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Govt weighing changes to AFSPA: Golden opportunity for Centre to change public's perception of Act

I continue to believe that the Indian Army cannot operate in Jammu and Kashmir under the current circumstances without the Armed Forces (Special Powers) Act. This is a belief I have held for a long time, which should put some minds to rest. However, as someone who has handled empowerment under AFSPA from the sub-tactical to the operational levels and the emotive aspects related to it, I am of the opinion that anything to do with this subject must be under the purview of wide open discussion with exchange of ideas, something which has eluded us for a fairly long time, especially in relation to some contentious issues.

This piece relates to the unconfirmed media reports of a move afoot to dilute the ‘shoot to kill’ clause enshrined in Section 4(a) of AFSPA. Unilateral decisions without comprehensive analysis of effects will, yet again, bring turbulence. No one can blame those who drafted the language of AFSPA 1958; the same was used in 1990. It relates to an era when people were not as aware of the concept of human rights as they are today. Back then, Section 4(a) did not seem like an arbitrary empowerment to use lethal force, as it does to many today (at least that's the perception).

Section 4(a): Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area.

The phrase ‘even to the causing of death’ interpreted positively actually relates to calibration in use of force and not necessarily to be seen in absolute terms of taking action which causes only death, and nothing less. In fact, much of AFSPA’s language is couched in what may be perceived by many as aggressiveness, but to those who operate in such disturbed areas, this perception does not come to mind as they are essentially task-oriented and not nuanced in their perception.

The aggressive tone of the language has been exploited by various quarters, including anti-national elements, to paint India and its armed forces red and create a perception internationally that we function under draconian laws. There is nothing draconian about AFSPA because there is no absolutism in its execution through empowerment; calibration is a part of military training.

However, if the language of Section 4(a) is to be amended for legal clarity and greater caution on the part of soldiers, no one should have any issue with that. It is an opportunity to correct the perception of AFSPA, which has been used to flog the Indian Army and the Government of India, that the Centre must seize.

Since 1958, (and especially since 1990), when human rights concerns proliferated around the world, the Government of India, the Supreme Court of India and the Indian Army have taken a series of measures to bring greater humanisation to internal conflict situations. In 1993, the Indian Army preceded all institutions in setting up its Human Rights Cell at the army headquarters followed by posting of officers at corps headquarters and later at Rashtriya Rifles (RR) Force headquarters to specifically look at the human rights angle of internal conflict.

This system, including the incorporation of human rights as a component in the training of its leaders, has helped in sensitising the rank and file. In 1994, the Northern Command headquarters issued an elaborate standard operating procedure (SOP), which has been refined from time to time, for the conduct of operations; the primary concern here was human rights.

Clear advice was given to troops to search houses with female inmates only in presence of policewomen or a member of the clergy. Directions on property in civilian houses under search were also given. In 1997, a set of do's and don'ts were issued after approval by the Supreme Court of India. Included among these is the necessity to incorporate members of the civil administration (local police) any time operations are conducted by the army.

The Supreme Court also left a degree of discretion: knowing that the army may not easily find civilian representatives at some locations (and times) when they conduct such operations. In 1993, the army chief issued directions to troops regarding their conduct during operations in disturbed areas. These came to be known famously as the Ten Commandments: additional directions based on these have been issued by various commanders in the chain.

In 1997, the army formally adopted Operation Sadbhavna as a military civic action (MCA) project to bring an institutional understanding among officers and troops with regard to the importance of winning over and keeping the people of the conflict zone with them. The army continues to identify locals as the ‘centre of gravity’ in such conflicts and calls upon all troops to use their power of goodwill to ensure their well-being and support.

The concept and doctrine explaining Operation Sadbhavna, the degree of funds made available and the goodwill sought by the army through its actions have a huge humanising effect on the conflict situation. The presence of Army Goodwill Schools in good numbers, the conduct of medical and veterinary camps and the outreach to areas where civil administration’s hold is yet tenuous, have all been humanising efforts which continue as a part of counter-terrorist operations. In 2011, the army adopted the Hearts Doctrine as a step beyond Operation Sadbhavna and included the human rights sensitisation of every single individual in uniform tasked to operate in Jammu and Kashmir.

It is for consideration of the powers that be and decision makers at the higher levels that incorporation within the legislation of AFSPA at the time of its amendment, if at all, must include an addendum which forms annexures to the main text. This addendum must incorporate all the above mentioned facts in a language which must reveal the concern of the authority for human rights. It must also communicate the measures that have been taken by various authorities to ensure calibration in execution of the powers that have been given to the army to conduct its operations. The purpose is to ensure that those who read the provisions of AFSPA must also peruse how the Indian State and its institutions respect human rights and are willing to go the extra mile to implement them. Much of the allegations of alleged human rights violations may be diluted through this measure.

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