CHANDIGARH: The Armed Forces Special Powers Act ( AFSPA ) has repeatedly come under criticism and call for its abrogation made too often, both in the North East and in Jammu and Kashmir.

The Government of India has a plethora of central police organizations: besides the state police. They all are well armed. So it is not for want of resources to combat lawlessness and insurgency that call is made to the military for help. Why then is the military called out so often!

Essentially because the military is better, disciplined, organized, trained and led. The Military does not have even normal police powers, when called out to carry out jobs, which are primarily that of the police. The Military is called out when the situation takes an ugly turn and is well outside the capacity and capability of the police ( state and central ) to cope with.

Under normal circumstances when the military is called out to handle law and order problems, a magistrate accompanies the column and is the one who gives, in writing to the military detachment, to use force ( open fire ) to control/disperse an unlawful assembly and or violent mob.

The Army has no legal powers to use force or use fire-arms against anyone, whosoever. Like any other Indian citizen, the only legal right a soldier has, is the right of ‘private self defence’ (of life or property), which must be proved post-facto, in a court of law. In case force is used by the Army without the written permission by a magistrate, military would be called upon to justify its action, in a court of law and the court cases can go on for years if not decades.

To give itself some circumstantial and situational cover, the Military, when called out in aid to civil power in law and order cases, required from the civil administration a certificate that it has exhausted all its resources and that the situation is well outside its control. Such a certificate highlights the gravity of the situation and gave military a degree of justification incase it, at some stage, had to use force, without the written permission of a magistrate.

Now the issuing of such a certificate discouraged civil administration from calling out the Military at the drop of a hat. Since the issue of such a certificate did show the civil administration, in poor light, due to its inability to handle even less serious law and order situations, this requirement was dropped and unfortunately military authorities accepted this clever move by the civil administration, without any protest.

Counter-insurgency environments and situations are not, ordinary law and order problems, nor is it feasible for magistrates to accompany military column, out to combat insurgents.

Not only, because of non availability of magistrates to accompany numerous columns that may be out at any one time, across twenty four hours, hunting down insurgents, but more importantly the risk to life and limb of a magistrate, ensured that this practice could not be followed during counter insurgency operations. So a remedy to this was found by first declaring an area as disturbed and then bringing in the Armed Forces Special Powers Act (AFSPA. )

AFSPA was enacted in 1958, which gives protection to troops against legal action in the event force is used to combat insurgents and terrorists. To initiate legal action against military personnel, deployed under the cover of AFSPA, central government’s permission is required. That is the minimum safe guard necessary for troops to effectively combat insurgency.

It goes to the credit of the military that operating under the cover of AFSPA, it has successfully tackled insurgencies and prevented the break-up of the country. If insurgencies have still survived, it is the seminal failure of civil governments to provide fair and friendly administration and bring about economic development of such regions.

To water down, if not nullify the essential provisions of AFSPA, the Supreme Court in its wisdom ruled that in cases of death of an insurgent or terrorist ( or an innocent civilian killed as collateral damage,) even when the military is working under the cover of AFSPA, an FIR will be registered in such cases. This ruling turns on its head, the essential provision of legal cover available to military personnel operating under AFSPA.

A curative petition was taken up with the Supreme Court, against this ruling of registering an FIR in all cases of death even when military is operating even under the cover of AFSPA. This petition was rejected by the Supreme Court on April 27, 2017 and the Court maintained the validity of its earlier ruling on the subject delivered on July 8, 2016.

During a firefight during counter insurgency operations, deaths are inevitable. Even otherwise, during encounters for a soldier, it is often a case of kill or get killed. Now if FIRs are to be filed, the prospects of troops spending the rest of their careers doing the rounds of Indian courts, would stare them in the face, were they to kill an insurgent. Equally justifying the necessity of their actions to judges in the courts, detached as they would be from the heat and pressures of combat, with local civilian witnesses invariably pitching for the terrorist/insurgent, the court verdicts are predictable.

In Counter insurgency operations, firefights are inevitable, where often collateral damage takes place and sometimes insurgents/terrorists kill locals knowing full well that the blame will invariably be pinned on the military personnel. At other times, situations often arise, where you either kill or get killed.

This one ruling by the Supreme Court is likely to impact counter-insurgency operations in many ways. One, troops may find it better to shy away from seeking combat with insurgents than face the prospect of being hounded in courts, years on end. Two, the overall impact on insurgency, because of this ruling will work in favour of insurgents.

There would yet be another angle to the filing of FIRs, where-in the one who orders an operation by the troops, which leads to death of an insurgent or an innocent civilian, as part of collateral damage, is also liable to be charged under such an FIR.

(Lt General Harwant Singh (Retired) is a former Deputy Chief of Army Staff)

(Cover Photograph BASIT ZARGAR)