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December 14, 2011 / subramanyam

AFSPA : A re-look needed.

          Omar Abdullah , the chief minister of Jammu and Kashmir seemed to have stirred up a hornets’ nest when he aired his views on AFSPA in the troubled state. The 41-year-old Chief minister of J&K was favoring the partial withdrawal of AFSPA from the areas where there has been no violence for quiet some time and we have enough proof that normalcy has indeed returned.His remarks drew flak from many quarters and there indeed is a furore in his home state also over these remarks. Nevertheless, with the center’s interlocutors panel also recommending the removal of AFSPA in Jammu Kashmir in a phased manner and Irom Sharmila’s fast for the removal of AFSPA in Manipur entering the 11th year now, it is time we revisit the the Armed Forces special provisions act or AFSPA as it is called,

          Passed by the parliament on September 11 1958, AFSPA gives the armed forces some special privileges in what the acts calls the  “troubled areas”. The act  is applicable in all the North Eastern States and the state of Jammu and Kashmir (J&K was included in 1990 after terror broke out in the state).

          According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as “disturbed”, an officer of the armed forces has powers to:

  • “Fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law” against “assembly of five or more persons” or possession of deadly weapons.
  • To arrest without a warrant and with the use of “necessary” force anyone who has committed certain offenses or is suspected of having done so
  • To enter and search any premise in order to make such arrests.

It gives Army officers legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. For declaring an area as a ‘disturbed area’ there must be a grave situation of law and order on the basis of which Governor/Administrator can form opinion that an area is in such a disturbed or dangerous condition that use of Armed Forces in aid of civil power is necessary.

                                                          (source : Wikipedia )

          While this act was indeed instrumental in restoring normalcy in the troubled parts of the country, there have also been complaints from both the North East and J&K that these special powers are being misused.   The Jeevan reddy committee that was set up in 2004 to look into the various complaints that were coming up against the act recommended this act be repealed as it being increasingly viewed as an instrument of oppression.The act was criticized by the representatives of UN as well as it does not confirm to the UN standards.  The administrative reforms committee (ARC) headed by Veerappa Moily also saw merit in the 147 page report submitted by Jeevan Reddy committee.

          On the other side of the coin, Indian army, which has the responsibility to handle the insurgency in these troubled areas has a different story to say, in the troubled areas where the local support to the extremists is a little high , it is very tough for them to handle the terror and extremism without any special provisions. Hence it has serious reservations with respect to the repeal of the act. They say that , without the special provisions they might be toothless as a result of which it would be very tough to contain the extremists and the terrorists. Echoing the sentiments of the army , the then defece minister Pranab Mukherjee opined that “it is not possible for the armed forces to function” in “disturbed areas” without such powers”. The Jeevan Reddy commission which wanted the act to be repealed also stressed the fact that removing the army from North east and J&K would not go well with the peace process and the government should not lose sight of the overwhelming desire of the overwhelming majority of the north-east people, that the army should stay in the region  for the sake of peace process.         

          How do we strike a balance in this case? Law and order and human rights are both essential for the democracy to perform well, repealing AFSPA and tightening the  unlawful activities prevention act of 1967 might be an option, again this was what even the Jeevan Reddy  committee recommended . In case the government believes that , in the best interests of the Nation we will have to live with AFSPA, then it pays to make the act more humane and make it compliant with the UN and international laws on this subject. Probably sections that deal with legal immunity to firing at and killing civilians can be revoked. More accountability can be brought in by putting a specific time frame to produce the arrested in the court. Similarly the army personnel deputed to the disturbed area can be trained to understand the various standards formulated by UN in the matters of this sort. At the same time an awareness campaign among the people to stress the importance of some special provisions to the army also might change the attitude of common people towards the act.These are some of the thoughts of mine , might be correct might be wrong , but its time we have a re-look at the AFSPA.

Some suggested reading .


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