With Kashmir Valley on the boil, the prolific public debate on the 'Armed Forces (Special Powers) Act' (AFSPA) has taken on an unusual stridency. But a debate which is swayed by emotion, prejudice or cultivated ignorance, instead of resting upon a bed-rock of factual realities, becomes an exercise in mere sophistry.
Indian soldier is a citizen with equal obligations and the same rights as any other Indian citizen – she/he is neither a 'slave' of the State or of the populace and nor is she/he a robot, to be to be manipulated by the exigencies of politics or populism.
Albeit, as long as she/he wears the uniform, she/he voluntarily denudes her/him-self of three fundamental rights granted by Article 19 of our Constitution, ie, right of free association, the right of political activity and the right to communicate to the Press – all other constitutional rights remain intact. Further, a soldier voluntarily places her/himself under the statutory rigours of military discipline (Army/Navy/Air Force Acts) and is bound to obey all lawful commands of her/his military superior, unto death.
"All those frantic for the removal of AFSPA, need to be clear on this – abolish AFSPA, humanize it or whatever, but before that resolve politically or governance-wise, the problems which force the State to impose AFSPA ie, convince the insurgents to stop insurgency, militants to stop militancy, terrorists to stop terror, Naxalites to stop mayhem and Valley "youth" to stop chucking stones on behest of 'organisers'."
Next, Indian Armed Forces are the servants of the State and its ultimate resort. They are duty-bound to do all that is necessary for the "safety, honour and welfare" of our Nation and to this end, faithfully and efficiently execute all lawful commands, directions and policies of the Government in power, with fidelity and to the utmost of their ability. Reciprocally, it is the duty of the State (and its other executive instruments) to provide the Armed Forces, the means and wherewithals essential to perform the responsibilities and tasks assigned to them.
Now for the AFSPA. Except in war, or when guarding the international border, Indian Army has no constitutional authority or legal powers to use force or fire-arms against anyone, whosoever. Like any other Indian citizen, the only legal right a soldier has, is the right of 'private defence' (of life or property), which must be proved post-facto, in a court of law, and this takes many years of court hearings.
The only other possibility of such use of force by the Armed Forces is when called out in 'aid to civil authority', where a magistrate must be present at each spot, and she/he must allow the use of force in writing, on a particular form, and only after completing these procedures can troops be ordered to use minimum force.
Well, today's terrorist/insurgent/militant/Naxalite does not allow you the luxury of a magistrate's presence, ready with a pen and form (and one would not be handy, everywhere and all the time) – you are shot dead or blown-up in a jiffy, unless you are quicker and forestall him. Any military commander, COAS downwards, ordering his troops to operate in counter-insurgency role (cordons & searches, ambushes, counter-ambushes, pitched battles) against folks of this ilk, would be giving an UNLAWFUL command, not liable to be obeyed.
If obeyed, it would land all commanders down the chain and whole corps, divisions, brigades, battalions, companies, platoons and infantry sections before the courts of law, on charges of murder, assault, injury and destruction of property, obviously leaving no time or resources for any other military activities, for years.
So, to ensure that the Army is able to perform its basic function of external defence and internal security of the Nation, some pragmatic persons in 1950's invented AFSPA for Naga Hills, and now it is applied on a 'fire-fighting basis' elsewhere also, NOT by the Indian Army but by the Government of India, when things get out of latter's hand ! So before undermining AFSPA, understand one thing clearly – in a democracy, only the elected Government is mandated to govern – if it fails and cannot find political solutions, and needs to exert State power to enforce its writ, then Army may be called-in by the State – it does not come-in on its own.
So, ordering a soldier, who is also a citizen, to carry out counter-insurgency operations in the absence of any legal mandate, is to order her/him to commit murder and mayhem and this is NOT a lawful command and is legally and morally open to disobedience. You apply AFPSA (or any suitable enabling legal measure) and it becomes a military operation, done in a military manner, with restraint and responsibility. Aberrations will occur amongst humans, will be punished severely and promptly, but these aberrations are not the policy.
...today's terrorist / insurgent / militant / Naxalite does not allow you the luxury of a magistrate's presence, ready with a pen and form...
As simple as that! So all those frantic for the removal of AFSPA, need to be clear on this – abolish AFSPA, humanize it or whatever, but before that resolve politically or governance-wise, the problems which force the State to impose AFSPA (ie, convince the insurgents to stop insurgency, militants to stop militancy, terrorists to stop terror, Naxalites to stop mayhem and Valley "youth" to stop chucking stones on behest of 'organisers'). COAS downwards, NO one can order a soldier to obey an unlawful command, ie, to inflict violence without legitimate legal sanction.
Thus, debates based on crass ignorance of ground realities are harmful for the community- it is like banning a book or a movie without having read/seen them. Soldiers are quite clear on where they stand on AFPSA, but is everyone else?