Thursday, January 26, 2023
HomeSG National InterestA midnight call from Pak and a lesson in AFSPA

A midnight call from Pak and a lesson in AFSPA

AFSPA, which was supposed to enable controlled, Army operations under civilian domain is now the villain of peace in two Valleys — Kashmir and Imphal.

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I think almost two decades have passed since this happened, I can probably declassify this nugget from my past years as a reporter. But given the subcontinent’s complex history and unpredictable future, I should leave the precise names and dates out.

I received a call from the Pakistan Prime Minister’s office well after midnight. The question was: Under what circumstances can the army intervene in a situation of internal unrest in India? I explained that there was no constitutional or legal provision for the army to intervene under any circumstances. Because there was almost frantic persistence at the other end, I asked for a callback in a few minutes, pulled out the paperback, school-textbook edition of our constitution from my shelf and did a speed read. There is nothing in the constitution that defines any power, privilege or role for the armed forces, least of all in an internal civil situation, I was pleased to confirm. To buttress my point, I also told my very powerful, but troubled, interlocutor that night that the only place where the Indian constitution mentioned the armed forces was where it defined the powers of the Rashtrapati and stated that he (or as it now turns out, she) will be their supreme commander.

How can it be? I was asked. How can the army have no role? Can it sit quietly and do nothing when internal situations go out of control? And if it were indeed so, how was the army operating in so many parts of your country? I again reasoned that in India the army was usually called out in aid to civil police and had to operate under the control of local civil authority or magistracy. But the question, then, was, how does your army carry out combat operations in Kashmir? Northeast?

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The answer to that was the Armed Forces Special Powers Act, today’s dreaded five-letter acronym, AFSPA. For the army to operate in an internal war-like situation, a state government has to declare a specific region disturbed and AFSPA can be promulgated there, temporarily, I emphasised . The AFSPA , therefore, was a legal instrument where the civil authority could give operational leeway and legal protection to the armed forces it had called out for help, rather than a license for the latter to intervene. It was, therefore, an entirely civilian instrument, though meant for exceptional situations. I was asked if I had a copy of that Act handy, and I said I didn’t but one could be found at one of the prominent law book shops, in Connaught Place where I then worked. Sure enough, next morning, someone presented himself at my office at 10 am and I walked him, I think, to Jain Book Agency and bought a copy of the thin bare Act for my reading as well. It’s only then that I realized the origins of the law. It evolved in the mid-fifties as Naga insurgency grew and the army had to be deployed. In fact, its first avatar was the Armed Forces (Assam and Manipur) Special Powers Ordinance in May, 1958.

The alarm at the Islamabad end the previous night had been caused for good reason. It was still early days for an elected government and its neophyte prime minister; one of the periodic outbreaks of rioting had visited Karachi and the army was asking how could it be expected to stay in the barracks and do nothing about it. And apparently the elected governments had not yet been provided a constitutional arrangement where they could summon and deploy their army rather than have the army come out to intervene and save their country. Reflecting on that eventful night not much later, my Pakistani interlocutor lamented the absence of just a law as virtuous and wise as AFSPA in Pakistan and wished the country would evolve one, as civilian democracy matured and grew stronger.

That, as we well know, is still work in progress. But we have, meanwhile, turned the tables on ourselves. The same AFSPA which was supposed to enable controlled army operations under civilian domain is now the villain of peace in two Valleys located at our northwestern and northeastern extremities, Kashmir and Imphal. There certainly are problems with AFSPA which, like hundreds of other old laws in our country, has not been modernized through the decades. Some of the language, for example, would have passed muster a decade ago. But, in these more liberal times of zero tolerance for the use of extra-judicial force it sounds shocking. So it needs a rewrite. But a dilution of the kind that is being demanded though, mercifully, not yet contemplated would help no one.

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In the Indian context, you could argue, we do not need the AFSPA to protect civil power from army intervention. But the armed forces are a legitimate and vital element of state power and there can be no reason for a constitutional republic to deny itself its use. Some of the noise over AFSPA is not very different from the anger of the Hindu Right with Article 370. But just as those demanding its abrogation forget that it is indeed Article 370 that binds Kashmir with India (besides providing the Constitutional framework for answering other sub-national aspirations and insecurities, particularly, in tribal northeast under its follow-up sub clauses) the AFSPA is central to civilian control and supervision of the armed forces under extreme emergencies.

It is that last test that our governments have failed to apply judiciously. Once promulgated in a region, AFSPA is extended by parliament for decades mechanically. It’s as if a doctor put you on a strong regimen of antibiotics when you were ill and then forgot to take you off it even after the infection had gone. So, in many parts of the northeast, for example, the Act has been in force for decades after all active insurgency ended. On Kashmir too, similar discretion should have been applied at the time of each extension. How useful is the law, for example, in urban areas where there is rarely any armed combat and no army deployment? This law was designed to fight a well-armed, organized, separatist enemy, not to counter mob violence or civil unrest.

It is good that a law as important as this is being debated threadbare. The law, even more than others of the same vintage, needs a rewrite to modernize it. But it won’t serve anybody’s purpose to dilute it. A tough law is needed for extraordinary situations. The challenge for the political leadership is to identify those situations with a great deal of sensitivity and circumspection. Just cynically playing around with a law that should be employed most, most exceptionally and which has served you well, is a silly short-cut. Worse, it conveys, most unfairly, an impression that somewhere our armed forces and their excesses are primarily responsible for the anger among people in these distant Valleys, thereby absolving those really culpable, our political leadership. But that is a rant, and an argument, for another day.

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