AFSPA & Kashmir

November 3, 2011 by  


By Nilofar Suhrawardy, TMO

NEW DELHI: Kashmir is in the news again for wrong reasons. Political leaders and parties are engaged in questioning each other’s intentions regarding their stand on Armed Forces Special Powers Act (AFSPA) in Jammu and Kashmir (J&K). The issue gained importance when J&K Chief Minister Omar Abdullah voiced his intention to revoke AFSPA from certain parts of AFSPA. It did not take long for Bharatiya Janata Party (BJP) and right-winged groups associated with saffron brigade to strongly oppose this stand of Abdullah. Congress has also expressed its reservations on Abdullah’s views. Considering that Abdullah heads the J&K government with support of Congress, it has been expressed that before taking any decision on this issue, he needs to hold discussions and take opinion of Congress also. Subsequently, Abdullah indicated that the issue will be taken up by his cabinet after November 7, when the J&K government shifts to its winter capital, which is Jammu.

Clearly, Abdullah has not yet given the impression of having backtracked from his stand on withdrawing AFSPA from certain parts of J&K. At the same time, the political furore raised over the issue also suggests that he probably expressed his own personal opinion on AFSPA without consulting others in his government. There is also the possibility of his having deliberately expressed his stand on AFSPA only to gain an idea of various political opinions regarding the same. Considering that Abdullah is well-aware that withdrawal of AFSPA from any one or more parts of J&K is not in his hands alone, he probably deliberately voiced his intention primarily for some publicity and win over Kashmiris’ support on emotional lines. In other words, withdrawal of AFSPA actually from certain parts of J&K is not his immediate agenda. This point is proved by his decision to take up the issue at the state cabinet meeting after Eid-ul-Zuha. If the issue is taken up, it shall be followed by meetings, discussions, countering opposition and consultations with the central government, which are least likely to be completed in a short period. 

Against this backdrop, it is pertinent to analyze the AFSPA from another angle. Why has it been assumed that Kashmiris are against it? Basically, AFSPA is not confined to J&K alone. In fact, before J&K was covered by it, the armed forces were conferred special powers, as per AFSPA, in Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. The AFSPA was brought in force in these states soon after the act was passed by the Indian Parliament on September 11, 1958. It was extended to J&K in July 1990. 

Legally, in areas proclaimed as “disturbed,” an officer of armed forces has powers to “fire upon,” “use force, even to the causing of death,” against any person “acting in contravention of any law,” “assembly of five or more persons” and/or “possession of deadly weapons.” The act also allows arrest without a warrant, with use of force against any person who has committed a certain offence or is suspected of the same. The act authorizes the officers to enter and search any premise to make arrests.

The AFSPA also gives army officers legal immunity for their actions. The legal immunity, however, prevails for actions taken as per the AFPSA. This also implies that if army officers falsely justify their acts as per the power granted to them by AFPSA, they can be subject to prosecution, suit or any other legal proceeding. Against this backdrop, it is relevant to probe a little into how AFSPA has been understood, rather misunderstood, where J&K is concerned. It may be noted, situations in J&K have usually escalated to stage of crisis due to a confrontation between unarmed civilians and the police. In recent past, the involvement of forces and the militants has not been responsible for any major disturbance in the region. The affected Kashmiris have not yet recovered fully from last year’s tension between the civilians and the state-police. More than 100 people, including school children, fell victim to state-controlled bullets last year. Among the first to fall victim was a student Tufail Ahmad Mattoo. He was hit by a teargas shell fired by the police on June 11, 2010. The police was chasing a crowd of stone pelters at Rajouri Kadal. Mattoo was not a part of the crowd. To this day, his family members are waiting for justice. As per AFSPA or any other law, neither the army nor the state police can “legitimize” use of force that led to death of Mattoo. Not surprisingly, Mattoo’s death triggered protests throughout J&K. It is the death of Mattoo and other innocent civilians, who are targeted by state-controlled bullets that raises the question as to why has strict action not been taken against those responsible for these killings.

The army and police, it may be pointed out, fall under two different departments. Understandably, though AFSPA grants armed forces certain special powers in disturbed areas, it does not grant the same to the police. Also, as mentioned earlier, even soldiers are not granted legal immunity if their actions are not as per the norms laid out by AFSPA.

It may take months, even years before AFSPA is lifted from certain areas of J&K. The issue may remain confined to debates and discussions. In this context, rather than indulge only in deliberations and debates on whether AFSPA should be lifted or not, it is imperative to examine carefully whether the act is being strictly adhered to by the army officers and whether police too are taking shelter under AFSPA for their crimes. Omar Abdullah should ensure that strict action is taken against those accused of violating/abusing AFSPA.

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