Woe to the nation that with shackled military, takes on a foe, who like the forces of nature knows no law other than its own power.
--Carl von Clauswitz, German military philosopher.
The truth about the Armed Forces Special Powers Act is that there is nothing special about it. Countries the world over, including the mother of democracy, Great Britain, have had such laws in Malaya in 1950s and Northern Ireland in the 1960s to deal with internal revolts by well armed groups.
In fact without the cover of this act, the armed forces have no power at all to act within the country.
The interesting point is that this issue has come up in the context of ongoing violence in the Kashmir valley, where the army is not involved. Yes, there are allegations of misuse of this Act and killing of innocent porters in the Machil sector. But we must await the results of an inquiry before coming to any conclusions.
As a former soldier, I can assure countrymen of one thing, if any one is found guilty, he will be punished.
But why do the armed forces need these powers?
What are the legal provisions regarding the use of armed forces in internal security?
In a debate that is marked by half truths and the inability of the armed forces to articulate their position, it is necessary to set the record straight. Some foray into the how this Act came about is necessary.
The primary role of a State is to maintain rule of law internally and peace and security externally. It is internationally recognised that the State has the right to use the necessary force to achieve it. Without this essential function being efficiently carried out, the State cannot exist and civil society cannot function.
Economic progress, our national goal, is impossible to achieve with internal turbulence and external insecurity.
Broadly speaking the State uses force against an individual or a group. The first is primarily a police function and is regulated by criminal law.
In the judicial system, checks exist to protect the individual against arbitrary exercise of this power by the State. A linkage could exist between the two types of violence as seen in some of the riots by have-nots.
When sufficient numbers of individuals lose faith in the system, the individual violence may well take the form of group violence often termed 'mob violence'. The motives are still individual, though the expression is by a group.
On the other hand, as in the Kashmir today, there exists group violence that is resorted to in order to fight the State to achieve objectives of a group, this may be an ethnic, linguistic, and political or religion-based.
This group violence can be classed under the three convenient heads: Riots, terrorism and insurgency.
As noted earlier, the riots may well have roots in individual grievances or may take place as a group activity. The mobs taking part are either unarmed or lightly armed. While in the case of insurgency, the State faces a well-armed group with a leadership and trained manpower that normally has some external support.
The Naga insurgency was supported by Pakistan and China and the Kashmir insurgency is supported by Pakistan.
Terrorism is a tactical phenomenon that is a step lower than an insurgency and is resorted to when a group lacks the required popular support.
Communist ideologue Che Guevera asserted that violence can be used to 'create' a situation where the security forces are forced to retaliate and thereby the State gets sufficiently alienated from the people leading to the creation of an insurgency.
This is the classic tactic being followed in Kashmir today to revive the dying insurgency.
The current legal framework in India is geared to deal with the two basic types of group violence, namely riots and insurgency.
The Criminal Procedure Code Sections 129 to 132 deal with the former while the Armed Forces Special Powers Act deals with the latter.
The CrPC sections dealing with riots empowers the local magistrate/police commissioner to call the army in 'aid to civil authority'. The local military commander is under legal obligation to obey this demand.
However the quantum of force and methods to be used are at the military commander's discretion. The civil authority has to give this requisition in writing.
A new Section 131 got added to the earlier law in the late 1960s. This section gives the right to a commissioned officer of the Indian Army the right to act under Section 130 even when a magistrate is not present with a caveat that at the earliest opportunity the officer will obtain such permission.
This modification was done when at a particularly violent phase in Bengal's history, the Communist Party of India-Marxist, then part of the state government, was sabotaging it from within -- the 'credit' for this goes to the then deputy chief minister and home minister, Jyoti Basu.
The situation came to such a pass that then chief minister Ajoy Mukerjee had sat on a fast on the steps of Writer's Building against his own government.
Incidents happened when despite the army's presence, there was large-scale arson. When the army personnel were criticised for inaction, they rightly pointed out that under the then existing law, the army had no authority to act hence Section 131 was added.
Section 132 protects an armed forces person against prosecution for acting under Section 130 and 131 provided the actions have been taken in 'good faith' as defined in Section 52 of the Indian Penal Code.
Section 52 of the IPC defines acts done in good faith as those actions that are taken with due attention and care.
In further elaboration, for a person acting under Section 130 and 131 of the CrPC, the conditions that must be fulfilled are: Necessity: Each act justified, no reprisals, action not with the aim to create impact elsewhere and action must be preventive and not punitive.
In addition, minimum force and impartiality have to be also be demonstrated. (These provisions are not applicable to the state of Jammu and Kashmir and tribal areas without the express permission of the local legislature or the tribal council.)
The reason to give such elaborate description of the 'aid to civil authority' legal procedure was to bust the recurrent myth of 'minimum force'.
Either out of ignorance or deliberately, the talking heads in many television debates spout catch-all phrases like this.
Minimum force is relevant in situations of riots by un-organised, leaderless and unarmed mobs.
Insurgency is essentially a guerrilla war. At the ground level there is no difference between say ambush, raid, attacks or combat patrols in a guerrilla war and conventional war.
But since this war is fought within the country and the opponents are citizens, instead of maximum force a doctrine of adequate force has emerged.
If the State wants to fight this war (and not surrender) and win it, it must protect the soldiers who risk their life and limb from litigation for collateral damage, accidental deaths and pure and simple mistakes!
The provincial government under the provision of the Disturbed Areas Act can declare the whole province or part thereof as disturbed.
In the disturbed area, a magistrate or a police officer of the rank of not less than that of a sub inspector can order opening of fire, destruction of ammunition dumps, camps or fortifications.
Section 6 of the above Act bars prosecution without the provincial government's permission.
Armed Forces Special Powers Act 1958, 1983 and 1990
This Act of Parliament extends to the entire country. Section 3 gives the authority to declare any area as disturbed to the provincial governor and the central government.
Section 4 defines the powers to the armed forces. These powers are:
a. Use of force even to the extent of causing death against any person who is breaking any law prohibiting movement or public assembly, carrying weapons, ammunition or explosive substances.
b. Destroy any arms dump, shelter, fortification, training camp or hide-outs.
c. Arrest without warrant any person who has committed or is suspected to have committed a cognisable offence or is likely to commit one. Necessary force can be used to effect this arrest.
d. Search any premise without warrant if suspicion exists of any arms, ammunition storage there or it being used as a premise to hold hostages or as a hiding place by person who have committed a cognisable offence.
e. All the above powers can be used by a person of the armed forces not below the rank of a non commissioned officer.
Under the provision of Section 6, no prosecution can be launched against a person acting under this Act without the central government's prior sanction.
The biggest criticism of this Act has been that the provisions are 'draconian'.
The point is, war is draconian, messy and inhuman.
In an insurgency situation, the nation faces war!
In fact, in the early 1990s the Kashmiri militants actually had better equipment and weapons than the Indian Army.
The argument about the erosion of democratic values is a fraud. After all, the power to declare the area as disturbed and apply AFSPA remain with the duly elected democratic government.
The real tragedy of India has been that the disturbed area status, specially in the north-east, has been routinely extended every six months!
Our so- called leaders feel quite happy to lob the ball in the court of the army (as well as keep their Z Plus protection cover). This taking the easy way out is typical of the political class world over.
The other side of Pandit Jawaharlal Nehru
Coincidentally, the Act was passed by Parliament on September 11, 1958. The bill was piloted by then home minister Gobind Ballabh Pant and the prime minister at that time was Pandit Jawaharlal Nehru.
There was vehement opposition to the bill by many MPs including then Speaker Anantshayam Aiyangar. But despite this the prime minister made sure that it became the law.
The Act was initially applicable to Assam (Nagaland was then part of Assam) and aimed at fighting the Naga rebels. But in the worst case scenario the Nagas never posed a thereat to the country.
The situation is much worse today and yet we wish to question Nehru's wisdom in pushing through this tough Act in the teeth of opposition.
As a last word, it is necessary to draw (painful) attention to the way Nehru dealt with the threat posed by Sheikh Abdullah's secessionism!
In 1953 when Nehru had a whiff of separatism, he detained Sheikh Abdullah for 11 years!
Do the rulers who swear by Nehru day in and day out have the guts to deal similarly with comparatively puny leaders like Syed Ali Shah Geelani?
Another catch-all phrase bandied about frequently is 'struggle for hearts and minds of people'.
An attractive cause transforms individual frustrations and group problems into an internal revolt. Yet the struggle for the heart and minds of the people is unlike two suitors wooing one girl. It is also a struggle between the heart and mind.
In the Indian experience in the north-east it has been seen that continuous deprivation of basic necessities to rebels and making them available to the loyal population made the choice stark for most people.
Eventually mundane concerns of living, raising the family etc scored over the lofty but unattainable goal of independence or azaadi.
The all-party conference on Kashmir has decided to send a delegation to Kashmir, but sadly we do not have a single political leader in any party who carries any kind of conviction in Kashmir.
I wish to repeat my earlier request. Civil society must step forward and persons like ex-President A P J Abdul Kalam must establish contact with Kashmiri citizens.
Actor Aamir Khan, the Deoband Mufti, Sri Sri Ravishankar or Swami Agnivesh have far greater credibility in Kashmir than the 500 or more Members of Parliament put together.
Colonel Anil Athale is co-ordinator, Initiative for Peace, Arms-control & Disarmament, Pune. He has been studying insurgency in Kashmir, the north-east, Sri Lanka, Northern Ireland and South Africa for over 20 years.