South Asia: India Is Not Pakistan

AHRC-STM-183-2011
November 29, 2011

A Statement from the Asian Human Rights Commission

The Armed Forces (Special Powers) Act, 1958 (AFSPA) is a subject of severe criticism by human rights activists and jurists in India and across the world. The alarming number of human rights abuses committed by the security agencies deployed in regions where AFSPA is currently put to use is depressing proof to the draconian nature of this law. Many lives lost already - estimated to be more than 4000 since the Act came into force in 1958 - to this the Act underscores the non-compatibility of this law to the notion of democracy. The statutory impunity provided in the Act and the extreme nature of force, that could be used arbitrarily on mere suspicion, empowering a soldier to shoot to kill with no fear of prosecution which is used without restraint till today, proves that this law has not only failed, but would not by any stretch of imagination be of use to curb armed secessionist militancy in the country. Yet, the Indian Army is now entangled in a browbeating debacle with the civilian government in the state of Jammu and Kashmir and the state's legislature concerning the withdrawal of this law from certain parts of the state. The army's attempt is to continue enjoying the despicable impunity this law provides therefore unbecomingly benefiting from it.

The Chief Minister of Jammu and Kashmir has been running between the state and national capitals since the state legislature passed a resolution to authorise the partial withdrawal of this law from the state. The army since then has been claiming that its operative framework would be compromised should the law be withdrawn.

In this context, the Chief Minister of the state is right in opining that the army's role is primarily to protect the country's border, and not to maintain law and order, at the expense of superseding the legitimate writ of the government, and thus in essence of the people. The army and the Government of India should not have pushed the matter to such ridicule. For the army to instruct the government, India is not Pakistan.

The architecture of impunity in AFSPA negates the notion that this law is legitimate. Army's demand to continue with AFSPA against the decision of the state legislature is against its constitutional mandate, to be under civilian fiat, and opposes the supremacy of the people. That some officers in the army are applying unwarranted and inappropriate pressure upon the government not to withdraw the law from operation is in essence insult of legislative wisdom. It reiterates the universal truth that an army, if allowed to operate with impunity, would not prefer to return to be under the control of civilian authority.

The only force, to which the country's armed forces must surrender, unconditionally, is to its people. The Indian Army does not have a mandate beyond the constitutional premise that Indians decided to practice since 1950. To demand otherwise is nothing less than pushing a democratically elected civilian government to revolt against its own security forces.

There is no merit in the army's contention that the soldiers follow their code of conduct when operating in areas where the AFSPA is enforced. The AHRC has documented more than 300 cases so far where the army has openly violated every expected norm of operative justice and law, where AFSPA is in force. The conversation of the dead from hundreds of unmarked graves identified by the State Human Rights Commission of Jammu and Kashmir is gruesome proof to the fact that the Indian Army has 'done their job' as it suited them. That thus far there has been not a single prosecution or independent and transparent investigation concerning the unmarked graves in the state reiterates that the impunity is absolute.

The argument that AFSPA helped control secessionist or otherwise destructive activities is equally false. The brutalities committed by the armed forces under the protection of AFSPA against the people have deeply alienated the people from rest of the country. It has fuelled intolerance, breeds mistrust, generates and maintains fear. AFSPA is the iniquitous fountain of moral reasoning that supports militant and religiously fundamentalist organisations and helps them seek and receive support from at least three different neighbouring countries. The commendable move by the Jammu and Kashmir state government is to address this. It has to be supported, that similar actions could be initiated in other places, for instance in Manipur.

The army's dependence upon this draconian law can be interpreted, that the army is incapable of operating in a transparent and accountable environment, and is against the interest of the nation. It contradicts the highest morale the Indian Army is sworn to maintain. That the secessionist and militant forces require the cover of impunity to operate, the brute violence such entities commit and the nature of internal and external support they receive must not be the defining rationale of the operative framework of a disciplined force.

What happens in India will have an impact upon the region. That the Indian Army dictating the government about security policies will further encourage armed forces in countries like Sri Lanka where the present president is using his military might to subdue democratic debates in that country. It could discourage discussions about the accountability of the Nepal Army and that of the former armed Maoist cadres for the human rights abuses they are accountable for. It will foster the operative impunity enjoyed by state forces like the Rapid Action Battalion in Bangladesh and allow them remain unaccountable for human rights abuses. Whenever these issues get discussed in regional or international fora, India would have no moral voice to support calls for accountability should the Indian Army enjoy despicable impunity within India.

Indian Army is not above the parliamentary writ. That it has started exhibiting some of the despicable tendencies of the Pakistan Armed Forces that have repeatedly overridden democratic writs allowing democracy to make only cameo appearances in that country has to be reprimanded at its onset. That the country's army claiming that it requires an aura of impunity to operate could be interpreted as a warning that the army might be becoming incompatible to function within a democratic space.

At the very least, it is not for military generals of the country to decide administrative and security policies. Neither should a uniform, irrespective of its colour, subdue legislative wisdom.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

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