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| How to break the AFSPA log jam ? | | | M.M. Khajooria | 3/27/2015 11:26:07 PM |
| The Armed Forces Special Powers Act was one of the two main sticking points in two months long intense torturous negotiation and bargaining between the Peoples Democratic Party( PDP) and Bharatya Janta Party(BJP) post 2014 Jammu and Kashmir Assembly elections which returned a somewhat baffling fractured verdict. The Common Minimum Programme they finally hammered out had the fallowing to say about the controversial Act;
"While both parties - have historically held a different view on the Armed Forces Special Powers Act (AFSPA) and the need for it in the State at present, as part of the agenda for governance of this alliance, the Coalition Government will examine the need for de-notifying 'disturbed areas'. This, as a consequence, would enable the Union Government to take a final view on the continuation of AFSPA in these areas." In essence the parties agreed to skirt the contentious issue . The conflict of political and security perceptions in respect of the nationally sensitive and operationally critical legislation(AFSPA) and deep commitments of the coalition partners to their publically stated positions carried huge potential of haunting the coalition and adversely impacting its harmonious working relations to the detriment of interests of the people. It was in the fag end of 1989 that Pakistan unleashed full blown cross-border terrorism in Jammu and Kashmir. The terrorist of the foreign and indigenous varieties were trained in Training facilities created jointly by Pakistan and USA in Afghanistan and Pakistan equipped with sophisticated weapons and latest Communication gadgetry officered by Pak army officers were let loose on the people of Kashmir. The quarter century plus of murder and mayhem and horrendous damage done to the social fabric, cultural ethos and destruction of economic infrastructure was by now the darkest chapter of the history of Jammu and Kashmir.
In the given situation enactment of the ARMED FORCES (JAMMU AND KASHMIR) SPECIAL POWERS ACT, 1990 ( AFSPA) was the prime and indispensible need of the hour. The Security forces were engaged in an undeclared war which later came to be identified as proxy war being waged by Pakistan in Jammu & Kashmir even by Prime minister Modi .The Act provided the Forces with legal cover to enable them to perform their assigned role in an unconventional war without borders by terrorists who were law unto themselves recognised no rules or international conventions relating to wars. In time, the twists and turns of Kashmir politics promoted a mad race to run an extra mile in support of the separatists' demand for abrogation of AFSPA in questionable quest for separatist space. It may be emphasised here that provisions of the Act were enabling not mandatory. Why the ASPA? Section 3 of the Act specified the activities for the prevention of which the provisions of the Act can be made applicable in "the whole or any part of the State"… in such a disturbed and dangerous condition" necessitating "the use of armed forces in aid of the civil power" (a) activities involving terrorist acts directed towards overawing the Government as by law established or striking terror in the people or any section of the people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people;
(b) activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India from the Union or causing insult to the Indian National Flag, the Indian National Anthem and the Constitution of India" That such activities were still being carried on by the terrorists and their over ground counterparts in the territory of the state of Jammu & Kashmir was an incontrovertible fact. This reality alone was sufficient to negate the demand for abrogation of the Act
According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as "disturbed", a designated officer of the armed forces has powers to:
*Fire upon or use other kinds of force even if it causes death
*To arrest without a warrant and with the use of "necessary" force anyone Who has committed certain offences or is suspected of having done so.
*To enter and search any premise in order to make such arrests.
These powers are required to be exercised with due care and caution An element of accountability was in built . In each case the determination (for invoking provisions of the Act) had to be made by the "designated officer"-The act provides that such action will be taken " If in his ( Officers') opinion it is necessary to do so….. While assessing the justification for grant of such "sweeping and excessive powers" to the armed forces in disturbed" areas it should be remembered that the men and women in uniform were arrayed against well trained, brainwashed fanatical terrorists fully equipped with most modern sophisticated weapons in a fight to the finish .It was a war , call it proxy war if you will in which only the one who fired first survived. These facts were well known ,documented and incontrovertible. The problem ,however arose when the context in which the exercise of the special powers were exercisable was erroneously or mischievously distorted as response to civil commotion or "normal" law and order situations .
AFSPA was enacted by the parliament to deal with the extra ordinarily disturbed situation prevailing in Jammu & Kashmir. It was not intended to be permanently on the statue book. logically those desirous of abrogation of the Act should work for early restoration of peace and demise of terrorism in the state which would enable Army to revert to its original role of defending our borders resulting in abrogation / non-application of AFSPA .The irony, however was that over ground faces of terrorism and other Pak strategic assets engaged in terrorist and subversive activities were in the forefront of demanding the abrogation of AFSPA. The unconcealed objective was to weaken the forces capability to defeat their nefarious designs. Only the other day Chief Minister Mufti declared his resolve to initiate the process of "de-notification" in a phased manner "taking the army on board". The Army had reiterated its position in no uncertain terms." No abrogation or dilution of AFSPA " Even Mufti,s alliance partner, the BJP had hardened its stand against any tinkering with AFSPA after the recent Fidayeen attack on Samba and Kathua, which fall in the parliamentary constituency of Dr, Jatinder Singh MOS PMO. Even otherwise, the vague and much qualified formulation was inherently unrealistic and impracticable .It failed to factor in the ground realities and the cross border character of terrorism. Mere declaration of a particular area disturbance-free on whatever basis would be meaningless as long as the ISI bosses in Islamabad willed otherwise. Their strike capacity undiminished a single terror strike in the de-notified area would instantly change its character. The recent Fidayeen attacks in Kathua and Samba illustrate this point tellingly. Moreover, the movements of army personnel, armament and other critical supplies were almost entirely dependent on surface transportation. Major portion of the National Highways and other arterial roads would inevitably fall in one or other de-notified zone. So what happened when an army convoy was attacked by terrorists in one such area? The engagement will obviously involve the civilian area from where the assault was mounted exposing civilians to collateral damage. What does the army do in such circumstances? Hold fire, rush some one to the nearest Police Station to lodge an FIR against "Un known armed miscreants" or take the terrorists on and then and in case of casualties plead self defence in the court of law ? All this sounded ridiculous but that was the most likely scenario under the fancied de-notification of certain areas. As it is ,numerous army installations were strewn all over the state necessitating army movement to and from such locations and consequent exposure to terrorist attacks.
It may be rewarding to learn lesson from the Manipur experience where the applicability of the Act was dispensed with from certain areas in August 2004. The experiment created more problem than it solved. The areas exempted from the AFSPA became safe heavens for the terrorist who after conducting operations elsewhere quickly moved therein for shelter. Imphal, the capitol city and exempted area had by now earned the dubious titles of Extortionist Heaven and "Bombing capital of India". In eighty days (as on 15 March, 2015) the city witnessed thirty Bombing attacks. Please remember that the trouble in this area was local devoid of any promotion or support from a neighbouring foreign power with expansionist agenda and Islamist Global terror machine to motivate, finance and sustain its momentum. It goes without saying that a solution had to be hammered out that struck a fair and acceptable balance between the needs of National security and "respect for human rights" of the citizens. But before attempting that it was necessary to flag some fundamental non-variables in the situation. One. There was no chance of abrogating or diluting AFSPA as long as Pakistan continued to wage cross border terror/ proxy war. Pakistan would be dissuaded from persisting with the Proxy war only if:
1)Through a miracle a totally professional army leadership assumed control, recognised the reality that India had no territorial designs on Pakistan nor was that country interested in demolishing the Islamic Republic. Bangla Desh revolt was primarily a reaction to the discriminatory economic and legislative policies of Rulers and extreme excesses committed by Pak army for which clinching evidence was documented by Hamoodur Rehman Commission. Such leadership may opt to work for genuine understanding and mutual co-operation and initiate negotiation in the letter and spirit of the Shimla Agreement which provided framework for serious and meaningful negotiation on all maters of mutual interest and resolution of contentious issues.
Two. The United States and her allies succeeded in convincing Pakistan that threatened as she was by TTP its allies and mentors which now included ISIS Caliphate, and mounting sectarian conflicts tearing asunder the social fabric it was in her interest to mend fences with India, call off cross-border terrorism, demolish training facilities and engage in dialogue to improve relations for mutual benefit and work peacefully for resolution of Kashmir tangle. Three. Through various conventional and innovative measures of all varieties( which need not be spelled out here) convince or coerce Pakistan to realise that the continuation of proxy war would entail costs that were totally prohibitive. Fourth. Let the current policy paralysis continue till the Indian state was too deliberated to contest Pakistan and its Pan Islamist mentors over the dispute over Jammu and Kashmir. Even those who pursue this disastrous course would not dare the to stand up and be counted. However, the nation needed to be warned of this creeping cancer of erosion of the will to preserve the integrity of the country and unity of our nation. Before spelling out the immediate course of action to defuse the controversy, let it be stated categorically and unambiguously that the pressure for uninterrupted and uninterruptable dialogue and peace processes were integral to the overall strategy to obtain de-accession of Jammu and Kashmir, push the expansionist agenda and divert attention from the core terrorist thrust. The lull in operations was, most of the time dictated by need to refresh and reinforce terrorist foot soldiers and commanders neutralised by the India Security forces.
Now about the solution.;
1. Concede that AFSPA will stay till the issue of proxy war/ cross border terrorism was resolved with Pakistan. However, the invocation of its provisions must be closely monitored and Commanding officers of the units concerned held accountable for any excess for which there should manifestly be Zero tolerance. The arrangement under which almost all operations were being jointly conducted by Amy and the Police should be institutionalised, if not already done 2.De-politicalise the issue 3. Let the Unified Command develop consensus on areas from where the army may be relieved from counter-terrorism duties. To begin with and as a Pilot Project one such area may be handed over to Jam-mu and Kashmir Armed Police for security and counter - terrorism duties . To develop requisite capability to take on this role four battalions of JKAP may be specially put together by selection from the force. This special Force should be young in profile -constables/ Head constables below thirty years, NGO'S, not above forty and Gazetted officers less than forty five of age. The commanding officers should be young, energetic and above all not only willing but enthusiastic about accepting the challenging assignment. These Battalions should be put through re-orientation capsule courses under arrangements with the Rashterya Rifles and their absolute fitness both professional and psychological certified by a committee consisting of senior Army and Police aided and assisted by qualified Psychologists and Perception Management Experts. - post training The personnel of this elite force should wear distinct insignia and receive special pay , due credit being given to them by Departmental Promotion Committees. 4. The district Police and administrative set ups should be similarly revamped in terms of human resource, documentation and people friendly work culture with zero tolerance for incompetence, ineptitude and irregularity of any kind.
5. In these areas the Army should be strategically re-located in fast tracked back up role. The AFSPA , to be candid was the favoured whip lash of politicians who had persuaded the common man to believe that all his daily problems vis a vis army flowed from this legislation. This was a downright lie. The misfortune of uniformed forces was that their performance was not judged by their best but the worst indicator. Most of public greivances emanate from 'rude and aggressive behaviour' by men in uniform say while asking a motorist to stop, park aside or defer to an army vehicle. In many cases the body language of men in uniform was similarly perceived. In essence there was requirement for the army to accelerate its efforts at image change and acquire a people friendly profile- an army engaged in defence of the country and protection of its citizens. Their Civic Action Programme had yielded excellent dividends in rural areas. The same spirit must inform the relations with citizens in urban areas. Once a relationship of mutual respect and understanding was established between men and women in uniform and citizens, the 'AFSPA scare' would evaporate. This option had the merit of denying ground for usual accusations that the men and women in uniform were being sent into action with their hands tied behind their backs . The special powers would still be available but to be used under controlled conditions. At the same time the civil society will be assured that an element of specific accountability had been built into the system. The moving out of the Army from selected areas and its replacement by Jammu and Kashmir police should help induce an environment of normalcy. The hope and scope of more and more areas being included in this category was bound to promote and enhance the peoples' participation in ushering in peace and strengthen the urge for normalcy for which people of the state yearn. |
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