The army is an organisation that is build primarily for defense against external aggression. Hence it is an instrument that is used entirely for a different set of activities. For the army to be involved in internal disturbances requires a great degree of doctrinal, tactical, operational and strategic changes.
The Indian army has been swift in evolving and equipping itself for any new form of warfare, but for it to be effective it requires a special set of powers that must be constitutionally alloted to them. This is why the Armed Forces Special Powers Act (AFSPA) is given to the armed forces so that they can conduct operations without any hindrance.
As far as AFSPA is concerned it is a legitimate and an indispensable element of counter terrorist/counter insurgency operations. In the disturbed areas if the army is to function the constitution must give them special powers for operational efficiency and effective because the army cannot work under the Indian Penal Code (IPC) or Criminal Procedure Code (CrPC) simply because it is not a police organization. The AFSPA gives them the authority that includes the basic policing powers such as to arrest or to search. Section 4, that gives the right to shoot to kill and destroy property that is directly contributing to the insurgency and unrest may seem draconian leading to human rights violations, but it is also a necessary component that explains the operational philosophy of the army. There were instances where many brave souls of the army laid down their lives for deciding not to shoot first. Therefore not giving section 4 of the AFSPA would be a strategic and an operational blunder. This is precisely why AFSPA is required.
There have been certain incidences where human rights were violated by the army, but for this we cannot blame the law that is designed for operational effectiveness for grave security conditions. The most controversial part of the AFSPA are section 4 and 7.
a) Any armed forces member may fire upon or otherwise use force, even to causing of the death against any person who is contravening the law.
b) Arrest, search without warrant.
c) Destroy any arms dump, fortified position or shelter.
No prosecution without the sanction of the Central government.
If we carefully scrutinize both the sections, there seems to be no problem since both the sections are important for unhindered counter insurgency operations. But the issue is with impunity for HR (human rights) violations. The problem lies in the way central government handles section 7. Most of the cases that are sent to the Ministry of Defense (MoD) for Army and Ministry of Home Affairs (MHA) for Central Police Forces (CPF) for sanctions are rejected by these ministries giving no chance for a fight in the court for justice. This is where we need to work upon because if people of those areas, where AFSPA is declared lose faith in the system/process to reach the judiciary has a reason to turn those areas violent in one form or the other and add to the cycle of violence. Therefore transparent and time bound processes for sanctioning cases for HR violations is needed and then allow the law of the land to take its course. This will also act as a factor of deterrence to the army and keep them within the limits that are permissible by the law.
It can also be seen that there are a number of cases where the culprits have been punished either by the military courts or the civil. The Army HQ, Srinagar, reports that, between 1990 and 2011 a total of 1483 cases of HR violations have been filed against the army in J&K out of which 43 cases were proven and necessary action was taken in which 96 persons were punished. It is good to see that issues are being taken to the court and some amount of justice is being done, however the statistics are still laughable. It can be seen that there is a process through which justice is being done and therefore these judgments can throw some light into future cases and the state and its citizens must capitalize on this aspect and bring an end to the system of impunity in the areas that are declared disturbed.
[Bhaskar Sharma is a postgraduate student at the Nelson Mandela Centre for Peace and Conflict Resolution. He can be reached via email at: bhaskarwork [at] yahoo.in]
[Views expressed herein are the author’s own, and do not necessarily represent Jamia Journal’s editorial policy.]
 Bhashyam Kasturi, “Indian army’s counter insurgency operations in J&K”, http://www.indiandefencereview.com/news/indian-armys-counter-insurgency-operations-in-jk-i/0/
 “Kashmir: The Riddle of AFSPA”, http://www.ndtv.com/article/india/kashmir-the-riddle-of-afspa-151799
Section 7 goes against equal protection under the law and is thus against fundamental rights of the people.