AFSPA: The Kashmir Question

(Published in The New Indian Express, School Edition, on 2 November, 2011, retrieved from http://expressbuzz.com/school/afspa-the-kashmir-question/328948.html)


NOTE: This is not opinion. It's a factual piece on the discussion in Kashmir over AFSPA.

Since Omar Abdullah took over as Chief Minister of Jammu and Kashmir, he’s often spoken about the possibility of repealing the Armed Forces Special Powers Act (AFSPA).

Over the last year or so, especially after the four-month-long spell of violence that caused a shutdown in the valley in the summer of 2010, he has been increasingly vocal about it. He has also brought up the possibility of making changes to it, to make the Act more humane.

At a Police Commemoration Day function on October 21, Omar Abdullah mentioned that some parts of the state may do away with the AFSPA within days, as the security situation had improved and there was peace in those areas. This sent the Centre, especially the Defence Ministry, into a tizzy, as media queries poured in, and a public debate began.

There have been various reactions to the proposal for repeal of the AFSPA, and not even the Congress, which is an ally of the CM’s party National Conference, seems to see eye to eye with him on the issue.

What is the AFSPA?

The AFSPA was passed by Parliament in 1958, giving the Armed Forces certain powers in ‘disturbed areas’. It was initially introduced in the North Eastern states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. It was extended to Jammu and Kashmir in 1990.

The Act allows Armed Forces personnel to:

• Fire upon people who don’t obey the imposition of Section 144 under the Code of Criminal Procedure (CrPC) – assembly of five or more people, or people carrying deadly weapons.
• Search any place without warrant on suspicion that someone who has committed particular offences is hiding there
• Make arrests, using force if necessary, without warrant
• Occupy property during counterinsurgency operations

The Act grants immunity to members of the Armed Forces taking part in these operations. Even if a person who is shot at by the Armed Forces personnel is killed, the shooter(s) cannot be sued or prosecuted.

Who Can Impose the AFSPA?

The initial course of events was that the state government could turn to the central government for help in case of unrest that is of too large a scale for the state to handle, especially when it involves militants or other secessionist or insurgent forces, or is considered ‘war-like’ in nature. In 1972, the power to declare an area ‘disturbed’ was given to the central government as well.

Why are People Against AFSPA?

There have been allegations that the AFSPA violates human rights. The United Nations Human Rights Committee (UNHRC) has questioned its validity both on the basis of international laws, and the Indian Constitution itself. Several other NGOs, including Human Rights Watch and Amnesty, have been calling for repeal of the AFSPA.

People are concerned that the Act may be abused, or misused. Several media reports have spoken of torture being used on teenagers, and even children, and very often against people whose relatives are thought to have joined the militancy movement. Many of the victims have been physically maimed, or psychologically affected.

Residents of Jammu and Kashmir have often blamed the police and Army for the disappearance of young men from their families. Under the Public Safety Act (PSA), a person can be detained for up to two years without a court order, and the detention need not be confirmed for up to eight weeks. There are several ‘mass graves’, and the Armed Forces have been accused of extra-judicial killings.

Wikileaks had disclosed through cables that the International Committee of the Red Cross (ICRC) had told American diplomats that detainees were subjected to horrific torture, including electrocution, severe beatings and sexual humiliation.

There are other worries too. Some people theorise that if the AFSPA, which has been imposed to combat militancy, is used against someone who is wrongly suspected of involvement, it could make the person see the state as the enemy, and push him into militancy, leading to a cycle of violence.

What’s Happening Now?

Omar Abdullah had said the AFSPA would be lifted from parts of Srinagar, Budgam, Jammu and Samba before the Secretariat shifts to Jammu from Srinagar, on November 12. Congress leaders immediately objected, and said the CM had not discussed the issue with them before making the statement. Abdullah maintained that he had spoken to Union Home Minister P Chidambaram.

The Defence Ministry and Army said it would be a dangerous move, as militancy is still rampant in the state. The Army said infiltration is on the rise, and there are 42 terror training camps in Pakistan-occupied Kashmir. It also said it would not venture into areas where AFSPA was not in force; this means the Act will have to be re-imposed in areas where it has been withdrawn, if the Army is requisitioned there.

The CRPF has said it has no opinion, and will abide by what the Home Ministry says. The body also said the protection it is given under the CrPC is enough to function, without the AFSPA being in force too.

On October 25, Diwali Eve, there was a series of blasts in and around Srinagar. Two CRPF (Central Reserve Police Force) soldiers were injured in a grenade attack on a bunker in Maisuma, and another attack was carried out on a police post in Batmaloo. Gunmen wounded a policeman in nearby Anant Nag district.

Omar Abdullah’s uncle and NC leader Mustafa Kamal said “a finger points to the Army”, putting forward the conspiracy theory that the blasts had been staged so the AFSPA could not be repealed. The Army refused to dignify the accusation with a reply.

A high-level meeting, chaired by Chidambaram, was called to discuss the law and order situation in the valley. Meanwhile, the Opposition People’s Democratic Party blamed Abdullah, saying his statement had led to “utter confusion” and instilled fear in the people of the state.

When the State Cabinet last discussed the revocation of AFSPA, on Friday, at a meeting whose minutes were not recorded, it was reportedly decided that a call would be taken once there was consensus on the issue.

At the same meeting, it was decided that there would be changes to the PSA – now, a person can only be detained for one year, not two, and the detention must be confirmed within six weeks and not eight. The PSA is not applicable to minors any more.

Political Implications

The situation has brought out a sense of disconnect between the Congress and the National Conference, and within the Congress itself.

The State Congress chief, Saifuddin Soz, who has been particularly vehement that the move did not have the backing of his party, or himself, accused Abdullah of playing to ‘sectarian interests’. He lashed out at the CM for jumping the gun in making the announcement without consulting the Congress.

But Congress leader and Minister for Irrigation and Public Health, Taj Mohi-u-din said he was consulted. Another Congress leader, Mohammad Muzaffar Parray, said Mohi-u-din is seen as a person who promotes the NC’s interest at the cost of the Congress, and hinted that he should resign.

THE AFSPA IN MANIPUR

In 2004, an agitation was launched by some groups after the custodial death of a 32-year-old woman, Thangjam Manorama Devi, who was also allegedly raped and tortured. The state withdrew the act in some constituencies in August that year, though the Centre was not keen on this. A five-member committee headed by retired Supreme Court judge, Justice Jeevan Reddy, was formed. Though the committee recommended repealing the act, no such action was taken. The Army now says lifting the AFSPA in parts of Manipur has worsened the situation, and the same mistake should not be made in Kashmir. Incidentally, Irom Sharmila Chanu, known as the ‘Iron Lady of Manipur’ has been on an ‘indefinite fast’ for over eleven years, protesting against the AFSPA, and is being force-fed through tubes.

TIMELINE
11 September, 1958	Parliament of India passes the AFSPA.
1972	Central Government given the power to impose AFSPA in a state.
11 July, 2004	Thangjam Manorama found dead in the custody of Assam Rifles
6 June, 2005	Jeevan Reddy Commission submits recommendations, suggesting the repeal of AFSPA in Manipur
2009-2010	Omar Abdullah speaks of the possibility of repeal of AFSPA in Kashmir
21 October, 2011	Abdullah announces that AFSPA will be withdrawn in certain parts of Jammu and Kashmir
25 October, 2011	Terror attacks in Kashmir fire up a debate on the AFSPA
26 October, 2011	Abdullah stands by his statement on revoking the Act, but says it is “not to undermine the role of the Army”
28 October, 2011	BJP opposes withdrawal of AFSPA in Jammu and Kashmir
29 October, 2011	Abdullah says the decision to repeal the AFSPA will be deferred till there is consensus among stakeholders on the issue