Naxalites, insurgents and anti-national elements (ANEs) are active in various parts of our Motherland, but the state of Jammu & Kashmir (J & K) has been battling an upsurge in violence since the killing of the militant Burhan Wani by security forces (SF), last year. The pelting of stones on the security personnel has been going on for quite some time and now, the recent incident of the abduction and killing of an officer of the Indian Army, Lt. Ummer Fayaz, who was on leave for a relative’s wedding, must be seen as an open challenge to the nation and its forces who are engaged in dealing with the misguided youth/militants. We must know under what circumstances and restrictions our men in Khaki are performing their assigned duties in the areas where AFSPA (Armed Forces Special Powers Act) is not applicable. And, even if AFSPA is applicable, the imposition of certain local restrictions do not permit the SF to follow the Act in its totality to deal with the prevailing situations.
Defining democracy and security
While our democracy guarantees Fundamental Rights to all its citizens, for a soldier, these same rights come under some restrictions due to the nature of his/her duties. Similarly, while the ‘security’ of a nation encompasses protection, safety and freedom from internal and external dangers, internal dissensions cause a lot of strife in the country. Since our borders are porous, the faultlines of our society are exploited by our neighbours who wage proxy wars and pump-in drugs, man-portable arms, terrorists, fake currency, illegal immigrants etc. A soldier performs his/her task while dealing with the countrymen with minimum adequate force, with impartiality, and in good faith. But, while guarding borders or LOC (Line of Control), he/she has to be ruthless against the enemies of the State and does not hesitate to make his/her supreme sacrifice.
The enlisted soldier
After the successful completion of military and technical training, he/she pledges to go by air, sea or on ground, and perform duties as per the Constitution of India, without considering his/her own safety. Similarly, at the time of passing out as a Young Officer in the Indian Armed Forces, he/she pledges to safeguard the security of the country first, then of his/her subordinates, and lastly of himself/herself. The young officer comes under the Army/Navy/Air Force Acts and is dealt with for all minor/major offences speedily, except for civil offences.
Soldiers and human rights: national conventions
Articles 14 and 21: Article 14 relates to equality before law and equal protection of law, no discrimination against any citizen on grounds of religion, race, caste, sex, place of birth etc. There are other conventions like right to freedom of speech and expression, to assemble peacefully and without arms, form association or unions, move freely throughout the country, choice of residence in any part of the country (except in a state where special provisions are made to the contrary), choice of profession, not to be compelled to be a witness against him/herself.
Similarly, Article 21 relates to protection of life and personal liberty, whereas protection against arrest and detention, is given out in Article 22.
Hence, all armed forces personnel are to protect human rights and uphold human dignity, which is ensured by military discipline, compassion and camaraderie, treating everyone alike, maintaining an apolitical entity, and by cultivating /creation of goodwill amongst the civil population. It is an irony that a soldier in hostile environments cannot even ensure/ask to uphold his/her own human rights.
Indian Officials Secret Act – 1923 as amended by Act 24/67 and its applicability to the SF: The Act lays down the provisions for security of military establishments, offices and official documents, regulating admission to others in prohibited places. It also bans communication with foreign agents, wrongful communication of information, and unauthorised use of uniforms. He/she signs the certificate every year to uphold the provisions of the Act.
Soldiers’ communication to the press/media: It may please be noted that as per the Defence Services Regulations, 1987, permission of the Central government is sought but, only on issues which are not political or non-controversial.
Yet, readers may find certain details/subjects which are published/aired on TV channels, disregarding the effects on a soldier’s morale and motivation.
Soldiers’ role while performing duties in aid to civil authorities: These are maintenance of law and order, maintenance of essential services, assistance during natural calamities and any other type of assistance when requisitioned by the civil authorities (the Magistrate). Soldiers must fire with intention to incapacitate, rather than to kill. Limited legal indemnity is available under Code of Criminal Procedure Section 132. But, on ground, the local restrictions are imposed due to considerations beyond the comprehension of a soldier.
What is The Armed Forces (Special Powers) Act – 1958 (AFSPA)?
This Act was passed on 11 September, 1958, by the Parliament of India. It conferred special powers upon Armed Forces in what the language of the Act calls “Disturbed Areas” in the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura (states bordering China, Myanmar(Burma) and Bangladesh (then known as East Pakistan). It was later extended to Jammu and Kashmir as The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, in July 1990.
According to the AFSPA, in an area that is proclaimed as “disturbed” (the peace, quiet, calm, or the civil government’s orders have been broken), an officer of the Armed Forces has powers to:
It was withdrawn by the Manipur government in some of the constituencies in August 2004 in spite of the Central government not favouring withdrawal of the Act. In December 2006, responding to what he said were ‘legitimate’ grievances of the people of Manipur, Prime Minister Manmohan Singh declared that the Act would be amended to ensure it was ‘humane’ on the basis of the Jeevan Reddy Commission’s report, which is believed to have recommended the Act’s repeal. But, one should know that acting without such powers would result in prolonged court cases which a fighting Force can ill afford due to constraints in manpower in such areas.
The UNHCR angle
When India presented its second periodic report to the United Nations Human Rights Committee (UNHRC) in 1991, members of the UNHRC asked numerous questions about the validity of the AFSPA. They questioned the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights (ICCPR).
The Attorney General of India responded to the UNHRC that the AFSPA is a necessary measure to prevent the secession of the Northeastern states (Arunachal Pradesh, Assam, Meghalaya, Tripura, Mizoram, Manipur and Nagaland). He said that a response to this agitation for secession in the Northeast had to be done on a “war footing.” He argued that the Article 355 of the Indian Constitution made it the duty of the Central Government to protect the states from internal disturbance, and that there is no duty under international law to allow secession. Indian officials claim that troops need such powers because the Army is only deployed when national security is at serious risk from armed combatants. Such circumstances, they say, call for extraordinary measures.”
Human rights organisations have also asked the Indian government to repeal the Public Safety Act, since “a detainee may be held in administrative detention for a maximum of two years without a court order. Nineteen years later after the introduction of this Act in the Valley, on 23 March 2009, the UN Commissioner for Human Rights, Navanethem Pillay, asked India to repeal the AFSPA. She termed the law as “outdated and colonial-era law that breach contemporary international human rights standards”. Many human rights organisations such as Amnesty International and Human Rights Watch (HRW) have condemned human rights abuses in Kashmir by Indians such as “extra-judicial executions”, “disappearances”, and torture; and termed the “Armed Forces Special Powers Act”, as which “provides impunity for human rights abuses and fuels cycles of violence.”
Recently, the J & K Valley has been battling an upsurge in violence since the killing of militant, Burhan Wani by Security Forces, last year. The pelting of stones on the SF has been going on for quite some time and now, the May 2017 abduction and killing of an Officer of the Indian Army, Lt. Ummer Fayaz who was on leave for a relative’s wedding, must be seen as an open challenge to the nation and its forces.
If the AFSPA is not operative, troops without legal protection, will be busy doing the rounds of the police station, in response to FIRs filed, appearing in various civil courts as witnesses or defendants.
So, the choice is yours, citizens, to keep the Act or repeal it ! As per Article 355 of the Indian Constitution, it is the duty of the Central government to protect the States from internal disturbance. I, as a citizen of this country, having participated in counter insurgency operations in Mizoram, Assam, Arunachal Pradesh and J & K, strongly feel that troops need such powers as given in the AFSPA because the Armed Forces are only deployed when national security is at serious risk from the armed combatants/insurgents and this Act enables a soldier to undertake extraordinary measures to safeguard national interests. Otherwise, he is burdened by the load of restrictions as highlighted above.n