Why is AFSPA necessary for India

Endeavour

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AFSPA: The Army needs it!
September 06, 2016






'Army personnel must be given immunity but such immunity must not be absolute, nor is it so under the present Armed Forces Special Powers Act.' Brigadier Gurmeet Kanwal (retd) lists why India must not do away with the controversial AFSPA, but ensure enough transparency to avoid confrontation with human rights.



Referring to the continuation of the Armed Forces Special Powers Act, senior political leaders no longer in government have insinuated on national television that the Indian Army has been given a veto over the decisions of the Cabinet Committee on Security. Can this ever be true?

The army, navy and air force chiefs are not even permanent invitees to meetings of the CCS; they attend only those meetings to which they are invited by name.

It is the army chief's rightful responsibility to give his recommendations on issues on which his advice is sought by the defence minister and it is up to the latter and the prime minister to accept or reject it.

The army has been and continues to remain scrupulously apolitical and senior political leaders, whether in the government or not, must not create false perceptions.

As for AFSPA, the Act has been under review for quite some time.

While the defence ministry and Army headquarters are opposed to changes in the basic provisions of the Act, the home ministry is reported to have recommended a major overhaul of the Act to bring it in line with egalitarian human rights practices.

The Army clearly sees AFSPA as a capstone enabling Act that gives it the powers necessary to conduct counter-insurgency operations efficiently.

The Act provides army personnel with Constitutional safeguards against malicious, vindictive and frivolous prosecution.

These powers are available to the police under the Criminal Procedure Code, CrPC.

If AFSPA is repealed or diluted, it is the army leadership's considered view that the performance of battalions in counter-insurgency operations will be adversely affected and the terrorists or insurgents will seize the initiative.

However, certain sections of the civil society view AFSPA as a draconian Act.

It has been dubbed as a license to kill by Syed Ali Shah Geelani, a hardline separatist Kashmiri leader.

The Act has been opposed in the north-eastern states as well. Irom Sharmila, a Manipuri civil rights activist, undertook a long fast that began in November 2000 to force the government to repeal AFSPA from Manipur and other north-eastern states.(Sharmila ended her fast on August 9, 2016 and declared her intention to become the chief minister so that she could repeal AFSPA.)

AFSPA was promulgated in 1958 in Assam and Manipur and in 1990 in J&K. The main criticism of the Act is directed against the provisions of Section 4, which gives the armed forces the power to open fire and even cause death, if prohibitory orders are violated.

It also confers the power to destroy structures used as hideouts, training camps or places from where attacks against security forces could be launched;
the power to arrest without warrant and to use force for the purpose if necessary;
and, the power to enter and search premises without warrant to make an arrest or recover hostages, arms, ammunition or stolen property.


Human rights activists object on the grounds that these provisions give the security forces unbridled powers to arrest, search, seize and even shoot to kill.

They accuse the security forces of having destroyed homes and entire villages merely on the suspicion that insurgents were hiding there. They point out that Section 4 empowers the armed forces to arrest citizens without warrant and keep them in custody for several days.

They also object to Section 6, which protects security forces personnel from prosecution except with the prior sanction of the central government.

Critics say this provision has on many occasions led to even non-commissioned officers brazenly opening fire on crowds without having to justify their action.

Critics forget that Section 5 of the Act already mandates that arrested civilians must be handed over to the nearest police station 'with the least possible delay' along with a report of 'circumstances occasioning the arrest.'

Army HQ has laid down that all suspects who are arrested will be handed over to civilian authorities within 24 hours.

Regarding firing on civilians, the army's instructions are that fire may be opened in towns and villages only in self defence and that too when the source of terrorist or militant fire can be clearly identified.

If soldiers had been opening fire indiscriminately, there would have been hundreds of more civilian casualties in J&K since 1989-1990 when the insurgency had begun.

A committee headed by Justice Jeevan Reddy was appointed in 2004 to review AFSPA. Though the committee found that the powers conferred under the Act are not absolute, it nevertheless concluded that the Act should be repealed.

However, it recommended that essential provisions of the Act be inserted into the Unlawful Activities (Prevention) Act of 1967.

The key recommendations of the Reddy Committee were:

  • In case the situation so warrants, the state government may request the Union government to deploy the army for not more than six months.
  • The Union government may also deploy the armed forces without a request from the state. However, the situation should be reviewed after six months and Parliament's approval should be sought for extending the deployment.
  • Non-commissioned officers may continue to have the power to fire.
  • Arrested persons should be handed over to the civil police.
  • The Union government should set up an independent grievances cell in each district where the Act is in force.
  • The Second Administrative Reforms Commission headed by then Union law minister M Veerappa Moily also recommended that AFSPA should be repealed and its essential provisions should be incorporated in the UAPA. If this course of action is adopted, it would be a retrograde step that will substantially harm the national cause.
  • Extraordinary situations require special handling. As the army does not have any police powers under the Constitution, it is in the national interest to give it special powers for operational purposes when it is called upon to undertake counter-insurgency operations in disturbed areas. Hence, the promulgation of AFSPA along with the Disturbed Areas Act is inescapable.
Army personnel must be given immunity but such immunity must not be absolute, nor is it so under the present AFSPA.

The central government can and has sanctioned prosecution where prima faciecases existed.

Without these powers, commanding officers and young company commanders are likely to follow a wait-and-watch approach rather than actively pursue hardcore terrorists with enthusiasm and risk being embroiled in long-drawn litigation, which may be based on false allegations.

On its part, the army must make it mandatory for its battalions to take police personnel and village elders along for operations which involve the search of civilian homes and the seizure of private property.

The practical problems encountered in ensuring transparency in counter-insurgency operations must be overcome by innovative measures.

The army must be completely transparent in investigating allegations of violations of human rights and bringing the violators to speedy justice. Exemplary punishment must be meted out where the charges are proved.

Brigadier Gurmeet Kanwal (retd) is Distinguished Fellow, Institute for Defence Studies and Analyses, New Delhi.
 

mayfair

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Brigadier Gurmeet Kanwal (retd) is Distinguished Fellow, Institute for Defence Studies and Analyses, New Delhi.
Will wonders ever cease? Is this the same Brigadier Gurmeet Kanwal of "Let's withdraw from Siachen" fame? The father of the "esteemed" Rahul Kanwal of India Today?
 

vampyrbladez

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It was a mishap bro from both sides tbh, they had hunting rifles which Para SF took for insurgents. And imho Army could be withdrawn from NE now, AR, CRPF and State police can handle it while SF restricting itself to CBR and HVT Raids.
No withdrawal of AFSPA. It's the only thing preventing Narco Terror from rising in NE. Chinese synthetic drugs will flood the region.

Army needs to know we have their backs and AFSPA is key here.
 

angryIndian

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No withdrawal of AFSPA. It's the only thing preventing Narco Terror from rising in NE. Chinese synthetic drugs will flood the region.

Army needs to know we have their backs and AFSPA is key here.
Pal, things needs to cool down as things have gone from bad to worse.

Many here are just too juvenile to understand the gravity of this unfolding crisis.

This one single incident has undone decades of goodwill achieved and hard work done by our military,political leadership and intelligence agencies.

As thing stands,the government has no options but to repeal AFSPA.
 

Op Kahuta

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Pal, things needs to cool down as things have gone from bad to worse.

Many here are just too juvenile to understand the gravity of this unfolding crisis.

This one single incident has undone decades of goodwill achieved and hard work done by our military,political leadership and intelligence agencies.

As thing stands,the government has no options but to repeal AFSPA.
Or what? The "innocent" naga people will again burn a camp of AR? Kill and injure our soldiers? The army is using max restraint and they won't fire at terrorist sympathizers unless they try something(not saying all are terrorist sympathizers there majority may be not but that mob sure had radicals in it). So let them protest against afspa, sure as shit the centre won't repeal it as it concerns national security.
 

Fire and groove

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Or what? The "innocent" naga people will again burn a camp of AR? Kill and injure our soldiers? The army is using max restraint and they won't fire at terrorist sympathizers unless they try something(not saying all are terrorist sympathizers there majority may be not but that mob sure had radicals in it). So let them protest against afspa, sure as shit the centre won't repeal it as it concerns national security.
Or what? The "innocent" naga people will again burn a camp of AR? Kill and injure our soldiers? The army is using max restraint and they won't fire at terrorist sympathizers unless they try something(not saying all are terrorist sympathizers there majority may be not but that mob sure had radicals in it). So let them protest against afspa, sure as shit the centre won't repeal it as it concerns national security.
"Max restraint" kinda fell out of the window for the people when we gunned down a truck of civvies. And it's not really a good outlook if your idea of max restraint is the military not straight up depopulating villages.
AFSPA objectively has no reason to exist. The entire world has been fighting insurgencies without such laws and they've been doing just fine as long as they work on the necessary principles.
 

Op Kahuta

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"Max restraint" kinda fell out of the window for the people when we gunned down a truck of civvies. And it's not really a good outlook if your idea of max restraint is the military not straight up depopulating villages.
AFSPA objectively has no reason to exist. The entire world has been fighting insurgencies without such laws and they've been doing just fine as long as they work on the necessary principles.
Yea a truck of civies of coal miners who were carrying hunting rifles. And do tell me which country is fighting insurgency in their own land? When it comes to fighting terrorism there is no legal procedure to be followed. It's like saying if a guy came at u with a machete then u won't defend yourself by using anything at your disposal but u will go to a court of law for justice provided u are still alive. AFSPA gives full power to armed forces to carry out search and arrest without any legal proceedings, who they perceive to be a threat to national security based on the Intel they get. What u want the army to go to a terrorist hideout and kindly ask them to follow legal procedure to arrest him? Yea right dude whatever.
 

rkhanna

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And some people are still showing sympathy for those illiterate villagers.

Now I want head of those people who did this.

The Soldier is endowed by AFPSA with powers of the state - i.e the right to take a life. The onus of responsibility will lie on them ALWAYS. Please stop this bullcrap of pitting sympathy of Army Vs citizens of this country.

Its low brow and truely represents a poisoned mindset. The Army fucked up, the GOI owned up to it.

Move the fuck on.
 

fire starter

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The Soldier is endowed by AFPSA with powers of the state - i.e the right to take a life. The onus of responsibility will lie on them ALWAYS. Please stop this bullcrap of pitting sympathy of Army Vs citizens of this country.

Its low brow and truely represents a poisoned mindset. The Army fucked up, the GOI owned up to it.

Move the fuck on.
Aha you won't be saying this if he was your family member what type of Indian citizen will tip off terror group at the last moment. Soldiers are not punching bag their life is more valuable than these worthless villagers. The moment you attack army you should be treated like enemy.
 

tomthounaojam

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From now on use this for AFSPA unless you want, the hot ban hammer from the Mod and Admins.
 

Bhumihar

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AFSPA objectively has no reason to exist. The entire world has been fighting insurgencies without such laws and they've been doing just fine as long as they work on the necessary principles
I don't think there are any democracies fighting insurgency other than India so our case is unique in itself.



Tell me how many of tese countries are democracy in the trust sense.

All of those who are fighting are authoritarian or dictatorship.
 

Bhumihar

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Coal mines where they used to work.

IMG_20211208_180017_741.jpg


@tomthounaojam is the adjacent road where the ambush took place?
 

Bhumihar

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Nagaland has one of the highest gun ownership per capita, well NE in general.
Not to mention the illegal ones, if people in bimaru can keep ARs than definitely NE can have way worse.
Also NE might be the largest holder of vintage arms and different rule apply to them.
 

tomthounaojam

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Nagaland has one of the highest gun ownership per capita, well NE in general.
Not to mention the illegal ones, if people in bimaru can keep ARs than definitely NE can have way worse.
Also NE might be the largest holder of vintage arms and different rule apply to them.
The problem with some part of NE is that gun is part of their culture, as tribals are still allowed to hunt in the wild for food so keeping a gun become very natural as a tool, but the problem is being a border state with lots of armed insurgency one can get gun easily and Nagaland IIRC it is very easy to get gun permit too. like few days ago there was a huge cache of guns caught and gun smuggling is a big thing, it is not necessarily for the armed group, these drug cartels won't be the right word but sometimes are armed as good as those in narcos, I mean they get gun like Hk-33 to Glock etc AKs type is just too common.
 

Bhumihar

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The problem with some part of NE is that gun is part of their culture, as tribals are still allowed to hunt in the wild for food so keeping a gun become very natural as a tool, but the problem is being a border state with lots of armed insurgency one can get gun easily and Nagaland IIRC it is very easy to get gun permit too. like few days ago there was a huge cache of guns caught and gun smuggling is a big thing, it is not necessarily for the armed group, these drug cartels won't be the right word but sometimes are armed as good as those in narcos, I mean they get gun like Hk-33 to Glock etc AKs type is just too common.
I think presence of guns also changes the attitude of people towards administration.

Do any special law apply to NE when it comes to firearms.

As far as I've seen evey prohibited bore in rest of India is smuggled through NE.
 

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