CB BureauThe Armed Forces (Special Powers) Act (AFSPA or the Act) has now been in force for five decades in states in India’s northeast. It was enacted on August 18, 1958, as a short-term measure to allow deployment of the army to counter an armed separatist movement in the Naga Hills.
Similar laws were also applied to counter militancy in Punjab from 1985 to 1994. A version of the act has been active in Jammu and Kashmir since 1990.
The AFSPA gives the armed forces wide powers to shoot to kill, arrest, conduct warrantless searches, and demolish structures in the cause of ‘aiding civil power’. The powers that the AFSPA extends to the armed forces come into force once an area subject to the act has been declared ‘disturbed’ by the central or state government. This declaration is not subject to judicial review. Areas declared disturbed under the AFSPA over the past 50 years vary significantly according to their conflict history, ethnic constituency, and levels of militancy.
Fundamentally, the act is contrary to provisions of international human rights law, including the right to life, the right to be protected from arbitrary arrest and detention, and the right to be free from torture and cruel, inhuman, or degrading treatment. It also denies the victims of the abuses the right to a remedy. The AFSPA has also had the opposite effect to that intended by the Indian government: in each state where the AFSPA has been implemented and soldiers have been deployed, the armed forces have become a symbol of oppression.
Instances of human rights violations have served to fuel conflicts. Arbitrary detention, torture, and the killing of peaceful critics have had the effect of closing democratic and peaceful paths of opposition, forcing organizations underground and fuelling a growth in militancy.
In 1997, the United Nations Human Rights Committee expressed concern over the ‘climate of impunity’ provided by the act. Since then, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions (2006), the Committee on the Elimination of Discrimination against Women (2007) and the Committee on the Elimination of Racial Discrimination (2007) have all called for an end to the AFSPA.
In a 16-page report in 2008, ‘Getting Away With Murder: 50 years of the Armed Forces Special Powers Act,’ Human Rights Watch described how the Armed Forces Special Powers Act had become a tool of state abuse, oppression and discrimination. The report stated: The law grants the military wide powers to arrest without warrant, shoot-to-kill, and destroy property in so-called disturbed areas. It also protects military personnel responsible for serious crimes from prosecution, creating a pervasive culture of impunity.
In the present time, the recent killing of three men by soldiers in Jammu and Kashmir in an apparent faked encounter with so-called militants underscores the urgency for the Indian government to repeal the Armed Forces Special Powers (Jammu and Kashmir) Act (AFSPA), Human Rights Watch points out. Under the act, soldiers may not be prosecuted in a civilian court unless sanctioned by the federal government, which is extremely rare.
Police have accused Col. DK Pathania and Maj. Upinder Singh of the 4th Rajput Regiment of killing three Kashmiri villagers on April 30, 2010. The army ordered an enquiry, suspended the major, and removed the colonel from command.
Tit for tat, is it?
It is nobody’s contention that the armed forces operate in difficult and trying circumstances in the areas marred by internal armed conflicts. However, as stressed by The Asian Centre for Human Rights, if the law enforcement personnel stoop to the same level as the non-state actors and perpetrate the same unlawful acts, there will be no difference between the law enforcement personnel and the non-state actors whom the government calls terrorists. It is in precisely such situations that the primacy of the rule of law needs to be defended and upheld.
The army must put in place a system of checks and balances and rein in the troops who take the law into their own hands. This has diluted the forces’ achievement of almost destroying terrorism. Irresponsible actions of low rung-officers will also harm India’s credentials as a democratic and secular nation.
The Times of India reports human rights activist Khurram Parvez as stating that the police records 458 cases of pending civilian killings and rapes between 1990 and 2007. In 1991, about 100 women, including minors, the elderly, pregnant and disabled, were allegedly raped by a 4th Rajputana Rifles unit in Kunan Poshpora, Kupwara.
More than 1,500 cases of human rights violations have been filed against the Army in the last two decades. Even if we accept that a majority of them were found to be ‘fake or motivated’, there is still the rest to be accounted for. The AFSPA authorizes the Army to refuse to hand the accused to civilian authorities. It says it has its own internal mechanisms to deal with aberrations under the Army Act, 1950.
According to AFP, the insurgency has left more than 47,000 people dead by official count. Rights groups put the toll at twice as high.
No man’s land for far too long
The global human rights agency Amnesty International (AI) has been given access to visit Indian-occupied Kashmir for the first time since an armed insurgency erupted in the state in 1989. Despite repeated pleas by human rights groups, the Indian government had not allowed any international human rights organization to visit the strife-torn part of the valley of Kashmir that is occupied by India. Anti-India sentiment runs deep in Muslim-majority Kashmir valley. Rights groups have accused troops of committing human rights violations in the region.
Amnesty International has, in the past, condemned the use of India’s brutal oppression in Indian-occupied Kashmir. The group had called upon US president Barack Obama to raise the issue with Indian Prime Minister, Manmohan Singh, in Washington. The Indian side of Kashmir is an area where the security forces commit mass human rights abuses with impunity facilitated by the Armed Forces (Special Powers) Act and other similar laws, it had written to Obama.
On the issue of unidentified mass graves, the AI had urged the Indian government to launch urgent investigations. The graves were thought to contain the remains of victims of human rights abuses in the context of the armed conflict that has raged in the region since 1989.
In December last year, International People’s Tribunal on Human Rights and Justice, a human rights group, released a report that claimed that 2,700 unknown, unmarked, and mass graves, containing at least 2,900 bodies, in 55 villages in three districts including Bandipora, Baramulla and Kupwara of North Kashmir have been probed. It claimed 87.9 per cent of the cadavers in the graves were unnamed.
The independent group alleged that the violence and militarization in Kashmir, between 1989 and 2009, have resulted in over 70,000 deaths, including through extra judicial or fake encounter executions, custodial brutality and other means.
So long, then
For their part, the 1.13-million strong Indian Army would perhaps rejoice at the chance to bid farewell to the Valley. The question that begs poring into just now, and perhaps for a long time in the immediate future, is when will be the time right for this. Militancy in Jammu and Kashmir is quite on the low side, but this could turn out to be a deceptive game. There are two hurdles, as posed in a Times of India article. First, will Pakistan’s real power centre, its army, turn off the terror tap? Second, can the paramilitary forces and J&K police take over from the Army? On both counts, the answer seems to be ‘no’.
General VK Singh, who took over as Army chief in April, has declared that ‘any dilution’ in AFSPA will ‘impinge adversely on the manner in which armed forces operate’ in counter-insurgency duties. Consequently, the Centre consistently refuses to give permission to the J&K government to prosecute soldiers accused of human rights violations.
Defence minister AK Antony also believes that the terrorist threat remains very real. ‘The quantum of troops deployed in J&K is continuously assessed and reviewed by the Army based on the changing threat perception,’ he assures.
During his recent visit to Srinagar to review the security situation and inspect development projects, Prime Minister Manmohan Singh said: ‘Sometimes innocent civilians suffer, but whenever such incidents happen it becomes necessary to act against those responsible. I’m aware of some complaints related to human rights.’
There are indications that the government is planning to go ahead with certain amendments in the Armed Forces Special Powers Act which include handing over of an Army personnel in case of extra-judicial killings to the state authorities. In this regard, a draft note has been circulated to the law and defence ministries for their comments.
It is hoped that balancing out a heavily lopsided law will pave the way for an open discussion and inspire a re-look at the so-far-flawed peace-resolution process.