First Person | In the Garb of AFSPA

Litigating men in uniform portends ill for the institution

Ghazala WahabGhazala Wahab

On August 31, 383 army personnel added their names to the 356 who had petitioned the Supreme Court on August 14 against possible dilution of the Armed Forces Special Powers Act (AFSPA), taking the total number of petitioners to 739. This is for the first time that the Indian Army personnel – both officers and non-officers — have collectively approached the Supreme Court bypassing several grievance-redressal mechanisms within the service.

This is curious for three reasons. One, there is really no threat to the AFSPA under the current dispensation. To remove all doubts, Union minister of state for home affairs, Hansraj Gangaram Ahir told Parliament in March 2018 that, “There is no proposal to amend the Armed Forces (Jammu and Kashmir) Special Powers Act 1990. There is no proposal under consideration of the government of India to withdraw Armed Forces (Jammu and Kashmir) Special Powers Act 1990 from Jammu and Kashmir.” All that the government is considering is to make AFSPA more ‘effective and humane’, with ‘considering’ being the operative word.

However, there was a threat to AFSPA, especially in Jammu and Kashmir, between 2009 and 2013 when both the state chief minister Omar Abdullah and Union home minister P. Chidambaram favoured its partial, if not total, revocation. This threat was compounded by a series of judicial commissions, including the Justice Santosh Hegde commission which was constituted to investigate extrajudicial killings in Manipur. Justice Hegde submitted his report in 2013 calling for revocation of the Act.

In his report he wrote, “Though the Act gives sweeping powers to security forces even to the extent of killing a suspect with protection against prosecution, it does not provide any protection to the citizens against its possible misuse… Normally, the greater the power, the greater the restraint and stricter the mechanism to prevent its misuse or abuse. But in case of the AFSPA in Manipur this principle appears to have been reversed.”

A year before this report, Justice J.S. Verma committee appointed after the brutal gang-rape of a young woman on 16 December 2012 in New Delhi to recommend more stringent laws against sexual crimes and violence, met women from Jammu and Kashmir and observed that AFSPA legitimised ‘impunity of systematic sexual violence’ in places where it was in force. The committee recommended that the act be reviewed and revoked where possible. Moreover, in cases of sexual crimes, the offenders from the armed forces should be tried under the civil law without the protection of AFSPA.

Despite this groundswell against AFSPA, it could not be tampered with because defence minister A.K. Antony, who could not be over-ruled in the Congress party, stood as a colossus in the way of its revocation. Antony was obviously guided by the advice of the army leadership. Yet, there was uncertainty about the future of the Act. But nobody petitioned the courts. The maximum that the army did was to get retired senior officers to debate the Act on television and write OpEd articles in the newspapers defending AFSPA.

Two, unlike the United Progressive Alliance (UPA) government, the current political dispensation, as well as the broad public opinion manufactured by it, is so favourably disposed towards the military, especially the army, that it wouldn’t touch the Act even with a bargepole. On the contrary, there have been frequent voices from within the ruling party that the Act needs to be made more stringent safeguarding the human rights of the men in uniform. Such is the reliance of politicians on AFSPA, that recently Assam extended the Act by another six months to facilitate the completion of the process of National Register of Citizens, a civil process.

Finally, with the exception of Tripura and Meghalaya, AFSPA has not been revoked from any place that it has been imposed upon. Incidentally, these two states never had any serious insurgency-related problems, at best they suffered from the fall-out of insurgencies in the neighbouring states.

Given this, what could have impelled nearly 800 army personnel (according to the officer who drafted the petition, he has received 300 more affidavits since then wanting to be impleaded in the case) to move the Supreme Court now? Moreover, given the discipline and the stringent provisions of the Army Act, it is unlikely that nearly 800 serving personnel can act in this manner all by themselves without clearance or a nod from their superiors.

The answer to this question lies in the profile of the people behind this campaign and harks back to Justice Hegde’s investigation in cases of extrajudicial killings in Manipur between 2000-2012. Around 1,582 such cases were found based on several petitions submitted to the Supreme Court by the aggrieved parties. Based on Justice Hegde report and the petitions, Supreme Court ordered the institution of a Special Investigation Team of the CBI in 2017, which named Col Vijay Singh Balhara in the case of fake killing of a 12-year-old boy Mohammed Azam Khan in Imphal in 2009. As directed by the Supreme Court, CBI registered the FIR against Col Balhara in June this year.

Officers and men from Col Balhara’s unit form the majority in the first batch of petitioners. The other bunch includes personnel from the Rashtriya Rifles unit in Kashmir, whose colleagues are also under investigation in another case of fake killing.

Clearly, the issue here is not of dilution of AFSPA or even the morale of the troops. The issue is of scuttling the judicial process to protect those who are accused of serious offences. Why do they need the protection of the petitions?

If the accused are not guilty, then why not let the judicial process run its course? Even if it affects the morale of some as the petitioners plead, at least it will restore the faith of the citizens in the State’s ability to do justice to them. Wouldn’t that be a major victory in the battle for hearts and minds?


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