Human Rights Violations Vs AFSPA: A Contradiction That Must End

31 Aug, 2018    ·   5511

Lt Gen AS Lamba argues that while criminality has to be punished, the state also has to protect its service personnel from unsubstantiated litigation

In an unprecedented move, 356 officers of India’s security forces across the country filed a writ petition on 14 August with the Supreme Court against handling, processing and disposing of cases alleging human rights violations against security forces’ personnel while on active military duty. This action was triggered by a Supreme Court directive to lower courts limiting the legal protections and safeguards that AFSPA provides to security forces in counter-insurgency operations in disturbed areas.

Beginning 1947, the scale of insurgencies in the Northeast has been unparalleled in terms of time, endurance and intensity. In Manipur, for example, there are several self-proclaimed liberated zones, created by a multitude of groups. Ruled by terror, these are essentially mini thug fiefdoms. The Manipur government as late as December 2017, while justifying and extending the Arms Forces Special Powers Act (AFPSA), said that the “entire state is in such a disturbing condition that use of armed forces in aid to civil authority remained necessary.” Currently, the Disturbed Areas Act applies to all of Manipur excluding the Imphal Urban Area (34 sq km).

In Manipur, since 1991, while sustained pressure by security forces resulted in the killing of 4,900 insurgents and surrender of more than 5,100 insurgents, the security forces lost more than 1,900 personnel with another 3,100 injured. These are not ordinary war casualties and statistics but losses of India’s regular security forces in combat against fully armed insurgents. Yet, no heavy weapons or airpower has been used in order to minimise casualties, despite a high toll on the lives of security personnel.

The alleged HR violations by security forces between 1997 till 2012 comprise a total of 1,528 deaths based on individual testimonials, written complaints, commission of enquiries, and National Human Rights Commissions (NHRC) cases. A Special Investigating Team (SIT) was constituted by the Central Bureau of Investigation (CBI) in July 2017 in pursuit of these investigations. 62 cases are being processed currently by the SIT, which include six cases heard by the Santosh Hegde Commission in 2013 that generated adverse and critical reports on security forces based on testimonials not backed by evidence, circumstantial or physical.

The Petition
The 14 August writ petition is intended to reverse the dilutions to safeguards provided by AFSPA. These dilutions include investigations, trials and imprisonment – even after retirement – for acts committed during service, but placing the financial burden of defence on them individually. Worryingly, one of the court directives has been to ask the CBI to expedite cases by downscaling ten steps necessary to ensure due diligence to just four, and compressing the investigation window from 4 to 2 weeks. Needless to say, scaling down due process reduces rather than improves the quality of investigation, and placing the financial burden of defence on a retired individual severely erodes the morale and willingness of an officer to do one’s duty. It definitely acts a force multiplier for insurgent groups and their supporters who regularly use the tactic of bogging down service members in abuse and harassment in civil arenas to further their military and political goals.

The question here is what the demands of justice are. Nobody can deny that human rights violations and AFSPA do take place, for a variety of complex reasons to be discussed separately. What is the solution to these? The path for quite some time has been straightforward. There are already a set of guidelines that allow variation to suit the fluidity of a combat situation. Indeed, when excesses take place, they have frequently been identified and punishment meted out when backed by evidence. The answer lies in strengthening the evidence collection mechanism and an understanding on the part of the judiciary that combat situations need fluidity with core principles are upheld, rather than the current preferred solution: a retroactive application of shifting goalposts, and a plethora of case-by-case orders that seek to micromanage every act of every soldier and officer.

In July 2016, a Supreme Court interim order, correctly stated that AFSPA did not provide blanket immunity to security personnel. The problem with the entire debate is that while criminality has to be punished, the state also has a fundamental duty of care towards its service personnel, to protect them from motivated and unsubstantiated litigation. Across the world, armies and governments maintain a careful balance between these competing demands. Sadly, in India, a slow salami-slicing tactic has now accreted into a body of jurisprudence that is skewing this delicate balance. It is high time the courts and government understand these nuances and restore balance to the situation.

Lt Gen (Retd) AS Lamba is President, IPCS, and former Vice Chief of Army Staff, Indian Army.