AFSP ACT AND INNOCENT KILLINGS IN KASHMIR
ADIL HAMID LONE
A draconian legislation like the Jammu and Kashmir Armed Forces (Special Powers) Act, 1990 and the concept of democracy do not go together. While democracy nurtures values of justice, equality, and fraternity, laws like the AFSPA are synonymous with injustice, discrimination, and hatred. The Armed Forces Special Powers Act although being used on the pretext of protecting the local population of Jammu and Kashmir has been the leading cause of human rights violations in Jammu and Kashmir State. The people residing in Kashmir and some parts of the North Eastern states have for long been subjected to atrocities and unnecessary interferences by the armed forces in their daily lives. The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 have been misused severely, and this has attracted condemnation from several well-known human rights activists and organizations. Amnesty International in a report has called for an end to the use of the Armed Forces Special Powers Act (AFSPA) in Jammu and Kashmir, the report, recommends that India withdraw AFSPA, turn over cases of alleged human rights violations and disappearances to civil courts, and invite the UN Special Rapporteur and the UN Working Group on Disappearances to visit with “unimpeded access” to victims and witnesses. “By not addressing human rights violations committed by security force personnel in the name of national security, India has not only failed to uphold its international obligations but has also failed its Constitution,” said Minar Pimple, senior director of global operations at Amnesty International, while releasing the report in New Delhi. “Impunity only breeds further violence and alienation, making it harder to combat abuses by armed groups,” he said. The Justice Jeevan Reddy Committee in its report submitted on June 6, 2005, recommended repeal of the Act. The supreme court of India through its division bench judgment while lashing out at the AFSP Act observed that “You go to a place in the exercise of AFSPA, you commit rape, and you commit murder, and then where is the question of sanction? It is a common crime which needs to be prosecuted, and that is our stand. The Justice Verma committee in its report recommended that the requirement of sanction for prosecution of armed forces personnel should be specifically excluded when a sexual offense is alleged. Training of armed personnel should be reoriented to emphasize strict observance of orders in this regard by armed personnel. In a 1993 report, Human Rights Watch stated that Indian security forces “assaulted civilians during search operations, tortured and summarily executed detainees in custody and murdered civilians in reprisal attacks”; Rape was regularly used as a means to “punish and humiliate” communities. Armed Forces Special Powers Act is not the only law that provides for ‘lawlessness’ in Jammu and Kashmir. People of the state have suffered equally much more under yet another draconian law known as Public Safety Act (PSA).
The indiscriminate and unprovoked firings on civilians in Handwara where three more innocents have lost their precious lives under the draconian law are shocking and blot on the Indian democracy. These innocent killings brought back the debate on the repeal of AFSP Act as the repeal of this Act is the only way out to guarantee the rights of the people living in the state of Jammu and Kashmir. There is no doubt that the armed forces operate in difficult and trying circumstances in the areas afflicted by internal armed conflicts. It is in these situations that the supremacy of the judiciary and the primacy of the rule of law need to be upheld. However, 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 officials and the non-State actors. The strength of any country claiming itself as “democratic” lies in upholding the supremacy of the judiciary and primacy of the rule of law. Human rights abuses in Jammu and Kashmir state are an ongoing issue. The violations range from mass killings, enforced disappearances, torture, rape and sexual assault to political repression and suppression of freedom of speech. The AFSPA violates basic tenets of a legal system in any civilized society. First, it provides special powers which tantamount to awarding a heavier penalty to the suspects than convicted persons would get under normal court, a clear violation of the cardinal principle of criminal justice system. Second, non-application of due process of law makes the armed forces to be their judge and jury. Most importantly, by giving virtual impunity to the military under Section 6 of the AFSPA which makes its mandatory to seek prior permission of the Central government to initiate any legal proceedings, the Executive has expressed its lack of faith in the judiciary. Otherwise, it would have been left to the judiciary to decide whether the charges are vexatious, abusive or frivolous. The AFSP Act is also a violation Article 21 of the Indian Constitution guarantees the right to life to all people. It reads, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The judicial interpretation that “procedure established by law means a “fair, just and reasonable law” has been part of Indian jurisprudence since the 1978 case of Maneka Gandhi. This decision overrules the 1950 Gopalan case which had found that any law enacted by Parliament met the requirement of “procedure established by statute.” Under section 4(a) of the AFSPA, which grants armed forces personnel the power to shoot to kill, the constitutional right to life is violated. This law is not fair, just or reasonable because it allows the armed forces to use an excessive amount of strength. Under relevant international human rights and humanitarian law standards, there is no justification for such an Act as the AFSPA. The AFSPA, by its form and in its application, violates the Universal Declaration of Human Rights (the “UDHR”), the International Covenant on Civil and Political Rights (the “ICCPR”), the Convention Against Torture, the UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for Protection of All Persons Under any form of Detention, and the UN Principles on Effective Prevention and Investigation of Extra- legal and summary executions.
The primary job of the security forces in any part of the world is the protection and preservation of the rights of the people of the area where they are deployed but one is surprised and shocked to observe that in the state of Jammu and Kashmir all the heinous crimes are committed by the armed forces under the garb of the AFSPA. No doubt that the military are protected under the draconian law of AFSPA, no doubt in Jammu and Kashmir they are law to themselves and respect no institution and the rule of law but they must keep in mind that they have to answer to their conscience for committing these barbaric and inhuman acts against the weak and peace loving people of Jammu and Kashmir. They must keep in mind that they have to answer for every innocent killing in the state of Jammu and Kashmir which once a paradise has been turned into a hell by the Indian security forces and where no one is safe. Protests are held everywhere in the world, but nowhere in any place, the protesters are showered with bullets. There are other measures as well for maintaining law and order and the people of Handwara were having every right to protest against the incident which happened there and instead of taking action against the accused they have shown to the world that Indian army is not a professional force and are immune and free to do any shameful act and resort to sheer violence when there is a demand for their accountability. The Handwara killings have exposed the real face of Indian army in the state of Jammu and Kashmir, and these are the acts which are increasing the alienation between the people of the state and the New Delhi. Further, the hypocrisy of Indian media and the criminal silence of civil society of India is another reason responsible for the gap between the people of the state and rest of the country. Further, the silence of Delhi on such innocent killings is clear proof of the fact that such acts are endorsed by New Delhi. The programs which the Indian army carry in the state of Jammu and Kashmir in the name of “Sadbhavana” are turned into sad Bhavana not only for those who engage themselves in such programs but itself for the Indian army and the need of the hour is introspection on the part of Indian security forces mainly Indian army.
Featured photo: Indian Express – Kashmiris protesting