Anti-AFSPA calls not new. But lifting it in Kashmir can be watershed in counter-insurgency doctrine

For decades, political leaders in insurgency-hit states have demanded end to AFSPA while Army doggedly resisted. A look at the controversial Act & how debate played out in Kashmir.

Security personnel deployed at Srinagar's iconic Lal Chowk | ANI File

New Delhi: That morning it was snowing. A thin coat of white painting over the grime that carpeted Sopore’s main chowk market. Abdul Khali Halwai had just finished serving tea to a gaggle of BSF soldiers stationed at the main chowk in Sopore. That’s when he heard the shots. The sounds of an ambush targeting a BSF patrol walking down a lane around the corner. Little pools of red began to blossom. But they weren’t from the soldiers who had just been ambushed.

Furious BSF soldiers are alleged to have shot dead at least 43 civilians and set off fires which claimed over 350 shops and homes on the 6th of January 1993. Abdul Khali Halwai lived and set up his tea stall again. It’s still there. No one was ever prosecuted. Three years ago his 28-year-old son, who was a child at the time of the massacre, was shot dead. He’d become a Hizbul Mujahideen terrorist.

The story of the Chaiwala’s son can help us understand among the most tortured elements of the conflict in Jammu and Kashmir (J&K).

In March last week, Union Home Minister Amit Shah promised to end the Armed Forces  (Special Powers) Act (AFSPA) after doing the same in large parts of the North East. There’s a huge amount of disquiet in social media and elsewhere about this decision.  But in my view, this is a long overdue game-changer in the way India manages and handles its counter-insurgency operations.

Let’s start by understanding how the AFSPA came into being. It’s got nothing to do with Kashmir. In 1958, the AFSPA was passed, giving the government the authority to declare an area as ‘disturbed’ and then impose the special law in it.

It was originally introduced in Assam and what was then the Union Territory of Manipur in response to various insurgencies that had broken out in the region soon after Independence. The idea was that the Act would remain in place for just one year.

Tensions in the region, as many of you will know, long predated Independence. The Nagas had begun an insurgency which, in fact, had started in the British era itself, and India thought there was a need for a legislative framework.

There was a British colonial ordinance called the Armed Forces Special Powers Ordinance promulgated in 1942 to put down the Quit India Movement. This was to become the basis of the new AFSPA.

And what was the Act? In essence, it gave the Army the authority to operate in civilian areas against Indians which it didn’t normally have. The Armed Forces Assam and Manipur Special Powers Ordinance in 1958 came into force that summer, passed by Parliament.

In 1972, the AFSPA was amended to confer the power to declare an area disturbed to the Union Government, specifically by the Governor, who represents the Union. This power prior to then was vested in the State Government. The 1972 amendment also extended the AFSPA to other states in the North East.

Another version of the same law with a few small tweaks was introduced in J&K in December 1990. And the six districts of the Kashmir division and two in the Jammu division were declared disturbed areas. 

The term ‘armed forces’, I should add here, refers not just to the Army but also to paramilitary forces like the Border Security Force (BSF), the Assam Rifles, the Rashtriya Rifles (RR), the National Security Guard, and various others.

To understand why India felt the need for such a legislation empowering the Army to intervene in civil conflict, you have to go back to the horrors of the Partition.

For the first time, armed forces fanned out across large swathes of the country and were deployed for very long periods. Laws formulated and implemented in the conflict- affected states of Punjab and West Bengal gave special powers to the Army to use force, even by non-commissioned officers, to the extent of causing death, search premises without a warrant and to rescue persons, all the while having immunity from prosecution.

An important point to note is that police and other government officials have such immunity. They cannot be prosecuted for acts committed in the course of their duty without sanction of the state and central government.

The Army said that if it operated in similar circumstances, it needed the same protections and powers, which is what the ASPA in essence gave it.

A similar law was implemented in Nagaland after 1947 in the wake of the demand for independence by a section of Nagas. Even before the AFSPA was implemented in 1958, there was an Assam Disturbed Areas Act, which was passed in 1955, that was used against the Naga insurgency, against the undivided state of Assam.

When the Act was being discussed in 1957, there were lots of criticisms in Parliament by political representatives of the people of the regions in which it was going to be applied. The criticism is best exemplified by a MP from the Inner Manipur parliamentary constituency, Achaw Singh Laisram.

He said, and I quote. “This is a lawless law. There are various provisions in the Indian Penal Code and in the Criminal Procedure Code, and they can easily deal with the law and order situation in these parts.”

Well, there were indeed these provisions. As I said, the AFSPA basically took the elements of the IPC, and the impunity or immunity granted to government servants and applied them to the Army as well.

But the Indian government understood that local police forces simply couldn’t deal with the insurgencies they were facing. British colonial authorities had ruled the country very lightly. There wasn’t a well-developed police force, and there was simply no institution other than the Army that could deal with the multiple insurgencies that were breaking out after Independence, from the North-East but also in Telangana, as well as the crisis that had happened with communal tensions after the Partition.

In spite of all the criticism, the Act was eventually passed. Over the years, a number of committees and bodies have reviewed this legislation because of criticism that it lets the armed forces basically get away with murder.

In 2005, the Justice B.P. Jeevan Reddy committee recommended that, and I quote, “the AFSP is too sketchy, too bald and quite inadequate in several particular aspects, and, therefore, it should be repealed or amended at the least”.

Justice Reddy recommended to the Government of India that the ASPA should be replaced with an Act which is on par with criminal laws or the procedural laws. Also at the time, certain organisations, advocacy groups and concerned states demanded the repeal of the ASPA altogether and a new framework to deal with it.

Several governments did, in fact, at various times promise to amend or repeal the ASPA. Various courts and committees backed that demand but absolutely nothing happened.

The Law Commission, for its part, said that India no longer requires such a law. It said that India has robust criminal procedure, a penal code that governs the gamut of crime and punishment.

The Kashmir situation

There are provisions in the Constitution regarding how and when Emergencies should be declared and the various situations under which the Army can be deputed and given extraordinary powers. But they felt that nothing was needed, giving the Army such sweeping powers short of an Emergency.

Article 356 is an example of the Emergency provisions under the Constitution which provides for guidelines under which Emergency rules should be imposed in a state.

The situation in J&K and the North East, of course, has been getting better for a long time. If you look at data from the South Asia Terrorism Portal, which monitors Indian conflicts closely, you will see that levels of violence whether it is in Kashmir, in the North East or anywhere else in the country like the Maoist areas has been dropping off steadily since the early 2000s.

So, was it really necessary to have such a law? Even in Kashmir after 2010 there was improvement and normalcy seemed to be returning to the state with tourism and resumption of business activities, educational institutions were running normally and the North East saw similar progress.

But that’s not quite how the Army saw it. For the Army, the ASPA was the keystone of security management in terrorism-hit states. There was just no way it could be allowed to go. 

In November 1998, Lt. Gen. Vijay Oberoi, who was then the head of the Army Training Command in Shimla, presented a 37-page concept paper, Management of Internal Conflict, to the then defence minister George Fernandes. The paper outlined existing and emerging threats in various parts of the country, including J&K, and argued that the Army had been forced to plough, and I quote, “a lone furrow in these regions”.

That is, it had been dumped alone by the rest of the government to sort out a mess that was not its making. Among the most important elements of General Oberoi’s paper was that the Army needed special legal protections and powers in the areas where it operated. At the time the paper was written, the Army did not enjoy special powers in several terrorist-hit areas, notably parts of Jammu.

Remember, only two of Jammu region’s districts were initially declared disturbed. The paper argued that it was imperative to use special legislation and I quote again, from the point of view as morale as well as operational efficiency to protect the rights of soldiers. 

The imposition of the ASPA and the Disturbed Areas Act wherever the Army was deployed in internal security situations, the paper argued, should be “axiomatic”.

Significantly, however, the use of these two Acts was seen as just part of a larger system of military control that was needed in terrorism-hit areas. “A coordination apparatus must exist in states down to the district and even tehsil level,” the concept paper asserted in its eighth recommendation. The structure should provide for joint planning, decision making, directions,  coordination and control. 

For the committee to function effectively, I quote, “there is a need for co-location of headquarters”. It also wanted the establishment of joint control rooms, direct communication and liaison and ensuring that the administrative boundaries of the civil administration, the police and the military merge as the last resort.

To some, quite rightly in Delhi, this sounded like a prescription for de facto military rule in insurgency-hit areas, and there was a lot of concern over the claims that were being made by the Army Training Command and General Oberoi.

In the wake of the Kargil War, Lieutenant General Avtar Singh Gill, the Director General of the RR, the Army’s counterinsurgency formation in Kashmir, made abortive attempts to bring the BSF and other central organisations under the control of the Army.

General Gill’s ideas were shot down by the Ministry of Home Affairs because of some dogged trench warfare by the then Director General of the BSF, E.N. Rammohan, one of India’s best known experts of that generation on counterinsurgency and a police officer who had served in virtually every corner of the country.

Despite this bureaucratic defeat though, the Army kept up its offensive. Shortly after Mufti Mohammad Saeed took charge as J&K chief minister in 2002, Northern Army Commander R.K.Nanavati again called for all central forces to be placed at the disposal of the Northern Command.

General Nanavati’s controversial proposal also called for the co-location of civil and military officers and for the Army to be given control of development work in some areas.

India, unlike Pakistan, has prided itself on being a civilian-ruled political system. This sounded that in areas where chaos had erupted, we would become dangerously close to Pakistan. So, it’s worth thinking a little bit about what the ASPA actually allows and doesn’t allow because there’s a large amount of confusion and myth making. 

No, the AFSPA doesn’t mean armed forces officers can murder anyone they like or lock them up in secret jails, but it does give some pretty extraordinary powers.

Section 4 of the AFSPA empowers officers, both commissioned and non-commissioned, in a disturbed area, to fire upon or otherwise use force even to the causing of death, not only in cases of self-defence, but against any person contravening laws or orders, prohibiting the assembly of five or more persons.

That’s Section 144, which you’ve doubtless heard about and maybe even experienced on our streets if you happen to live in an area which has had some kind of civil disturbance. It’s routinely used to prevent assemblies and gatherings.

But in other places, the decision to use fire can only be made by a relatively senior officer. A non-commissioned officer can’t make that distinction.

The Army pointed out that in the areas where it operates, you cannot have senior officers present everywhere where there may be an ambush or a serious law and order situation necessitating the use of fire. And in insurgency theatres across the world, whether it’s Afghanistan or Iraq, many other places, these decisions are made lower down the chain in armies because army small units are led by relatively junior officers.

Well, to give an example of what this meant in practice, take for instance a shooting that took place in Kohima on the 4th of May 1995. Six people were killed. The Justice D.M. Sen Commission of Inquiry found that, I quote, “besides indiscriminate firing and shelling, some 16 RR personnel had entered private homes, beaten up the inmates and even killed innocent persons inside their residence”.

“There is evidence beyond any reasonable doubt that Bishnu Sonar of Kohima was shot dead by 16 RR inside his residence in the presence of his wife, Naya. A number of witnesses deposed to that effect. This was a cold-blooded murder.”

“Again, Mathung Lotha, a P.N. in the Administrative Training Institute, was shot and killed by some 16 RR personnel in the presence of his father, Chemdummo Lotha. Another cold-blooded murder.

“There are five other innocent civilians who were killed as a result of firing by 16 RR personnel, though there is no evidence that they were killed in the same cold-blooded and deliberate manner.”

Now, imagine if the police had done this, there would have been a national outcry. There would have been immediate demands for the prosecution and jailing of those police personnel. And if the government declined to give sanction for their prosecution, all kinds of litigation, protests and so on would have broken out.

But partly because it was the North East, possibly because it was the Army, nothing very much was actually done. And this wasn’t an unusual occurrence.

The tragedy in Sopore was another case. In just one state, Manipur, Amnesty International, received in the period between 1995 and 1996, and I quote here, “sufficient reports of deliberate and arbitrary killings by members of security forces and law enforcement personnel, to conclude that there was official sanction for extrajudicial executions”. 

And this kind of a catch here, that is worth thinking about. In many states of the Union, where the AFSPA hasn’t been imposed, there have been the same kinds of complaints.

Punjab, in the late 1980s and 1990s, became notorious for large-scale extrajudicial killings, or what are called encounter deaths, in many cases involving innocent people. Some cases, in fact, innocent people were alleged to be subject to extortion or harassment by corrupt police officials.

In Kashmir, police have killed just as much, in just as many cases, as military or central forces personnel. So, does the Act itself make soldiers act with greater impunity to exercise force, oblivious of the consequences? Or, is it that impunity extends to various forces and is unconnected with the Act?

There’s been a long debate over this, with people pitted against each other within New Delhi’s security establishment itself. In 2011, top government officials met in Srinagar to discuss then chief minister Omar Abdullah’s proposal for a phased, graded withdrawal of the AFSPA.

Now, again, two things you have to know here. Though the AFSPA is in the public imagination seen as empowering military operations in Kashmir, the Army isn’t actually responsible for securing urban areas. Those very urban areas which have been the hotbed of both secessionist protests, that is, anti-India mass protest by secessionist groups and terrorist activities.

Omar Abdullah argued that in some parts, the ASPA could be lifted, perhaps only in those urban areas, since the Army wasn’t operating there at all.  Perhaps in some areas like Ganderbal, or other parts which were relatively quiet.

The Army responded at the time that, look, it got convoys going everywhere, troops going everywhere. What if somebody tries to attack those convoys? Could the Army not fire without permission?

To which the response was, well, we can work out some kind of way that certain areas have the Act lifted. But those areas which the Army needs to pass through could continue to have the presence of the Act. At that time, the Army’s top commander in J&K said that the country would be compelled to grant the state independence by 2016 if the AFSPA lifting proposal went ahead.

File photo of Lt. Gen .Syed Ata Hasnain (retd.) | Pic credit/X

The assertion was made by Lt. Gen. Syed Ata Hasnain, who was then commander of the Srinagar-based 15th Corps. General Hasnain’s presentation, sources said, included a slide, which asserted, while the people were seeking ‘Bijli, Sadak, Paani’, calls for lifting the ASPA were coming from four categories of individuals — Pakistan, the ISI Directorate, terrorists, and secessionists.

CM Omar Abdullah, who was in the meeting, got terribly upset and asked Lt. Gen. Hasnain to leave a copy of the presentation because he wanted to see, and I quote, “where he fit in“. That is, Mr. Abdullah felt he was neither a Pakistani nor pro-ISI nor a terrorist nor a secessionist. But like many mainstream politicians in Kashmir, he wanted the Act lifted.

In fact, the move to lift the Act was also supported by then Union Home Minister P. Chidambaram, and formed a part of the recommendations of a group of three interlocutors, which PM Manmohan Singh’s government had appointed to liaise with the public in Kashmir as part of the peace process which was then going on.

But Lt. Gen. Hasnain had a very different view and he argued that lifting the ASPA would provoke large-scale disturbances. He pointed, among other things, to the then looming withdrawal of western troops from Afghanistan and enhanced pressure on members of the Organisation of the Islamic Conference, who were pushing the UN Security Council at the time to act more on Kashmir.

Lt. Gen. Hasnain believed that this would spark off disturbances or mass protests. His assertion, however, was disputed by representatives of other security forces.

The then CRPF Special Director General Anirudh Uppal said there was no evidence to suggest a large-scale uprising or violence was around the corner. Things were, in fact, quite quiet.

The then Inspector General of Police in charge of the region Shiv Murari Sahai said recent events showed that future threats would come not from large-scale  insurgency, that is the kind of insurgency seen in the early 90s, but from the influence of Islamist radicalism among groups of alienated young people; that he thought that the challenge would be either sporadic terrorism or public street protests, neither of which was dealt with by the Army.

Mr. Sahai noted that a core group had been set up to discuss the ASPA-related matters, made up of the commanders of the 15th Corps, the Nagrota-based 16th Corps, the Intelligence Bureau (IB) and the DGP, but it had yet to come to any agreement. The meeting showed the deep divisions and fault lines which were there.

Mr. Abdullah for a while threatened to take unilateral action, and then nothing came. The phased rollback plan, which hoped to, as I said, use different parts of Srinagar and the district of Badgam, where the Army was not there for several years as kind of test beds for lifting the ASPA, went nowhere.

Even though Mr. Chidambaram kept supporting the demands for phase lifting for the ASPA, the IB didn’t take an opinion. Delhi-based military officers, in turn, continued to push saying, if we don’t have the ASPA, we cannot operate. 

2018 turns deadliest year in a decade in Kashmir

So, what happened? Well, 2018 happened. Burhan Wani was killed (in 2016), and this long sort of period of peace in Kashmir was shattered by large-scale Islamist-led street protests. For all practical purposes, the Indian state was evicted from parts of South Kashmir.

In fact, if you talk to local people, they refer to that phase as the time when azadi came. They really think that for all practical purposes, they were independent.

But did the ASPA really help pull things back from there? Well, the evidence isn’t clear. The Army barely operated against the protesters in 2018, just as it had barely operated in past years. Very rarely did stone-pelting mobs target the Army, possibly fearful that they would face bullets in response.

CRPF personnel frisk a man for security purposes | ANI File

The force that actually contained and broke those years of protest was the CRPF,  which operates along with the police and is not protected by the ASPA. And we know of course that the CRPF, a lot was flown in before Article 370 was de-operationalised. And we know that the CRPF was again instrumental in keeping the peace.

But again, from the Army’s point of view, the argument in favour of the ASPA seems self-evident. Its very presence in an area after all surely means that normal laws and the civilian administration have failed to handle the situation.

It’s also true, it has to be considered, that armies cannot be held to peacetime standards of civilian administration. Yet, there’s plenty of blame to go around for this situation. The Army most notably has been reluctant to engage in public debate and dialogue on excesses where they actually take place and on laying out a clear roadmap of the view forward.

From all the data available, notably some figures released by General H.S. Panag, who was Northern Army Commander many years ago, we know at the time there were some 3,52,000 troops deployed in J&K for internal security purposes; numbers which were reached at the height of the insurgency.

Now this includes both soldiers who guard the Line of Control (LoC) and will remain there in all circumstances, but also units of the RR which are responsible for securing the countryside.

Today when the numbers of CRPF have shot up, is it really necessary to have the same numbers of troops given that violence levels are at record lows? Is it really necessary to have the military conducting counter-insurgency operations when India has spent a great deal of money on developing the CRPF to play that role?

The Union Home Minister clearly believes the answer is no.

In the North-East, he has taken the gamble of withdrawing the ASPA and handing over more and more responsibility to the state apparatus backed by the CRPF. He clearly wants to do the same in Kashmir and the military logic is compelling.

India already faces deep shortages of trained manpower to guard its borders in Ladakh and at various other parts of the country. It doesn’t need tens of thousands of soldiers tied up doing counter-insurgency work in Kashmir.

In fact, when the crisis in Galwan broke out, India was put in the very awkward situation of having to pull acclimatised troops off the LoC and move them directly to Ladakh. The greater number of soldiers will be vitally important in years ahead, especially if plans persist to reduce the numbers of the Army itself in line with global trends, which is what, as you know, the Agniveer scheme is all about.

I want to end by going back to Sopore and talking about what I think the real problem is that instruments like the AFSPA or Army deployment can’t really assess.

And I want to talk about the chaiwala’s son I told you about right at the beginning of this episode, Halwai. Well, he grew up in the shadow of the long jihad in Kashmir. And as I told you, his hometown Sopore was the site of some of the worst violence both by terrorists and by Indian forces deployed there.

Little in Halwai’s teenage life though, even after the terrible tragedy of 1993, suggested he would end up getting involved in either Islamic politics or even let alone jihadism. Instead, his father tried to give him the best education he could afford. Halwai made his way through school, graduating from a government-run middle school in Sangrampora and then the boys’ higher secondary school in Sopore. 

He wasn’t a star student. He failed his first attempt at passing high school but tried again and graduated in 2003. Following school, Halwai’s father paid him to attend the Shahi Hamdan Computer Education Centre. He earned a qualification in computer applications. He was the best educated of his brothers. His younger brother Aziz Ahmed Halwai dropped out of school in the 8th grade, works at a stationary shop. The youngest, Wasim Halwai, is a street-side vendor.

In spite of his education though, Halwai found it hard to escape his milieu. In 2008, he got a brief job but then was radicalised by the protests breaking out on the street and the climate of hate that had sprung up across Kashmir.

Through the summer, there were protests led by Islamists, the mid-2000s, against what were described by Islamist leaders like Syed Ali Shah Geelani as “Indian colonialism”.

These often expressed themselves in mass mobilisation against vice and immorality. There were protests against what Geelani used to say was “settler colonialism”, which he alleged was the large-scale pushing in of outsiders to seize Kashmiri lands.

But the real problem was this. A milieu of violence and militarisation breeds violence and militarisation. For young people like Halwai, the gun became the only mode of protest. To end this conflict, we’ll need summoning the courage to deal with Kashmiris without men in uniform. Letting that engagement happen through politicians and through the normal institutions of law, order and criminal justice. 

Union Home Minister Amit Shah’s decision, in my view, is a game changer. He’s told us there is a seven-year roadmap in place for it to be put in place. The time came for this to happen a long time ago. I’ll be watching certainly with great interest as the steps in that plan now unfold.

(Edited by Tony Rai)