India debates oppressive law in Kashmir

By Nawaz Gul Qanungo

Separate versions appeared in The Friday Times and Dinamalar
Srinagar, 13 November 2011

“Hamaara iraada Armed Forces Special Powers Act ko un ilaakon se uthana, jahan pe armed forces ko kaam karne ki zururat hai, nahi hai. Hum ne aap se ye kabhi nahi kaha ki hum Baramulla ya Sopore ya Kupwara ya aisi jagahon se AFSPA ko hatayenge. Lekin jahan army ne saalon saal kaam nahi kiya hai, wahan se hatane mein aap ko kya aitraaz hai? Mujhe bataiye pichhli baar unhon ne Srinagar mein kab kaam kiya.” It was the J&K chief minister, Omar Abdullah, talking to reporters earlier this week arguing why there was enough reason to remove AFSPA from places like Srinagar and Budgam in Kashmir. “We have no intention of removing the Armed Forces Special Powers Act from such areas where the presence of the army is necessary. We never talked about removing AFSPA from areas such as Baramulla, Sopore or Kupwara. But if there are areas where the army hasn’t worked for years, why should there be a problem in removing AFSPA there?”

Sadly, it is precisely the same argument that is enough to suggest that the removal of the law from such areas will have no bearing on the ground situation in Kashmir. If the army doesn’t exist in Srinagar, how can the removal of AFSPA from the city make a difference? “The killings of the summer of 2010 in the valley were carried out by the local police, not the army,” says  Khurram Parvez. “If the chief minister is serious about justice delivery, why doesn’t he start with prosecuting the guilty within his own police force?” Parvez is the programme co-ordinator of the J&K Coalition of Civil Society, a human rights conglomerate that has done much painstaking documentation of the years of conflict in Kashmir.

The Armed Forces Special Powers Act (AFSPA) is a much dreaded law that allows the army in Kashmir to shoot on the basis of mere suspicion. The Act also remains imposed in the Naxal-affected central regions of India and the north-east among other areas. Many innocents, including old debilitated men and mentally challenged people, deliberately or otherwise, have got killed at the hands of the army in Kashmir. But their prosecution has been hampered by the unbridled powers that AFSPA affords them. Such cases, however, have generally occurred in areas where the Indian army is deployed. These are mainly the border districts like Kupwara, a place where the chief minister in his own words doesn’t see much reason for AFSPA to be touched.

International rights organisations such as the Human Rights Watch and Amnesty International as well as local rights groups have been repeatedly making pleas for the revocation of the AFSPA among other draconian laws in vogue in Kashmir. These include mainly the Public Safety Act, something that allows the government to hold people under “preventive custody” for two years without trial. The recent times have witnessed the authorities holding even minors under prolonged detention, thanks to the PSA, mainly in a bid to contain the unarmed youth-led anti-India protests of the last few years. Kashmir has seen some of the most powerful anti-India protests in the recent years. The pleas against such laws, however, have mostly remained unheard.

Perhaps a much larger fraction of human rights violations in Kashmir have occurred at the hands of the paramilitary, militants, renegades and, of course, the local police rather than by the Indian army. While it could be much easier for the state government to bring such violators to book, it hasn’t shown much willingness to do so.

Lawlessness

Parvez said, “Both the media and the government have been trying to distort the whole picture. An impression is being created that human rights violations will cease if AFSPA goes. We can substantiate the fact that the problems of human rights violations in Kashmir haven’t been a result of any law. They happened because no laws were followed. Under what law was the Ikhwaan created? Under what law were they offered arms? There are known offenders among the Ikhwaan and they are moving about freely. Why is no action being taken against them if the state government means what it says?” The Ikhwaan has been to Kashmir what Salwa Judum is to Chhattisgarh. These are renegade groups dreaded by the population across the valley for the most gruesome human rights violations, loot and plunder that they indulged in during the years of conflict.

“In several cases of fake encounters and disappearances, the local police is also involved,” Parvez said, “They don’t have the shield of AFSPA. Why is the state government not prosecuting them if they are really so concerned about justice delivery? There are senior police officers who have cases of serious human rights violations against them. Why is nothing being done against them? The truth is that even the so called draconian laws were flouted by the security establishment in the state since two decades now. The culture of impunity created for the security forces, whether the army, paramilitary or the local police, and this culture is not a consequence of bad laws, but deliberate lawlessness.”

The Defence version

The central defence ministry on its part has reiterated its position in that the decision lies with the Unified Headquarters. The Unified Headquarters is a group comprised by representatives from the Army, the paramilitary, police and the central and state intelligence agencies. Interestingly, however, it is headed by the chief minister himself.

KT Parnaik, the lieutenant general who serves as the general officer commanding-in-chief of the army’s Northern Command told the media earlier this month that unless the army was able to “neutralise the militant infrastructure” and remove “interference from Pakistan”, it may yet not be appropriate to remove AFSPA. The army has however been on record several times in the recent years for having said that the total number of militants active in the valley is below a mere 500 (five hundred). On the other hand, with more than half a million armed Indian troops, Kashmir is widely believed to be the most densely militarised territory in the world. The number of troops remains higher than it has ever been in Iraq and Afghanistan combined.

The Opposition

The opposition Hindu right-wing Bharatiya Janata Party has remained opposed to any partial revocation of AFSPA. A local spokesman of the party recently said: “It was the civilian administration which [called in] the army to bring peace. … Our stand is that any decision regarding the revocation or invocation of the AFSPA has to be based essentially on the inputs of the security agencies. With inputs suggesting that there is an all-time high build-up of infiltrators across the LoC just waiting for the weather to change, it is not the prerogative of any political party, or a politician however highly he may be placed including the chief minister, to take a unilateral decision in this regard.”

It is an odd setting. While the army has been called in by the civilian government to help it out in the conflict, the same government doesn’t have the power to now send the army back. But even within the larger structure of the government in New Delhi, there is visible obfuscation. While the defence ministry has traditionally been siding with the armed forces vis-à-vis AFSPA, the home ministry has more than once been openly vocal in favour of the position taken by the chief minister.

Not a new debate

It must be noted that the debate on AFSPA is not new. The chief minister has on record several times shared his intention of demilitarisation thereby reducing the presence of the security forces in the valley. Invariably, however, such statements have been snubbed by the army both within the state and by its higher command at the centre. As noted above, the ministry of defence has also supported the armed forces as a rule, embarrassing Abdullah and his government several times in the past. What is interesting this time, however, is that the chief minister seems to be defiant than ever in what he has spoken in public. “I have said ‘no’ is not an option that I am willing to consider. So other than that, give me the options that are feasible,” he told reporters last Thursday. Abdullah has even claimed that “as chief minister of the state, he had the authority to lift AFSPA”.

Significantly, however, in a recent Unified Headquarters meeting, the Army’s top commander in J&K has reportedly said that India “could be compelled to grant the State independence by 2016 if government plans to lift the controversial Armed Forces Special Powers Act from some areas”. It was reported in an Indian daily newspaper The Hindu recently: “Lt.-Gen. Hasnain claimed that lifting the AFSPA would provoke large-scale disturbances which, in the context of the looming withdrawal of western forces from Afghanistan and the enhanced presence of members of the Organisation of the Islamic Conference on the United Nations Security Council, would lead to Jammu and Kashmir’s independence.” The tussle between the army and the civilian government over AFSPA has certainly never been worse.

‘Manufacturing’ demand

Parvez said: “The state, and even the media, has been pretending as though the revocation of AFSPA is a top priority of the people. It is like ‘manufacturing’ demand for the revocation of AFSPA. And the government wants to bask in the glory if it makes even a partial revocation happen.” While pressure has indeed been building on India from various rights groups to do away with some of the draconian laws it has imposed in its conflict ridden territories, Parvez also suggests that the coming Universal Periodic Review at the United Nations could well be another reason why such a debate over AFSPA is being generated. The Universal Periodic Review evaluates the human rights records of the member countries of the United Nations. “India has faired very poorly in it,” Parvez said. Each country is assessed every four years and India is expected to be up for assessment early next year.

While the chief minister is clearly walking a tightrope, his statements suggest a certain confidence that he may well be able to have his way in at least a partial revocation of AFSPA. That, needless to say, would also be excellent PR for an ‘emerging’ India in the world. Failure on the other hand could well be yet another setback for a chief minister who has managed to contain Kashmir’s protests this year, thanks to an unrelenting political repression. The change in the situation on the ground in the valley, however, will be next to none.