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Between Security and Rights: AFSPA Removal Debate in Jammu & Kashmir

As J&K moves closer to elections and further away from the shadows of Article 370, the dialogue on AFSPA reflects the delicate balance between national security and the aspirations for civil liberties and democratic governance in the region.

By Srijan Sharma
New Update

A sketch of a Kasmiri woman protesting against AFSPA | Courtesy: Special arrangement

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The recent announcement by Union Home Minister Amit Shah regarding the potential removal of the Armed Forces (Special Powers) Act, (AFSPA) in Jammu & Kashmir is noteworthy. The government claims that it shows their broader vision for the region and aligns with the Prime Minister's vision of a "Naya Kashmir." With the Lok Sabha elections drawing near, attention is shifting towards Jammu & Kashmir, especially since the Union Territory is poised for elections in September. Following the repeal of Article 370, the government appears to be addressing AFSPA, a matter of critical concern in the region. From a security and strategic perspective, removing the AFSPA could undermine Pakistan's psychological operations in the area, paving the way for comprehensive development. However, it is crucial for the government to consider the broader implications of such a move.

The History 

The Armed Forces (Special Powers) Act traces back to colonial times, specifically to the Armed Forces Special Powers Ordinance of 1942. This ordinance was introduced by the British colonial government on August 15, 1942, to quell the Quit India Movement with an operation named Zero Hour. The essence of the ordinance lingered post-independence, leading to the introduction of four distinct ordinances aimed at addressing the turmoil during the partition in 1947. These ordinances were tailored for Bengal, Assam, East Bengal, and the United Provinces, each designated as disturbed areas requiring special attention from the armed forces.

Following partition, India faced significant challenges, particularly in the Northeast, where Naga insurgencies led to widespread unrest. In response to the escalating situation and the potential for it to affect other regions, the Indian Parliament enacted the Armed Forces (Assam and Manipur) Special Powers Ordinance on May 22, 1958, which came into effect on September 11, 1958.

Initially designed to manage insurgencies in the Northeast, the application of AFSPA expanded over time to Punjab and Jammu & Kashmir (J&K), regions that experienced heightened militancy. The 1990s, in particular, marked a turbulent period in J&K, characterised by the exodus of Kashmiri Pandits, a spike in terrorism, and increasing radicalisation. Punjab, too, faced challenges from the late 1970s to the early 1980s due to the rise of Khalistani militancy. These developments showed the need for stringent security measures, leading to the implementation of AFSPA in Punjab in 1983 (later repealed in 1997) and in J&K in 1990, to counteract the surge in militancy and terrorism.

Understanding The Act

The Armed Forces (Special Powers) Act endows the armed forces with extensive powers in designated "disturbed areas," including the ability for the Central Armed Police Forces (CAPF) under Section 2. One of the most notable provisions is legal immunity for actions taken under the Act, detailed in Section 7. However, in 2016, the Supreme Court of India significantly challenged this immunity, ruling against blanket protection from prosecution. The court declared that the law applies equally to all, regardless of the victim's or aggressor's identity, emphasising the uniform application of law whether the individual is a civilian, militant, or terrorist.

Section 4 of the AFSPA grants the armed forces several powers in disturbed areas:

  • The power to arrest without a warrant.

  • Authorization to use force, after issuing a due warning, that could result in death, if someone is acting against law or order.

  • The ability to enter and search any premises to make arrests, rescue individuals, or seize arms, ammunition, or explosives.

  • The right to stop and search any vehicle or vessel suspected of carrying persons or weapons involved in disturbances.

The designation of an area as "disturbed" is critical for the AFSPA's application. It applies to regions experiencing prolonged unrest, insurgency, or militancy, where local state apparatus and forces are deemed incapable of maintaining order. Initially, the power to declare an area as "disturbed" under Section 3 rested with the state governors, who could assess the need for armed forces' intervention. State governments could suggest the necessity of the act's enforcement, although their recommendations could be overridden by the governor or the central government. A significant amendment in 1972 expanded the central government's authority to declare areas as "disturbed," reflecting the Act's evolving role in India's security architecture.

The Debate: Security Necessity Or License To Kill? 

The debate surrounding the Armed Forces (Special Powers) Act is fundamentally bifurcated into two distinct viewpoints: the necessity for security and the occurrence of extrajudicial killings, particularly in the North East. The latter issue has been the source of significant controversy, casting a long shadow over the act's intentions and applications. 

In 2004, the Justice Jeevan Reddy Commission undertook a comprehensive review of AFSPA, leading to a recommendation for its repeal. The Commission identified the protests and agitations in places like Manipur as manifestations of deeper underlying issues, urging the government to address these core concerns directly. Despite these findings, the critical role of national security often overshadows the critique, especially regarding instances of the act's misuse. This tension between ensuring security and preventing abuse continues to fuel the ongoing debate over AFSPA's future and its impact on society.

The Security Necessity 

The invocation of the Armed Forces (Special Powers) Act is typically reserved for exceptional circumstances, underpinning its role as a response mechanism to severe unrest or threats to national security. Historical events such as the genocide of Kashmiri Pandits in 1990, the 1986 Kashmir riots that resulted in the loss of approximately 2000 lives primarily among Hindus, the Sopore incident in January 1993 with 40 casualties, and the Bijbehara firing in October 1993 that led to 60 deaths, underscore the dire contexts necessitating stringent security measures. These tragic incidents expose the need for operational flexibility for the armed forces to act decisively and efficiently.

Lieutenant General (retd) Syed Ata Hasnain, a General Officer who Commanded the Army’s Srinagar-based 15 Corps, emphasised in 2011 the criticality of special legal provisions to the operational capabilities of the armed forces. According to him, revoking such provisions could compromise their effectiveness. The application of AFSPA in a state or Union Territory signifies a recognition that local capacities to manage security situations are overwhelmed, suggesting that without substantial military support, adverse forces could precipitate a breakdown of order and national security.

The imposition of AFSPA, thus, is seen not merely as an enforcement tool but as an essential component of an emergency response mechanism to restore normalcy in extraordinary circumstances. Any discussion on withdrawing AFSPA necessitates a thorough assessment of the security landscape to ensure that improvements are durable and not susceptible to regression. For instance, the surge in radicalisation following the elimination of militant leader Burhan Wani in 2018 in Jammu & Kashmir serves as a cautionary tale. Decisions on the Act's removal should be predicated on a secure and significantly improved security environment, with hasty withdrawals potentially risking a return to instability.

The Limits And Misuses 

The Armed Forces (Special Powers) Act, while designed as a tool for managing extreme security situations, is not without its flaws and instances of misuse. Notable examples include the tragic incident in Nagaland in 2021, where 14 civilians were mistakenly killed, and the 1995 Kohima Massacre, where the sound of a tire burst led the 16 Rashtriya Rifles to mistakenly open fire on civilians, resulting in seven deaths and thirty-six injuries. Such instances reveal the potential downsides of the broad powers granted under AFSPA, which, in the pursuit of operational efficiency, can lead to dire consequences that undermine the act's foundational goals.

These incidents not only increase tensions in the affected regions but also complicate the overall situation, moving it further from the Act's intent to stabilise and not to aggravate. The aftermath of such events highlights the necessity for either revising the immunities granted under AFSPA or instituting more stringent checks on the exercise of these powers by the armed forces. In response to these concerns, the Supreme Court in 2016 took steps towards imposing limitations on the Act’s provisions, aiming to prevent misuse and ensure that the powers granted are exercised with the utmost caution, reflecting a significant shift towards balancing security needs with the protection of human rights.

The Need Of Removal and Naya Kashmir 

The longevity of the Armed Forces (Special Powers) Act in any region is inherently tied to the temporariness of extraordinary or exceptional circumstances it seeks to address. Once stability is restored and the situation is under control, the rationale for maintaining AFSPA diminishes. Prolonging its enforcement beyond the necessity can inadvertently obstruct the normalisation process, which encompasses not just combating adversarial forces but also reinstating a peaceful and harmonious environment. True normalisation is achieved when the state operates unencumbered by constraints, fear, and anxiety, conditions that the presence of AFSPA tends to heighten rather than alleviate.

Continued enforcement of AFSPA may contribute to increased anxiety and fear among the population, potentially undermining the democratic ecosystem and governance. This could escalate into socio-political instability if not addressed timely. In the context of Jammu & Kashmir (J&K), post the abrogation of Article 370, there has been a marked improvement in the security situation, with a significant decrease in terrorism-related incidents and a decline in the recruitment of local youth into terrorist organisations. These positive developments present a strong case for reconsidering the need for AFSPA in the region.

As the security environment in J&K shows signs of significant improvement, arguments for the withdrawal of AFSPA gain weight. The Central Armed Police Forces (CAPF) are well-positioned to manage any emerging security challenges, suggesting that the overwhelming threat of terrorism is abating. The precedent set by the withdrawal of AFSPA from Punjab in 1997 supports the case for a similar approach in J&K. While a reduced presence of CAPF may remain necessary, especially in border areas, the overall operation of AFSPA should be phased out.

The removal of AFSPA is expected to bolster confidence and peace among the population, eliminating the pervasive sense of fear and facilitating the acceleration of normalisation and development processes at socio-political levels. Fulfilling the Prime Minister's vision for a "Naya Kashmir" extends beyond security measures to encompass social and political rejuvenation, which will only be strengthened by the cessation of AFSPA. This step is seen not just as a measure of reducing military footprint but as a fundamental component of rebuilding trust and fostering long-term stability and democratic governance.

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