Omar Abdullah’s demand for withdrawal of Armed Forces Special Powers Act (AFSPA) from certain specific districts of Jammu & Kashmir has resulted in a fierce controversy. He has been criticized for jumping the gun and taking a unilateral decision without consulting the other stake holders. The Army as well as the Defence Ministry has strongly opposed such withdrawal on the ground that it will adversely affect army’s operations against the militants in Jammu& Kashmir and demoralize army personnel by exposing them to malicious prosecutions. The Army General V.K. Singh has categorically stated that it will be impossible for the Army to operate without the cover of the Act as the force will get bogged down to legal battles. The Army top brass have also taken strong exception to the remarks of the senior National Conference leader Mustafa Kamal that the army was behind the grenade attack in Srinagar on October 25. Kamal was forced to issue a retraction.

Enacted in 1958 as a short term measure to allow deployment of the Army against the separatist movement in Naga bills, the AFSPA has been used throughout North-East, particularly in Assam, Nagaland, Tripura and Manipur. A variant of the law was used in Punjab in 1980s and 90s and it has been enforced in Jammu & Kashmir since 1990. The law comes into operation after a declaration has been made under Section 2 of the Act that a particular area is disturbed. It provides special powers to the members of the armed forces to effectively deal with the terrorists in areas. It authorizes armed forces personnel to use force necessary to effect arrest and gives powers to use force even to the extent of causing death, if orders on banning assembly of five or more persons, or carrying arms and weapons are to be enforced. Section 6 of the Act gives the armed forces discharging duty under the section immunity from prosecution and other legal proceedings except without the previous consent of the central government.

Human rights activists and civil society groups have invariably criticized the act as a draconian law, giving untrammeled and unaccounted powers to the security forces to carry out operations in the disturbed areas. They contend that the Act has been grossly abused and misused. There has also been international criticism of the AFSPA. Over ten years ago, in 1997, the United Nations Human Rights Committee expressed concern over the “climate of immunity” provided by the Act. Human Rights Watch – a United Nations NGO said that abuses facilitated by the AFSPA have led to anger and disillusionment against the Indian State. This has permitted militant groups to flourish in North-East and Jammu & Kashmir. Violations of the AFSPA have served as a recruiting agent for militant groups.

Attempts have also been made to seek judicial review of the law on grounds that it is repugnant to the right to equality and federal structure of the State. The Supreme Court in Naga People’s Movement for Human Rights vs. Union of India held that the enactment is constitutionally valid. Even though it appears to be harsh on the face of it, it was a necessity. The Court has further held that deployment of the Army is meant to supplement and not replace the existing State machinery. Justice Jeevan Reddy Committee which examined the provisions of the act after taking the views of various stake holders came to the view that the Act should be repealed. It would be more appropriate to insert necessary provisions in the Unlawful Activities Prevention Act instead of suggesting a new legislation. It held that the Act, whatever be the reason, “has become an object and instrument of discrimination and highhandedness”, and it is desirable and advisable to repeal the Act altogether. The Second Administrative Reforms Commission also recommended that the Act should be repealed. Many army officers and security experts are of the view that to operate effectively, the security forces need that necessary legal protection. The Act gives the requisite legal framework which permits them to conduct pro-active operations.

The need for providing security and protection to the armed personnel operating in difficult conditions in Jammu & Kashmir and bearing the grunt of attacks by the terrorists cannot be over-emphasized. Army’s opposition is also based on intelligence inputs and intercepts that it has received in the last six months. According to its estimates about 2,500 terrorists are present in 42 training camps in Pak-occupied Kashmir. Of these 800 are poised to cross over to India. Intercepts indicate also that infiltration attempts will continue during the winter months. But Omar Abdullah’s proposal to withdraw the Act from certain districts approved by the Home Ministry and vetted by the Cabinet Sub-Committee on Security (CCS) last year.

It is perhaps true that an exaggerated importance is being given to Army’s reservations as the Army does not have significant operational presence n the four districts proposed for de-notification. It is true that militants in Jammu & Kashmir pose serious threats to the country.