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Speaking Out of Turn

by Ashok Mitra, 16 July 2010

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The Telegraph (Calcutta), 16 July 2010

The army chief cannot say what will be done with the AFSPA

Srinagar, July 2010

Our army chief of staff is obviously head over heels in love with the Armed Forces (Special Powers) Act. He has his own reasons to be.

The act, a Central legislation, was put in the statute book more than 50 years ago in the wake of large-scale insurgency in the north-eastern parts of the country, particularly in areas where the Naga community predominated. While the state government — at that time the entire region was a part of Assam — was formally responsible for maintaining law and order, it found it difficult to cope with the situation. The Union government hurried through Parliament the AFSPA, vetting deployment of armed forces in a state — or parts of it — to restore law and order if conditions so warranted, but subject to the approval of the state government. Once a state comes under the purview of the legislation, the lives and limbs of its residents are putty-clay in the hands of the army. Rights granted to citizens by the Constitution are suspended. Military personnel have total discretion to decide how to tackle disturbances taking place in this or that segment of the state. They can search premises at will and take anybody into custody for interrogation. These interrogations are not necessarily gentlemanly affairs; those taken in are often victims of third-degree methods, which sometimes lead to the breaking of bones or even maiming for life. Complaints of arbitrary killings of innocent people by the military have been innumerable. Reports of fake encounters involving deaths have streamed in from areas wherever the act has been enforced, especially from the Kashmir valley. Resentment against tyranny under the cloak of the act is both deep and widespread.

In Manipur, which came within the ambit of the AFSPA a couple of decades ago, the waywardness of the army personnel has provoked massive social resistance. Numerous stories of the violation of helpless women and indiscriminate assaults and arrests are the staple of everyday talk. The state has been more or less in a state of siege for years on end, with protest rallies and blockage of highways choking normal life. Protests against army excesses might have assumed, observers suggest, an even more virulent form had not inter-ethnic feuds affected cohesion among protesting groups.

In the light of these developments, New Delhi was persuaded to set up a committee under the aegis of a retired Supreme Court judge to review the problems that have arisen in implementing the provisions of the AFSPA. The findings of the reviewing judge were severely critical of the behaviour and activities of army people while they strut about enjoying the protection of the act. The judge went on to suggest a number of amendments in the statute to ensure its mutation into a more humane, and less arbitrary, piece of legislation. His recommendations evidently did not suit the authorities and have been allowed to rest in peace.

That did not put a lid on the expression of public misgivings. The country’s Constitution does not intend defence forces to be responsible for maintaining internal security; that charge belongs to state administrations. The AFSPA was passed by Parliament to circumvent that roadblock. How the country will be administered within the four corners of the Constitution is for politicians sitting in Parliament — and state legislatures — to decide. They, it follows, have the prerogative to review from time to time provisions of such statutes as the AFSPA, which they themselves had legislated. Given continuing reports of people’s unhappiness with the functioning of the act, it is only natural for politicians to wish to take another look at it. Some of them are possibly happy with the act as it is and would like to leave it in an unamended form. Some others, for example, the current chief minister of Jammu and Kashmir, will perhaps not mind the continuation of the act, but only after the introduction of amendments which address public concerns over the seeming absence of accountability in the act. There might yet be other politicians who would rather scrap the act in its entirety, since in their view it goes ill with the mores of a free democratic society.

In sum, there is scope for a public debate on aspects of the AFSPA. The army chief of staff — who no doubt had the benefit of the advice of his service colleagues — looks with disfavour on such a debate. He would like the act to continue in its present form, which allows military personnel a free hand while dealing with elements suspected of waging war against the State. He is actually in some fury, and has gone to the length of questioning the motives of politicians who want to either do away with or drastically amend the act.

Is not the army boss forgetting his station? India is no Thailand, it is no Pakistan either, surely not the Pakistan people and politicians over there are currently trying to extricate themselves from. The armed forces in India are, the Constitution lays down, servants of an elected government. The government is elected by politicians who are members of parliament. The status of politicians who are elected as representatives of the people is way superior to that of the army chief. It is, of course, within the range of the army chief’s responsibilities to speak — or send a note — to the defence secretary and, through the secretary, to the defence minister, in case he feels apprehensive about proposals to amend or abolish the AFSPA. But that is all. To presume that he can publicly dress down politicians who hold views different from his on the merits of the act is a bit too much; somebody needs to advise him where to draw the line.

For the ground reality in regions of the country where military or paramilitary forces have been — or are being considered to be — deployed is often excruciatingly complex. Leave aside at-this-moment-once-more-a-boiling-cauldron Kashmir, where factors such as religion and national identity further cloud the picture. Even in the other regions afflicted by insurgency — whether the north-eastern belt or states like Chhattisgarh, Orissa, Jharkhand and West Bengal — stark issues of ethnicity render enforcement of law and order bewilderingly difficult. It would be foolhardy to delegate this to the discretion of military or paramilitary personnel.

Two recent incidents in West Bengal, where the Central Reserve Police Force is engaged jointly with the state police in tracking down Maoists, are worth mentioning in this context. In the first incident, the CRPF shot down in a forest encounter eight suspected Maoists, three of them women. The bodies of those killed were brought back from the forest to the nearest subdivisional town as trophy: the hands and feet of each were separately bound and then hung, upside down, with the help of a strong rope, from a bamboo pole, precisely the manner in which a carcass is brought back when villagers return from a successful hunt of wild boar or of any other predatory animal.

In the other episode, in a supposedly Maoist-infested village, the CRPF accosted a schoolboy, the fingers of whose right hand were smeared with red ink. He must have been, it was instantly concluded, writing posters extolling the Maoist cause. Suspicion was reckoned as proof; the boy was set upon and beaten black and blue.

In both incidents, Maoists are the target, but the victims happen to be adivasis, and this is true in almost every part of the country where conditions of rebellion prevail. The incidents are bound to be grist for the Maoist propaganda mill: the system does not consider you, adivasis, as human beings, they treat you as beasts, even your children are not spared, you therefore have every right to rise in revolt against the system.

Awesome consequences can follow if counter-insurgency operations are not supervised with finesse and imagination, a responsibility too risky to be left to the whims of the CRPF or the armed forces. There is therefore enough logic in seeking a review of the AFSPA. This matter does not fall in the domain of the chief of staff or his colleagues.