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A Fitting Response to AFSPA debate: Disarming the state by Maj Gen Dr G D Bakshi

Chandra Nath

November 28, 2011

Original Article by Maj Gen Dr G D Bakshi

fall! If it is short duration of an emergency, it is understandable. But can an emergency continue for half a century? AFSPA in NE is for more than half a century! 1. The fact that some of the NGOs are funded by foreign sources, does not make their arguments invalid nor their rights to raise the human rights become illegitimate 2. When some one argues against the state violating human rights, they are NOT arguing for delegitimize its Counter Insurgency(CI) operation 3. Which CI strategy argues for violating Human Rights of the population? If the General is aware of rudiments of modern CI Strategy he should know or at least ought to have known that success of CI totally depends on upholding Human Rights. Please

he original article AFSPA debate: Disarming the state by Maj Gen Dr G D Bakshi is given here.1 It is also appended to this article for ready refence.


Response by Chandra Nath

The article is full of half truths, lies, illogical claims, and displays the Generals total lack of understanding of fundamentals of Human Rights. When activists argue, they are arguing for rights fundamental to all human beings including Kashmiri people and against Police state in the name terrorism. The tension is between citizens rights and need to ght terrorism. Sacricing one for the other is the trap demagogues

1 http://timesofindia.indiatimes.com/india/AFSPA-debate-Disarming-the-state/ articleshow/10775667.cms 2 http://www.fas.org/irp/doddir/army/fm3-24.pdf

go read: COUNTERINSURGENCY, 2 U.S. Army Marine Corps Counterinsurgency Manual (U.S. Army Field Manual 324) Released December 2006 and available on Secrecy News blog of Federation of American Scientists. Obviously, the General who ponticates on Human Rights and state policy is not even familiar with his own eld of COUNTERINSURGENCY, which he ought to be before displaying his stark ignorance of CI itself in public space and thus tries to sway the public opinion. What a pity! He is engaged in misleading public opinion and justifying an unjust law. 4. The whole library of counter terrorism literature of the world is available here.3 Does it any where advocate State violating Human Rights in any counter terrorism operations? 5. If CrPC 45 4 and CrPC 197 5 protects Army along with the Police, then why do you need AFSPA? His argument is 45 and 197 protects Police but not ARMY is patently false! (Please go and study the sections yourself, General) 6. He says: Its operations have to be within a legal framework, which sets the rules of engagement. This is a statement as true as mother and apple pie. The premise is correct but his
3 http://counterterrorismblog.org/library/

conclusions that hence, AFSPA is legal and minimum needed for the Army is false. The truth is AFSPA itself is illegal and takes away citizens fundamental and human rights and such illegal framework is NOT needed for Army to use force! Gen Dyer to use massive lethal force of the colonial State in Jallianwallahbag did NOT need AFSPA. AFSPA does not legalize the force but immunizes the lethal force with brutal regime of shoot to kill of innocent civilian population and brutalizes their right to life, property and freedom and that too with no remedy. With AFSPA, even Gen Dyer could have escaped all punishment because AFSPA provides total immunity. Just because Gen Dyer acted in good faith does not mean he is immune to laws! AFSPA makes him immune to all laws of the land if it was in existence then. 7. He says: This is precisely what the Armed Forces (Special Powers) Act (AFSPA) does and hence is a critical enabling legislation. It was enacted in September 1958 and has stood the test of time in its operations over the last six decades. He neither understands AFSPA nor the history of brutality AFSPA 6 and 7 had released on the citizen and that too not for an emergency but for more than half a century. 8. To say that it has stood the

4 http://www.vakilno1.com/bareacts/CrPc/s45.htm 5 http://www.vakilno1.com/bareacts/CrPc/s197.htm 6 http://ebookbrowse.com/afspa-booklet-cpdm-2010-pdf-d78202446 7 http://www.panossouthasia.org/pdf/Frontpage_on_AFSPA.pdf

test of time is demagoguery (the methods or practices of a demagogue, a person, especially an orator or political leader, who gains power and popularity by arousing the emotions, passions,and prejudices of the people.) 9. To say that There is a concerted campaign that seeks to label this act as draconian is pure demagoguery. It is draconian because it brutalizes a population by violating its fundamental rights and human rights with no remedy and that too for half a century ( and not for an emergency).

for citizen) Cr P C and IPC is more than sucient and you do not need AFSPA. 9 and 10 12. He says: It is a great pity that some foreign-funded NGOs have brazenly put themselves above the Supreme Court of the land; in demonizing the Army, they are also trying to discredit this magnicent institution in which the nation reposes so much faith. When the Act is analyzed as violating the Human Rights of the citizen, the NGOs are not putting themselves above Supreme Court 11 and 12 13 . There is enough of analysis of the Act based on the Human Rights violations and none of them can be answered by pure demogouery.

10. To say : In reality, it contains the bare minimal powers essential to deal with itself displays total lack of understanding of counterinsurgency strategy and operations. The author needs to read . The tension is between citizens Rules of Engagement The Law of rights and need to ght terrorism. SacWar in COUTERINSURGENCY ricing one for the other is the trap 8 demagogues fall! If it is a short du11. He says: Because so many ration of an emergency lasting few Arms, ammunition and grenades hours or even days, it is understandare found (over 80,000 AK se- able. But can an emergency continue ries ries; over 1,300 machine for half a century? AFSPA in NE is guns; over 2,000 rocket launch- for more than half a century! Our citers; some 63,000 hand grenades izen deprived of fundamental and huand 7 million rounds of ammu- man rights for half a century is a matter nition.), hence AFSPA is justi- of shame. The pro argument for tight ed is itself irrational and illog- security and AFSPA and such dracoical. To deal with those who take nian measures run like this: Negative up arms against state, you do not cases of security abuse are few. In any need AFSPA (AFSPA immunizes wide-scale attempt to ght terrorism Army from law with NO remedy there are bound to be a few cases of
8 http://www.fas.org/irp/doddir/army/fm3-24.pdf 9 http://delhicourts.nic.in/CrPC.htm 10 http://www.vakilno1.com/bareacts/indianpenalcode/indianpenalcode.htm 11 http://www.mightylaws.in/689/afspa-mockery-human-rights 12 http://www.humanrights.asia/countries/india/reports/AFSPA1958Review-Aug2011.

13 http://cplash.com/post/AFSPA,-Military-and-Human-Rights266.html

abuse of security measures. Therefore it is not a good idea to shut down all security measures under a pretext that they violate rights. The majority of the measures are intended to safeguard those civil liberties instead of abusing them. The counter argument for this run like this and it is very strong: Many evil events in history started with good intentions and few cases of injustice. Allowing even a few abuses as an acceptable side eect of improved security will change the tolerance level of the public and lead to a belief that rights such as the presumption of innocence and habeas corpus (which prevents the state from imprisoning someone without charging them with a crime and then trying them) are a negotiable luxury. Furthermore, abuses of the system are likely to victimise certain minority groups (e.g. Kashmiris, North Easterners) in the same way that JapaneseAmericans were persecuted in World War II, something about which Americans are now rightly ashamed. Do we Indians want to repent in the future like the US Government is repenting to day for their grossly stupid idiotic and paranoid behavior against the Japanese- Americans during the Second World War? A total inability to empathize with the suerers of draconian laws like AFSPA is what makes people advocate for AFSPA. Which person would advocate for AFSPA in their neighborhood if they could be missing and found dead or their family members are not safe at their homes when they are at work and return to nd them dead or missing? I am yet to nd one even amongst ardent right wing extremists As for AFSPA is draconian or not, sucient analysis of AFSPA by Human Righs organizations 4

exist and their arguments can not be countered by any one logically. Jingoism is no rational argument in world courts of Human Rights. Or else, let us declare, we do not believe in Human Rights. It is rather unfortunate that Supreme Court did not declare AFSPA as unconstitutional but instead went into the technical right of the Parliament to pass the laws to control emergency situations. But then an emergency should not last half a century! To say that There is a concerted campaign that seeks to label this act as draconian is pure demagoguery. It is draconian because it brutalizes a population by violating its fundamental and human rights with no remedy and that too for half a century ( and not for an emergency). Which citizen resident in Kashmir wants AFSPA for his own protection. Dont impose on citizen what they themselves do NOT want? To say that every one in Kashmir is a terrorist is unrealistic. People asking for satisfying their political aspirations can not be fought with such draconian measures. By not conceding to their demand for lifting such draconian measures, we are legitimizing their demand. Is that what we really want? Just think about it. To say that once it is lifted, it can not be reintroduced easily is totally false. All that involves is just a declaration by the State government that it is a disturbed area. The fact how a disturbed area is declared is given in the Act itself. How come the author missed such an important provision of the Act? Does it mean that the author has not read the Act diligently? When Churchill said the following words in the British Parliament in the debate on the Jallianwallah Bag massacre, he was not referring to inde-

pendent India imposing its will on NE J K: Governments who have seized upon power by violence and by usurpation have often resorted to terrorism in their desperate eorts to keep what they have stolen, but the august and venerable structure of the British Empire, where lawful authority descends from hand to hand and generation after generation, does not need such aid. Such ideas are absolutely foreign to the British way of doing things.

By Army insisting on AFSPA while political masters wanted to remove it, Army has done a biggest disservice to all men in uniform past and present and the nation because it is not in the Armys own interest. To day Army is being perceived as the enemy terrorising the citizen of these disturbed areas, not the actual terrorist! Perception is everything. It should have been the other way. Instead of Army being looked upon as the saviour, we are thwarting attempts by the political authority in removing this draconian law from even parts of the valley. How sad? Even if veterans have little loyalty to the uniform every veteran wore, we should oppose this Draconian law that dispenses with protection of all laws. We should have made CM come begging to the Army to establish law and order! Instead we allowed him to be the hero and the Army the villain! Is that what veterans wanted? Just think Philosopher Igor Primoratz proabout it. My heart aches at our stupid- vides four reasons why he believes ity and naivete. that state terrorism is typically morally State terrorism is more danger- worse than non-state terrorism. First, ous than non-state terrorism. Noam because of the nature of the modChomsky says: Wanton killing of in- ern state and the amount and vanocent civilians is terrorism, not a war riety of resources available even for against terrorism. Aristotle wrote small states, the state mode of terrorcritically of terror employed by tyrants ism claims vastly more victims than
14 http://en.wikipedia.org/wiki/State_terrorism#History

against their subjects. The earliest use of the word terrorism was by the Oxford Dictionary is a 1795 reference to tyrannical state behavior, the reign of terrorism in France. In that same year, Edmund Burke famously decried the thousands of those hellhounds called terrorists who he believed threatened Europe.During the Reign of Terror, the Jacobin government and other factions of the French Revolution used the apparatus of the state to execute and intimidate political opponents, and the Oxford English Dictionary includes as one denition of terrorism Government by intimidation carried out by the party in power in France between 1789-1794. The original general meaning of terrorism was of terrorism by the state, as reected in the 1798 supplement of the Dictionnaire of the Acadmie franaise, which described terrorism as systeme, regime de la terreur. Dr Myra Williamson wrote: The meaning of terrorism has undergone a transformation. During the reign of terror a regime or system of terrorism was used as an instrument of governance, wielded by a recently established revolutionary state against the enemies of the people. Now the term terrorism is commonly used to describe terrorist acts committed by non-state or subnational entities against a state. 14

does terrorism by non-state actors. Secondly, because state terrorism is bound to be compounded by secrecy, deception and hypocrisy, terrorist states typically act with clandestine brutality while publicly professing adherence to values and principles which rule it out. Thirdly, because, unlike non-state actors, states are signatories in international laws and conventions prohibiting terrorism, so when a state commits acts of terrorism it is in breach of its own solemn international commitments. Finally, while there may be circumstances where nonstate actors are in such an oppressed situation that there may be no alternative but terrorism, Primoratz argues that it seems virtually impossible that a state should nd itself in such circumstances where it has no alternative but to resorting to terrorism. Society should be more worried about state terrorism than by the terrorism by deviants of society. Perhaps the deviants of society took up terrorism as a desperate attempt in response to state terrorism. 15 . If story of Manipur of 50 years is any thing to go by, the history of state terrorism through instruments like AFSPA should be shunned by society. The resume of Maj Gen Dr G D Bakshi (Retd) author of the article under debate reveals that he is a Strategic Analyst and has been contracted by the Army HQ and Integrated Defense Sta to carry out Net Assessments of Key Security issues When the Pentagon Analysts scam broke out in New York times, a visibly upset Robert M. Gates, the defense secretary, asked the Pentagon to investigate the program. Representative Ike Skelton, Democrat of

Missouri and chairman of the House Armed Services Committee, said in a speech that he and many other members of Congress were very angry about the issues raised by the article. The story does not reect well on the Pentagon, on the military analysts in question, or on the media organizations that employ them, he said. New York times reports: When you put analysts on the air without fully disclosing their business interests, as well as relationships with high-level ofcials within the government, the public trust is betrayed, Ms. DeLauro wrote. FCC carried out an ethics investigation on complaint from Senatore who wrote: When seemingly objective television commentators are in fact highly motivated to promote the agenda of a government agency, a gross violation of the public trust occurs, the duo wrote to the FCC. Not revealing business interests while posing as independant analyst to the gullible public who are consumers of these analysis is a serious ethics violation of the trust. It is a misuse of public tax Ruppees to inuence the independent analysts with out appropriate revealation of monetary interests and that is gross violation of a public trust. As NYT ethics says: Keeping our detachment; Obeying the law; Paying our own way; Dealing with competitors ... means by which we fulll the public trust and our customers expectations. ..... the news and analysis that could properly appear under their regular bylines. It is a violation of public trust the media supposed to maintain in dealing with an issue of public importance. Are Tax Rs being spent to manufacture consent of the public in the form of Military

15 http://en.wikipedia.org/wiki/State_terrorism#Moral_analysis

analyst paid by Army Hq? Are there ethical issues involving journalistic independence, full disclosure and transparency and obligation to reveal conict of interest? Is it fair to the AFSPA victims living in Kashmir? Isnt this as unethical as the Pentagon Analyst scam? You be the judge! Here is a very serious allegation of ethics violation issue against the author, the T of I and the Army Hq that was raised. The public would sincerely hope that no such ethics violation exists in the name of transparency and public interest on the heated debates taking place in the country and the imminent government decision on the burning AFSPA issue and the Kashmiris interest in getting it lifted and the Armys interest in resisting the CMs attempt at getting it lifted. All stake holders ought to be interested in responding so that the cloud of possible ethics violation is lifted in the interest of Indian citizens residing in Kashmir. Not revealing business interests while posing as independant analyst to the gullible public who are consumers of these analysis is a serious ethics violation of the trust.This is as unethical as a heath expert who writes indpendant analysis is a paid consultant of a pharmaceutical company or a cigarette manufacturing company! Is the author and his funding source advocating for the following as legal framework for the actors?: 1. For citizen : All criminal laws apply for strict compliance, strict enforcement through Section 144, searches with out legal warrant, entry into homes, arrests, interrogation, disappearance. 2. For soldier: no criminal laws apply, no checks and balances, no 7

legal process for remedy, no prosecution, power to shoot to kill, raw state power at its worst with no remedy for citizen! Is that what we mean by enabling legal framework which is the minimum required for Army to enforce all law and order? Demagogues use vocabulary to conceal the truth! Where are the rights citizen won back in history? Crimes against habitation are not crimes against property. A crime against a house would be a crime against property because a house is worth money, it has some material value. Instead, crimes against habitation are crimes against a home, and the law seeks to protect instances of the concept of home from the social harms of INVASION, INTRUSION, DAMAGE, DESTRUCTION, and INSECURITY. A house is not a home as the old saying goes. BURGLARY and ARSON share important commonlaw origins. Both were serious crimes punishable by death in both England and colonial America. The sentiment that a mans castle is his home runs deep in Anglo-American culture. Many of the early settlers to America also came from the English town of Colchester, where in 1575, armed townspeople rst challenged the Queens soldiers from entering homes without a warrant. Heres an excerpt from Lord Pitts famous speech in the House of Commons about that time: The poorest man may in his cottage bid deance to all the forces of the Crown. It [His home] may be frail, its roof may shake, the wind may blow through it, the storm may enter, but

the King of England himself cannot enter. All the Kings forces dare not enter, nor cross the threshold of the tenement. ================= AFSPA debate: Disarming the state Maj Gen Dr G D Bakshi Nov 18, 2011, 05.00AM IST Tags: * Supreme Court * Indian Army * Counter Insurgency NEW DELHI: The AFSPA debate in this country has recently been ramped up by many decibels. There appears to be a concerted campaign on the part of some foreignfunded NGOs to demonize the Army and delegitimize its Counter Insurgency (CI) and Counter Terrorist (CT) operations. It must be remembered that the Army is the instrument of last resort of the state and it has successfully tamed insurgencies in the northeast and vicious terrorist movements in Punjab and Jammu Kashmir. It is brought in only once the local police and Central Armed Police Forces (CAPFs) have failed to control the situation. Its operations have to be within a legal framework, which sets the rules of engagement, and also provides basic protection from prosecution (as available to the police under Section 45 and 197 of the CrPC) for personnel acting in good faith. This is precisely what the Armed Forces (Special Powers) Act (AFSPA) does and hence is a critical enabling legislation. It was enacted in September 1958 and has stood the test of time in its operations over the last six decades. There is a concerted campaign that seeks to label this act as draconian. 8

In reality, it contains the bare minimal powers essential to deal with highly militarized and well-armed terrorists and insurgent groups, with extensive foreign support and sanctuaries. The scale of militarization of the current internal conicts is not generally understood. In JK alone, the Indian Army has since 1990, recovered over 80,000 AK series ries; over 1,300 machine guns; over 2,000 rocket launchers; some 63,000 hand grenades and 7 million rounds of ammunition. This is no peaceful civil protest - it has turned JK into a virtual war zone. Few people are aware that since 1990, the Indian Army has lost 5,108 ocers, JCOs and jawans ghting Pakistans proxy war. The Army conducted concerted operations and eliminated over 20,000 terrorists, a large proportion of whom were foreign terrorists. The constitutional validity of this act was challenged in the Naga Peoples Movement for Human Rights versus Union of India (UOI) case. A ve-judge constitutional bench of the Supreme Court of India upheld the validity of the act. In fact, having considered the real circumstances under which the armed forces have to act, the honourable court extended the scope of the powers vested under Section 4 and 6 of the AFSPA and added the power to interrogate a person arrested and retain the weapons seized. The Supreme Court, thus, did not nd the powers excessive but short of what was really needed. The SC is the most respected institution in this country and has upheld the need and validity of this law. Far from being draconian, AFSPA is the bare minimum warranted in view of threats faced by the security forces. The Supreme Courts appraisal was realistic and took note of the ground

realities. It is a great pity that some foreign-funded NGOs have brazenly put themselves above the Supreme Court of the land; in demonizing the Army, they are also trying to discredit this magnicent institution in which the nation reposes so much faith. There is a concerted campaign to question the validity of this act and thereby delegitimize the operations of the Army. The Indian scene cannot be seen in isolation from the rest of the world. After 9/11, the US and its allies have waged a war against terror. There are 13 International Counter Terrorism Conventions in force, ranging from hijacking, piracy and intelligence sharing. The UN Security Council resolutions have called for legislative reforms by countries to combat terror. These are resolutions that are binding on member states. In response, democratic countries like the USA, UK and European Union states have enacted stringent antiterror laws to include preventive detention, control orders and warrantless searches. After 9/11, these laws were made even more stringent and included provisions to track funds and tap phones. The US Patriot Law is far more stringent than the AFSPA. The result is for all to see, after 9/11, there has not been a second terrorist attack on the soil of continental USA. Unfortunately, in India, it has now become commonplace for 2-3000 citizens to perish each year at the hands of the terrorists and Maoist insurgents. Very surprisingly, the liberal lobby in India has taken the very opposite approach. While there is an outcry about the human rights of the terrorists, the liberal lobby demonstrates a blase attitude towards the lives of their inno9

cent victims. Kasab and Afzal Guru are the causes celebre of this bleedingheart lobby. This lobby even exerts pressure on the government to scrap the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Terrorism Act (POTA). The only act now remaining in the states armoury is the Unlawful Activities (Prevention) Act of 1967 (which needs to be greatly strengthened). Having got rid of TADA and POTA, the foreignfunded NGOs have set their sights on the AFSPA. There is a concerted assault upon the states will to use legitimate force to protect its citizens from violent armed groups whose lethality is increasing by the day, in terms of the support they get from state actors like Pakistan and China. World over, the approach of nations in tackling terrorism and insurgency is akin to the one followed by our own government. To that extent, it was incorrect on the part of Omar Abdullah (CM of JK) to ignore the written advice of his military commanders. The entire Pakistani terror infrastructure is intact and thriving. There are some 2,000-2,500 terrorists in training camps. Some 700-850 are on the launching pads and hold camps near the Line of Control (LoC). Around 230 terrorists made 35 attempts to inltrate this year. Nearly 50 terrorists have been killed in 2010 so far, 19 in the last two months alone. The situation is clearly not conducive to premature declaration of victory and we need to guard against any sudden deterioration. The Americans are withdrawing from Afghanistan in 2014. In 1989, once the Soviets left Afghanistan, a massive number of out-of-job HUA

(Harkat-ul-Ansar) and HUJI (Harkatul-Jihad-al-Islami) terrorists had been diverted to JK and all terrorist training camps had shifted from PoK to the AfPak border region. Will history repeat itself after 2014? It is highly premature to lower our guard. Partial removal of AFSPA from selected districts only creates sanctuaries, which the terrorists exploit to the hilt to rest, regroup and strike again. The CM has stated that the Army has not operated in Srinagar and Budgam for over three years. This is incorrect. Each morning the Army and eight companies of the CRPF sanitize the strategic road through the city for our logistic convoys to Kargil and Ladakh for the critical winter-stocking tasks. Not only the road, an area of nearly 3 sq km on either side has to be sanitized. The aireld in Srinagar is a critical target and a 2km cone on either end has to be sanitized to ensure that no SAMs or RPGs are red at the aircraft. Srinagar is the pivot of all political activity in JK. All the terrorist command-and-control and nancial (hawala) networks operate from here. Most intelligence, even about LoC crossings, is gathered in these urban centres. Premature removal of the act from these areas would be highly counterproductive. Once removed, AFSPA cannot, in practice, be reimposed in a hurry. In a quiet summer, the state government should have consolidated its position on governance and delivery front. Unfortunately, the hunt for populist gimmicks has prompted the beleaguered state politicians to target the Army in a most irresponsible manner. They have tried to manufacture causes for the separatists to exploit. It is a

tribute to the tenacity of our Army that terrorism has been so drastically curtailed in JK. We have won all the battles on the ground. We should not lose the war by self-inicted goals and premature declarations of complete victory.