The debate on the removal of the ‘disturbed area’ tag, and thus revocation of AFSPA from parts of J&K, should be viewed in that light and not as a confrontation between state political leadership and the Army. A public debate on such a sensitive security issue is best avoided.

Alot has been written about the Armed Forces Special Powers Act (AFSPA) in Jammu and Kashmir (J&K). Should we start its gradual revocation, or wait till overt and covert security threats in the state are further weakened or eliminated? The raging debate through social and regular media has not only politicised a sensitive security issue and made it more difficult to decide, it has also created an undesirable confrontation like situation between political leaders of the state (some outside also!) and the Army, and further demonised the AFSPA and maligned the Army in public perception. This would also make it difficult for the Central Government to promulgate AFSPA anywhere in future and thus restrict its ability to call for Army assistance for counter-militancy operations.

Counter-militancy operations are conducted in three stages. In the first stage, when secessionists’ activities and militants’ violence are at their peak–as was faced in Kashmir Valley in 1990 and the law and order situation does not permit adequate governance–the affected area is declared a ‘Disturbed Area’ by the state and the Centre. This legality paves the way for application of the AFSPA in the affected area to enable the Army to conduct effective anti-militancy operations. In the second stage, military pressure on the violence perpetrators enables return of administration and resumption of constitutional processes. The third stage sees full-fledged functioning of governance and civil administration and return of the Army to barracks.

There are no clearly defined dividing lines in these stages due to frequent setbacks in counter-militancy operations and the law and order situation. These stages, therefore, tend to merge into each other and require informed and perceptive decision-making at strategic and operational levels. During transition, particularly between the second and third stages, it is not uncommon to see a hot politico-military debate on the employment of the Army or the application of AFSPA in affected areas.

So, the first point I wish to make is that the current debate on the removal of the ‘disturbed area’ tag, and thus revocation of AFSPA from parts of J&K, should be viewed in that light and not as a confrontation between state political leadership and the Army. A public debate on such a sensitive security issue is best avoided.

In this context, let me narrate some personal experiences.

In early 1990, I was commanding a division that had troops deployed for counter-insurgency operations in Nagaland and Manipur. A political party leader, in order to garner students’ support and votes, made the removal of the AFSPA a major electoral issue. After he won the elections and became the Chief Minister, I called on him and asked what he planned to do about the AFSPA. He said that in view of the popular demand, he would write to the Home Ministry and demand its revocation from the state. I told the Chief Minister that it was OK with me. I will pull out troops from the 60-odd posts, concentrate them outside Manipur and train them for their primary role of fighting a conventional war. “But you cannot do that! What will happen to the law and order situation?” he said. I told him politely but firmly that I couldn’t help him to maintain that without a proper legal cover for my troops. Despite several elections in Manipur since then, the state, unfortunately, continues to have a ‘disturbed area’ tag on it and continues to have Army deployment on counter-military missions.

In late 1993, when I was commanding a Corps in Punjab, we assessed that the law and order situation was adequately under control and we could pull out a brigade from an area for conventional training and redeployment. The Chief Minister and the Director General of Police expressed serious concern but went along with me when I told them that Army would be made available at short notice if required. Fortunately, there was no such requirement.

In late 1997, then Chief Minister of J&K asked 15 Corps to remove Army deployments within Anantnag, Badgam, Baramula and Sopore towns. We agreed and re-deployed troops outside these towns. There was near normalcy in Kashmir Valley in 1998. Next year, however, despite the Lahore Declaration, Pakistan Army intruded into Kargil sector and forced us to go to war. After a resounding defeat and loss of face in Kargil, Pakistan pushed foreign militants into the Valley and managed to intensify militancy. Sopore became a militants’ stronghold. It took a division size operation to get rid of them from this town and three more years to bring back militancy in the Valley to the 1998 level.

AFSPA

The AFSPA has been much demonised by civil society groups and the media in recent years. Two aspects need to be noted. Firstly, the AFSPA can be applied only after an area is declared a ‘disturbed area’ by the state/Centre. Secondly, it provides a legal cover for Army personnel in carrying out ‘effective’ counter-militancy operations. Under the AFSPA, in a ‘disturbed area’, a commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces can:

• Arrest without warrant any person who has committed a cognizable offence and may use suitable force, if necessary to do so. Enter any premises without a warrant to arrest a terrorist/suspect, or to recover a wrongfully confined person, stolen property, or arms/explosives wrongfully kept.
• Fire upon/use force, even causing death, against any person contravening law and order or carrying weapons, ammunition or explosives, if in his opinion it is necessary for maintenance of law and order and after giving due warning.
• Destroy an armed dump or fortified position or a shelter from which armed attacks can be made or can be used for training by hostiles, if necessary to do so.

The Act lays down that the arrested persons will be handed over to the nearest police station ‘with the least possible delay’, and no prosecution, suit or other legal proceeding can be instituted against any person in respect of anything done under this Act except with the previous sanction of the Central Government.

The AFSPA may have been described as a ‘special power’. But those of us who have commanded troops in such situations have always looked upon it as a legal protection to conduct effective operations. On the flip side, whenever law and order situation improves in a ‘disturbed area’ and we have elected representatives governing the state, they find it difficult to continue with this Act. The reasons are:

• Democratic societies all over the world abhor large scale and extended deployment of troops in their midst.
• Human rightists and the media over the years have dubbed the AFSPA as a ‘draconian’ power given to the military against the civilians. It has become a convenient tool for the secessionist elements, and those in opposition, to embarrass the government and demand withdrawal of troops.
• Despite strict discipline and training, there are aberrations of human rights violations by troops. These aberrations can be reduced but seldom eliminated in the kind of operational duties which have to be performed.