The Armed Forces (Special Powers) Act, 1958, better known as AFSPA, has been brought out of wraps at various opportune times – opportune for those who have either something to gain, i.e. the insurgents in Jammu and Kashmir, political parties always ready to fish in troubled waters, with an eye on electoral gains or those who are regular establishment-baiters, who have made it a habit to take the plunge headlong in any controversy with the belief that if it is against an organ of the government, it needed to be opposed!
Many have called AFSPA a draconian law and have vehemently supported its repeal, but having read quite a few of their views and watched them pontificating on TV, I am convinced that most lack even a rudimentary, let alone in-depth knowledge on the subject. This Act has been in force for over five decades because it was essential for the conduct of smooth counter-insurgency operations by the army. It will continue to be needed as long as the army is employed on counter-insurgency/terrorism tasks.
The insurgents we are fighting today are heavily armed, they act speedily, commit heinous crimes and disappear. Unless the army counters such actions with speed and not wait for orders from higher civil or military authorities, nothing would be achieved.
The Act was promulgated on September 11, 1958. The rationale for bringing the Act on the statute book needs to be appreciated. When the army was first employed on counter-insurgency tasks in Nagaland in the 1950s, two aspects came to the fore immediately. First, unlike in the case of maintenance of law and order, when the army is called out in ‘aid to the civil authority’, where time is available to employ the police before committing the army, operations against insurgents are entirely of a different genre, as the insurgents do not give any time for such niceties.
The insurgents we are fighting today are heavily armed, they act speedily, commit heinous crimes and disappear. Unless the army counters such actions with speed and not wait for orders from higher civil or military authorities, nothing would be achieved.
Secondly, the soldiers and officers of the army had to be protected from prosecution for consequential action taken against insurgents in good faith as part of their operations. Here too, the Act does contain the important caveat that the army personnel can be prosecuted with the Centre’s sanction, if their actions warrant it. There is, therefore, no blanket immunity from the laws of the land.
Over the years, some army personnel have indeed been prosecuted where a prima facie case existed. However, it is also true that due to the exceptional care which all army commanders take when their troops are employed against insurgents, such cases are few and far between.