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Mainstream, VOL LI, No 13, March 16, 2013

AFPSA: Misconceptions and Ground Realities

Wednesday 20 March 2013, by S G Vombatkere

Sanjoy Hazarika [Ref. 1] and Walter Fernandes [Ref. 2] bring out the justifiable opposition to the AFSPA felt by people from our North-Eastern States where it was first imposed in 1958. The provocation for both articles is P. Chidambaram (PC, hereinafter) stating on February 6, 2013, at the Institute of Defence Studies, that the govern-ment would like to make the AFSPA “more humanitarian”, but accusing the Army of being an obstacle to that proposal. Also both writers have focussed on rape offences following the Justice Verma Commission on women’s safety, which opined that a soldier (which means any member of any rank in the three armed forces) committing rape should be tried under the same law as civilians. But both articles contain misconceptions about the law, governance and the Army’s functioning notwithstanding that Hazarika (SH) and Fernandes (WF) have wide experience in the North-East and are highly respected.

Targeting the Army

PC’s remarks are grossly unfair to the Army which cannot respond in the media to state its position on the AFSPA. Even though PC is well-versed in law, the politician in him appears to have overcome his sense of justice to provide the “accused” opportunity to respond, knowing well that it cannot do so because of legal restraint. Accusing the Army of wanting imposition of the AFSPA is political chicanery to divert attention from and shift blame for decades of political and administrative failure and corruption through a toxic combination of mal-governance, misgovernance and non-governance in the North-East and Kashmir, that is the primary cause for social disaffection and unarmed and armed militancy in those States. The same irresponsible political-bureaucratic approach, independent of political ideology but surely centred on corruption and sell-out to corporate interests, exacerbates poverty and is responsible for growing militancy in other States of the Indian Union. This has even been stated by a high-power committee set up in 2006 by the Planning Commission of India. [Note 1] Shifting blame to the Army is unwise, politically short-sighted and unbecoming of a seasoned politician.

SH writes about PC: “Like a clever politician, he tossed the issue squarely into the lap of the Army and the MoD, saying they were unambiguously opposed to any change and that ‘you should ask the question to the armed forces and ask why are they so opposed to even some amendment to AFSPA which will make [it] more humanitarian. We have [the] Jeevan Reddy Committee report but yet if the Army takes a very strong stand against any dilution or any amendment to AFSPA, it is difficult for a civil government to move forward’.”

In this, though SH brings out PC’s clever political manoeuvre, he fails to understand that the MoD controls the Army, while the Army can only advise the MoD.

WF asks: “Who rules India: the elected representatives or the Army?”, as if the only aspect of “ruling” India is the AFSPA, and as if India is not a democracy ruled, howsoever inadequately, unjustly and unfairly, by the constitutional state and central executives and legislatures. WF also quotes R.N. Ravi, a former head of the IB for the North-East, as going on record to say that “the AFSPA is the biggest obstacle to peace in the region”. Ravi should know that the AFSPA is invoked by the government after notifying the area as “disturbed”, and because the government is unable or unwilling or incompetent to handle the unrest using the political tools of dialogue, debate and negotiation, and the administrative tools of the State and Central Police. Indeed, calling the Army in aid of civil power [whether for internal security (IS), natural disaster, accident or even rescuing kids from borewells] is implicit admission of the political-administrative failure and incompetence. This is borne out in a news item by Sandeep Joshi on page 14 of The Hindu dated 28.2.2013, tellingly titled “Timely Army deployment could have checked Assam violence”. He reports the plea of the Assam State for immediate Army deployment and lack of “early warning signals”, detection of which, Ravi would know, is the task of the IB. It is facile to blame the Army.

Without in any manner making excuses for crimes (especially rape) committed by soldiers while operating under the AFSPA, it is necessary to point out that these worthies target the Army out of ignorance or deliberately, to cover decades of bad governance. However, without denying the need to amend the AFSPA, a suggestion for which is made later, it is well to see the “why” of the AFSPA, and the “when” and “how” of Army deployment for IS duties. But before that, it is necessary to discuss crimes, especially rape, that soldiers may commit during the course of their duties.

Rape, Ground Realities and Due Process

Over the centuries, soldiers of armies with preponderance of power have committed crimes of all sorts, especially including rape of women. There are documented cases of mass murder of civilians and rape of women during the US military action in Vietnam (the My Lai massacre, for instance), and in East Pakistan during 1970-71 by the Pakistan Army. But this is not peculiar to the US or Pakistan Army. There are cases in which a soldier objected to his colleagues committing rape and murder of civilians, and became a victim of his colleagues’ wrath.

Without at all justifying rape, let us see when a soldier deployed on IS duties might commit rape. One circumstance is when he has noticed a woman, and when he is next on duty in the same area, creates the conditions for raping her. This, being pre-meditated, is especially condem-nable. Another circumstance is when a soldier comes across a woman and, with his sense of power in the circumstance overcoming his better sense and judgment, something snaps within him and he commits molestation or rape. Rape is the outcome of the depraved male need for expressing domination and control on a soft target like a girl or woman. Rape is about exercising power through violence to subjugate and humiliate. [Ref. 3] The fact of the AFSPA being in force has nothing to do with these condemnable acts, just as criminal law being in force has nothing to do with rape crimes all over the country.

When rape is committed, whether by one or more soldiers, there could be at least one from among them who may not have himself committed rape. The duty of any person, and especially a soldier, is to try to prevent a criminal act and if unable to prevent it, to report it to superior authority. But when doing this duty of preventing or reporting crime can bring his colleagues’ wrath upon himself (especially including getting killed, remembering that all are armed), the man who stood apart, too shocked or afraid to speak or act at that time, would remain fearfully silent even after the crime. His silence born of fear would effectively be participation in his erring colleagues’ cover-up acts, which could extend to the murder of the rape victim, making him an accessory after the fact of the crime. His own fearful silence damns him to continue his offence of failure to prevent or report the rape. (If all the soldiers in the group have committed rape, they would surely collude to cover-up the crime.)

When the complaint of rape reaches the unit commander, his first action would be to assemble the sub-unit or unit to find out who among his men could have committed the rape. But the silence of witnesses would have already been ensured and rarely, if ever, are the rapists identified, unless there is evidence such as weapon or equipment or other item inadvertently left behind at the scene of rape, traceable to a soldier or sub-unit. Most unit commanders confronted with such a situation would opt for denial rather than be accused of incompetence or command failure of “not knowing the men in his command” and not being able to identify the offenders. Notwith-standing, the strict discipline system and the importance given to command responsibility in the Army is such that the rape incident would at the very least get reflected in the unit commander’s confidential report with immediate or long-term career consequences, or result in administrative or disciplinary action against him, with similar but more certain consequences.

The rapist may be identified by unit investi-gation or by an identification parade with civil administration officials present, following civil-military liaison. But whether the rapist is identified or not, the fact of rape is to be established by medical examination of the victim by a civil surgeon. After the facts of rape and of the unit operating at the material time and place are both established, if a unit commander is still unable to identify the offender, there should be no objection to handing over investigation to the civil police, including questioning suspects who remain available to the police while remaining in a military unit.

According to the Army Act, 1950 (AA, herein-after), a soldier committing a rape crime is charged with committing a “civil offence” which means an offence triable by a criminal court. A soldier who commits a civil offence while on active service as when operating under the AFSPA, is first taken into military custody for examination of the facts of the case by a Court of Inquiry (C-of-I). [Note 2] But unless the rapist has been arrested by civil police when committing the crime (very unlikely when the AFSPA is in force), convening and conducting a C-of-I is necessary before a soldier is tried by court-martial or handed over to civil authority for prosecution under criminal law.

According to the AA’s Section 69 “Civil offences” and AA’s Section 70 “Civil offence not triable by court-martial” read together, a soldier who commits rape (or murder or culpable homicide not amounting to murder) of a civilian

will not be tried by a court-martial unless he is on active service,

or at any place outside India, or at a frontier post. In any case, the AFSPA being in force is not the cause for his committing crime, and cannot be viewed as a facilitator for crime. But repealing the AFSPA would cause the AA’s Section 70 to become inapplicable, making the soldier liable for trial by criminal law—and this is really the cause for the demand for repealing the AFSPA.

Government, Parliament and the Army

The government can function in the interest of the people when there is peace and order in society, functionaries in power use people-oriented politics, and the rule of law prevails among all sections of society. Providing security and public order by fair and just enforcement of extant laws, and maintenance of supplies and services essential to the public, is the primary task of governance by the civil administration, which is the combination of the powers, roles and functions of the people’s elected represen-tatives, bureaucrats and integral police forces.

Disturbance of law and order usually happens because of conflict of interests within civil society, caused by inappropriate laws and/or unfair policies and/or poor or ill-motivated implementation—in short, mal-administration. When law and order, and peace in society is disturbed and is beyond political resolution, governance calls for using the force of the State and/or Central Police. When law and order breaks down despite deploying the State and Central Police or because of their misuse, it can only be restored by deployment of the Army on IS duties.

The government has no other option.

Under Article 246 of the Constitution, Parliament makes laws concerning the deploy-ment of the armed forces “in aid of the civil power”, prescribing the powers, jurisdiction, privileges and liabilities of soldiers during deployment. The AFSPA is one such law. Other Acts are the Army Act 1950, the Navy Act 1957 and the Air Force Act 1950, and associated Rules and Regulations, to administer military law to all ranks of the three armed forces. These laws abrogate a soldier’s constitutional rights under Article 19(1)(a), (b) and (c), of freedom of speech and expression to communicate with the media, freedom of assembly, or the right to form or be members of associations or unions for collective bargaining. Thus, because of the nature of duties performed by them and for maintenance of strict discipline among them, soldiers are by law uniquely disempowered citizens unlike members of the bureaucracy and the Central and State Police services on whom adminis-trative rules may impose certain restrictions.

When the Government calls the Army for IS duties as for example, to quell rioting, the army may confront a violent crowd.

The Army officer commanding the sub-unit is obliged to take the written permission of a Magistrate

who accom-panies the sub-unit, before opening fire if the situation so warrants

according to the discretion of the Magistrate,

because the soldier cannot use firearms against civilians without permission from civil authority. But when law and order breaks down in a large area, the government cannot provide a Magistrate to accompany every Army sub-unit day and night, and therefore empowers the Army to handle such situations by means of the AFSPA.

AFSPA and the Armed Forces

The AFSPA’s Section 3 confers upon a State or Central Government, powers to declare the whole or some part of the State as a “disturbed area” ... “in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary”, by issuing a notification to that effect. The assessment of the condition of society and the discretion to notify it as disturbed is the sole prerogative of the government; the armed forces have no role in this whatsoever. The AFSPA’s Section 4 confers special powers upon members of the armed forces in the notified disturbed areas to arrest, enter and search, or open fire.

The AFSPA is applicable only to the armed forces under the Ministry of Defence, and not to the Central paramilitary or State Police forces under the Central or State Ministry of Home Affairs respectively. The Constitution of India makes a distinction between “the members of the Armed Forces” [Article 33(a)] meaning soldiers, and “members of the Forces charged with the maintenance of public order” [Article 33(b)] meaning police personnel. Thus the term “Armed Forces” (proper noun) or “armed forces” (common noun) should not be applied to just anybody of uniformed armed persons such as the police or paramilitary who may be authorised and trained to use firearms, but only to the soldiers of India’s military. [Ref. 4] But, unable to distinguish between the armed forces and civilian forces that bear arms, media-persons often use the catch-all term “security forces” or “armed forces” to include military, paramilitary and police.

The confusion is exacerbated because often paramilitary and police forces wear camouflage uniforms that are virtually indistinguishable from Army uniforms, and in tense situations where the journalist himself takes risks, it can be dangerous to ask an armed man to which force he belongs. Thus often enough, the media and public straightaway blame the Army for incidents involving paramilitary or police,

because of the AFSPA being in force,

and even if subsequent inquiry finds that the Army was not involved, the negative “Army-AFSPA” image persists in public opinion.

Repeal or Amend AFSPA?

On March 5, 2013, Tahir Ahmad Sofi, 25, died allegedly due to firing by the Army’s 46 Rashtriya Rifles Battalion on a group of people in Baramulla. Whatever the provocation for opening fire and the facts of the case, J&K CM Omar Abdullah “pleaded that the civil government was faced with handicaps due to the AFSPA that gave extraordinary powers to the armed forces”. He is quoted as saying, “... I am vehemently raising the issue of partial revocation of AFSPA so that the erring forces personnel do not go scot-free”. [Ref. 5]

CM Omar Abdullah is surely aware that he can instantly remove the AFSPA by withdrawing the notification declaring Baramulla or other areas as disturbed, if it is a handicap for exercising his political skills. But he does not, because de-notifying the area amounts to declaring that there is no disturbance in the area, and his government cannot do without the Army deployed in IS duties. Hence he calls for “partial revocation of AFSPA” (for which there is no provision in the Act), and only wants the “erring forces” to be punished. The erring soldier can be identified only after an inquiry into the circumstances that caused the Army to open fire, and into the truth of statements and claims from all sides. Because the soldier is on active service under the AFSPA which, it cannot be over-emphasised, is not a means to avoid meting out just punishment to soldiers who commit civil offences, the compulsions of AA’s Section 70 and due military law process (C-of-I, etc.) remain. Of course, delay or prevarication by the Army authorities in bringing soldiers committing civil offences to justice, remains condemnable.

Notwithstanding the constitutionally permi-ssible last-resort necessity of using military force for internal security when the political-administrative tools of governance fail, there is no justification for an elected government to use even police force continuously over decades for day-to-day governance. People in our North-Eastern States and Kashmir, for decades trapped in the crossfire between the government police and military forces and the bullets, grenades and IEDs of militants, want nothing more than peace and democratic freedoms.

Irom Sharmila, a national icon of courageous non-violence, who has been on fast for 12 long years demanding repeal of the AFSPA, states it unequivocally: “I am against a government that uses violence as a means to govern”. She goes further to say that “the government and the Army are colluding to cheat the people”. [Ref. 6] While her stating that the people are being cheated of peace, social order and meaningful development is understandable, her accusation of the Army’s collusion with the government, suggesting that the Army has an institutional interest and stake in IS deployment, is completely wrong. It bears repetition that the Army comes out of barracks at the specific call of the government and not of its own accord. Clearly, “cheat the people” refers to the government cheating the people through abject failure of the politics of development, and monumental political corruption of ideology and principles. Decades-long continuous violence as an instrument of governance is antithetical to peace and social order essential for development of the sort that people need and crave.

Hearing several petitions challenging the constitutional validity of the AFSPA, the Supreme Court ruled in 1997 that the powers given to the Army by the AFSPA were not arbitrary or unreasonable and did not violate constitutional provisions. However, the Supreme Court went further to rule that (a) declaration of an area as disturbed should be reviewed every six months, (b) the Central Government’s sanction or refusal to prosecute Army personnel should be accompanied by reasons in writing, and (c) safeguards or guidelines providing “DOs and DON’Ts” to Army personnel operating under the AFSPA would be legally binding. [Note 3]

The restriction that the government should review the declaration every six months is cosmetic, since it merely calls for biannual bureaucratic paperwork. It has not prevented governments from maintaining entire States as disturbed areas continuously for decades. To limit Army deployment on IS duties,

the continuity of the AFSPA needs to be broken.

This writer suggests amendment by inserting a final sentence in the AFSPA’s Section 3 as follows: “

Provided that the Governor of the State or the Administrator of the Union Territory or the Central Government shall not declare an area as disturbed for more than an aggregate of 90 days in any calendar year.

” The period of 90 days suggested can only be finalised after wide public discussion and cross-party consultation.

The Way Ahead

The use of the military in aid of the civil power is an option that no government, howsoever liberal, will discard especially since it has constitutional sanction. The military on IS duties is to civil society what an ICU is to a critically ill person. A patient cannot remain for years in a hospital ICU, because he/she would be effectively dead. The patient needs

treatment

for the disease and

right nutrition

to regain normal health. Likewise, the military remaining deployed on IS duties over decades makes civic and political life in society effectively dead, without assuring peace or security. India’s regions need the “treatment” of honest political effort by transparent dialogue and engagement with people, and the “nutrition” of good governance for their growth. Society does not need the Army, except to guard the country’s borders against external aggression.

While no Central Government may ever propose to Parliament to repeal the AFSPA, it would certainly be open to amending it. An amendment to limit the applicability of the AFSPA to an aggregate of, say, 90 days in any calendar year, will allow the governments to retain the admittedly coercive option of military deployment when civil administration fails to maintain law and order. This limitation will spur the governments to rediscover ways of providing a troubled region with honest politics and good governance. It will also enable the Army, one-third of which is deployed for internal security due to governance failure, to revert to its primary external security role on India’s borders. 

References

1. Sanjoy Hazarika, “An abomination called AFSPA”, The Hindu, Op-Ed page, February 12, 2013.

2. Walter Fernandes, “AFSPA: Who Rules India?”, Mainstream, Vol LI, No. 10, February 23, 2013, pp. 11-12.

3. S.G. Vombatkere, “Violating the Vulnerable: Manifestations and Attitudes”, Mainstream, New Delhi, Vol LI, No. 8, February 9, 2013, pp. 9-12.

4. S.G. Vombatkere, “Governance and the Armed Forces”, Mainstream, New Delhi, Vol XLIX, No. 15, April 2, 2011, pp. 19-20.

5. “Revoke AFSPA, says Omar, after youth is shot dead in Baramulla”, The Hindu, March 6, 2013, p. 12.

6. Jiby Kattakayam, “I am against a government that uses violence to govern”, The Hindu, March 5, 2013, page 12.

NOTES

Note 1.

A high-powered committee, set up in 2006 by the Planning Commission of India, ascribed growing mili-tancy to people’s discontent and failure of governance, and showed a direct relationship between extremism (militancy) and poverty. (S.G.Vombatkere, “An Exami-nation of Conflict—Costs, Benefits and More”, Mainstream, New Delhi, Vol XLVIII, No. 19, May 1, 2010, pp. 11-17).

Note 2.

The C-of-I is convened within 48 hours of the commission of offence and usually completes its investigations and deliberations within 15 days, to establish prima facie commission of the offence. In contrast, the civil administration’s lackadaisical processes take months or even years, during which “smoking gun evidence” is invariably lost, witnesses vanish or are tutored, and political interference is facilitated, and the accused person languishes in prison.

Note 3. List of DOs and DON’Ts as directed by the Supreme Court in NPMHR v. India in 1997, that are legally binding

DOs 

1. Action before Operation 

(a) Act only in the area declared ‘Disturbed Area’ under Section 3 of the Act.

(b) Power to open fire using force or arrest is to be exercised under this Act only by an officer/JCO/WO and NCO.

(c) Before launching any raid/search, definite information about the activity to be obtained from the local civil authorities.

(d) As far as possible coopt representative of local civil administration during the raid.

2. Action during Operation 

(a) In case of necessity of opening fire and using any force against the suspect or any person acting in contravention of law and order, ascertain first that it is essential for maintenance of public order. Open fire only after due warning.

(b) Arrest only those who have committed cognisable offence or who are about to commit cognisable offence or against whom a reasonable ground exists to prove that they have committed or are about to commit cognisable offence.

(c) Ensure that troops under command do not harass innocent people, destroy property of the public or unnecessarily enter into the house/dwelling of people not connected with any unlawful activities.

(d) Ensure that women are not searched/arrested without the presence of female police. In fact women should be searched by female police only.

3. Action after Operation 

(a) After arrest prepare a list of the persons so arrested.

(b) Hand over the arrested persons to the nearest police station with least possible delay.

(c) While handing over to the police a report should accompany with detailed circumstances occasioning the arrest.

(d) Every delay in handing over the suspects to the police must be justified and should be reasonable depending upon the place, time of arrest and the terrain in which such person has been arrested. Least possible delay may be two-to-three hours extendable to 24 hours or so depending upon a particular case.

(e) After raid make out a list of all arms, ammunition or any other incriminating material/document taken into possession.

(f) All such arms, ammunition, stores etc. should be handed over to the police station along with the seizure memo.

(g) Obtain receipt of persons and arms/ammunition, stores etc. so handed over to the police.

(h) Make a record of the area where operation is launched having the date and time and the persons participating in such raid.

(i) Make a record of the commander and other officers/JCOs/NCOs forming part of such a force.

(k) [sic] Ensure medical relief to any person injured during the encounter, if any person dies in the encounter his dead body be handed over immediately to the police along with the details leading to such death.

4. Dealing with civil court 

(a) Directions of the High Court/Supreme Court should be promptly attended to.

(b) Whenever summoned by the courts, decorum of the court must be maintained and proper respect paid.

(c) Answer questions of the court politely and with dignity.

(d) Maintain detailed record of the entire operation correctly and explicitly.

DON’Ts 

1. Do not keep a person under custody for any period longer than the bare necessity for handing over to the nearest police station.

2. Do not use any force after having arrested a person except when he is trying to escape.

3. Do not use third-degree methods to extract information or to a extract confession or other involvement in unlawful activities.

4. After arrest of a person by the member of the armed forces, he shall not be interrogated by the member of the armed force.

5. Do not release the person directly after apprehending on your own. If any person is to be released, he must be released through civil authorities.

6. Do not tamper with official records.

7. The armed forces shall not take back a person after he is handed over to civil police.

List of DO’s and DON’Ts while providing aid to civil authority 

DOs

1. Act in closest possible communication with civil authorities throughout.

2. Maintain inter-communication if possible by telephone/radio.

3. Get the permission/requisition from the Magistrate when present.

4. Use little force and do as little injury to person and property as may be consistent with the attainment of the objective in view.

5. In case you decide to open fire.

(a) Give warning in local language that fire will be effective.

(b) Attract attention before firing by bugle or other means.

(c) Distribute your men in fire units with specified Commanders.

(d) Control fire by issuing personal orders.

(e) Note number of rounds fired.

(f) Aim at the front of crowd actually rioting or inciting to riot or at conspicuous ringleaders, that is, do not fire into the thick of the crowd at the back.

(g) Aim low and shoot for effect.

(h) Keep Light Machine Gun and Medium Gun in reserve.

(i) Cease firing immediately once the object has been attained.

(j) Take immediate steps to secure the wounded.

6. Maintain cordial relations with civilian authorities and paramilitary forces.

7. Ensure high standard of discipline.

DON’Ts

8. Do not use excessive force.

9. Do not get involved in hand-to-hand struggle with the mob.

10. Do not ill-treat anyone, in particular, women and children.

11. No harassment of civilians.

12. No torture.

13. No communal bias while dealing with civilians.

14. No meddling in civilian administration affairs.

15. No Military disgrace by loss/surrender of weapons.

16. Do not accept presents, donations and rewards.

17. Avoid indiscriminate firing.

[Source: Naga People’s Movement of Human Rights
v Union of India [1997] ICHRL 117 (27.11.1997)]

Major General S.G. Vombatkere retired as the Additional Director General, Discipline and Vigilance in the Army HQ, New Delhi. The President of India awarded him the Visishta Seva Medal in 1993 for distinguished service rendered over five years in Ladakh. He holds a Ph.D degree in Structural Dynamics from the IIT, Madras. He is Adjunct Associate Professor of the University of Iowa, USA, and is a member of the NAPM and PUCL. He writes on strategic and development-related issues. He can be contacted at sg9kere@ live.com

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