Politicians, by focussing the discussion on militancy, have successfully deflected attention from the Armed Forces Special Powers Act, a colonial relic that has no place in a civilised nation even at the worst of times. By A.G. NOORANI

ON August 8, 1942, the All India Congress Committee passed the “Quit India” resolution at its session in the Gowalia Tank Maidan, Mumbai. It is appropriately named August Kranti Maidan. The man named in the resolution as the leader of the movement, M.K. Gandhi, gave the famous call to “do or die”. His follower K.M. Munshi testified to the violence it unleashed. What they did was nobody’s business, he said. It was anything but non-violent.

Exactly a week later, on August 15, that most illiberal of Viceroys and Governors General, Linlithgow, promulgated The Armed Forces (Special Powers) Ordinance, 1942, under Section 72 of the Government of India Act, 1935. Its avowed object was “to confer special powers upon certain officers of the Armed Forces”, chief among these was a licence to kill.

Section 2 read thus: “(1) Any officer not below the rank of Captain in (the Indian) Military Forces and any officer holding equivalent rank either in (the Indian) Naval or Air Forces may, if in his opinion it is necessary for the proper performance of his duty so to do, by general or special order in writing require any personnel under his command to use such force as may be necessary, even to the causing of death, against any person who—(a) fails to halt when challenged by a sentry, or (b) does, attempts to do, or appears to be about to do, any such act as would endanger or damage any property of any description whatsoever which it is the duty of such officer to protect; And it shall be lawful for such personnel, when so ordered, to use such force against such person.

“(2) The use of force against any person in obedience to an order under sub-section (1) shall include the power to arrest and take into custody such person, and the use of such force as may be necessary, even to the causing of death, in order to effect such arrest.”

It was an alien government determined to quell a rebellion by any means. Japan was moving menacingly close to India. Both Gandhi and Vallabhbhai Patel and others believed that Japan would win the war. Jawaharlal Nehru disagreed with the Quit India movement but, as ever, sailed along with the Mahatma. So did Maulana Azad. They voiced their resentment in their prison diary and memoirs, respectively.

Did the armed forces enjoy such “protection” during the Punjab disturbances which culminated in the massacre at Jallianwala Bagh? There was certainly no such protection for the army under English law. None even in Northern Ireland which faced an armed revolt and terrorist attacks from 1968 until the Belfast Agreement in 1997. During this period, the British government instituted umpteen inquiries by independent judges on the making of the anti-terrorist legislation. In one case, an inquiry conducted by Lord Gardiner, a former Lord Chancellor, was focussed directly on the compatibility of the legislation with human rights: “Report of a Committee to consider in the context of civil liberties and human rights measures to deal with terrorism in Northern Ireland” (January 1975).

On Independence, the leaders of free India, with Nehru and Patel at the helm, cheerfully took over illiberal colonial legislation—for instance, the need for government’s sanction to prosecute or sue its own Ministers and civil servants. It persists to this day. The Supreme Court has not and will not strike it down.

Patel died in December 1950. Nehru reigned supreme. On his watch and with his tacit blessings was enacted The Armed Forces (Special Powers) Act, 1958. It was confined to Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura and Arunachal Pradesh (then North-East Frontier Agency).

Section 3 empowered the State “or” the Central government to declare the whole or part of the territory to be “a disturbed area” if in its “opinion” it is “in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary”. The doctrine of “subjective” satisfaction has been exploded by the Supreme Court of India as well as by the superior courts in Britain. In a case concerning Malaysia, the Privy Council held that a writ lies to the head of state (that is, the government) to revoke even a proclamation of emergency if it is shown that the preconditions for the exercise of the power do not exist. In this case, the tests are laid down, “disturbed or dangerous”.

Section 4 of the Act reads thus :“Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,

(a) if he is of opinion that it is necessary so to do for the maintenance of public order after giving such due warning as he may consider necessary fire upon or otherwise use force, even to the causing of death, against any person who is 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 or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances; (b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence; (c) arrest, without warrant, any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest; (d) enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises and may for that purpose use such force as may be necessary.”

Now, compare the two. The 1942 ordinance conditions the power (1) “on the proper performance of his duty” as a soldier. (2) It is restricted strictly to officers of the Army, Navy and Air Force. (3) The offender must have failed (a) “to halt when challenged by a sentry”. That necessarily implies a prior warning; or (b) “does, attempts to do, or appears to be about to do, any such act as would endanger or danger any property… which it is the duty of such officer to protect”. The power is confined to prevention of intrusion or protection of property. It did not cover protection of life if there was no threat to property. (4) The officer had the power to arrest such a person. (5) In either case, protection of property or effecting an arrest, he could use such force “as may be necessary”, even to the causing of death.

In contrast, (1) the 1958 Act applies not only to the three armed forces but also to paramilitary forces such as the Central Reserve Police Force (CRPF) and the Border Security Force (BSF). (2) The officer is empowered to use force “for the maintenance of public order after giving such due warning as he may consider necessary”. Any precision here is diluted by what follows. Force can be used even against (a) a person who violates “any law or order prohibiting the assembly of five or more persons” or (b) carries weapons. Both powers were available to the police under the ordinary law. Where was the necessity to give the licence to kill contained in the colonial law of 1942—“even to the causing of death”? Does this explicit phrase occur in the statute of any civilised country? This licence acquires an added force in Section 6, which bars any criminal complaint, civil suit “or other legal proceedings” except with “the previous” sanction of the Government of India. (3) All this applies also to the power to “destroy” buildings if they are suspected to be in the use of armed men. All in all, the Act of 1958 far exceeds the colonial ordinance of 1942.

The 1958 debateThe Bill to enact the Act of 1958 was introduced in the Lok Sabha on August 11, 1958, by Home Minister G.B. Pant. Moving for its consideration on August 18, he recalled that the Army had to be called in the Naga Hills in 1956. “It only provides for the protection of the Army when it has to deal with hostile Nagas.”

Dr A. Krishnaswamy pointed out: “It is only in aid of the civil power that these military forces can be given to quell local disturbances and therefore which is a disturbed area. But what I am suggesting is that if clause 4 of the Bill had been drafted on the lines of the relevant section in the Code of Criminal Procedure, this objection would have been amply met. But the Bill goes further than the requisition of military power to aid the civil power for, as it is, clause 4 is virtually a replica of the corresponding provisions in the Defence of India Rules made under the Defence of India Act after a proclamation of emergency was issued under the Government of India Act, 1935.”

Naushir Bharucha, a Mumbai lawyer, said that instead of a magistrate issuing an order to shoot (under the Code of Criminal Procedure), it is an officer of a particular rank who can. Since the Air Force was included, it was given the power to bomb. The Speaker could not contain himself any longer. He asked:

“Does the Hon. Minister mean that this is only in addition to the provisions of the Criminal Procedure Code? Normally, under the Criminal Procedure Code, whenever a magistrate wants the assistance of the armed forces to disperse an assembly, he can send a requisition and the armed forces can come, but they cannot shoot; they can use force only to some extent and that for the purpose of dispersing the assembly. Here, in a disturbed area if any person, whether an assembly or otherwise, breaks the law or is attempting to break the law, the Army can shoot, that is what is said.…

“Article 21 of the Constitution says that no person shall be deprived of his life or personal liberty except according to procedure established by law. Does the Hon. Minister feel that this is the procedure, he can shoot, if it is a disturbed area, that is the procedure prescribed by law. He can shoot. Anybody can be killed or shot at, but is this the procedure prescribed by law, does it go to that extent? Article 21 says that no person can be deprived of his life. Here any person can be deprived of his life by any commissioned officer; he can shoot.”

G.B. Pant assured the members that the Bill would be applied only in “exceptional circumstances”. Naushir Bharucha would have none of this. In a brilliant speech, he anticipated the problem facing us in Kashmir 40 years later. “I also want to know whether the policy of shoot to kill underlying this Bill will not have a psychological effect, first on the Nagas and secondly on the Army personnel. Shoot to kill instils in the people in whose hands power is placed a sense of carelessness and callousness. There is a feeling: We are protected, we can shoot to kill. I am not for a moment alleging that our defence forces are so callous as that. But human nature being what it is, having regard to the fact that our Army may have to work in very difficult and trying circumstances wherever they are, troops may be overworked and they may resort to these because a psychological impression is created in the minds of the troops: we can shoot to kill; nobody can question us. I ask: what type of policy is this to win the hearts of the people whom you are trying to incorporate and integrate as part of India. Shoot to kill.”

So did L. Achaw Singh of Manipur. He said: “I fail to understand why the military authorities are to be invested with special powers. I have found that these military authorities have always committed excesses in many cases especially in the sub-divisions of Kohima and Mokokchung. In such a situation I do not like that the officers should be invested with such special powers. Recently, such an incident took place in the headquarters of the North Cachar and Mikir Hills district. Instead of rounding the hostile Nagas, some military personnel trespassed into the house of some retired tribal official and committed rape on the widow. So, such things have deteriorated the situation. The tribal people have risen against the military people there. It is, therefore, dangerous to invest the military authorities with extraordinary powers of killing and of arrest without warrant and of house-breaking.

“I have got reports of the operations of the armed forces in these tribal subdivisions of Manipur, especially in the subdivision of Tamenglong where these armed forces have by force occupied the religious institutions in spite of the protests of the local people. Most of them are Christians there and they hold their churches sacred. But these armed forces would occupy these institutions. There are schools, and the armed forces could easily occupy them, but then, in spite of the protests of the people, they encroached upon, and trespassed into the houses.”

Rungoung Suisa from Outer Manipur (Reserved, Scheduled Tribes) said much the same thing. “A soldier is trained in the art of killing and destruction. He cannot appreciate the yearning of the human soul. As soon as he finds a colleague of his is killed, his anxiety is to kill some other people, whether they belong to the rebel party or not. So, we have to learn one lesson from the past actions. I wonder whether any people in the world, during the last two world wars, have suffered more than the Nagas. But are they kneeling down? They will not kneel down. They are being suppressed. Physically you may suppress them and eliminate them. But the problem will still remain there. It will be in their hearts.”

Minister of State for Home B.N. Datar replied to the debate defiantly. “My hon. friend Shri Bharucha suggested: why should there be use of the expression ‘death’; why should not general words like ‘force’ or ‘minimum force’ be used? May I point out to him the restraining influence of all such provisions to the extent that it is necessary? It does not mean that every military officer must shoot. It is not a case of shooting to kill, as he unfortunately put it; it is a case of preventing further trouble, and if a particular element, a particular person or a gang of persons is intent upon spreading disorder or disturbance, then the final and the most effective weapon has also to be unfortunately but inevitably resorted to. This is the reason why this particular expression has been put in.

“Therefore, let the other party also understand that merely ordinary actions will not be taken, that merely they will be detained or held or arrested, but that, if for keeping law and order or preventing disorder and the emergency of disturbances it becomes necessary to have recourse even to the last effective action, then the power ought to be given to the authorities.” The Bill was passed.

Kunzru corners governmentAs Datar opened the debate in the Rajya Sabha on August 25, Bhupesh Gupta of the Communist Party of India (CPI) led the attack. “Every officer will be empowered to do anything he likes, shoot at sight. What is the restraint? Nothing?”

Pandit Hriday Nath Kunzru went to the heart of the matter. “What I should like to know is whether there is any way of controlling the military officers after the issue of a notification and the passing of a law or the making of an order prohibiting the assembly of five or more persons, etc. It seems to me that the only way of controlling the military officers, if we pass this measure, will be for the Governor or the Chief Commissioner to withdraw the notification issued by him. Short of that, the civil authority will not be able to exercise any control over the military officers. That seems to be a defect in the Bill. If this power had been given to the police, the civil authority could have exercised control whenever it wanted to do so, but when the military officers come in, the civil authority can exercise no control over them. The highest military authorities may be asked to control their officers, but, legally speaking, neither the Governor of Assam nor the Chief Commissioner of Manipur will be able to control the activities of the military officers. He may, Sir, let me repeat, do so indirectly through the superior military officer in the Naga Hills area or in Assam but he cannot do so directly. That, I think, Sir, is a defect in the Bill. We should not give unlimited powers to the military officers.… We should have either military control or civil control. What we ought not to have is a state of things in which the military officers while exercising a great deal of power will not be under the control of the civil authority whose notification will enable them to exercise special powers.” This has been very much the case in Kashmir.

If P.N. Sapru noted that a member of an unlawful assembly can be shot even if he did not carry a weapon, P.S. Rajagopal Naidu commented on the abdication of civil authority to the military. He was right. For, on August 28, Kunzru pointedly asked the Minister, “Does my hon. friend mean that the words ‘in aid of the civil power’ authorise the civil authorities to exercise continuous control over the actions of the military officers.” This was by far the most important question asked in the entire debate in both Houses.

Datar’s answer was clear. The military officers have been given direct powers by this Bill. The State government vanishes from the picture for the Central government enjoys a concurrent power to declare the area a “disturbed area” and deploy the Army, even against the wishes of the elected State government, that is, the people. The State government alone cannot denotify any area. The Centre will notify it. Datar waffled evasively. The sharp questions raised by members went unanswered, as Bhupesh Gupta noted, “You have asked so long as this declaration remains, who controls the military officers. He [Datar] says that it is the civil authority and I would like the hon. Minister to point out from this particular Bill how the civil authority can control. Under which provision can this be done?” Cornered, Datar evaded with a palpable falsehood: The Bill was only an “extension” of the Criminal Procedure Code. The Deputy Chairman posed the same question only to receive the same evasive answer. Datar refused to amend the Bill. “We have to trust our military officers.”

Tell that to the people in the north-eastern region and in Kashmir. The Deputy Chairman, to his credit, persisted “What about the control of the military?” Infuriated by the evasion, Bhupesh Gupta lashed out. There was no such law in the United States, the United Kingdom, France, the Scandinavian countries or South America. “In a disturbed area there would not be even a semblance of the rule of law.” Nehru came late, chided Bhupesh Gupta, denounced sin, lauded virtue and left it at that. The Bill was passed by the Rajya Sabha on September 1, 1958. It received the President’s assent on September 11 and became law. Time has vindicated the critics and exposed the disingenuity of Nehru, Pant and Datar.

Missing sense of nationhoodThe Act has since come up for renewal before Parliament more than once. On March 19, 1965, in the Lok Sabha, M.R. Masani made a telling point of abiding relevance. “Guerilla forces can only function in a favourable political climate. So long as the people in the villages give food and supplies and harbour the guerillas, it is extremely difficult to fight them. That has been the experience with the Viet Cong, that is the experience in South Viet Nam today. It is very important therefore that the common people in the villages, who are neither on this side or that side, should be won over.…

“What do we know about Nagaland and what do they know about us? I asked one of the Ministers of the underground government there to come to Delhi and meet people here. He said: Will they give me safe conduct? Will I not be arrested? I said: My friend, whether you like it or not, you are a citizen of this Union; there is the Supreme Court and there is habeas corpus. If anything happens to you while you are in Delhi, I will go to the Supreme Court and get you released. He was surprised at this. He thought that he was going into an enemy country. These are the barriers that have been created by history. They have not been part of the Indian nation as we have all been part of it; they feel different. We have got to draw them nearer. You cannot impose nationhood by force. You have got to win their hearts and minds and that is what is being done today by all those who stand for us in Nagland.”

Kashmir ordinanceNone of these lessons was learnt when on July 5, 1990, Governor G.C. Saxena declared all the six districts of the Kashmir Valley as “Disturbed Area”. On July 6, he promulgated the Armed Forces (Jammu and Kashmir) Special Powers Ordinance, 1990. It was introduced in the Lok Sabha as a Bill on August 8, 1990, with a Statement of Objects and Reasons signed by Union Home Minister Mufti Mohammed Sayeed. It is a replica of the Central Act. The power to declare a disturbed area in the State vests in the Centre as much as in the State. On July 5, the Governor had declared all the six districts of the Valley as “disturbed areas”. The debates in Parliament were lively. On August 20, 1990, Saifuddin Choudhury of the Communist Party of India (Marxist) complained that the people of the country were not being told the truth about the situation in Kashmir. “We do not accept this kind of thing. In this situation, while we cannot oppose these legislations that you have brought, any power you want we have to give you. But then, see that these powers are not misutilised, and the people are further pushed away. The kind of excesses that were committed some days ago, are they to be welcomed? Is that killing the civilised way of behaviour?

“I have all respect and salutations for our armed forces. When we meet many of the high officials of our armed forces, they told us, ‘If we do not have the backing of the people, then how can we succeed?’ They demanded political actions for the mobilisation of the people. This is the point. On this point, I say that this kind of political interaction with the people is very much required. Then economic welfare measures are to be taken.”

P. Chidambaram’s interventionP. Chidambaram’s was the most comprehensive and deadliest speech. It deserves to be quoted in extenso: “Can the Home Minister [Mufti Mohammed Sayeed] honestly deny that he was an active participant in the making of the Kashmir policy of the previous government? Well, he may not be an active participant in the making of the policy of the present government, but, he certainly was an active participant in the making of the policy of the previous government.…

“Who are you protecting in Kashmir? I heard Mr Saifuddin Choudhury say, ‘Kashmir will never go from India.’ Yes, this government, by the madness that has possessed it, will not allow the land in Kashmir go away from India. But what about the people in Kashmir?What about their minds? What about their hearts? Every one of them stands alienated today. You will send your Army. You will send your paramilitary forces and you will protect the land. But what will you do about the people? Who is with you in Kashmir today? One hundred and thirty-seven officers sent a petition to the United Nations. I don’t defend. I condemn that action. So does Mr Jaswant Singh. But what should we do in this House? Go a step further and ask: ‘Why did 137 officers send that petition to the United Nations?’ What made them do it? Why did the president of the Srinagar Bar Association go underground? I do not know about it. I do not know his background. But why would the president of the Srinagar Bar Association have to go underground and why would he have to be arrested as one in league with secessionist elements? Who are these people who have turned overnight into secessionists? Who are these people who, according to this government, have turned overnight into terrorists? Who are these people who have turned overnight into those who will give comforts to the terrorists?…

“Sir, PUCL [People’s Union for Civil Liberties] sent a group in Kashmir and they gave a report. When it comes to Delhi riots or when it comes to Punjab, every voice from that side, the Treasury Benches, thumps the table and speaks in favour of whatever PUCL has discovered as a violation of human rights. But when PUCL has submitted a report on Kashmir, it was condemned as a busybody and is (sic) poking its nose, meddling with the affairs of Kashmir and creating greater trouble. Mr Tarkunde is a very respected jurist. He was one of the patron saints of the Janata Dal and he still remains to be one of the patron saints of the National Front. What is Mr Tarkunde going to say about what is going on in Kashmir? Sir, a group of enlightened, committed citizens constituted themselves into a Committee for Initiatives in Kashmir. Earlier, they sent out a team of four men in March 1990. That group submitted a report and we raised that issue in this House. The government and the Home Minister would not give us any reply on the contents of that report. In June 1990, the same committee sent a team of four women to investigate into the impact of militarisation of the Kashmir Valley and the lives. Has the Home Minister read this report? If only 10 per cent of this report is right, the Home Minister should resign, not out of a sense of responsibility but out of a sense of deep sorrow and sharing of this sorrow with the people of the Valley. It is not possible to read this report. If I read a few paragraphs, it will shock us into a shame out of which we will never emerge. I do not want to read the things that have been done to women and the children. But if you will permit me, let me lay it on the table of the House. Have you seen the barbarism that is going on in Kashmir, Mr Home Minister, even if 10 per cent is right? If it is not right, what is your long arm of the law doing to those people who have spread this information? Why don’t you prosecute them? This has been with me for several days. I have tried to see if I can read some paragraphs. It is not possible to read. It is written in such a detail that it is not possible to read the indignity that has been heaped upon women in Kashmir….

“Sir, there have been instances in the past where individual jawans in paramilitary forces have acted beyond the limits of law and decency.

“The question of human rights in Kashmir cannot be brushed aside. You cannot hold the land and lose the people. Your Army, your BSF or your CRPF can hold the land for us but it cannot hold the people. And, as long as the overwhelming impression of anyone who visits Kashmir, I have not in the recent past, who speaks about it or writes about it is that there is large-scale violation of human rights in Kashmir.…

“The Home Minister has reported to have said in June 1990 that the time to resume the political process has arrived. If the time to resume the political process has arrived, then what are you doing today? The promulgation of the Armed Forces Ordinance, the replacement of the ordinance by a Bill seems to go directly to conflict with your purported statement that the time to resume the political process has arrived. …

“All is not irretrievably lost. But let me conclude by saying this: If you go down the same road that you have taken this country, particularly in the matter of Kashmir, for the last eight months, I am afraid it will be irretrievably lost; and nothing that you do, nothing that you say, nothing that your friends will say, none of this table-thumping, none of this posturing is ever going to retrieve. Today, it is perhaps not irretrievably lost. But if you go down the same road, it will be irretrievably lost.”

Chidambaran was referring to the “Report on Kashmir Situation” by V.M. Tarkunde, Rajinder Sachar, Amrik Singh, Balraj Puri, Inder Mohan, Ranjan Dwivedi, N.D. Pancholi and T.S. Ahuja. They conducted a probe under the auspices of the PUCL, Citizens for Democracy, Radical Humanist Association and Manav Ekta Abhiyan. It was published on April 22, 1990.

Another noteworthy speech was by Prof. Saifuddin Soz, then of the National Conference, on August 20, 1990, in the Lok Sabha. “Now, Sir, the point is that the security forces—BSF, CRPF—have committed atrocities. Therefore, I want this House to do some duty to their conscience, if not to the people of Kashmir and stop these forces, including the Army, from committing any atrocities in future. I will tell you just now what the Army has done at Pazipora. I want this House to stop them committing onslaught further, to stop them treating innocent Kashmiris as enemies. I want this House to study the dimension of repressions. I will mention only four events after this Disturbed Area Act was enforced. If you send a parliamentary delegation, I will go with you. But you send a parliamentary delegation to those four places to investigate these four events only. On 4th of July, the Disturbed Area Act was passed. On 8th of July, two villages were set on fire. In Megaon, two villages, Odina, and Wathnanagam, 200 houses were burnt to ashes. Four people were killed and one person was thrown into fire and burnt alive.” He cited specific cases of gang rapes and murders by the BSF.

Human rights in KashmirThere have been many reports on the human rights situation in Kashmir. The ablest is by Patanjali M. Varadarajan (Tunku), the then Levine Memorial lecturer in Law, Trinity College, University of Oxford. It is entitled “Extrajudicial Executions, Rape, Arbitrary Arrests, Disappearances and Other violations of Basic Human Rights by the Indian Security Forces in Indian Administered Kashmir”. It was issued under the auspices of the Paris-based International Federation of Leagues for the Rights of Man in January 1993. It is amazing how, in a mere week from August 31 to September 7, 1992, he was able to collect and analyse the repressive laws so ably. This is what he wrote of the AFSPA:

“To describe this statute as ‘draconian’ would be an understatement of the most vigorous sort. Section 4(a) must be quoted in full: [He quoted it]. This is in violation of Article 21 of the Constitution of India, as are Sections 3 and 4 of TADA [Terrorist and Disruptive Activities (Prevention) Act]. Article 21 states: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’ Article 21, if interpreted literally, would appear to be satisfied the moment it is established by the State that there is a law which provides procedure which has been followed by the impugned action.… It must be construed as meaning procedure which is reasonable, fair and just. Both statutes violate Article 21, as would appear to be the case with the PSA.… A seriously alarming feature of AF(SP)A is the immunity from prosecution granted, in the widest possible terms, to the members of the armed forces, under Section 6. ‘No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.’

“Amnesty International, in its report on ‘Torture, Rape and Deaths in Custody in India’ stated: ‘When the provisions of this Act were scrutinised recently by the U.N. Human Rights Committee, established to monitor governments’ adherence to the International Covenant on Civil and Political Rights, one member of the committee drew particular attention to the manner in which laws can facilitate human rights violations: “In the section which gives immunity both from prosecution and from civil process I find a very dangerous word…. Purported is the dangerous thing because anyone killing anybody can say, ‘Well, I thought I was performing my functions.’ (H.R. Committee, 1040th meeting, 26.3.1991, in CCPR/C/SR.1040 at 60-1).”’ The AFSPA has been criticised whenever India’s report came up before this body or the Human Rights Council.

But Article 21 was the very provision which the Supreme Court of India chose to ignore in its judgment on the constitutional validity of the AFSPA (Nagar People’s movement of Human Rights vs Union of India (1998) 2 Supreme Court Cases 109). In Masooda Parveen vs Union of India and Ors (2007), the Supreme Court followed this case, but observed: “We cannot ignore the fact that many in Kashmir who have gone astray are Indian citizens and it is this situation which has led to this incident. We do appreciate that a fight against militancy is more a battle for the minds of such persons than a victory by force of arms, which is pyrrhic and invariably leads to no permanent solution. We cannot ignore that in this process some unfortunate incidents do occur, which raise the ire of the civil population, often exacerbating the situation.… We also understand that in an investigation of this kind, based only on affidavits, with a hapless and destitute widow in utter despair on the one side and the might of the state on the other, the search for the truth is decidedly unequal and the court must therefore tilt just a little in favour of the victims.” A typical Supreme Court pronouncement in such cases—long on lofty rhetoric, short on grant of relief to the wronged.

In this very case it did not. Its emphasis on a redress mechanism is significant. Its preferred acceptance of one “at the hands of the administration itself” vividly reveals also its basic outlook revealed in rulings on TADA and POTA (Prevention of Terrorism Act).

In 2005, the B.P. Jeevan Reddy Committee “to review” the AFSPA said: “Keeping in view the material placed before us and the impressions gathered by the committee during the course of its visits and hearings held within and outside the North-Eastern States, the committee is of the firm view that: (a) The Armed Forces (Special Powers) Act, 1958, should be repealed. Therefore, recommending the continuation of the present Act, with or without amendments, does not arise. The Act is too sketchy, too bald and quite inadequate in several particulars. It is true that the Hon’ble Supreme Court has upheld its constitutional validity, but that circumstance is not an endorsement of the desirability or advisability of the Act. When the constitutional validity of an enactment is challenged in a court, the court examines (i) whether the Act is within the legislative competence of the Legislature which enacted it and (ii) whether the enactment violates any of the provisions of the Constitution. The court does not—it is not supposed to—pronounce upon the wisdom or the necessity of such an enactment.

“We must also mention the impression gathered by it during the course of its work, viz., the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness. It is highly desirable and advisable to repeal this Act altogether, without, of course, losing sight of the overwhelming desire of an overwhelming majority of the region that the Army should remain (though the Act should go). For that purpose, an appropriate legal mechanism has to be devised.”

Army claims it is accountableThe committee was concerned with the north-eastern region. Kashmir was excluded.

Implicit in the Army’s opposition to the repeal is a claim that it is accountable. The disgraceful course of the Pathribal case (2002) alone suffices to refute this; also the gang rapes at Kunan-Poshpora (1991); the murder of a senior lawyer, Jalil Andrabi, in 1996; and a host of others.

Not once has the Army cared to point out the precise reasons why it needs this exceptional protection unheard of in the entire world. This writer posed this question to senior officers at a symposium not long ago and drew a blank.

Which is the most powerful trade union in India? Guess. It is that of the officers of the Indian Army, serving and retired. The retirees flock to TV shows where ignorant super-patriotic anchors encourage them to vent their spleen at critics. Siddharth Varadarajan documented the Centre’s refusal to accord sanction for the prosecution of soldiers indicted for murdering innocent civilians (The Hindu, June 4, 2010). The Army rewards soldiers monetarily for each “terrorist” or “infiltrator” killed. “Informers” who lured three villagers in Machail for money and handed them over to the Army as “infiltrators” to be killed were each paid Rs.50,000; each of the three armymen against whom an inquiry was instituted was paid Rs.1,50,000.

No wonder that on June 14, 2010, Lieutenant General B.S. Jaswal, Commander-in-Chief, Northern Command, called the AFSPA “a pious book”. To him even political protest is “agitational terrorism” (Rising Kashmir, November 1, 2010). It is a colonial mindset. He conceded, though, that the AFSPA was “despised by the people of Kashmir” (Greater Kashmir, November 1, 2010). The Army chief General V.K. Singh’s plea on June 25, 2010, that its repeal would facilitate vexatious prosecution is spurious. New Delhi’s sanction is necessary for prosecution (Section 6) and New Delhi will not accord the sanction. Neglected in the entire discourse is an issue of fundamental importance—civilian supremacy over the armed forces at which successive Army chiefs have cocked a snook publicly. It is a very dangerous trend. Not only repeal of the AFSPA but even a settlement of the Siachen dispute was first torpedoed by the Army in 1989 and has since been prevented. Prof. Steven I. Wilkinson of Yale University notes in his excellent work Army and Nation (Permanent Black; pages 225): “The Army’s leadership has either openly challenged or privately briefed and leaked against the political leadership over its stance on demilitarising the Siachen Glacier (scuppering negotiations with the Pakistanis in 2007) and by successfully blocking the partial reform of the Armed Forces Special Powers Act. Many Indians, and not just those most affected by the Act in Jammu and Kashmir and in the north-east, see the Act as a blot on Indian democracy.”

Politicians have successfully confined the discussion to the state of the militancy. This is false. The real issue is whether even at the worst of times a civilised nation should empower its armed forces with AFSPA’s licence to kill and confer immunity on these forces. No other country has had such a law. India hugs the colonial relic. Mufti Mohammed Sayeed’s talk of gradual removal of the AFSPA is plain moonshine. In any case, his boss at the Centre, Narendra Modi, will refuse.