Armed Forces Special Powers Act reminds one of colonial era when life and liberty had no value

actBy Syed Mujtaba Haqani*

J&K remains one of the most highly militarized regions in the world. The history of military violence, disappearance, shooting, extrajudicial killings, torture, arson and rape has touched virtually every home and family in the valley. The total number of those killed, maimed and otherwise harmed will probably never be known. To date, no army personnel has been held accountable for these atrocities. National security laws like AFSPA, in effect in J&K since 1990, guarantee impunity to armed forces accused of these crimes.

The Armed Forces (J&K) Special Powers Ordinance 1990, the forerunner of Armed Forces (J&K) Special Powers Act, 1990 was promulgated by President of India on 10th September 1990, the Act was given retrospective effect from 5th July 1990. Section 3 of the Act empowers the Governor of State as well as the central government to declare whole or any part of J&K as disturbed area. Section 4,5 & 6 give wide and arbitrary powers to a member of security forces even at the lowest level to arrest, injure , kill, even without warning any person, whenever such armed forces/personnel suspects the victim to be acting in contravention of any law in force in the disturbed area.

The security forces likewise have been given sweeping powers to search, seize, seal, blow up, burn down any house/property they suspect to be used for the acts in contravention of law in force in such area. Section 7 of the act gives immunity to the armed forces for any act done or omission or commission made in exercise of power under the act. The Governor on 6th July 1990 in exercise of powers under section 3 of the act issued an order (SRO no SE4 of 06-07-1990) declaring whole of Kashmir valley as also areas falling within 20 km’s strip adjoining line of control in Rajouri and Poonch district as disturbed area. This was followed by another order (351 dated 10 August 2001) issued by the Governor declaring almost whole of the state as disturbed area.

The Act has come to be viewed as one of the most draconian legislations passed by the Indian Parliament. The main issue has been the vast unrestricted powers that the Act gives to the armed forces in an area once declared as “disturbed”. Section 3 of the Act grants powers to the Governor of the state and the union of India to declare an area as “disturbed”, however, does not provide any concrete definition of the circumstances under which an area could be declared as “disturbed”. The provisions of the Act are so conceived that they leave wide scope for it to be abjectly misused.

The Act grants even a non-commissioned officer the right to shoot and kill based on the mere suspicion that it is necessary to do so in order to “maintain public order”. The officer is only required to give such due warning as  “he may consider necessary”. The Army in a “disturbed area” under section 4(c) of the Act, can arrest anyone without a warrant who has committed, is suspected of having committed or of being about to commit, a cognizable offence and use any amount of force  “necessary to effect the arrest”. The AFSPA further protects the armed forces from prosecution, suit or other legal proceedings in respect of anything done or purported to be done in accordance with the powers conferred by the AFSPA.

The AFSPA, in effect, gives an armed forces/ personnel  even at the lowest rank the powers of a prosecutor and the judge as the personnel can presume anyone to be violator of the law on mere suspicion and thereafter without affording the suspected person of an opportunity to explain or defend, inflict the punishment which may and does invariably go to the extend of instant execution. The act and all its provisions are thus violative of fundamental right of life, liberty, fair trail guaranteed under the constitutional framework in force in all civilised states, UN charter and other covenants/ conventions and bilateral and multilateral treaties. Under the act a free hand has been given to the security forces to kill and destroy property with impunity. The act therefore satisfies all the test of a black and draconian law.

There are instances, where some of the armed forces have made free and full use of this arbitrary and draconian power and killed, massacred, mimed men, women and children and destroyed property worth billions. Examples galore where  investigations in such cases involving security forces has been concluded as proven but trial not commenced because of protection available under the Act. A few cases/ trials where investigation was concluded and forces holding high ranks found guilty of offences like rape and murder have not matured into a formal trial as the trial has been stayed by the courts on the plea of protection available to the armed forces under the Act.

The reports of Amnesty international and human rights commission on Kashmir bear evidence of the excesses by the armed personnel. The reports reveals that even peaceful and democratic protests by the people and their fundamental freedoms are often suppressed in the valley.

AFSPA has been criticized as being subjected to gross misuse on many occasions leading to torture, looting, rape and arbitrary arrest. The United Nations Human Rights Committee (UNHRC) in 1991 found section 4 of the AFSPA to be incompatible with Articles 6, 9 and 14 of the International Covenant of Civil and Political Rights 1966, which was earlier ratified by India in 1979. Articles 6, 9 and 14 of the International Covenant on Civil and Political Rights speak about the right to life and personal liberty of the individual and emphasizes that all persons are equal before law and hence entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

The Amnesty international has observed November 27, 2006 as the Anti- AFSPA Day. The movement argues that such a legislation as the AFSPA is absolutely antithetical to the democratic credentials of a country like India. The Justice Jeevan Reddy committee, constituted by the Government of India to review the provisions of the Act, has unanimously recommended to repeal the Act.

The Act reminds us of the colonial era when life and liberty had no value. The draconian law in its cruelty is no less than gas chambers, guillotine era, concentration camps, with thousands of inmates condemned to death without being made aware of the crime. The Act is a crime against humanity and runs contrary to letter and spirit of UN charter and deserves condemnation by one and all. All the right thinking and civilized people with respect for human rights close to their heart have highlighted the atrocities perpetrated by the erring security forces on innocent Kashmiri men, women and children with the cover up available under the Act. The successive outrageous have time and again strengthened the demand for its revocation.

The state (JK) government intends to revoke the Act and has time and again made pleas to the Central Government seeking withdrawal of the law that gives impunity to the armed forces.

The Late Chief Minister Mufti Muhammad Sayeed reaffirmed that his Government would work towards the revocation of AFSPA in J&K. The state government has sent representation in this regard to the MHA, seeking withdrawal of the Act. “Representation has been received from J&K government for the phased withdrawal of Armed Forces Special Powers Act from Jammu & Kashmir” reads a written response from Union Minister for Home Affairs, Kiren Rijiju. In its “Agenda of Alliance” for governing the state for next six years , PDP-BJP coalition government has agreed to review security situation with a view to examine the need for de-notifying  the Disturbed Areas. “This as a consequence will enable the union government to take a final view on the continuation of AFSPA in these areas,” mentions the Agenda.

Referring  to Chattergam killings (where the Army killed two young boys on 3rd NOV, 2014, who were travelling on the fateful day in their car, when fired upon indiscriminately with over 100 bullets resulting into instant death) and Machil fake encounter (where a Major killed 3 youths in a fake encounter in North Kashmir in April, 2010) the Chief Minister stated his government is committed to take measures and examine the need to review the special laws being applied to state. “There has been a lot of debate over removal of AFSPA. There is a need to re- look at it. My Government advocates a removal of AFSPA from the areas which have now been free of militancy”. He said till AFSPA is removed from the J&K, Government of India should “make people accountable”.

The disturbing situation in Jammu & Kashmir has lasted for 25 years and brought suffering and violence on an unimaginable scale to the civilian population. Although the violence has been seared into Kashmiri memory, it is forgotten or deliberately obscured in India and the rest of the world. Now, these stories are being told and shared with new audiences, in large part. Evidence of massive human rights abuses by Armed Forces is being documented in credible and compelling detail. In their scope and nature, these abuses meet the legal definition of “crimes against humanity.”

Thousands of Kashmiris have reported to be killed by Indian security forces in custody, extrajudicial executions and enforced disappearances and these human right violations are said to be carried out by Indian security forces under total impunity. Civilians including women and children have been killed in “reprisal” attacks by Indian security forces. International NGO’s as well as the US State Department have documented human rights abuses including disappearances, torture and arbitrary executions carried out during India’s counter terrorism operations.

The International Committee of the Red Cross (ICRC), despite long-standing requests for access to Kashmir, has not been permitted to provide its humanitarian services in the state. The ICRC is a neutral body with a unique mandate under international law to provide protection to the civilians at risk of violence by armed groups of any kind, and to visit detainees and assist local medical staff.

*Human Rights Defender. Contact: Excerpts from research analysis “The Valley of Fear: Cases and Incidents of Human rights Abuses – 26 Years of AFSPA in Jammu and Kashmir”  (to read complete paper click Published with the permission of the author

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