AFSPA: From Northeast to J&K

From Abdullahs to Muftis it has been a constant refrain

Dr. Javid Iqbal
Srinagar, Publish Date: May 4 2018 11:31PM | Updated Date: May 4 2018 11:31PM
AFSPA: From Northeast to J&K

Armed Forces Special Powers Act (AFSPA), much in focus over a long period of its implementation from northeastern states to J&K State has lately raised concerns on a different plane. It has been lifted from Manipur totally and from parts of Arunachal Pradesh. While the lifting of the much condemned law, from any place is to be seen as a healthy development, its continued implementation in J&K raises concerns and questions, too. It seems that a different standard for its implementation or revocation is being set from place to place, state to state. 

The decision by GoI’s Ministry of Home Affairs (MHA) to revoke AFSPA from Manipur and parts of Arunachal Pradesh is apparently based on the places being viewed as undisturbed and free of violence. If that is indeed the criterion, it could be argued that ever since its implementation in J&K, there was periods, when parts of the state were relatively calm, free of disturbance and violence. Yet, it was never thought prudent to lift AFSPA from any part of the state. 

In J&K, various state governments formed by regional mainstream parties allied to Congress in the past and presently to BJP have voiced concerns on the continuation of AFSPA. The  parties—NC/PDP concerned by how their constituents view the law asked for its revocation  from relatively calm and undisturbed parts of the state. From Abdullahs to Muftis it has been a constant refrain.  AFSPA has limited the capacity of state governments to address human rights concerns, markedly denting the credibility of regional mainstream parties. 

AFSPA provides protection to armed forces from prosecution by law in case of excesses in areas declared as disturbed. And, there have been multiple instances where excesses were alleged, yet the state government could not act and probe the matter. For legal perusal, the state government has to seek the sanction of union ministries—ministry of defence, in case of army and ministry of home affairs, in cases of central police and paramilitary forces. The sanction has been hard to obtain, and in cases where the legal probe was allowed, the immunity from prosecution provided by AFSPA resulted in failure to take the cases to logical conclusion. 

Former Chairman of J&K State Human Rights Commission [SHRC] Justice Bashir-ud-Din observed by virtue of the Act [AFSPA] even a non-commissioned officer is authorized to shoot anyone on mere suspicion “in order to maintain the public order”. The Justice further observes that in larger interests of politico-constitutional entity and democratic norms, the Armed Forces have to ensure that their actions in context of AFSPA has to be measured and proportionate to the given situation with “an objective to save the innocent lives”.  His judicial observation that the Government “cannot exercise arbitrarily its powers on ground or withhold sanctions at its sweet will and pleasure,” and “sitting over the matter for how so long is no substitute to sanction or not to sanction the prosecution” had hardly any takers in the concerned quarters.

Justice Bashir-ud-Din’s observations were contained in a newsletter. He is not the only legal authority to have passed remarks vis-à-vis the harsh law. GoI set up a five-member committee under the Chairmanship of Justice Jeevan Reddy-former judge of the Supreme Court in the wake of intense agitation  that was launched by several civil society groups following the death of Thangjam Manorama, while in the custody of the Assam Rifles and the fast undertaken by Irom Sharmila of Manipur. The panel was given the mandate of "review[ing] the provisions of AFSPA and advis[ing] the Government of India whether (a) to amend the provisions of the Act to bring them in consonance with the obligations of the government towards protection of human rights; or (b) to replace the Act by a more humane Act." The Reddy committee submitted its recommendations on withdrawal or dilution of AFSPA on June 6, 2005.  The then Defence Minister—Pranab Mukherjee rejected the withdrawal or significant dilution of the Act on the grounds that “it is not possible for the armed forces to function” in “disturbed areas” without such powers. Justice Reddy’s recommendations did not see the light of the day for 13 years, until AFSPA was revoked in Manipur recently.

In Jammu and Kashmir State, revocation of AFSPA continues to be a distant dream. In the state after turbulent years from 2008 to 2010, relative calm returned in subsequent years, prompting Omar Abdullah to propose selective withdrawal from the state of the controversial law. While the tone and tenor of the then GoI Home Minister-P Chidambaram was conciliatory to the extent of stating that the issue had come up in cabinet committee on security, defence ministry—Anthony struck it down. AFSPA remains mired in controversy, especially in Jammu and Kashmir. It remains in force, in spite of international censor. In 2009, on March the 23rd India took the plea of Article 355 of her constitution in defence of AFSPA. Article 355 implies the duty of the Union to protect States against external aggression and internal disturbance.  It was invoked to overcome objections raised by UN Commissioner for Human Rights Navanethem Pillay to AFSPA. Terming it as colonial, the commissioner termed the law as "dated and colonial-era law that breach contemporary international human rights standards."

In spite of severe censor, AFSPA stays in Jammu and Kashmir, while as sympathetic view is taken in northeast. BJP power sharing hunger in northeast has resulted in concessions, so it seems, while as in Jammu and Kashmir, the power sharing mechanism has not yielded any gains for the state. BJP is having the cake and eating it, too!

Yaar Zinda, Sohbat Baqi [Reunion is subordinate to survival]

 

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