The demand for repealing the AFSPA is often used as a cover by many in the

left-liberal cabal to advance their anti-national agenda.

Extraordinary situations demand extraordinary measures, and AFSPA is what
is required to deal with anti-Indian terrorists whose stated objective is
breaking up the country.
Terrorism would never have been rooted out in Punjab or Mizoram without the
AFSPA and without the tough measures that were taken by the security forces
operating under the protection of the Act.

The demand for repealing the AFSPA is often used as a cover by many in the left-
liberal cabal to advance their anti-national agenda. Portraying the Indian state as a
monster and the Indian army as an occupational force that kills, rapes and maims
Indian citizens at will suits the agenda of the left-liberals who are hypocritically silent
on the unspeakable depredations by, say, China in Tibet or even their Maoist
comrades in the jungles of central India.

It is important to understand the Act and the context in which it was decreed before
censuring it. The AFSPA does confer a lot of extra-judicial powers on the army
operating in counter-insurgency theatres. Section 4(A) of the Act allows army
officers, junior commissioned officers and non-commissioned officers (all ranks
except the jawans) the power to shoot, or order to shoot, to kill for the following
offenses: acting in contravention of any law or order for the time being in force in the
disturbed area prohibiting the assembly of five or more persons, carrying weapons,
or carrying anything which is capable of being used as a firearm or ammunition. To
justify the invocation of this provision, the officer need only be “of the opinion that it is
necessary to do so for the maintenance of public order” and only give “such due
warning as he may consider necessary”.

Section 4(B) of the Act empowers the army to destroy any property if it is an arms
dump, a fortified position or shelter from where armed attacks are made or are
suspected of being made, if the structure is used as a training camp, or as a hide-out
by armed gangs or absconders. Under Section 4(C), the army can arrest anyone
who has committed, is suspected of having committed or of being about to commit, a
cognisable offense without an arrest warrant and use any amount of force
“necessary to effect the arrest”.

Under Section 4(D) of the Act, the army can enter and search without a warrant to
make an arrest or to recover any property, arms, ammunition or explosives which are
believed to be unlawfully kept on the premises. This section also allows the use of
any amount of force necessary for the search.

Section 5 of the Act states that after the army has arrested someone under the
AFSPA, they must hand that person over to the nearest police station with the “least
possible delay”. Section 6 of the Act establishes that no legal proceeding can be
brought against any member of the armed forces acting under the AFSPA, without
the permission of the Central Government. All these sections, according to human
rights activists and detractors of the AFSPA, give the army unbridled powers to kill,
rape and maim at will and protection from being prosecuted for their crimes.

Offensive though these sections and powers may seem and howsoever
‘unconstitutional’ they may appear, they are necessary. The AFSPA is in force in
areas where abnormality prevails and where the terrorists do not observe the
niceties of the Constitution. The ordinary laws of the land are not enough to battle
the anti-Indian terrorists.

The AFSPA is applied to an area only when the ordinary laws of the land are found
to be inadequate to deal with the extraordinary situation perpetrated by insurgents
spreading terror. It is applied when, in the terror-stricken area, the police force is
found wanting and incapable of dealing with the terrorists and, thus, the induction of
the army becomes imperative to battle the terrorists and maintain the territorial
integrity of the country.

It is important here to remember that the army is trained to deal with the enemy. So
notions like the use of ‘minimum force’ that are being bandied about cannot apply to
the army. The army shoots, and shoots to kill; it can be no other way with the enemy.
The army, while dealing with an adversary, can ill-afford to ask questions first and
satisfy itself about the intentions, mala fide or otherwise, of a perceived enemy
before shooting. If any soldier does that, he would be dead long before he realises it.

So the army, when facing a perceived adversary, does not wait to ask questions.
Imagine our army asking a Kashmiri or Manipuri terrorist armed with lethal weapons
and intent on killing (even civilians) questions first and determining the intention of
that terrorist before shooting at him, and that too below the waist (so that the terrorist
doesn’t die)! Half our army would have been annihilated by now in that case.

The army is often accused of custodial deaths and torture. It must be understood
and appreciated that extracting information from arrested terrorists often requires the
use of third-degree methods. This may sound offensive to our urbane senses, but it
is a hard reality. A major reason for the ability of the security forces to keep terrorism
under check is because they have been able to extract information from
apprehended terrorists.

Also, extra-judicial killings are sometimes necessary. It has often been seen that
hardened terrorists are granted bail by our courts due to weak chargesheets
prepared by the police. Invariably, the terrorist jumps bail and is back to spreading
terror, killing people and attacking security forces. And it falls upon the security
forces again to apprehend the terrorist. It is, thus, quite justifiable to neutralise a
terrorist without going through the cumbrous process of law that would, more often
than not, result in the terrorist being set free. More so in a country like ours where
killers and terrorists like Afzal Guru find support from human rights activists and the
left-liberal cabal.

The point here is that extraordinary situations demand extraordinary measures, and
AFSPA is what is required to deal with anti-Indian terrorists whose stated objective is
breaking up the country. Yes, in a counter-insurgency theatre, the army is battling
the terrorists who are the enemy, but within Indian territories and amidst Indian
citizens. And this, unfortunately, and howsoever hard the army may try to prevent it,
leads to collateral damage at times. It is extremely difficult, if not impossible, for a
soldier to pick out a terrorist from a crowd of citizens and neutralise him. Often,
citizens themselves bring harm upon themselves by behaving in what a soldier may
defensibly deem to be suspicious behaviour. A lot of civilian deaths from shootings
by the army have occurred when civilians have ignored soldiers’ orders to stop at
checkpoints. There is no reason why an innocent person will not stop at a checkpost
and subject himself and his vehicle to inspection. But many disregard soldiers’
orders and get shot in the process, leading to outcries of human rights abuses.

Yet another common cause of civilian deaths is when they are caught in the crossfire
between terrorists and soldiers. When terrorists fire at, say, an army convoy from
some spot nestled in a civilian area or from a crowd of civilians, our soldiers fire
back. They try not to fire indiscriminately, but to hold back their fire would lead to
casualties within their ranks. That is not acceptable. The army is not trained to be
sitting ducks when attacked. It is trained to fire back, like professional armies across
the world.

The Indian army doesn’t relish internal security and counter-insurgency duties. Our
army is trained to deal with external aggressors and in times of peace, would be
much better off training for war and not hunting down terrorists or protecting civilians
in Kashmir or Manipur. It takes away from the army’s battle preparedness. Before
being inducted into a counter-insurgency theatre, army units have to undergo special
training and orientation on how to operate in civilian areas, and this often conflicts
with the basic training and orientation of a soldier of dealing with an external
aggressor.

But the army is deployed for counter-insurgency (CI) duties primarily because police
forces of that state and even the paramilitary forces, on their own, cannot tackle the
terrorists. The army has never asked to be deployed for CI operations; it is indeed a
thankless task and earns it a lot of flak. And above all, it takes away from the army’s
primary objective of defending the country against external aggressors.
The army has, repeatedly, made it clear that it cannot operate without the AFSPA. It
needs special powers to tackle homegrown terrorists. The arguments enumerated
above, and many more, have frequently been put forward by the army to retain the
AFSPA in the areas it operates in. The moot point is that the army cannot operate
without the AFSPA and if AFSPA is repealed, as is being demanded, the army would
have to be withdrawn from that state or area. That will create a huge gap in the
security grid and will give terrorists, be they in Kashmir and Manipur, the upper hand.
Are all those who demand the AFSPA’s repeal prepared for that? Are the human
rights activists in Manipur, for instance, willing to live without the protective security
cover that the Indian Army provides them?

The most inaccurate argument bandied ceaselessly by opponents of AFSPA is that

the Act has not led to insurgency being contained in Manipur and in other areas
where it is implemented. Well, terrorism would never have been rooted out in Punjab
or Mizoram without the AFSPA and without the tough measures that were taken by
the security forces operating under the protection of the Act. If Manipur is still a part
of India, it is because the army has been successful in preventing the terrorists there
from taking over the state and proclaiming it to be a sovereign country! Ditto for the
Kashmir Valley and other states or regions where the AFSPA is in force. This alone
should be reason enough for the prolongation of AFSPA.

Over the past few weeks there has been a raging debate about the relevance
and the effectiveness of the Armed Forces Special Powers Act of 1958 in the
insurgency affected states of Jammu and Kashmir and the Northeast. There
are three distinct positions that have been taken in this debate: those who favour
annulment of the Act; those who like to see it amended; and those who prefer the
status quo. Most civil society activists condemn the Act on the grounds that it
violates basic human rights and values, and therefore call for its abolition.
Another view held by a mix of people argues that the law needs to be amended
to align it with the values of a free, liberal and democratic Indian state. The
security forces assert that the law is critical for the conduct of counterinsurgency
operations. In its absence, they fear they will be significantly hobbled from
carrying out routine CI operations.
This debate creates an odd predicament amongst the common citizenry, who
while clearly appreciating the role of the security forces, do not seem to
recognize its acute legal necessity.
 India’s Insurgencies
This commentary attempts to explain as to why this law is necessary if the
security forces are to resolutely contain the internal unrest and insurgencies that
threaten the nation’s cohesion and integrity. It is not implied that the other two
views are irrelevant; but the argument needs to be viewed in the context of the
enormity of security challenges confronting the country. Successive insurgencies
have necessitated the deployment of the security forces to contain them.1 And
the Indian state consciously decided, and rightly so, to legitimise these
deployments through legislation.
In the given circumstances, the Security Forces’ perspective can be argued
at three broad levels: the administrative necessity of the Act; its relevance at the
tactical level; and the risks of dilution in terms of undermining national security.

Necessity
It is often simplistically argued that the security forces need the Act. This is
actually quite misleading since the State alone can under a constitutional statute
declare an area as “disturbed” and decide upon the “deployment” of the central
paramilitary or the armed forces. It is invariably seen that the following
circumstances drive the employment of the security forces:

 Administrative failures have time and again contributed to insurgencies in the

past. Once they have erupted, the local functionaries and the police forces have
proved inadequate in coping with them. As a result, the states are simply forced
to turn to central paramilitary forces or the army for protection of life and
property.

 Having undertaken concerted counterinsurgency operations over time, the

affected states have simply failed to make capital out of the “peace dividend”
delivered by the security forces. This has often resulted in their extended
presence with no signs at all of return to normalcy.

 Consequentially, the security forces have a right to seek legal provisions to

undertake operations for three fundamental reasons. One, a soldier unlike a
policeman is not empowered by the law to use force. Next, while operating in far
flung areas, it is simply not possible to requisition the support of magistrates
every now and then. Lastly, their employment is an instrument of `last resort`
when all other options have been exhausted.

There is no gainsaying the fact that political necessity drives deployment of the
security forces for internal security duties. The forces are aware that they cannot
afford to fail when called upon to safeguard the country’s integrity. Hence, they
require the minimum legislation that is essential to ensure efficient utilisation of
combat capability. This includes safeguards from legal harassment and
 empowerment of its officers to decide on employment of the minimum force that
they consider essential.
The absence of such a legal statute would adversely affect organisational
flexibility and the utilisation of the security capacity of the state.

Legalities at the Tactical Level

It is equally relevant at this stage to examine the legal challenges at the tactical
level. The Act, passed in the context of secessionist and separatist movements,
confers certain “special powers” upon members of the armed forces in areas
declared “disturbed” in the insurgency affected states of northeast, namely
Nagaland, Manipur, Mizoram, Tripura, Assam and Arunachal Pradesh, and the
state of Jammu and Kashmir. 2 The principal articles of the Act, namely 4(a), 4(b),
4(c) and 4(d) empower the armed forces to undertake counter insurgent
operations at the tactical level. Article 4(a) authorises any officer, commissioned
and non-commissioned, to use force for maintenance of public order. Article 4(b)
empowers the forces to destroy a fortified position, cache or an arms dump.
Article 4(c) empowers the arrest, without warrant, of a person who has
committed a cognisable offence, but with the caveat (stated under Article 5) that
the individual be handed over to the local police at the earliest possible
opportunity; and Article 4(d) permits search, without warrant, of suspected
premises to recover arms, ammunition and explosive substances.
Obviously, the absence of these four legal provisions would render the security
forces incapable of fulfilling their assigned role. In brief, it would imply that a
soldier cannot fire upon a terrorist, take necessary action to destroy a hideout,
arrest a suspect when in doubt, and lastly search any premises to recover arms
and ammunition.
It is therefore not at all surprising that while several activists often raise their
voice against the law, the affected states are hesitant in recommending the
annulment of the Act. They realise the consequences of dilution in governance in
the absence of an effective law and order enforcement capacity.

Risks of Dilution
The annulment of the Act, as being debated by sections of the civil society, could
prove disastrous at the central and the state government levels. Three issues
merit attention:

 Firstly, it would dilute the capacity of an important instrument of the state – the
armed forces - to tackle the security challenges faced by the country.

 Secondly, it would motivate the insurgent leadership, field cadres and their over
ground supporters to engage in reckless damage to public life and property. It
may well result in a security situation which slides beyond redemption,
necessitating major political compromise.
 Thirdly, the annulment of the law and the resultant lack of security cover would
adversely affect the governance and development capacities in the insurgency
affected states, and the eventual redress of local grievances.

Even the mere dilution of the Act could have serious repercussions at the tactical
level. It could result in loss of morale and reluctance amongst the security forces
to undertake operations fearing litigation, thereby leading to a slow tempo of
operations. A frail legal standing would embolden the insurgent/terrorist
organizations and their over ground workers (OGWs) to level frivolous
allegations resulting in the military leadership appearing more often in courts
rather than in leading counter-terrorist operations. The judiciary too is likely to be
targeted by the insurgents/terrorists to make them pliant thereby posing an
additional security burden. Also, over a period of time judicial standards and
rectitude could deteriorate leading to a loss of faith in the system.
In the absence of legal provisions, the state and the soldier would be vulnerable,
and in turn fail to provide the security, development and governance needed to
prevent the insurgency affected states from descending into greater chaos.

Jammu & Kashmir has been a disturbed area for more than two decades. It has been the victim of
cross border terrorism. Certain domestic groups have also disputed the status of the State as an
integral part of India. It is an effort of the entire country and the state administration that peace and
normalcy in the State should be restored and that the people of the State should be protected from
any form of violence or subversion. Terrorism and separatist violence needs both a political and
security response. The security response may adversely impact on the day to day civilian life. It is
harsh but necessary. In case there is laxity in terms of security the inevitable consequences would
be that deterrence of those indulging in violence and separatist activities would disappear.

Beside the State Police, the ‘armed forces’ of the Union also assist the administration. The ‘armed
forces’ is not merely the army and certain other military forces but they also include other armed
forces of the Union, namely, Border Security Force, CRPF, Assam Rifles and ITBP. Once the whole
State or a part of the State is declared as a ‘disturbed area’ the armed forces are called in aid of the
civil powers in order to maintain peace and tranquility in the State.

Armed forces do not investigate crime. Their personnel are entitled to take necessary steps for
maintenance of public order and use force after giving due warning to those who threaten law and
order. They can enter int a premises and search them. They can destroy any dumps or fortified
shelters from which armed attacks are made. They are entitled to arrest without warrant and even
take the arrested person to the nearest police station without delay along with a report of such
arrests. Thus, with regard to declaration of an area as a disturbed area it is an assessment and
opinion formed by the government that the civilian administration and local state police are not
enough to maintain the law and order in the State. If the local police alone can maintain law and
order in the State, the declaration of that area as a disturbed area would not be necessary. The
decision thus to continue the State or a part of the State as a disturbed area or otherwisehas to be
taken on security considerations and not political considerations. Even in districts where the army is
withdrawn, the CRPF and other armed forces are still deployed. The local State police would be
inadequate in most of these districts also. The powers given to the armed forces of the Union are
not substantially different from the powers which the local police has. The local police can also
make arrests, searches for the purpose of maintaining law and order. They can also use reasonable
force required to maintain peace and tranquility. They can also destroy any arm dumps or fortified
positions or shelters from where armed attacks are made by violent groups.

The only protection provided to the armed forces of the union is that before any prosecution, suit or
legal proceedings is initiated against any personnel of the armed forces for acting under this Act,
prior sanction of the Central Government would be necessary. When I visited the State last year as a
part of the all party delegation I was informed by the officers of the para military forces that more
than 2500 applications for prosecuting personnels of armed forces were pending with the Central
government. The Act, therefore, gives protection to the personnel of armed forces that they cannot
be prosecuted without the sanction of the Central Government. In case this protection is withdrawn
it would empower various vested interests to prosecute officials of the armed forces and other para
military forces indiscriminately. Obviously, this would dis-incentivise personnel of these forces from
taking adequate steps against the separatist groups. When the security forces are in favour of
retention of this law, it would be highly imprudent to allow anyone to seriously argue that political
considerations require that this law be withdrawn or its enforcement be restricted only to certain
areas. We seriously hope that a situation does emerge in future that the applicability of this law is
either not necessary or is restricted only to some areas. That situation does not seem to have
arrived as yet. The withdrawal of this law would leave the administration of the unprotected
districts only in the hands of the local police and thus incentivizing the separatist and violent groups
to increase their activities in these areas. It would, therefore, be politically more prudent for the
Chief Minister of Jammu & Kashmir not to initiate a debate at a stage when circumstances still
warrant the continuation of the operation of the law. – By ArunJaitley