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1/D-18
Feb 07, 2013
01:43 AM

 >>"I think you should ask the question to the armed forces and ask why are they so opposed to even some amendment to AFSPA which will make AFSPA more humanitarian," -- P Chidambaram

Surely Armed forces are not the legislative organs. Bring the legislation. .

R. Saroja, Bombay
2/D-22
Feb 07, 2013
02:12 AM

Armed forces must always be subservient to the civilian government. Justice Verma's report clearly said, "“There is an imminent need to review the continuance of the AFSPA and AFSPA-like legal protocols in internal conflict areas as soon as possible.....This is necessary for determining the propriety of resorting to this legislation in the areas concerned.”

Anwaar, Dallas
3/D-128
Feb 08, 2013
04:56 PM

 If army personnel, acting in good faith, are denied the protection of AFSPA, a day will come when they will refuse to take part in counter insurgency operations. That is not the army's opeartional role.

Those wish for such an eventuality can continue to push for the revocation of AFSPA. Those who don't may like to reconsider their position.

Bonita, Chennai
4/D-15
Feb 09, 2013
02:36 AM

Bonita,

>> If army personnel, acting in good faith, are denied the protection of AFSPA, a day will come when they will refuse to take part in counter insurgency operations.

Are the army personnel doing counter insurgency operations out of the goodness of their hearts?

Anwaar, Dallas
5/D-172
Feb 09, 2013
10:24 PM

 Anwaar,

Are the army personnel doing counter insurgency operations out of the goodness of their hearts?

If that is an attempt at humour or irony, it fails miserably. They are doing it because they are ordered to do so. However, if they are to be denied the protection of the law when they are doing their duty (and I do NOT mean something illegal) why should they expose themselves to an additional risk. Isn't it bad enough that they put their lives on the line. Now you want them to spend the rest of their lives defending themselves in courts.

I any event, Chidambaram is talking through the wrong orifice. We live in a democracy in which the army is subject to civilian authority. If Chidambaram and his fellow MPs in the ruling coalition believe that AFSPA is wrong and unjustified, then what stops them from repealing the Act? This is an exercise in passing the buck if ever there was one. Is it of less importance than FDI for instance, which they pushed through in the teeth of opposition from the non UPA.

Bonita, Chennai
6/D-8
Feb 10, 2013
01:41 AM
Comment removed for violation of Website Policy
Anwaar, Dallas
7/D-36
Feb 10, 2013
09:22 AM

  it has proposed that soldiers and officers guilty of rape and sexual assault be tried under the law of the land and not under the protectionist clauses of AFSPA.

Now we come to the crux of the problem.  I was under the mistaken impression that the guilt or otherwise of an accused was to be determined by a lawfully constituted court having jurisdiction. However, it appears that any soldier or officer accused of rape etc MUST be guilty. In that case why bother with a trial (civilian or army) at all. Just sentence him to death or such lesser punishment that you have determined he deserves.

I apologise for taking the macho position that soldiers are entitled to the same presumption of innocence as are civilians.

Incidentally, as long as AFSPA remains on the statute books it IS the law of the land.

Bonita, Chennai
8/D-77
Feb 10, 2013
01:12 PM

Bonita,

>> I apologise for taking the macho position that soldiers are entitled to the same presumption of innocence as are civilians.

Your position was that soldiers accused of rape, unlike civilians accused of rape, should continue to have AFSPA protection. You surely do not want to end this thread by making much of one wrong word used by Seema Mustafa!

Anwaar, Dallas
9/D-97
Feb 10, 2013
04:11 PM

 Anwaar,

Your position was that soldiers accused of rape, unlike civilians accused of rape, should continue to have AFSPA protection.

Please show me which clause in AFSPA legitimises rape or affords protection to soldiers. Section 6 of AFSPA 1958 and Section 7 of AF (J&K) SPA 1990 have the following identical provision viz.

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.

Have I (or anyone else) ever argued that rape is an act done in exercise of powers conferred on the Armed Forces by the act. This makes your entire argument irrelevant as AFSPA does not protect soldiers  against allegations of rape.

You surely do not want to end this thread by making much of one wrong word used by Seema Mustafa!

You may think I am making a big deal. To me, Mustafa's Freudian slip is indicative of her sub conscious bias. Army = BAD; Militant = innocent victim. You, of course, are welcome to differ.

PS. Army and Air Force courts are empowered to try cases of rape allegedly committed by their personnel by the Army and Air Force Acts and not by AFSPA. Repeal of AFSPA insofar as trying rape cases will therefore, change nothing. Both the Army and Air Force Acts were enacted in 1950 i.e. 8 years before the entry into force of AFSPA.

Bonita, Chennai
10/D-132
Feb 10, 2013
08:44 PM

The first sentence should have read

Please show me which clause in AFSPA legitimises rape or affords protection to soldiers accused of rape.

Bonita, Chennai
11/D-162
Feb 10, 2013
10:41 PM

  An extract from an email I received today titled "Why I Will Not Allow My Son To Be A Soldier". This has been translated from Marathi (not by me).

India is a country where everyone has human rights. Rapists, murderers, child molesters, serial killers, terrorists, Maoists. Everyone. Except soldiers! They are paid to fight, remember? It is their JOB to die unsung and unlamented (Italics mine).

This should answer Anwaar's question (#4/D-15)

Bonita, Chennai
12/D-8
Feb 11, 2013
03:39 AM

Bonita,

>>  which clause in AFSPA legitimises rape or affords protection to soldiers.

I am not a lawyer, but this is what I read: "The Verma Committee recommended removing the special privileges of the army that the Armed Forces Special Powers Act (AFSPA) provides. According to activist Bina Lakshmi Nepram there are numerous cases of rape and sexual assault in Manipur, which comes under the purview of AFSPA, where the guilty have not been brought to book. A member of the Verma committee Gopal Subramaniam said that armed forces, including para-military forces, should be brought under common law when operating in conflict zones in order to stem the number of cases where women were sexually exploited. "There’s an imminent need to review the continuance of AFSPA in areas as soon as possible,” Subramaniam said, adding that mechanisms need to be put in place to take action against military and para-military forces in conflict zones. Subramaniam said that it had noticed the “impunity of systematic sexual violence” that was being legitimised by AFSPA and that measures to ensure the security and dignity of women would have a long term impact. The law which seeks to protect armed forces in conflict zones from being hindered by general law, requires sanction to prosecute personnel accused of crimes. However, in the context of sexual crimes against women the tide may be turning, with even the Supreme Court recently observing that in cases of rape and sexual assault security forces should not be able to shield themselves with the AFSPA. “You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted, and that is our stand,” a Supreme Court bench consisting of Justices BS Chauhan and Swatanter Kumar noted recently."
 

>> Mustafa's Freudian slip is indicative of her sub conscious bias.

Not all slips are Freudian. She is saying the same thing that the Verma Committee and several activists have said. Speaking for myself, I honor the service that soldiers provide. I respect the fact that they put their lives on the line for our protection. I also respect the fundamental human rights of civilians, including the right of women not to be raped.

Anwaar, Dallas
13/D-20
Feb 11, 2013
09:53 AM

 Anwaar,

I am not a lawyer, but this is what I read: "The Verma Committee recommended removing the special privileges of the army that the Armed Forces Special Powers Act (AFSPA) provides.

I am not a lawyer either. Once this discussion on AFSPA started, I googled AFSPA and read the acts - 2 of them, one 1958 dealing with the North Eastern States and the other of 1990 for J&K. Both Acts are identical (except for the area of operation) and are very short - 2 or 3 A4 pages. You can read them here

Armed Forces Special Powers Act, 1958

Armed Forces (Jammu & Kashmir) Special Powers Act, 1990

The Justice Verma Committee had three very illustrious members. However, as one layman to another, please read either of the two acts and explain to me where it legitimises rape or sexual assault.

“You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted

I agree with the Hon'ble Judges, and if I have said anything to indicate that I believe that soldiers who may have committed these crimes should be above the law, I withdraw thenm unreservedly. Prior sanction for prosecution is to protect soldiers from vexatious and frivolous prosecution. (This is also true of the requirement for sanction to prosecute public servants for corruption). The problem is not with the law, but with those who administer it. Please note, that it is the sanction of the Central Government and not the COAS that is required. (That Central Government currently includes the likes of one P Chidambaram).

In the case of a killing, there can be doubt whether it was a fake counter (murder) or a legitimate act of self defence or use of force to stop an escaping militant. There is no such dischotomy in cases of sexual assault. They can NEVER be said to be in pursuance of official duties. 

As I mentioned earlier, the legal power to try cases of rape emanates from Section 70 of the Army Act, 1950 and NOT AFSPA. The relevant provision is

70. Civil offence not triable by court-martial. A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court-martial, unless he commits any of the said offences-

(a) while on active service, or
(b) at any place outside India, or
(c) at a frontier post specified by the Central Government by notification in this behalf.

I hope this clears up this issue.

As for Seema Mustafa, we shall just agree to disagree.

This discussion has degenerated into a discussion on the merits and demerits of AFSPA. The problem is not AFSPA, but the ongoing use of the Army in fighting the people of this country. There is no army in the world which has been continuously deployed on active service fighting home grown enemies of the state for over 50 years. Withdraw the army from these "disturbed" areas and let them concentrate on defending our borders and territorial integrity against external enemies. Use of the Army on Internal Security duties must STOP.

But let us revert to our Hon'ble Minister's comments.

"The armed forces, and especially the Chief of Army Staff, the present one and the previous one, have taken a very strong position that AFSPA should not be amended," 

There was a proposal to amend the AFSPA as also to lift it from certain areas of Jammu and Kashmir but the Defence Ministry is strongly opposed to it.

Did they just say "NO" or did they explain their position. Generals VK Singh and Bikram Singh have not seen eye to eye on anything but on this issue they stand together. Any reason?

"Now, how does the government move forward in the face of such widely divergent views on the sensitive subject"?

"My view on AFSPA is known, the view of the Chief Minister of Jammu and Kashmir on AFSPA is known. We have Jeevan Reddy Committee report but yet if the Army takes a very strong stand against any dilution or any amendment to AFSPA, it is difficult for a civil government to move forward,".

"I think you should ask the question to the armed forces and ask why are they so opposed to even some amendment to AFSPA which will make AFSPA more humanitarian,".

Has there ever been a more shameful (or should it be shameless) pronouncement by a Union Minister who is widely percieved to be No 2 (after Mukherjee's elevation) and who was until recently the Home Minister. When generals speak their minds on matters affecting national security, usually in answer to direct questions, the media castigates them for having spoken out of turn (as though national security is not their concern). Now you have Chidambaram saying "Don't ask me, ask Gen Bikram Singh. He is the trouble maker not I".

The BJP and other opposition parties are so engrossed in perceived slights to their dignity that they will let these slurs pass without comment.

Bonita, Chennai
14/D-44
Feb 11, 2013
01:11 PM

Bonita,

Thanks for your response. We can agree to disagree.

Anwaar, Dallas
15/D-50
Feb 11, 2013
01:32 PM

 Anwaar,

We can agree to disagree.

On Mustafa yes, because it is your interpretation v mine and I have already conceded that..

But what about the other issues. As Daniel Moynihan said (and quoted by Praveen Swami in The Hindu) "Everyone is entitled to their opinion. They are not entitled to their facts". Let's discuss some facts.

1. If you did read the AFSPA, did you find anything which bears out yours and the eminent jurists' contention that it provides the Army a licence to rape?

2. The Hon'ble Finance Minister has said that the army has the final say on legislation. Do you agree with him?

3. If so, when did the Government of India abrogate its right and duty to exercise civilian control over the army?

4. If not, what does that say about the character and competence of someone like Chidambaram? (I forgot to mention that his statement that "I want to repeal it, but the Defence Ministry is opposed" violates the principle of collective responsibility of the cabinet).

Bonita
Chennai, India
16/D-53
Feb 11, 2013
02:11 PM

Bonita,

I said what I wanted to say in # 12. Further extension of this will not shed any more light.

Anwaar, Dallas
17/D-55
Feb 11, 2013
02:17 PM

CORRECTED POST:

Bonita,
 

I said what I wanted to say in posts # 2, 4, 6, 8 and 12. Further extension of this will not shed any more light.

 

Anwaar, Dallas
18/D-58
Feb 11, 2013
02:29 PM

 Anwaar,

I said what I wanted to say in posts # 2, 4, 6, 8 and 12. Further extension of this will not shed any more light.

What you mean is

"I don't care what the facts are. I have said what I have to say and do not wish to discuss this anymore".

OK.

Bonita, Chennai
19/D-9
Feb 12, 2013
01:33 AM

Bonita,

>> What you mean is: "I don't care what the facts are. I have said what I have to say and do not wish to discuss this anymore".

After you lose an argument, you still keep coming back with some subsidiary points in order to keep your interminable escalation going! Why should I want to indulge such a tendency?

Anwaar, Dallas
20/D-26
Feb 12, 2013
08:41 AM

 Anwaar,

After you lose an argument, you still keep coming back with some subsidiary points in order

Facts, ever heard of them? Let's examine them.

#2 - Armed forces must always be subservient to the civilian government.

I have not disputed this. In fact I have asked you (#15) whether you agree with PC's various statements that his hands are tied because of the intransigence of the army and the MOD and that the army has the last word on legislation. Instead of answering, you come up with your statement about losing etc.

In post #5 I wrote

We live in a democracy in which the army is subject to civilian authority. If Chidambaram and his fellow MPs in the ruling coalition believe that AFSPA is wrong and unjustified, then what stops them from repealing the Act?

Instead of addressing this (which incidentally also refutes your #2) you have dodged the issue and quoted an article by Seema Mustafa which says 

it has proposed that soldiers and officers guilty of rape and sexual assault be tried under the law of the land and not under the protectionist clauses of AFSPA

Now, it is you not I who have introduced the element of rape and sexual assault in the context of AFSPA. We have agreed to disagree on Ms Mustafa's use of the word guilty. However, in post #8 you accused me

Your position was that soldiers accused of rape, unlike civilians accused of rape, should continue to have AFSPA protection.

Though I have not read the Justice Verma Committee report I did google AFSPA to find out what protection it afforded to soldiers accused (guilty if you wish) of rape and sexual assault. Most surprisingly, I could find none. I have asked you several times (#9, 13, 15) to educate me by showing me the relvant provisions of AFSPA but you have evaded this by quoting someone's statement.

Finally, in #15 I asked you 4 questions which are germane to this discussion. I am repeating them below :

1. If you did read the AFSPA, did you find anything which bears out yours and the eminent jurists' contention that it provides the Army a licence to rape?

2. The Hon'ble Finance Minister has said that the army has the final say on legislation. Do you agree with him?

3. If so, when did the Government of India abrogate its right and duty to exercise civilian control over the army?

4. If not, what does that say about the character and competence of someone like Chidambaram? (I forgot to mention that his statement that "I want to repeal it, but the Defence Ministry is opposed" violates the principle of collective responsibility of the cabinet).

Instead of attempting to rebut any of them, you come out with this statement, which like many others you make is your opinion, but unfortunately contradictory to the facts.

After you lose an argument, you still keep coming back with some subsidiary points in order to keep your interminable escalation going!

If you wish to leave please do so. If you wish to stay, try answering the questions, NONE of which are subsidiary to the article or the discussion.

Bonita, Chennai
21/D-44
Feb 12, 2013
10:43 AM

 Anwaar,

If you are so inclined, you may like to read the following article by Sanjoy Hazarika, a member of the Jeevan Reddy Committee which recommended the abolition of AFSPA. An abomination called AFSPA. The blurb reads

Mr. Chidambaram has sought to blame the Army for the failure to repeal the draconian Act but the government is equally guilty as it has abdicated responsibility in the matter

Hazarika raises the same questions about Chidambaram's speech which you have assiduously avoided and called subsidiary points.

Bonita, Chennai
22/D-52
Feb 12, 2013
12:02 PM

Bonita,

When I said, "Armed forces must always be subservient to the civilian government," in response to the headline: "Difficult to Move Forward on Amending AFSPA: PC" (# 2), was that an endorsement of PC?

When I said "Thanks for your response. We can agree to disagree" (# 14), I was hoping to avert unpleasantness, but I had a nagging suspicion that it would not work. Well, it didn't! In any case, if I feel that I have said all that I wanted to say, I opt out of a dialogue. You can of course continue to make your points, but it is no longer a dialogue. Peace!

Anwaar, Dallas
23/D-137
Feb 16, 2013
09:04 PM

 For the record. There was a panel discussion on AFSPA on NDTV's "The Big Fight".

Never thought I'd ever agree with Mani Shankar Aiyar on anything, but his opening remark was "We should not be discussing withdrawal of AFSPA, we should be discussing withdrawal of the Army and there will then be no requirement of AFSPA". He also said that the Army is being overused for Internal Security duties.

Another point made by the moderator, Vikram Chandra, was that AFSPA affords no protection whatsoever to soldiers accused of sexual assault or rape. No one contested this and a general on the panel gave an example of a soldier under his command who was sentenced to ten years imprisonment in a trial which finished in 3 months.

A lady from Manipur made an impassioned plea arguing that there had been peace in the erstwhile "disturbed" areas for 30 years. She stated that AFSPA had been passed "in the well of the house" and it should be removed "in the well of the house". (Hope PC was watching). She also stated that we are one country and we should have one law. (Art 370 anyone?)

The weak link amongst the panelists was Tarun Vijay of the BJP.To be fair to him, though he was largely irrelevant, it was Aiyar who introduced a political element by making some unnecessary comment about the BJP into what was, strangely, till then, a totally apolitical debate.

Bonita, Chennai
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