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| Is AFSPA a Draconian Act ? | | | Jasbir Sarai | 11/14/2011 12:05:59 AM |
| The Armed Forces Special Powers Act (AFSPA) is in the proverbial "centre f the storm" currently. This is mainly because of a misplaced belief of its "draconian" nature which is being exploited by some segments due to personal agendas. Some on the fringes of the media glare and looking for free publicity pontificate on the issue; others look towards it as a political opportunity. The media, of course, laps up the proceedings with unmitigated glee. In the bargain national security is being trivialised and the Nation is being exposed to a huge security risk. Though an oft written upon subject, the ongoing debate makes in necessary to, once again, reiterate the architecture of the Act to establish its nature and requirement. The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 came into effect on July, 05, 1990. Initially the Government had declared areas falling within 20 km of the line of control districts of Rajouri and Poonch and the Districts of Anantnag, Baramulla, Bud-gam, Kupwara, Pulwama and Srinagar as disturbed. Subsequently in August, 2001 the Act was extended to Districts of Jammu, Kathua, Udhampur, Poo-nch, Rajouri and Doda.
It may be noted that the extension was carried out when terrorism was on the wane. The intention was to provide more teeth to anti-terrorist operations by facilitating smooth functioning of the security forces across the State rather than in a few pockets. Even today this requirement is very much there; therefore, the premise under which the very same National Conference which allowed the extension of the act across the State is now demanding its partial revocation is not understood.
There is no denying that AFSPA gives the security forces (Army, BS, CRPF and ITBP) some special powers. These include powers to search premises and make arrests without warrants, use force even to the extent of causing death, destroy fortifications/ shelters/hideouts and to stop, search and seize vehicles. However, the Act also stipulates that arrested persons and seized property be made over to the police with least possible delay; a stipulation that is being followed most persistently. Undoubtedly, the Act offers protection to security persons acting in good faith in their official capacity and prosecution is permitted only after sanction of the Central Government. Surely, not one person in India would grudge this protection for soldiers who are risking their lives for the cause of the Nation.
The provisions of AFSPA do not deviate too much from the norms of protection provided to government servants and Police personnel through the Code of Criminal Procedure (CrPC) and other enabling legislations. Section 45 of the CrPC disallows arrest of public servants; this section, however, is not valid in J&K where the Ranbir Penal Code is applicable and ipso facto, persons of Armed Forces can be arrested for any perceived excesses if AFSPA is not instituted; this fortifies the need for a protective umbrella for forces functioning in J&K. The Supreme Court has also mandated a Government sanction prior to initiating prosecution against police personnel for excesses or killings committed during the maintenance of law and order. Thereby, police authorities still enjoy more encompassing and wider powers relating to arrest, search, seizure, summoning of witnesses, preventive detention etc than the powers enjoyed by the Armed Forces through AFSPA. Adequate checks and safeguards are inbuilt within AFSPA. The Army procedures ensure minimum force during arrest/search of persons, opening of fire with due warning etc. Prompt disciplinary action is initiated against defaulters under Army Act 1950. The Army has, till date, punished 104 individuals (39 Officers, 09 JCO and 56 OR). This figure is in excess of those prosecuted by the JK Police and other Para-military forces functioning in the State. Are they not as liable to commit excess as the Army and have not their excesses not been reported in the media on many occasions? Why then are fingers being raised only against the Army which has, most aptly, demonstrated its seriousness in dealing with cases of human rights violations? In fact, AFSPA puts more checks on security forces then what a civil law would impose.
The Justice Jeevan Reddy Commission constituted in 2004 had, in its recommendations, stated that provisions of AFSPA should be incorporated in UAPA, 1967, which will be applicable to the whole country. The then Defence Minister, Shri Pranab Mukherjee, had stipulated that the "armed forces require protection while operating in disturbed areas". The present incumbent Shri AK Antony has expressed similar views on the subject. This apart, in a case titled 'Naga People's Movement of Human Rights Vs UOI', a five-judge constitution bench of the Supreme Court had ruled that conferring of powers vide Section 4 of AFSPA could not be held arbitrary or violative of Article 14, 19 or 21 of the Constitution. The Court went on to extend the powers of AFSPA to include interrogation of persons arrested and retention of weapons seized during the operations.
The propagandist acrimony that is being generated against the Act in the public domain is hurting the image of the country's Armed Forces due to no fault of theirs. The disciplined Indian Army simply caries out the task vested upon it by the Government of India day, be it related to external or internal security, disaster management on any other form of national emergency. In the performance of its duties it has earned the unstinting admiration and support of the entire nation. This unseemly debate is showing this nationalistic institution in a bad light. Naturally, the repercussion of demonis-ing the army will go beyond the borders of the country and inimical foreign forces will exploit this chink in the Nations security. Undeniably, when the right time to revoke AFSPA comes the Army will stand by the political decision. In the meantime, it would be best to allow it to perform its duty unhindered and with complete support of the Nation. |
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