It will help separatists

The unending and utterly irrational debate on the Armed Forces (Special Powers) Act (AFSPA) has now been encapsulated in the Report of the Second Administrative Commission headed by M. Veerappa Moily. Though the detailed arguments are not publicly available, the Moily Commission has concluded that the AFSPA must be abrogated. The Commission has simultaneously argued in favour of sweeping powers for the Centre to deploy Armed Forces in the States, and has asked for the enabling provisions to be included in the Unlawful Activities (Prevention) Act, 1967.

It is evident that it is not the content but the name that has become a problem here and, as the Bard remarked, "What’s in a name?" Any enabling provisions that permit the deployment of the Army in internal security operations are going to require powers that are no different from what the AFSPA bestows – the power to detain, to search and destroy weapons stores and terrorist/insurgent hideouts, and to engage with firearms (and consequently cause grievous hurt or death) with armed rebels. Absent these powers, the Army cannot intervene in internal security operations. What, then, is the problem?

Simply put, the problem is a debate and a discourse rooted in absolute and stubborn ignorance. In all the discussions on the AFSPA, including the deliberations of successive commissions, there appears no single attempt to make an actual reading of the Act, and to discover, clause by clause, its specific strengths or infirmities. All one hears is generalised and uneducated nonsense about ‘draconian law’ and human rights violations. The only serious effort to assess the AFSPA in its detail has been the Supreme Court’s decision in Naga People’s Movement of Human Rights vs. Union of India, 1997. If any responsible revaluation of the AFSPA is to be attempted, it cannot escape the imperative of reconciling its conclusions with the Supreme Court’s observations on the subject. Given Moily’s public comments, there appear to be no grounds to believe that such an exercise has been attempted. A quick look at some of the Supreme Court’s observations is useful:

On the ‘draconian’ powers of ‘arrest without warrant’: this power "is not very different from the power which has been conferred on a police officer under Section 41 CrPC. Moreover, Section 5 of the AFSPA puts a rider to this power, requiring that any person arrested "be made over to the officer in charge of the nearest police station with the least possible delay". Any detention beyond ‘the least possible delay’, any custodial torture or other abuse, falls entirely outside the protection of the Act.

‘Immunity against prosecution’: the provision, which requires Central Government sanction for prosecution of Security Forces personnel, only reiterates a provision that applies to all public servants – and absent which all public services could easily be paralysed by malicious prosecution. Most terrorist and insurgent movements today create over-ground fronts on the human rights platform, and these could immobilize the SFs with mischievous litigation, unless such a provision existed. There is, however, no immunity in case of any actual violation by the SFs.

Exercise of powers of arrest, engagement, search and seizure by an officer of ‘inferior rank’: the nature of deployment in counter-insurgency operations, which is usually at platoon, section or even smaller team strength, cannot have each such unit headed by a commissioned officer. Second, NCOs achieve their rank after an experience of between 8 and 15 years on the Force, and are mature persons, "reasonably well versed with the legal provisions", and the criticism is "based on unawareness of the rank and responsibilities of officers like Havildars."

Crucially, as a review of NHRC Reports would quickly demonstrate, there is no connection between the AFPC and human rights abuses. For instance, of a total of 1500 cases of custodial death reported to the NHRC in 2004-2005, just seven occurred in the custody of "Defence/Para-military" Forces (no separate data is available for Defence Forces alone). Uttar Pradesh, with 226 custodial deaths, and Maharashtra with 161, topped the list – with no signs of the AFPC on the horizon. Manipur, where the anti-AFPC campaign of ignorance is being spearheaded, had two custodial deaths in the year.

The Moily Commission’s observations on the AFPC, like those of the Jeevan Reddy Committee before it, are no more than a reflection of the abysmal incompetence and intellectual ineptitude of India’s contemporary political and administrative leadership, and it is unsurprising that they have provoked immediate criticism within informed circles and among those charged with internal security management.

(Published in The Pioneer, New Delhi, July 1, 2007)