Analysis

AFSPA & Kashmir Crisis

With due respect to opinions expressed by concerned authorities on the “significance” held by the Armed Forces Special Powers Act (AFSPA) for Jammu and Kashmir, it is essential to analyze the same in the context of the present situation in the Valley. The Act was passed by the Indian Parliament on September 11, 1958 conferring the armed forces with “special powers” in Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. It was extended to Jammu & Kashmir in July 1990. 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.

Paradoxically, the AFSPA gives army officers legal immunity for their actions. It may be, however, noted that legal immunity prevails for taking action as per the AFSPA. In keeping with this, there can be prosecution, suit or any other legal proceeding against those not acting in keeping with the norms prescribed by AFSPA. Even the government’s judgment on reasons responsible for declaring an area as “disturbed” is not subject to judicial review. Against the backdrop of the crisis in Kashmir and different opinions voiced on the relevance of AFSPA for the state, it is pertinent to probe a little more into this.

Elementarily speaking, the present Kashmir crisis is not between militants and the forces, but has escalated to the present stage because of unarmed civilians being hit by state-controlled bullets. The state police have also been engaged in these moves, which has led the death toll in the Valley cross 100 in as many days. One has no objection to AFSPA, granted that it is adhered to strictly, is not abused and is not used by those not linked with army to target civilians needlessly. Here, it may be pointed out that the army and police fall under two different departments. So it needs to be scrutinized carefully, whether some communication error has also led the J&K police assume that they also have the authority under AFSPA to shoot as and when they sense a risk. Are they also guaranteed legal immunity? Besides, one may draw attention to it be clearly laid out that the army officers are granted legal immunity if and when they take action in keeping with the AFSPA dictates. In other words, they are not above legal immunity if they abuse and/or violate AFSPA by taking action not permitted by it.

Going further, one has no objection to AFSPA being strictly adhered to during encounters with militants, any person or group being engaged in any action that is considered as contravention of law and/or dangerous to the security of the region. At this point, one is forced to recall the instance of Tufail Mattoo, the young student who was killed on June 11. He was killed by a bullet from police. What was his fault? Now, would it be fair to assume that police responsible for his death should be guaranteed legal immunity? Even if his death had occurred from an army officer’s fire, from what angle would the army officer have been allowed legal immunity for this action? Tufail was not engaged in any activity that may be considered as violation of the national law. Neither any army officer nor police officer can be given legal immunity in case of Tufail’s death strictly in keeping with dictates laid out by AFSPA. Tufail is not the only Kashmiri civilian who has fallen victim to state-controlled bullets in recent weeks for no fault of his and for reasons that do not suggest violation of the national law. Should this be allowed to continue?

Against this backdrop, Kashmiris’ anger seems fairly justified. Scores of deaths have taken place when mourners were taking dead bodies for funeral services on different occasions. The pent-up anger and agitation was displayed by these mourners, at times, by shouting slogans. But give a thought, those were not staged funeral ceremonies. Think of the grievance of people participating in the same, reflecting on what were they heading for and angry at an innocent youth being targeted needlessly. Should they have stayed back and not performed the funeral services? Risking bullets and their lives, they were only playing a socially responsible role. Perhaps, it is essential for the concerned authorities to clarify whether such funeral services are viewed as violation of law and can army/police officers shoot at the mourners in keeping with AFSPA.

Rather than debate and deliberate over whether AFSPA should be withdrawn from J&K, it is imperative to examine carefully whether the act has been strictly adhered to by the army officers and whether police too are sheltering under AFSPA for their crimes. Strict action must be taken against those accused of violating/abusing AFSPA.

This article appeared in The Milli Gazette print issue of 1-15 October 2010 on page no. 14

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