Major changes to the Armed Forces Special Powers Act would be a politically and legally difficult exercise, but steps can be taken to give it a humane face.
A major factor now preventing the return of normalcy in Kashmir is the opposition to the Armed Forces (Special Powers) Act, 1958 or AFSPA. Demands are being raised for its repeal or for making it more humane. Another view is that the law should be lifted in certain districts of the state. The ministry of defence appears unwilling to accept any changes. The deliberations of the Cabinet Committee on Security and the all-party meeting convened by the government have also failed to yield a consensus.
AFSPA is a legislative tool designed to confer special powers on armed forces personnel deployed in areas declared as disturbed or dangerous by the government. It was extended to J&K as the Armed Forces (Jammu & Kashmir) Special Powers Act, 1990. The Act confers on an officer of the armed forces the power to:
The Act also provides legal immunity to military personnel for their actions. Their prosecution cannot be initiated without prior permission of the Central government.
Critics of the AFSPA allege that it gives military personnel draconian powers; that the Act is a tool in the hand of security forces to perpetrate human rights violations; that the Central government has retained the Act for decades without a valid justification; and that all cases against military personnel for grave offences reported by state governments to the ministry of defence have failed to trigger prosecution.
Despite Prime Minister Manmohan Singh’s assurance in December 2006 that changes would be made in the Act to make it more humane, the law has not been softened. The Justice Jeevan Reddy Committee report is also believed to have recommended a review of the Act, but this did not come about. The AFSPA has remained in the statute book despite both Congress and non-Congress ministries ruling at the Centre over the last five decades.
Any major changes to the Act would be a politically and legally difficult exercise, if required to be done in a short time. However, a number of steps can be taken to give the Act a humane face. Such a formula could gradually bring normalcy. To begin with, a probe by way of a staff court of inquiry should be made mandatory in all cases where employment of troops has led to any civilian death or grievous hurt, or caused damage to personal property. Any such investigation must be commenced within 72 hours of the official report of the incident.
Every such enquiry could be held at a place which should be easily accessible to civilians. The media should be allowed access unless operationally not desirable. For the sake of transparency and credibility, all such investigations must be attended by a civilian officer not below the post of a deputy collector. Military law does not allow him to be a member of the court of inquiry; therefore, his role could be that of an attendee. Similarly, in all incidents relating to allegations of sexual harassment, a woman officer should be nominated as a member or should be in attendance.
Local NGOs should be permitted to take up complaints of human rights violations with local military commanders. These must be treated as requests under the Right to Information Act. It should be obligatory for Army formations to intimate the outcomes of investigations or final reports to them.
Proceeding on the undisputed premise that the civil administration continues to function even when armed forces officials come to be vested with special powers, it is advisable that wherever feasible, a civil magistrate should accompany each military contingent deployed in a situation where it might be called upon to use force. In a large number of situations, this may not be operationally feasible. However, the military commander must in each and every case record the reasons that precluded the presence of a magistrate. There would then be an independent version of the justification for the use of force. As far as possible, all military missions envisaging the use of force should be videotaped.
Often, cases forwarded to the Central government seeking sanction for the prosecution of military officers for any excesses in the discharge of their duties while operating under AFSPA have faced inordinate delays. This has created deep misgivings about the transparency and impartiality of the government in dealing with human rights violations. Any request for prosecution must be disposed of within a period of not more than three months from the date of receipt of the complaint by the Central government.
To reduce and discourage the use of lethal force by the security forces, innovative steps in the shape of incentives or awards could be instituted for capturing terrorists or militants alive. This may bring down the number of fatal casualties. Almost all these changes can be introduced without having to tinker with the Act.
The existing legal framework does not afford any role to the National Human Rights Commission in investigating complaints against security personnel. Perhaps legislative amendments could be considered to bring in the NHRC to demand or institute formal probes in such matters and, further, to monitor their progress and outcome.
Most statutes confer powers on the government to frame rules that make the law operational. Strangely, AFSPA does not contain any such provision. This results in a number of relevant terms and situations remaining obscure. For example, what is the difference between a ‘disturbed’ and a ‘dangerous’ situation as mentioned in Section 3? What is the threshold level at which the law and order situation would be characterised as ‘disturbed’? In what language would a warning, as contemplated under Section 4(a), be issued, for what duration and by what means, before resorting to firing that can cause death? What caution would suffice as due warning? Is an officer of the designated category required to record his opinion in writing so that its justification can be evaluated later? Rules could be framed to remove any scope for subjective personal decisions on these matters.
Urgent steps to discuss major changes in the working of AFSPA would be a pragmatic move in resolving a major national concern. Clearly, it is the need of the hour.
The author is director, Amity Law School, Noida and former judge advocate general of the Indian Army
