARTRAC paper was that the Army needed special legal protections and powers in the areas where it operated. At the time the paper was written, the Army did not enjoy special powers in several terrorism-hit areas, notably the province of Jammu in Jammu and Kashmir. The paper argued that it was imperative to use special legislation "from the point of view of morale as well as operational efficiency to protect the rights of soldiers". The imposition of AFSPA and the Disturbed Areas Act (DAA) where ever the Army is deployed in internal security operations, the paper claimed, ought to be "axiomatic".

Significantly, however, the use of the DAA and the AFSPA was seen as just part of a larger system of military control in terrorism-affected regions. "A coordination apparatus must exist in States down to district and even tehsil levels," the concept paper asserted in its eighth recommendation. "The structure should provide for joint planning, decision making, directions, coordination and control. For the committee to function effectively, there is a need for co-location of headquarters, the establishment of joint control rooms, direct communication and liaison, and ensuring that the administrative boundaries of the civil administration, the police and the military merge as a last resort."

In the wake of the Kargil War, Lieutenant-General Avtar Singh Gill, the Director-General of Rashtriya Rifles, made abortive attempts to bring the Border Security Force (BSF) and other central organisations under the administrative control of the Army. General Gill's ideas were shot down by the Ministry of Home Affairs, after some dogged trench warfare by the then Director-General of the BSF, E.N. Rammohan. Despite this defeat, the Army kept up its efforts. Shortly after Chief Minister Mufti Mohammad Sayeed took charge as Jammu and Kashmir in 2002, Northern Army Commander R.K. Nanavaty again called for all central forces to be placed "at the disposal of the Northern Command". General Nanavaty's controversial paper also called for the co-location of civilian and military offices, and for the Army to be given control of developmental work in some areas.

PROPOSALS like these have historically been shot down by New Delhi, and with good reason. In the aftermath of Operation Bluestar, lower-level Army officers in Punjab were found settling land and marital disputes, acting as magistrates in areas that the civil administration had vacated. Similar behaviour has been recorded in both the northeastern region and Jammu and Kashmir. Invariably, both allegations of corruption and real cases of misconduct have followed. Troops exposed to civilian duties for lengths of time also find themselves compromised by local interests and attractions. Nonetheless, the Army seems to believe that it must have either no role in internal security duties - or total charge.

Although there is no overall regulatory framework, the Army has generally had its way with the AFSPA. While the original Act of 1958 was to have been restricted to the northeastern region, similar legislation was enacted to enable counter-terrorist operations by the Army in Punjab. In 1990, a variant of the AFSPA was passed specifically for Jammu and Kashmir. Jammu and Kashmir has used the AFSPA along with the DAA, which gives police officials special powers similar to those the Army is granted in times of conflict. Both the DAA and the AFSPA give the Centre and States the right to declare areas disturbed.

It is hard, though, to find any substantial basis for what either the AFSPA's proponents or opponents have said about the Act. One of the few locations where one can see the impact of the AFSPA and the DAA on an ongoing situation is Jammu. The two Acts were imposed here in August 2001, after the massacre of 19 people at Ladder, a village near Doda. Official data, however, make clear that there has been no variation in recorded complaints of human rights violations before and after this period. Nor, however, does the AFSPA seem to have led to any special improvement in the Army's operational efficiency. Indeed, violence in the Jammu province has declined slower than in the Kashmir province since 2001. Interestingly, Jammu and Kashmir has lower figures on custodial deaths than several other States.

From the Army's point of view, the argument in favour of AFSPA seems self-evident: its very presence in an area, after all, means that normal laws and civilian forces have failed to contain a situation. It is true that armies cannot be held to peacetime standards. Yet, the Indian Army has failed to engage in serious debate on the problem and suggest ways to move ahead. Strategists have grappled with the welter of issues emerging from low-intensity conflicts over the last two decades, and pushed for substantial improvements in the capabilities of Central paramilitary forces and State police forces. However, this may not be a solution to all problems - police forces in Jammu and Kashmir and Punjab, after all, have attracted exactly the same kinds of allegations of human rights violations that the Army now faces in Manipur.