Discussion: Decoding AFSPA in Kashmir

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Discussion: Decoding AFSPA in Kashmir

Post by Rudraksh Ravi Sondh on Sat Sep 24, 2016 5:48 pm

Decoding AFSPA in Kashmir
Today, Kashmir finds itself in a very peculiar position sandwiched between the never ending tussle for power in the subcontinent between three potential big players in the region. Time and again; questions have been raised on the constitutional validity of AFSPA in Jammu and Kashmir. Well, before we delve further into this discussion, we need to understand what exactly is AFSPA and why is it there in the first place?
What is AFSPA?
The Armed Forces Special Powers Act (AFSPA) is the act of the Parliament of India that grants special powers to the Indian Armed Forces in ‘disturbed areas’. The act is in place in the northeastern states apart from J&K at present and Punjab and Chandigarh in the past. The state or the centre declares an area or region as disturbed, due to continued unrest, like in the cases of militancy and insurgency, volatile environment which the local forces are in capable of handling.
What makes this law special?
The AFSPA gives the army people power to fire upon or use means which can cause injury or even kill a person without prior warning or even on mere suspicion. They can search any house, cordon off any area, stop any vehicle for checking, arrest and interrogate a suspect without warrant; all this while the law protects the army from prosecution, suit or any legal proceedings against anyone from the army acting under that law.
Now the above may sound astonishing to read but one needs to understand this act in context of Jammu and Kashmir. The act came up in Kashmir in 1990 at a time when insurgency was at an all time high, militants were being funded and supported from both inside as well as from across the border and the local forces and the government were seemingly incapable of controlling the situation. The situation was such that the militants were even found hiding up in civilian houses deep inside the border sometimes by force, sometimes by developing fear among the house owners and sometimes by even the civilian’s own willingness. It was getting all the more difficult to distinguish between a militant and a civilian. The Hindu and Muslim communities had started targeting each other. All this related in increasing violence, damage to public property, killings, rapes, communal violence, bomb blasts. To the extent that nearly 1, 00,000 of the 1, 40,000 strong Kashmiri Pundits community migrated to Jammu from the valley in the 1990’s.
Now the purpose of bringing AFSPA was for the Army to assist in finding peace in the state and to bring the situation in the ‘disturbed area’ back to normalcy. For this and considering the volatile situation; the Army needed to operate with two provisions mainly:
1)      Protection of men from prosecution in case of genuine mistakes.
2)      Empowerment to conduct operations without seeking help from civil authorities.
Basically the Army wanted a free hand in all of this. In order to find out the militants in civilian areas, distinguish them from civilians, in continued irregular warfare, communal tension, and counter-insurgency it was imperative to give Army the complete control of the situation. Here the AFSPA helps the army as it no longer has to ask for warrants to arrest and interrogate militants, hold surprise checks or visit areas where militancy activity is known to be high and could kill terrorists, attack or destroy their known hideouts without asking for permission or need to explain it to the state and stop such activities without any prior permission from the government which saved some long- drawn out procedures, restrictions and time.
This enabled the army to work swiftly and efficiently indeed. The insurgency and violence had been reduced and controlled significantly, communal tensions between the various communities living there is low. The fact that the Indian Army in Jammu and Kashmir has been able to capture around 1,300 machine guns, 63,000 hand grenades and around 2000 rocket launchers from encounters and search operations since 1990 speaks volumes of the utilization of the powers provided by AFSPA. In fact recently there has been news of the Kashmiri Pundits speculating to move back into the valley with growing evidence of state returning back to normalcy, slowly but steadily.
Why then the AFSPA courts controversy?
Simply put, because it violates the basic fundamental human rights in the world’s largest democracy. Yes when a law allows someone immunity from prosecution or trials; discrepancies are bound to occur. Yes, several incidents of misuse of the power by the armed forces have come up regularly prompting politicians, human rights organisation’s, NGO’S, public, media and even the United nations to question the law.
There have been allegations of rapes of women by army men through it’s 25 odd years of existence. Cases like Pathribal, Kunan Pushpora (53 village women were alleged to have been raped by an army unit) and Chattisingpora (army was accused of killing innocent civilians in a fake encounter) raise questions about the army misusing their power.
The army in Kashmir is known to be overtly aggressive, always alert, patrolling residential areas with automatic weapons in hands, randomly frisking pedestrians every now and then, eyeing them with suspicion. All this strikes fear in the minds of the people living there. To visitors, the state looks like a fortress. Numerous cases of fake encounters, disappearance of civilians after being taken for interrogation, rapes, killings by the Army keep propping up. Then the investigations carried out never come up with ‘positive evidences’ due to heavy influence of the army in the investigations. Questions are raised as to why culprits with substantial evidence against them cannot be tried in courts? As well as the fact that the situation in the state, especially the valley has eased off a lot prompts calls to revoke the law. If not that then atleast dilute it. But any such attempt by the media or any entity is met with staunch disapproval by the Army. The question then arises why the Indian Army is so adamant on having the law in its absolute form in the state?
The Army’s viewpoint:
The thing is that the issue of Kashmir needs to be studied in isolation. It is a public order situation in the Kashmir, not a law and order situation. Local police personnel, government, BSF jawans and all are capable of handling law and order situations. But Kashmir has to be a different take. There the public need not just be checked upon but needs to be worked in tandem with the army to drive out militancy, violence and communal disharmony and help protect the youth of the state from going down the path of terrorist orgnisations. According to the Army, the AFSPA gives it’s soldiers the requisite operational flexibility and legal safeguards to operate in a ‘hostile’ environment, where Pakistan can turn on the terror tap with full flow as and when it wants (read Kargil war). AFSPA helps the soldier’s added motivation and focus as they no longer have to worry about legal proceedings against them when they take on the terrorists. Not only this but it needs to be understood that the state shares international borders with Pakistan and China and is under constant threat from external and internal factors. Terrorists coming in from across the border are provided arms and ammunition to carry out attacks from the Pakistan occupied Kashmir (POK). No wonder then that our neighbor is home to around 44 known terrorist training camps directed against India, of which around 20 operate round the clock. Aksai Chin holds strategic importance in context of potentially cutting off the whole of Jammu and Kashmir from rest of India in case of a war. In such a scenario, a robust and efficient operationalism of the army is required from the towns and districts through to the border areas. For this to happen the ground situation in the state needs to be good. Army convoys move on NH-1A as well as lateral links all the time, in regions vulnerable to attacks. The question that remains is that is the police and the government now capable enough to govern the state peacefully while army simply monitors the international border? No, that’s the bitter truth.
What if the AFSPA is removed?
Also, what would be the consequence of revoking this law (if it at all happens)? There is a grave danger of a surge in violence and militancy if the act is removed as the army now requiring directions from the central and state governments may well now not remain adept at handling the situation. A possibility too risky to take. Those who argue that the law could be reinstated again in case the situation boils over; well what about the materialistic damage to property and precious human lives lost that would have occurred by the time the army swings into action. That my friend effectively means taking four steps forward and there backwards. Even at present times the flag bearing showing supports for an Islamic Caliphate, IS, pro-Pakistan slogans, violence is evident let alone thinking of the state being administered by power hungry politicians and police! Have we really come to the situation wherein the militancy has shrunk to an extent that you can revoke the law? No. Army has been able to stabilize the region, yet we are still a long way away from reducing violence.
As mentioned earlier, the Indian Army is not just fighting terrorist organizations and trying to maintain a public order from inside the state, but fighting a proxy war. Kashmir is no mainland issue but a separatist thing wherein; the terrorists are funded from across the border and even trained there to carry out attacks and propel communal violence in the region, brainwashing the youths into believing in jihadist propaganda and Hurriyat movement.
Has Pakistan’s intention of making Kashmir an international issue and backing violence and follying violence by making Muslim dissent as the face of the anti-India campaign changed? Have we been able to break the nexus between the Pakistani Army, ISI, terrorist organizations, and Hurriyat terrorism? Revocation of the law should only happen when it’s certain that the public space is safe, secured and prosperous in hindsight. If not, then in such a scenario can the government afford to repel the act to satisfy the human rights organizations and the media? It’s ironic how the human rights flank and scream about violations of human rights and barbaric and heinous crimes committed by the army men while they simply forget about the 5,108 army soldiers tortured, killed, stoned to death by militants and sometimes by angry civilians in protests and the plight of their families since the AFSPA was enacted in the state of Jammu and Kashmir. If it had not been for the protection offered by the AFSPA, half of the army would have been sitting ducks in law courts thanks to media trials, human rights activists as well as perpetrators of terrorism. Yes, it’s true that certain mistakes have been made. There is substantial evidence found to prove that killing of innocent people without provocation, rapes and abuse have occurred. But it needs to be understood that most of these allegations come up against an individual or a group of soldiers and not the entire regiment or unit. Hence, such individual soldiers deserve to be punished, as they are not acting in the ‘line of duty’ while committing such barbaric crimes. They don’t represent the Indian Army during such acts. Such soldiers must be punished. But then many false cases are also reported against the Army. According to the NHRC, about 77% of the cases or allegations against the Army are proved false. But then again; valid counter claims are made that the Army does influence investigation in certain matters (read Kunan Pushpora). The final question then that arises is what’s the solution?
The Solution?
The solution through all this needs to be kept very simple. The army and the public need to work in tandem with each other; ensure efficient curbing of insurgency in the region, awareness campaigns. At present there is ‘hesitancy’ and distrust from the public towards the army. Dialogue needs to be instated between them with adequate confidence building measures to build faith. It won’t do the Army any harm in taking suggestions from civilians in matters related to Army’s way of operating in residential areas, towns and villages. Transparency in investigations is a must. Maybe setting up of a committee that verify the cases, quash the false allegations and then follow it up with efficient and thorough court-martial proceedings needs to be undertaken.
So, while the AFSPA may not be idealistic in nature as well as in principle, it definitely is a must at this stage. Only when the Army is seen as a harbinger of peace and tranquility and not as the destroyer by the public will peace be finally bestowed upon the people residing in the place we all so lovingly used to call ‘Jannat’!

Rudraksh Ravi Sondh

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Join date : 2015-10-02

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