Armed Forces Special Powers Act: Who Wants The Military For Internal Security?
05 December, 2012
Parliament and Government
Government can function in the interest of people only when there is peace and order in society, persons in power use people-oriented politics, and the rule of law is observed by all sections of society. Maintenance of security, public order, and supplies and services essential to the public, usually together termed “law and order”, is the primary task of the civil administration. [“Civil administration” is the combination of the powers, roles and functions of elected politicians, bureaucrats and police officers].
Disturbance of law and order usually happens because of conflict of interests within civil society, caused by inappropriate laws and/or unfair policies and/or poor implementation. In short, mal-administration, though that is not invariably the cause. When law and order and peace in society is disturbed and is beyond political resolution, governance calls for using the force of the state and/or central police. When law and order breaks down in spite of the presence of the state and central police (often because of their misuse), it can only be restored by deployment of the military. There is no other option with government.
Under Article 246 of the constitution, Parliament makes laws concerning the deployment of the Armed Forces “in aid of the civil power”, prescribing the powers, jurisdiction, privileges and liabilities of soldiers during such deployment. The Armed Forces (Special Powers) Act, 1958 (AFSPA, hereinafter) is one such law. Other Acts are the Army Act 1950, the Navy Act 1957 and the Air Force Act 1950, and the associated Rules, that administer military law to soldiers (all ranks of the three armed forces). These laws abrogate soldiers' fundamental rights under Article 19(1)(a), (b) and (c), of freedom of speech and expression to communicate with the media, freedom of assembly, or the right to form or be members of associations or unions for collective bargaining. Citizens including the bureaucracy and the Central and State Police services are not subject to such restrictions. Soldiers are thus, by law, specially disempowered citizens, because of the nature of duties performed by them and for maintenance of discipline among them.
Parliament enacted AFSPA because of the felt need for deployment of the military for internal security (IS) duties, viz., restoration of law and order, or counter-insurgency (CI) operations. Governments invoke this law to deploy the military for the state's internal security. It requisitions the military for deployment precisely because the state and central police forces have failed to maintain law and order, and the local or regional security situation is beyond its control. [Note 1].
The military being under civilian control, military deployment on IS duties is the civil administration's initiative, after issuing a gazette notification declaring an area as “disturbed”. It invokes AFSPA because the soldier cannot use weapons against civilians without its mandate.
Violence in society or threat of violence, whatever the cause or reason, is a hiatus in law and order. It is the duty of civil administration to contain and quell violence using its powers under extant laws, including use of police force.
Large sections of society are fearful of the police and most people are wary of them. The reputation of state police services in particular is that they are politicized, insensitive and brutal, especially with people from the lower socio-economic sections, and unaccountable to people. People resent government's use of police force because police do not act with restraint and fairness to maintain law and order. Rather, police are employed to obtain a certain result desired by the politicians, who issue directions through bureaucrats or directly to police officers. The police are not trusted as being people-friendly. Indeed, there is a perception in the lower socio-economic strata of society, that police only protect the economic and personal interests of the wealthy and powerful.
Especially in “disturbed” states, the public is scared of and hate the police, just as much as they do the insurgents or militants. In this degraded political climate, the police are willy nilly committed to using force, usually indiscriminately and harshly. To be fair, it must be remembered that ordinary policemen are vulnerable local people whose families are soft targets for armed militants, while they themselves are victims of official arbitrariness and mismanagement. It may not be an exaggeration to say that people prefer the central police or the army to the state police, because their personnel are not “local” people, and hence less likely to act with bias. Even so, the public is angry with violence by whosoever, and with the inability of government to restore peace.
The military's primary task is the defence of India's political sovereignty and territorial integrity against external threat over land, sea or air space. It is organized, armed and trained for this role. Soldiers use weapons against the soldiers of another state during armed conflict, but cannot use their weapons even against unarmed civilians of the opposite country.
The military can be requisitioned by state governments in “aid of the civil power” for
(a) internal security of the state, involving deployment of soldiers for the use of armed force, or
(b) rescue/relief assistance during natural disasters or major accidents, involving deployment of soldiers for use of military organization and equipment. It has even been requisitioned for civic duties, such as rescue from collapsed buildings and children fallen into open bore wells, which exposes the executive and administrative inadequacy of the civil administration.
The reason for calling the military is their meticulous planning and disciplined execution of orders. Thus, for disaster rescue and relief, the public observes the work of the soldier and welcomes it, especially when civil administration officials have abandoned the scene of disaster, as has happened several times. Also when civil administration officials, hit by the intensity of the disaster because of poor planning and unaccustomed to personal hardship and stress situations, are in a state of administrative paralysis, the effectiveness of disciplined army intervention is evident to the public.
However, when the army is called for IS duties with its implicit use of force, the situation is different. For example, to quell rioting, the army may conduct flag marches and confront a mob. The army officer in command of the sub-unit is obliged to take the written permission of a magistrate who accompanies the column, before opening fire if the situation so warrants according to the judgment of the magistrate. The reason for this is that the soldier cannot use firearms against civilians without prior permission from civil administration. But when the army opens fire and civilians are injured or killed, the public is angry with the army, which opened fire.
When a whole area is declared “disturbed” by the civil administration, it is not possible to have magistrates with every army sub-unit, and necessarily government invokes AFSPA. Firing by the army or when suspected insurgents are arrested and interrogated, the inescapable violence involved again arouses public anger against the army. Of course, when a soldier commits excesses like torture or rape during interrogation or kills a captured militant, public anger multiplies. This is what leads to public demand to repeal AFSPA.
The army has no institutional stake in carrying out or continuing in its secondary role of aid of the civil power for IS duties or rescue/relief duties. But it cannot legitimately operate in the IS role in disturbed areas without AFSPA being invoked.
People everywhere, especially in our northeast states, Kashmir and, more recently, in the central states, want peace and security. They do not want violence, be it by insurgents, militants, terrorists, state or central police, or the military.
The public is well aware that socio-political problems cannot be solved by government force. But the public is not aware that the army's presence for internal security is requisitioned by the state government because of the failure of the civil administration to contain or control insurgents' or militants' violence, and that the army as an institution has no interest or stake in IS deployment.
People hate the continuing police excesses against the public, and observe that the state police is politicized, is used mainly for safety of public officials, and ineffective or unreliable against insurgents or militants. They understand that the army is not influenced by local politicians, have seen its good performance in disaster rescue/relief operations, and also observed its effectiveness in controlling insurgency. They are unaware that the soldier cannot operate without the mandate of AFSPA. Thus when they demand that AFSPA be repealed, it would appear that they want the army but not AFSPA.
The use of the military in aid of the civil power is an option that no government, howsoever liberal, will discard especially since it has constitutional sanction. The military on IS duties is to civil society what an ICU is to a critically ill person. A patient cannot remain for years in a hospital ICU, because he/she would be effectively dead. The patient needs treatment for the disease and right nutrition to regain normal health. Likewise, the military remaining deployed on IS duties over decades makes civic life in society effectively dead, without assuring peace or security. India's societies need the “treatment” of honest political effort by transparent dialogue and engagement with people, and “nutrition” of good governance for their growth. Society does not need the army, except to guard the country's borders against external aggression.
While no government may ever propose to Parliament to repeal AFSPA, it would certainly be open to amending it. An amendment to cap the applicability of AFSPA to a total of say, 60 days in any calendar year, will allow governments to retain their (albeit undoubtedly coercive) option of military deployment when civil administration fails to maintain law and order. This will spur governments to rediscover ways of providing a troubled society with honest politics and good governance. It will also enable the army, one-third of which is engaged in IS duties, to focus more on securing India's borders.
Major General S.G. Vombatkere retired as the Additional Director General, Discipline & Vigilance in Army HQ, New Delhi. The President of India awarded him the Visishta Seva Medal in 1993 for distinguished service rendered over 5 years in Ladakh. He holds a PhD degree in Structural Dynamics from IIT, Madras. He coordinates and lectures a Course on Science, Technology and Sustainable Development for undergraduate students of University of Iowa, USA, and two universities of Canada, who spend a semester at Mysore as part of their Studies Abroad in South India. He is Adjunct Associate Professor of the University of Iowa, USA. He is a member of NAPM and PUCL. Email: firstname.lastname@example.org
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