Mr Abdullah met the Prime Minister, United Progressive Alliance chair Sonia Gandhi, and the finance, home and defence ministers. But he was told he would have wait for some months before AFSPA’s withdrawal could be considered. “More consultations” are needed on this “very, very sensitive issue”. It requires “mature and cool” handling.

However, the Centre’s handling has been anything but “mature and cool”. It simply allowed the army to veto the revocation proposal although it was endorsed by the Cabinet Committee on Security (CCS) almost a year ago, and although home minister P Chidambaram publicly supports AFSPA’s withdrawal from select areas in J&K, where the armed forces are no longer operating.

As we see below, this has dangerous implications for the civilian-military balance and hence for democracy.

Whatever his other faults, Mr Abdullah has not played petty politics on AFSPA. He has been asking for its revocation from parts of J&K ever since he became Chief Minister. The practical case for doing so is compelling. Srinagar, Badgam, Samba and Jammu district have been peaceful for years. And the army ceased active counter-insurgency operations in several other areas many years ago.

The home ministry’s latest report confirms this and says that 69 police and military personnel, 47 civilians and 232 terrorists were killed last year in J&K. The figures are much lower than those for 2004, when 281 security personnel, 707 civilians and 976 terrorists were killed.

Even adding to this number the murders unrelated to terrorism, the state’s rate of fatalities was 3.5 per 100,000 people. This is significantly lower than the comparable murder rate in Arunachal (6.1), Jharkhand (5.5), Mizoram (4.8) or Chhattisgarh (4.2). Thus, a J&K resident is much less likely to die in a violent crime than many other Indians.

Yet, the Centre is loath to reduce the army’s footprint and curb its excessive powers under AFSPA. The reason, bluntly put, is that the army brass doesn’t want AFSPA’s withdrawal, however partial. And the civilian leadership cannot muster the courage to assert its authority over it.

This became starkly obvious with an early November statement by the Northern Command chief Lt Gen KT Parnaik that the army would be “handicapped” without AFSPA. Soon, army chief Gen VK Singh lent his weight to the demand that the Act must be retained. The army officially told the Centre that it cannot fight the insurgency with its hands tied behind its back through AFSPA’s revocation.

On November 9, Lt Gen Syed Ata Hasnain, commander of the XV Corps, made a long presentation to the Unified Command, comprising top military, paramilitary and civilian leaders, chaired by Mr Abdullah, in which he claimed that the calls for lifting AFSPA originated from just four sources: Pakistan, its armed forces agency, the ISI, terrorists, and secessionists.

Gen Hasnain indulged in gross insubordination by implicitly equating Messsrs Chidambaram and Abdullah with terrorists and secessionists. But he was not pulled up, as he should have been.

Defence minister AK Antony intervened to say that his ministry had “already conveyed its views to the government… Last year the CCS took a decision to leave the issue to the Unified Command” and added: “I am against a public debate on AFSPA.” So much for openness and democracy!

When Mr Abdullah said he would be within his powers to revoke the Disturbed Areas Act, whose notification is a precondition for AFSPA to operate, unnamed officers threatened that the army would stop all counter-insurgency operations.

Such threats are irresponsible and indefensible. They do not enhance the army’s reputation. They are all the more deplorable given AFSPA’s draconian nature and obnoxious content. The Act, legislated in 1958 for the Northeastern states, and later extended to J&K, empowers “any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank” to “fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order …”

This includes orders prohibiting “the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms…” An officer can also “arrest, without warrant, any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he … is about to commit a cognisable offence”. He can also “enter and search without warrant any premises to make any such arrest” and “may use such force as may be necessary…”

All that is required is that the officer “is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary”. In other words, there are no limits upon the use, circumstances or extent of force that can be used. Mere suspicion is enough to kill a person just for the violation of a prohibitory order such as Section 144 which is routinely imposed in India. Force can also be used preemptively.

This makes nonsense of the elementary principle of natural justice that there must be no extra-judicial killing. In a civilised society, only a court of law can deprive a person of his/her most valuable right, that to life, after following due process. The argument that this is permissible in a state of war doesn’t hold. We are talking about internal disturbance or insurgency, not war.

Besides, certain laws or norms must be followed even in war, however just its cause. These rules are codified in international law and international humanitarian law, and the Geneva Conventions. They prohibit the targeting of non-combatant civilians, and disproportionate use of force—you shouldn’t cripple someone for a parking offence, or kill them for violating orders against peaceful assembly. They also prohibit killing in inhuman, cruel or degrading ways.

People like Slobodan Milosevic and the plotters of ethnocide in Rwanda are being tried in international tribunals for violating such rules and committing crimes against humanity. Similarly, in 1996, the International Court of Justice, the world’s highest international law tribunal, held the use of nuclear weapons unlawful because they quintessentially target non-combatants, use indiscriminate force, and kill in horribly degrading ways.

AFSPA makes a mockery of all these rules, and cavalierly permits extra-judicial killings. This is grossly unethical, wholly repugnant and patently illegal. Even worse is the impunity that Section 6 of AFSPA bestows on army officers: “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.”

This is downright obnoxious and offends human decency. The least that a minimally reasonable law can provide is an opportunity to its potential victims, and to society at large, to establish that the excessive powers it grants were indeed used prudently and with reasonable caution, not vengefully or sadistically. That can only be done through a fair trial, where the accused also has a chance to defend himself.

Yet this mediaeval-style law confers total freedom from prosecution—unless the Centre grants its sanction. Needless to say, the Centre rarely grants permission and the perpetrators of horrible excesses go untried and unpunished.

For instance, the army invoked AFSPA to prevent the trial of five officers accused in the infamous Pathribal case, in which five innocent men were killed in cold blood after being falsely accused for the massacre of 34 Sikhs at Chattisinghpora in 2000. Similarly, a Class XII student was gunned down by a subhedar in 2003. The killer was shielded from prosecution by AFSPA.

Any law that allows the killing of citizens and bestows impunity for those responsible for snuffing out life should be declared unconstitutional and struck down. But India’s armed forces have publicly lobbied against AFSPA’s revocation and acted as if they had a say, even a veto, in policy matters.

However, in a democracy, the forces don’t enjoy that privilege. It is settled that “the chiefs of staff are the professional heads of the armed forces; they give professional advice to the government on strategy and military operations… Major questions of defence policy cannot be decided in purely military terms” without reference to the government's overall policies. “The tasks which are undertaken by the armed forces, the objectives which they are set and the manner in which they carry out these tasks are matters for which the government is accountable to Parliament.”

There have been numerous recent violations of this Constitutional principle, including pronouncements by army commanders on policy matters and statements calculated to sabotage a settlement of the Siachen glacier dispute.

This augurs badly for India’s democracy. AFSPA is a litmus test for citizens’ rights. If the UPA fails it, we all lose. (IPA Service)