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| Controversy over AFSPA: The way out | | |
By M.M.Khajooria
Union Home Minister Chitambaram’s disclosure in Srinagar the other day that amendments to theAFSPA had been worked out and were awaiting consideration by the Union cabinet has raised hopes in one section of the public opinion and concerns in the other. It has .in fact revived the once raging controversy that was losing steam. Many Kashmir watchers wonder as to what motivated the amendments .Were these being made as part of he “unique solution of the “unique” problem of Kashmir” that Chitambram spoke of in his Srinagar press conference the other day? Alternately did the exercise relate to Prime Minister Manmohan Singh declaration of December 2006, assuring that the Act would be amended to ensure that it was 'humane' and addressed the legitimate' grievances of the people of Manipur” ? And how did you make an enactment “humane”(what ever it meant) which was designed to provide teeth to armed forces engaged in a life and death struggle against blood thirsty terrorists who recognised no human rights, rules of war or international convention ?
The controversy over AFPSA like the secessionist terrorism it sought to help quell had both external and internal dimensions. At the external level, Pakistan missed no opportunity to drum beat the “draconian nature” of the Act in each and every international forum and recklessly hurled wild allegations of human rights violation by the India security forces In Jammu & Kashmir under the cover of powers conferred by the enactment.. These allegations were also used to buttress their other demand for demilitarisation of Kashmir without any reference to their own perfectly illegitimate military presence in Galgit Balitistan and POK. And mind you this was the country
that right from the day one the first insurgency erupted in Balochistan in Zulfikar Ali Bhuto’os days had been blatantly and recklessly using brute military force including its Air Force against the tribal insurgents. The indiscriminate aerial bombardment almost wiped out the the revolting tribes not sparing even womenand children. what was presently happening in Waziristan and Swat was also public knowledge.
.The abrogation of the ARMED FORCES (JAMMU AND KASHMIR)SPECIAL POWERS ACT, 1990( AFSPA) was high on the list of priorities of the secessionists . The Kashmir centric mainstream parties. also found it politically expedient to join the chorus for repeal of the Act .In fact, the twists and turns of Kashmir politics promoted a mad race between the main stream partie s to run an extra mile in support of the separatists’ demand in their questionable quest for separatist space. The credit for creating an environment in which mainstream politicians felt compelled to vie with each other to demand the abrogation of the act should largely go to the Pak ISI’s Dirty tricks department .They used all weapons in their arsenal to create , exaggerate and exploit incidents related or unrelated, genuine or fabricated to provide
grist to the mill of the campaign for abrogation of AFSPA. Pakistan was brazenly distorting and exploiting the resultant situation as a potent weapon of psychological warfare ,its own horrendous Human Rights record notwithstanding The Gobelian doctrine of repeating a falsehood thousand times was indeed paying dividends to the utter embarrassment of Indian establishment. At the same time it had to be conceded that whether on account of ISI machination , unpleasant experiences , perceived or occasional misuse of powers by security forces under the Act , a sizeable and significant section of people in Kashmir supported the demand for its repeal .
Protest demonstrations, media criticism and presentations in seminars and conferences testified to this reality. In a democratic st up such sentiments and demands based hereupon need to be addressed seriously.
Was AFSPA a draconian legislation deserving immediate repeal or was it indispensible for combating the proxy war launched by Pakistan and patronised by Pan Islamic fundamentalist machine of terror? The fact was that only through a well informed debate and not by street riots or acrimonious denunciation. could the issue be resolved
. Section 3 of the Act specified the activities for the prevention of which the provisions of the Act ca be made applicable in “the whole or any part of the State”… in such a disturbed a dangerous condition” necessitating “the use of armed forces in aid of the civil power”
(a) activities involving terrorist acts directed towards overawing the Government as by law established or striking terror in the people or any section of the people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people;
(b) activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India front the Union or causing insult to the Indian
National Flag, the Indian National Anthem and the Constitution of India”
That such activities were still being carried on by the terrorists in the territory of the state of Jammu & Kashmir was an incontrovertible fact. This reality alone was sufficient to negate the demand for abrogation of the Act
According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as "disturbed", an officer of the armed forces has powers to:
*Fire upon or use other kinds of force even if it causes death
*To arrest without a warrant and with the use of "necessary" force anyone who
has committed certain offences or is suspected of having done so.
*To enter and search any premise in order to make such arrests.
While assessing the justification for grant of such “sweeping and excessive powers” to the armed forces in disturbed” areas it should be remembered that the men and women in uniform were arrayed against well trained, brainwashed fanatical terrorists fully equipped with most modern sophisticated weapons in a fight to the finish .t was a war , call it proxy war if you will in which only the one who fired first survived. These facts were well known ,documented and incontrovertible.. The problem however arose when the exercise of the special powers were viewed in the context of civil commotion or “normal” law and order situations.
It should be remembered that AFPSA was enacted by the parliament to deal with the extra ordinarily disturbed situation prevailing in Jammu & Kashmir. It was not intended to be permanently on the statue book. The level and intensity of the disturbed conditions was and could not be uniform in whole of the area declared as “disturbed” at one or all times .Hence the need for extreme caution and discretion in invoking the special powers. As it is , the provisions were enabling not mandatory. Moreover, the very purpose of arming the forces with special powers was to speedily bring down the level of violence and finally quell it to the extent thatthe normalcy prevailed and the Act
could be abrogated.
The pressing question today was when , how and in what manner the applicability of the act could and should be dispensed with as the situation improved? Should the withdrawal of powers be piecemeal or made contingent upon the return of normalcy to the whole
area declared as disturbed ? Asking for a pragmatic view about the continuation of Armed Forces Special Powers Act in Jammu and Kashmir, Chief Minister OmarAbdullah called for removing its applicability from districts where militancy was minimal. Addressing the Chief Ministers’ conference chaired by Prime Minister Manmohan Singh in New Delhi, on Aug 17 Umar Abdullah said that a distinct improvement
in the security environment in Jammu and Kashmir made a good case for reviewing the continuation of AFSPA particularly in areas affected by militancy.“Even though this is a highly emotive issue which has provoked extreme positions, a pragmatic view about the
continuation of the FSPA should be taken with a view to remove its applicability from areas where such activities were marginal or insignificant.” he said .This was a rational and reasonable position which merited consideration . In this connection lessons from the
experience of Manipur may be rewarding. . The Manipur government, withdrew the applicability of the Act from some of the constituencies in August 2004.. Unfortunately the experiment created more problem than it solved. The areas exempted from the AFSPA became safe heavens for the terrorist who after conducting operations elsewhere quickly moved therein for shelter.
These constituencies also became centres of extortion ackets. There was no significant reprieve for the civil population from terror either. It may be recalled that the death of Thangjam Manorama in Assam Rifles’ custody aroused severe public anger which spilled into massive and persistent street protests demanding the repeal of the act. In the wake of the furore the Government of India set up a five member panel headed by Justice B.P.Jeevan Reddy , a retired judge of the Supreme court . According to Justice Reddy “We have three opinions on the Act. First, the Act should be repealed and the Army should return to the barracks; second, the Army should stay but the Act be
replaced with a more humane legislation, and third, the Army should stay and the Act modified”. It was doubtful whether any of these options could provide the necessary balance between the needs of National security and “respect for human rights” of the citizens even in the North East not to speak of Jammu & Kashmir where a full fledged proxy war was ragging for more that two decades. I , however
believe there is an option meriting serious consideration beyond what the Reddy panel recommendations.
No law is bad by definition. Its irresponsible use or misuse made it so. As already discussed extreme powers were to be utilized only in extreme situations . Once this principle was conceded doors opened up for a solution. We ,in thisstate have a Unified Command headed by the State Chief Minister that determined strategies and oversaw operations. To begin with , the Unified Command may identify areas where in the words of Chief Minister Umar Abdullah “ militant activities are minimal or insignificant,” and direct that in such areas ordinarily the force should act only under normal law and fallow laid down procedures. As almost all anti- terrorist operations these days were jointly
conducted with the State Police, there should be no problem in shifting to this mode of action. And in cases where the Security Forces felt compelled to take recourse to the use of powers under AFSPA, the commissioned officer/ Gazetted officer would be required to submit a report justifying the action. In more and more such areas responsibilities for maintenance of law and order and operations against the remanets of terror machine should become the responsibility of the J&K Police after the force underwent reorientation, restructuring and was adequately provisioned. A small committee constituted by the Unfired Command should regularly monitor the situation on the ground to ensure compliance of the policy directives.
This option had the merit of denying ground for usual accusations that the men and women in uniform were being sent into action with their hands tied behind their backs . The special powers would still be available but to be used under controlled conditions. At the same time the civil society will be assured that an element of specific accountability had been built into the system to ensure against of powers under AFSPA. and forbidding routine invocation in the areas designated as reasonably free from terrorist activities. The
increased involvement of local police would add to the feel of environment of ormalcy. The hope and scope of more and more areas being included in this category was bound to promote and enhance the peoples’ participation in ushering in peace and strengthen the urge for normalcy for which people of the state yearn. .
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