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| Adarsh and afspa are not connected | | | Col (R)Anil Bhat | 11/23/2010 8:17:14 PM |
| A Jammu based daily' recently published an article interestingly titled 'Adarsh and AFSPA' (Armed Forces Special Powers Act). While the title is journalistically catchy, there is really no connection between the two matters. It will be relevant to elaborate on both these issues, which have been in the news lately.
General Shankar Roychowdhury, former Army Chief and former Member of Parliament, has made some noteworthy observations on the Adarsh controversy, in n article published recently in The Asian Age and excerpted below.
He states that public should know that all land under current or future military use are designated "defence lands", and are the property of the Government of India acting through the ministry of defence (MoD), staffed by civil servants not even remotely connected with the defence hierarchy. The defence services, wherever located - Army, Navy or Air Force - do not "own" any land at all in the proprietary sense, but are purely in a watch and ward role, to prevent illegal encroachments.
Secondly, no military authorities at any level can independently execute any transactions involving defence land. That is the exclusive purview of the MoD, through its Defence Lands and Estates department and the Defence Estates Office (DEO) which handles all matters of estate.
There are conflicting reports at this stage regarding the provenance of the land over which both MoD and state government claim ownership, but suffice to say that if the building plot had indeed originally been defence land, the primary agent in the "land transfer scam" (if any) had to be the DEO, and not the "Army" as is generally perceived and misreported.
The controversy around the Adarsh Cooperative Housing Society can be neatly divided into two clearly demarcated components - defence (not "military") and civil. The defence aspect concerns the land and the DEO (not the Army), while the civil aspect pertains to the major political and civil administrative collusion in procedural and environmental irregularities and nepotism in allotment.
There are strong indications of subterranean linkages between the society and the DEO hierarchy, in which the executive chairman is reportedly a retired functionary of that organisation, who is already under previous CBI (Central Bureau of Investigation) investigation for fraudulently allowing civilian construction on defence land in Nagpur in 1998 (reward - two flats!), while the first list of 40 proposed members of the Adarsh Society includes eight serving and retired officials from the Defence Estates. There has been so far been no speculation regarding involvement of the military staff at Headquarters Maharashtra and Gujarat Area (M&G Area), the local headquarters who are the initiating authority in the region for the all-important "No Objection Certificate" on matters of land transactions. Instead, media reports have focused on a subordinate functionary in the Defence Estates establishment in Mumbai as the person who issued an NOC for the plot on March 30, 2000, to the effect that "the plot was located outside defence limits and there was no objection from his office to it being used for the welfare of defence personnel and war widows". (Note - no mention of "Kargil martyrs"!) The Adarsh Cooperative Housing Society expeditiously forwarded this "NOC" to the office of the city collector Mumbai, on April 5, 2000, who by ignorance or deliberate culpability treated this as an official "no objection certificate" from defence authorities and transferred the plot to the Adarsh Society.
However, the Army is investigating the matter and if any personnel are found guilty, it is expected that suitable action will speedily be taken against them.
On the Armed Forces Special Powers Act (AFSPA), often bandied about by various human rights activists as 'draconian', some facts need to be reiterated.
Parliament enacted the Armed Forces (Jammu and Kashmir) Special Powers Act 1990, effective since 5 July 1990, initially to areas falling within 20 km of the Line of Control with Rajouri, Poonch, Anantnag, Baramulla, Budgam, Kupwara, Pulwama and Srinagar districts declared as disturbed. In August 2001, it was extended to Jammu , Kathua, Udhampur, Poonch, Rajouri and Doda, when these districts were declared disturbed.
Thanks to decades of relentless efforts of Pakistan Army / Inter Services Intelligence (ISI) of providing sophisticated weapons, modern communication equipment and moral and financial support, as well as sanctuary/camps hideouts, the fighting capability of terrorists in J & K and the North East and have considerably improved over the years. Many groups even have women cadres also.
Troops and Central constabulary forces are operating in a hostile environment, in tough terrain and weather conditions, exposing themselves to grave dangers, maintaining a high degree of operational effectiveness while they are simultaneously, required to be extremely cautious in avoiding any collateral damage and loss of innocent life or property. Successes in operations and any violation or perceived violation attract attention of overground anti national factions / elements with vested interests and also the media, which in a democracy, they should. While a very large percentage of allegations made false and fabricated, operating under such environment requires a protective law which is not overarching as it is perceived to be.
The mere fact that the provisions of AFSPA have to be invoked with regard to a particular area ex facie establishes that the law and order situation there had degenerated to such an extent that the State Government with the aid of police power at its disposal was unable to maintain peace and tranquility. A natural corollary to the above would be that if the Armed Forces, who are called upon to assist the State administration in restoring normalcy, have to succeed in their task, they enjoy at least the similar powers as the Police force if not wider ones. Infact, close perusal of the various powers available to the police under the provisions of the CrPC, vis-a-vis those available to Armed Forces under AFSPA would reveal that the police still enjoy more encompassing and wider powers relating to arrest, search, seizure, summoning of witnesses, preventive detention etc than the Armed Forces.
Adequate checks and safeguards are built in the AFSPA to prevent the Armed Forces from assuming sweeping powers. Violations of its provisions are liable for legal action/prosecution. DO's and DONTs issued by the Army, duly approved by the Supreme Court are binding on all ranks. What needs to be clearly understood is that while internal security is not the Army's job, whenever a State Government requests for its deployment owing to the police not being able to handle the situation and even when AFSPA is promulgated, the governance of the State yet remains in the hands of Civil Administration and not taken over by the Armed Forces, as is wrongly perceived by many. From bare reading of the Act, it appears that security forces enjoy vast powers, yet, power to investigate offences remains reserved with the police alone.
Regarding the incidents in Dooru and Trehgam in 2009 and the incident of alleged killing of 3 civilians of Nadihal, Rafiabad in Macchil sector by Army personnel, the Army willingly opened itself to scrutiny meaningfully and with transparency by removing a commanding officer and suspending a company commander.
Since 1990, out of 38 cases where J&K Home Department sought sanction from Central Government for prosecution of Army personnel under AFSPA, 36 have been investigated and 2 are still in process. No prosecution sanction has been accorded by Central Government so far. Out of 36 cases investigated, sanction was not accorded in fourteen, two were settled and one case was referred back to Government of J&K. The remaining 19 are currently under process at Army HQ / Defence Ministry. Out of 1511 FIRs concerning human rights allegations filed against Army in last 20 years, 1508 have been investigated and 3 are under investigation. 1473 cases, amounting to 97% were found to be baseless and 35, amounting to 2.32% were found true. Out of 104 personnel punished, 39 are officers, 9 are junior commissioned officers and 56 are other ranks. With all that Pakistan's military is doing to keep Kashmir on the boil, removal of AFSPA will be very detrimental to the state and its people. |
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