The UPA is all set to take another look at the controversial Armed Forces Special Powers Act (AFSPA), armed with a devastating critique of the law by IDSA. The Institute for Defence Studies and Analyses, the government's premier think tank, has concluded in a blistering appraisal report, that "status quo is no longer acceptable". It suggests major changes, or the replacement of AFSPA — the law that gives sweeping powers to the Centre's counter-insurgency forces — by a more acceptable law. The law is in force in Jammu & Kashmir and the Northeast.
India's military leadership is opposed to any change in the law, which gives the forces legal basis to conduct counter-insurgency operations on the country's troubled frontiers. The military brass insists that repeal or dilution will compromise India's war against cross-border terrorism.
The UPA government has so far been treading cautiously on this sensitive issue, not wanting to be seen as overruling the military on a national security issue. But the stunning anti-AFSPA blow by the government's defence and strategic affairs think tank reflects the view widely gaining ground in the establishment that the law has now become a political liability.
The IDSA warns of "the danger of AFSPA becoming a symbol of (state) oppression", and goes on to state that "continued deploymnent of AFSPA in its present is only deepening the divide between the people and the Army".
The report is a rebuke of the Army's anti-change position, suggesting that the demand for change "should have come from the Army, whose good work is being undone by the ghost of AFSPA that continues to haunt the present with the baggage of the past", and that it's "in the interest of the Government that AFSPA changes".
Recently-retired Home Secretary G.K. Pillai, who is also associated with the report, says the "anti-people" image of this law, enacted as an enabler to fight proxy wars, should not be ignored. "There's a public perception that AFSPA is anti-people and gives the armed forces licence to act with impunity and commit human rights violations without accountability," he says, adding that stonewalling by the forces even in clear cases of rights abuse strengthens the perception.
Sources reveal to The Sunday Guardian that the Army tried to scuttle the report, which is ironically edited by a highly-rated, recently retired Army officer. But the Army's opposition to the AFSPA study was overruled by Defence Minister A.K. Antony, in a clear signal that the UPA is open to review.
There are far-reaching recommendations to "civilise" military policing. Foremost among them is that the principle of use of minimum force be made part of the law, which takes away a lot of discretion from local commanders and addresses concerns over excessive use of force. AFSPA in its present form authorises the Army, CRPF and the BSF to shoot to kill in areas declared disturbed, to arrest and search without warrant and provides the forces immunity from prosecution. The law gives discretion to virtually all ranks of the Army to open fire even to disperse any assembly of five or more persons.
Veteran Kashmir hand Wajahat Habibullah holds the view that AFSPA, which overrides common law and the safeguards in the Code of Criminal Procedure, can be held to be in violation of the right to life. While conceding the final say to the armed forces, he wants safeguards to be written in the text of the law.
The Dos and Don'ts reiterated suggest that no operation be carried out by the Army or Central forces without the involvement or knowledge of the civilian government, and that no woman be searched by troops, and that detailed records be maintained of all operations, including the names of all personnel involved in the operation. These guidelines also forbid the torture of persons arrested by the Army.
What has raised the hackles of human rights groups is that permission to prosecute personnel for alleged offences has never been given by the Central government. The IDSA report seeks time-bound investigations into all human rights complaints, reasons for delay explained and the status put on websites. Failure to prosecute high-profile cases of excesses like the Machhil killings of 2010 have added to the anti-AFSPA chorus.
The report is also an indictment of the indefinite deployment of the Army for internal security. "I'm firmly of the view that in a democracy, Army must be employed for a limited period... Unfortunately, it's just the opposite in practice," rues Pillai, who describes indefinite dependence on Army deployment in disturbed areas as "an alibi for poor governance and the failure of the government to enforce law and order."