AFSPA is not worth it

The crisis in Kashmir has yet again turned the spotlight on the Armed Forces Special Powers Act (AFSPA). The act has elicited much public criticism in the states where it has been invoked and employed. However, the Army has insisted that its provisions are essential for prosecuting effective counter-insurgency operations. The ongoing debate has largely been confined to a restatement of known positions. But the manner in which it is playing out tells us a thing or two about how professional advice and political judgment come together in shaping our security policies.
The act has two problematic provisions. Section 4(a) empowers military officers, down to non-commissioned officers, to “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 prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances”. Section 6 holds that “no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central government...”
The public outcry against the AFSPA is fuelled by instances where the armed forces have misused the powers granted to them: custodial deaths and fake encounter killings, for instance. There are good reasons to believe that in the prevailing situation the act does provide the requisite latitude for such transgressions to occur. For one thing, Section 6 as it stands provides practical impunity to any officer who violates the requirements of the act. Even when the Central Bureau of Investigation has indicted Army officers for a fake encounter, the Central government has simply refused to sanction their prosecution. We need to ensure that officers who act in good faith do not have to constantly worry about being hauled up in courts. But this does not require the kind of cover provided under Section 6 of the act.
More worryingly, the Army itself has not done enough to ensure that its personnel have internalised the legal limits placed on their actions. Few serving officers will be able to tell you what exactly are the provisions of Section 4 of the AFSPA. The notion of immunity is well understood though. Indeed, legal (and ethical) issues are given little importance in the training of commissioned officers — never mind that of non-commissioned officers. The Army headquarters does issue “do and don’ts” to troops. But these are little more than laundry lists and hardly prepare the soldiers for the complex situations they encounter on the ground.       
None of this has prevented the military brass from stoutly and publicly defending the AFSPA. They have argued that amending or repealing the act would hamper the Army’s operational effectiveness. This is a counterfactual claim advanced on the basis of nothing more than the assumption the military knows best. In fact, comparative evidence from other armies does not support the point that strong legal frameworks reduce operational effectiveness in dealing with insurgencies. Some analysts have claimed that the police (and other paramilitary forces) are ineffective precisely because they do not have the legal cover provided to the military by the AFSPA. This is a disingenuous argument. The police’s operational weakness, as the Comptroller and Auditor General’s performance audit reviews on modernisation show, lies in the lack of proper training, inadequate and outdates equipment. Furthermore, effectiveness in counter-insurgency operations should be measured not by the Army’s ability to kill insurgents but by its ability to capture the will of the local populace. Seen from this angle, the AFSPA actually undermines our capacity to undertake counter-insurgency operations.
As problematic as the substance of their arguments is the form in which the military has advanced them. Both the Army and the Air Force Chief have voiced their opinion through the media. Of course, they have also said that it is for the government to take the call. But it is difficult to think of their public interventions as anything other than an attempt to indirectly pressure the political leadership. A former Army Chief has been quoted as saying that these are nothing more than exercises in educating public opinion. Such claims betray a fundamental misunderstanding of the nature of democratic oversight of the military. The chain of accountability is clear: the military is responsible only to the political leadership, who in turn are answerable to the people. If in disregarding military advice, civilians jeopardise national security, it is for the people to take them to task by voting them out of office. The military is competent only to assess risks. It is the politicians who must judge them, and decide what risks are worth running. The military must also realise that the line between advising against a course of action and resisting civilian efforts to pursue it is rather thin.
But our political leadership is seldom willing to question professional military advice. Two government appointed commissions have recommended repealing the AFSPA. The Prime Minister himself has admitted the depth of resentment against the act. And yet the political leadership prefers to treat this as an operational matter. One thing, however, is clear from the current crisis: the AFSPA has become a political issue that calls for political judgment. It is time the political leadership stopped according excessive consideration to the military’s views.
But the larger problem appears to be that the civilians are happy to go along with the military and skirt any politically difficult decisions. This bodes ill for New Delhi’s ability to deal with the situation in Kashmir. Removal of the AFSPA can only be a starting point for engagement. Any serious effort will have to involve more contentious issues like strengthening Article 370, which ostensibly provides autonomy to Kashmir but has actually been used to erode its constitutional status. If the government does have the political will to take on such thorny questions, it might as well signal it by doing away with the AFSPA.     

Srinath Raghavan is a Senior Fellow at the Centre for Policy Research, New Delhi