September 28, 2014 OPINION/NEWS




Anant Mishra

Post-independence, India has witnessed many secessionist movements and has long suffered from extremist attacks. The very notion of secessionism disturbs the territorial integrity and unity of a country. In order to curb the secessionist activities of the militants, the Indian government under Nehru in 1958 implemented the Armed Forces Special Powers Act (AFSPA).

With the ongoing insurgency in the North East, the AFSPA-1958 is currently applicable in the States of Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura and also the Tirap and Changlang districts of Arunachal Pradesh. Subsequently, the Parliament enacted the Armed Forces (Jammu and Kashmir) Special Powers Act-1990 for the state of Jammu & Kashmir, which came into effect on July 05, 1990.

The Act was passed in the context of separatist movements and the violence caused by them. It has received mixed reactions from across the country and has always been a debatable issue. Overwhelming presence of insurgents causes grave insecurity to the common people. It creates a situation where people have to live under constant fear and anxiety. Frequent declaration of bandh, forcible extortion and shelter by militants are sources of insecurity to the people. On the other hand, widespread protest by people against the Act clearly shows their discontent towards it.

The disturbed areas of India are home to many insurgent groups. Of North-Eastern states, Manipur tops the list with 40 such rebel groups. These states are prone to intra-tribal clashes that result into straightforward conflict between insurgents groups. The repercussions have severely affected the human security in the region.

Adversaries of the Act argue that the increased militarization of the area creates a detrimental atmosphere that ends up creating people’s protests against the State. On the other hand, the protagonists of the Act believe that extraordinary conditions demand extraordinary measures. According to them, there is no denying the fact that AFSPA gives special powers to the security forces but it also, has to be understood that there’s no other simple way to fight the insurgents. When the enemy penetrates within the civilian population it is he who has curbed the liberty of the people and not the security forces who are, in fact, trying to ensure that the right to life and dignity of the civilian population is not compromised by. AFSPA is the need of the hour.

In the AFSPA controlled areas, human rights are being violated both by state and non state actors. Counter terrorism operations undertaken in good faith, at times, lead to collateral damage. Proposals have been made to amend section 4, which gives Army powers to search premises and make arrests without warrants, use force, even to extent of causing death, destroy arms dumps, hideouts and to stop, search and seize any vehicle. Several high committee recommendations for repealing AFSPA have been rejected.

The Indian Army strongly opposes any “major dilution” or “phased withdrawal” of AFSPA. According to them, any such step will adversely affect the way military operates in militancy-hit areas. Amending AFSPA means compromising with the national security. Proposals have been made to amend section 4 which gives Army powers to search premises and make arrests without warrants, use force, even to the extent of causing death, destroy arms dumps, hideouts and to stop, search and seize any vehicle.


Protest against the Act

The Act has seen mass protests especially in Manipur and Jammu and Kashmir. On 10 September 2010, a protest against the Act in Kashmir turned violent. In Manipur, Irom Sharmila Chanu has been on a hunger strike since 2 November 2000 demanding the repealing of the Act from the state. Several high committee recommendations for repealing AFSPA have been rejected. Justice Jeevan Committee and Administrative Reforms Committee recommended that the Act should be scrapped.



To a layman, AFSPA indeed sounds like awarding the ‘Right to Kill’ to our armed forces. But it is the contents of the act that are flawed and misty.

Firstly, it makes no distinction between a peaceful gathering of five or more people and a berserk mob. So, even innocents – who have no role in creating a situation that results in that region being called ‘disturbed’, also come under the purview of the law.

Secondly, the law also states that, “no prosecution can be initiated against an officer without the previous sanction of the Central government”. Purportedly, the logic behind the inclusion of this section is, to protect the officers from frivolous and misguided allegations. The government is usually not very fluid in giving this much-needed sanction, in order to express their faith in the armed forces and protect their interests.

Thirdly, the decision of the government to declare a particular area ‘disturbed’ cannot be challenged in a court of law. This has been the heart of the problem. As the recent situation in Kashmir seems to go out of hand, leaders have now suggested that the act must be repealed from certain provinces – citing the reason that the imminent threat, due to which AFSPA was enforced in that province in the first place, has been neutralized over the years. The reasoning seems rather specious – it is nothing more than a tactic to appease the population and pacify their agitated sentiments. Antagonists of the Act ask if the threat has indeed been neutralized, then why not declare the region as ‘not disturbed’, which will by itself conclude the role of the army?


Problem of Insurgency

Problem of insurgency in the north-east has existed for more than half a century and in Jammu and Kashmir for more than two decades. And yet peace has eluded these areas. It may be argued that in the case of J&K there is an external dimension. There could be a number of causes for a region or state slipping into insurgency, but the more fundamental cause is the failure to draw the region and its people into the national mainstream, by generating inclusive growth and being alive to the sensitivities of the people of the region. Essentially, it is failure of policy to effectively deal with the causes of alienation and prevalence of poor and corrupt administration.

The main opposition to the continuance of AFSPA is its alleged misuse and consequent call for its dilution and/or withdrawal. Counter-insurgency operations are a messy affair and chances of the innocent coming in the crossfire between the army and insurgents are always high. Since the army does not have even the ordinary police powers, AFSPA essentially works as an enabling law for the military to carry out operations against the insurgents. Mistakes can take place due to the very nature of the operations, but deliberate acts of excesses or fake encounters must never be condoned. The military, on its own, has acted in innumerable cases against such offenders and scores of military personnel have been court-martialled and sent to prison or cashiered and that includes a number of officers. Perhaps there are a few cases where the army did not take action and two such incidents are the encounters at Machill and Pathribal.

The Pathribal encounter was a combined operation, between the police and the military, with the police playing a major role in this action. As soon as it was alleged to be a false encounter, military authorities should have taken action, as per the military law. Unfortunately, this did not happen, but a civil inquiry was held and police personnel concerned, including the senior superintendent of police of Anantnag, were suspended. Interestingly, no case was made against them and the senior superintendent of police was subsequently promoted and became inspector general of police. In the case of military personnel, in the more recent inquiry, nearly 80 witnesses were examined and no conclusive evidence of encounter being fake surfaced. Therefore, no further action could be taken. This has ignited agitations in Kashmir with the chief minister also jumping into the fray, forgetting that in the same incident where his police had played a major role, the inquiry had absolved the police of any wrongdoing. In the case of Machill, military is currently conducting a court martial of the military personnel concerned.


Emerging Status

The AFSPA debate has been a long sparring bout conducted in the latter half of 2011. The main boxing bout is still to be fought. Shadow boxing matches were carried out between political parties at the state level (NC, PDP and Congress); at the National level (Cong, NC and BJP); the J&K Government and State Administration against the Army within the state; the Chief Minister of J&K discussed the issue with the Army Chief, the National Security Advisor, the Home Minister, the Raksha Mantri and the Prime Minister. The media, both print and electronic, had a field day bringing defence analysts, political luminaries, experts on Kashmir, separatist leaders face to face for debates with no possible conclusion. The Lokpal Bill and related issues overtook the prolonged AFSPA debate and buried it under the welcome snowfall in Kashmir.

One issue on which there was consensus was that the time was not ripe to repeal the AFSPA while the distrust quotient with Pakistan was still high with no forward movement on talks with the separatists. Mainstream political parties have not had any meaningful debate on the AFSPA and national security is too sensitive to pass judgment to repeal, amend or partially revoke the Act on the basis of a public and media debate.

The solution probably lies in the Unified Command deliberations, wherein the Chief Minister as the Chairman should iron out the system of implementation of the AFSPA with the Army Commander and Security Advisors and appreciate the Army’s perspective of national security.






Anant Mishra

I am Anant Mishra, former youth representative United Nations.Almost 4 years of experience, I have served in number of committees including United Nations Conference for Trade and Development and Economic and Social Council primarily focusing on international trade, education, finance, economics. food crisis and disputes. Currently I am serving as State Convener – Chhattisgarh for a nation wide think tank Centre for Education Growth and Research, New Delhi. I am also serving as a member of the organising committee Global Entrepreneurship Summit 2014.Prior to this I was a foreign affairs columnist for bureaucracy today and economy analyst for business insider.Currently I am an editor for foreign affairs with political mirror, columnist for the business digest and author on international relations with youth ki awaaz. I am also an author for Indian Economic Review, Delhi School of Economics. I am an author for UNICEF. I am an educationalist with and Security Analyst with Indian Defence Review.


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