Why PDP-BJP Coalition Will Not Revoke AFSPA

  • Aditya Sinha
  • Publish Date: Jan 19 2016 3:02PM
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  • Updated Date: Feb 12 2016 6:56PM
Why PDP-BJP Coalition Will Not Revoke AFSPA

At least 37 people were massacred in south Kashmir’s Bijbehara town on October 22, 1993 by the troopers of 74th battalion of paramilitary BSF. Two decades on, no one has been punished for the killings.

At least 53 women of the twin villages of Kunan and Poshpora were gang-raped by Army men on February 23, 1991. Yet, until today, no one has been sent behind the bars for this dastardly act.

Another 127 people, mostly civilian youth, were killed during 2010 mass uprising but no punishment was given to the policemen, paramilitary forces and the Army men who opened fire at these people.

The list of massacres and killings of civilians in Kashmir at the hands of troops is unending, yet they have always managed to escape punishment. What is preventing their arrest and stern punishments against them is a lawless law, infamous as the Armed Forces Special Powers Act (AFSPA).

The Indian Parliament passed AFSPA on September 11, 1958. It granted special powers to the armed forces in what the act terms as “disturbed areas” in the seven sister states of the northeast – Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. It was extended to Jammu and Kashmir as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990.

On July 5, the law completed 25 years of being in vogue in Jammu Kashmir.

AFSPA gives troops powers to detain and eliminate anyone suspected to be a militantwithout the fear of prosecution. They can blow up houses and carry arbitrary arrests.

Section 6 of AFSPA reads, “No prosecution, suit or other legal proceedings shall be instituted, except with the sanction of the Government of India against any person in respect of anything done or purported to be done in exercise of powers conferred by this Act.”

Shamim Zakaria, a journalist from northeastern state of Assam, reported that the past 25 years of AFSPA in Jammu Kashmir had been, “Twenty five years of painful presence, 25 years of relentless objection, 25 years of opportunistic politics, and 25 years of gruesome bloodshed.”

When Tripura government recently decided to revoke AFSPA, the decision kick-started a debate in Jammu Kashmir: “Why can’t J&K follow suit?”

Tripura was brought under AFSPA in 1997 and Jammu Kashmir in 1990 and this year, Tripura government justified the revocation saying it was not needed in the State as militancy had ended.

In Jammu and Kashmir too, State governments have demanded revocation of AFSPA but New Delhi has always exercised its veto and Army has proven more powerful than political parties.

On October 21, 2011, former chief minister Omar Abdullah said AFSPA would be rolled back soon. Omar was believed to have the backing of the then Home Minister P Chidambaram too yet he could not deliver after the Army objected.

PDP and BJP, the two parties in the coalition government, have kept revocation of AFSPA as part of the ‘Agenda of Alliance’, the Common Minimum Program,  the two parties arrived at before forming the government.

“While both parties have historically held a different view on AFSPA and the need for it in the State at present, as part of the agenda for governance of this alliance, the coalition government will examine the need for de-notifying disturbed areas. The agenda reads, “This, as a consequence, would enable the Government of India to take a final view on the continuation of AFSPA in these areas.”

A Working Group set up by the former Prime Minister Manmohan Singh had recommended repeal of AFSPA as a major Confidence Building Measure.

The group headed by Muhammad Hamid Ansari, the incumbent Vice President, had suggested GoI to do away with this Act stating that it impinged on the fundamental rights of the people.

Although the State government can independently take a call on the controversial AFSPA by removing Jammu and Kashmir from the list of the Disturbed Areas Act and making it unworkable, PDP-BJP coalition government does not seem to repeal it anytime during their tenure in office.

Soon after taking over the reins of the State, Chief Minister Mufti Muhammad Sayeed told media persons, “What is more important, repealing AFSPA or return of peace?”

Mufti’s question was a rude shock for optimists who thought the new government would repeal the draconian law.

In the opposition, Mufti’s PDP had been vocal against AFSPA and mocked at its rival National Conference and former chief minister Omar Abdullah for failing to repeal the law during their six years in government.

Now in the government, AFSPA has brought Mufti and PDP under the scanner.

If the State government recommends to the Governor to withdraw the two notifications issued earlier that had declared Kashmir and Jammu as disturbed areas, AFSPA would become unworkable and armed forces would no longer continue to enjoy the powers under the Act as they enjoy protection only due to Disturbed Areas Act notifications.

The Governor has the powers guaranteed under the constitution to withdraw the notifications on the recommendations of the State government.

However, if the State government takes the step, Government of India has the powers to issue the notification declaring Jammu Kashmir as disturbed area again.

On July 17, 1992, the J&K Disturbed Areas Act 1992 was enacted by the President of India by repealing the Jammu and Kashmir Disturbed Areas Act, 1990.

In 1997, the then NC government enacted the Disturbed Area Act 1997 declaring the entire State “disturbed”.

A year after, NC government allowed it to lapse.

Advocate Mir Shafqat Hussain, who has over the years pleaded cases of many Kashmiri families that became victims of AFSPA, said the Act provides protection to troops involved in killing innocent civilians.

“They seek protection under AFSPA for the crimes they commit and even if cases are proved against them, the State has to get sanction of prosecution from Government of India, which it never gets,” he said.

Hussain said in at least four to five cases, in which troops had been proved guilty, Government of India had not accorded sanction for their prosecution.

“Without AFSPA, these troops would have either been sent to gallows or awarded a life sentence,” Hussain said. “Due to AFSPA, the cases also get prolonged.”

The Act was implemented in the State when the entire law-and-order machinery collapsed and normal law was found inadequate to tackle the rising graph of armed militancy.

However, when the Home Ministry as well as the Army claim less than 150 militants were operating in the State, continuing with AFSPA seems illogical.

Amnesty International India, while preparing a report ‘Denied: Failures in accountability for human rights violations by security force personnel in Jammu and Kashmir’ in Jammu Kashmir, interviewed 58 families in Kashmir.

“All of the 58 families interviewed by Amnesty International India said they had little or no faith that those responsible for human rights violations will be brought to justice, given the lack of accountability for security forces in Jammu and Kashmir over the past two decades,” the report stated. “Due to the secrecy surrounding the sanction decision process, families are rarely, if ever, informed of sanction decisions issued by the authorities, and therefore are unable to challenge sanction denials.”

The report stated that the climate of impunity encouraged human rights violations to continue and the faith in the government and judiciary was almost non-existent in Jammu Kashmir.

Director of the University of Kashmir’s UNESCO Madanjeet Singh Institute for Kashmir Studies, Prof. Gull Wani said Deputy Chief Minister and senior BJP leader, Nirmal Singh had already ruled out revocation of AFSPA.

He said it was not the politicians but the Army and Home Ministry, which were calling the shots on the issue.

However, Wani said the Indian state had a lot to win if it decided to roll back the draconian law.

“It will improve Indian image globally, regionally and locally and demonstrate that the Indian state has confidence to find political resolution to security issues,” he said. “It depends on how security establishment passes the feedback but they don’t want this Act to be withdrawn at this time.

In August 2011, the State Human Rights Commission reported that 2730 bodies were buried in unmarked graves in north Kashmir. However, no action had been taken to punish those responsible for the killings of these people. The SHRC report explained why this was difficult while troops enjoyed impunity under AFSPA.

Legal and constitutional expert, Dr. Sheikh Showkat Hussain said the way PDP-BJP government in the State had raised expectations of people in other domains, same would happen in case of AFSPA.

“BJP will not allow PDP to do anything in this context and they have already made it clear,” he said. “AFSPA is a violation of Indian commitments to international human rights instruments like Covenant of Civil and Political Rights.”

Hussain said these covenants allow suspension of some rights in emergencies although emergency had to be formally declared and in that case too, it needed to be specified which rights would get suspended and how long they would remain suspended.

“In Jammu Kashmir, none of these requirements have been fulfilled although under the Indian constitution right to life cannot be suspended even during emergency,” he said. “AFSPA tramples this right and people are at the mercy of a police officer or a junior commissioned officer and even the right to remedies is denied under AFSPA.”

How AFSPA tramples the laws of people of Kashmir is illustrated by Kishalay Bhattacharjee, a senior journalist whose book ‘Blood on My Hands: Eyewitness Accounts of Staged Encounters is being published by HarperCollins Publishers India in August.

He quotes a retired Army officer as saying, “Sometimes we behaved like militants and the militants like security forces. The State machinery was perceived as a tool of oppression and seldom seen as a guardian. AFSPA is a bad Act. But if you remove AFSPA, the Army will lose whereas if you continue with AFSPA for 25 years then India is surely losing the war.”

Noted lawyer Mian Abdul Qayoom feels that if AFSPA could be withdrawn in Tripura, it could be withdrawn in Jammu Kashmir but is not hopeful that the incumbent government would do that.

“The State governments do nothing and the courts are helpless,” Qayoom said. “The law will go only if the Government of India and the Army is interested but the Army is getting maximum benefit under this Act.”

Like Qayoom, Noor Ahmad Baba, who teaches Political Science at Central University of Kashmir, said he did not believe that PDP-BJP coalition government could revoke the law.

“The BJP stance has been that Army should get more powers and they won’t compromise on the issue of AFSPA,” he said.

Baba said he also did not think that Narendra Modi-led government at New Delhi would revoke AFSPA considering Modi’s pan-India focus.

AFSPA is a murderous law, another noted lawyer, Zafar Ahmad Shah said.

“The last 25 years are replete with instances where prosecution of armed forces guilty of serious crimes was denied under the cover of AFSPA,” he said. “This law can only be celebrated by armed forces that enjoy complete immunity under it.”

As per official records, from 1990 to 2011, the State government recorded a total of over 43,000 people killed but the rights activists claim the number of casualty is twice as much.

Opposition NC General Secretary and former minister, Ali Muhammad Sagar said the ruling PDP was misleading the people by giving them hopes of revoking AFSPA.

“Their alliance partner BJP is totally against it which states that AFSPA is the subject matter of the Army,” he said.

Sagar said his party was in favour of removal of AFSPA but when they were in power, Army had created roadblocks in its revocation.

State Congress chief, Ghulam Ahmad Mir said his party had never been in favour of continuing AFSPA in the State but blamed political parties of playing politics over the issue.

“We have never wanted AFSPA to be a permanent law and a decision on it should be taken after taking all concerned parties particularly the Army onboard,” he said.

Mir said if the government, after consulting the Army, decides to revoke AFSPA, he, despite being in the opposition, would be the first person to support the government for removing the Act from the State.

BJP, which has always been averse to any suggestions of revocation of AFSPA, believes AFSPA is Pakistan’s gift to the State.

“When militancy will end, all these temporary laws will have to go and AFSPA is in force only because Pakistan is abetting militancy,” BJP spokesman, Khalid Jehangir said. “It is the domain of the security agencies and the Unified Command Headquarters which is headed by the chief minister.”

While legal and constitutional experts as well as most mainstream political parties in the State do not see AFSPA being revoked anytime soon, the government said the Act would be revisited.

The government spokesman and senior PDP leader, Naeem Akhtar said their alliance partner BJP had agreed that the ‘Agenda of Alliance’ was their agenda of agreement with PDP.

“They have agreed that AFSPA will be revisited and they are on board about revoking it,” he said.

However, Akhtar said the government has not set any time frame for revoking the draconian law.

“Revoking AFSPA has been the agenda of our party since 2007,” he said. “It is obviously part of our program for next six years and we are committed to revoke it.”