The government once again ruled out repeal of Armed Forces Special Powers Act (AFSPA) recently saying the situation was not conducive for it. For the past few years, AFSPA has been widely discussed and has become a necessary ingredient of Kashmir discourse. There was a time when `separatists' and the `mainstream' parties demanded repeal of this draconian legislation. Some people believe that repeal of AFSPA would be an effective Kashmir centric confidence building measure (CBM).
The common people have also been discussing the draconian law. Many Kashmiris have also participated in blog discussions. One such comment merits special mention here. It is in response to former minister of state for defense M M Pallam Raju's statement in which he stated that AFSPA was a necessary tool that had to be given to the armed forces. The statement reads: "What a statement. It is a slap on the face of people and institutions that respect human rights. Essentially what is being said is that Kashmiris need to be suppressed by coercion and force. In the process if there are any abuses there will be repercussions for the Army. Do Kashmiri politicians have any semblance of respect for the common person?
Will repeal of AFSPA make any difference? The AFSPA is all about impunity. Innocent civilians got killed even when AFSPA was not there. The armed forces do not need special powers to shoot a suspect. They can do it and they have been doing it with impunity. What they need is impunity and for the information of one and all, AFSPA is not the only legislation that guarantees it. Impunity is available under the ordinary laws as well. Section 549 Criminal Procedure Code (CrPC) also guarantees it.
The CrPC was enacted way back in nineteenth century but till date a few people have commented on its deadly fangs. In actual practice, Section 6 of the AFSPA has been overtaken by Section 549 of the Criminal Procedure Code amended in 1991 to provide virtual impunity to the armed forces. Impunity has been made a feature of normal criminal jurisprudence. In fact Section 549 of CrPC has made section 6 of AFSPA redundant. If the Central Government were to give permission under section 549 of the CrPC, there is no reason as to why the same permission will not be granted under Section 6 of the AFSPA.
The people, by and large, ignore section 549 CrPC because being an ordinary law it does not attract attention. Even the United Nations Special Rapporteur on Extra- judicial, summary and Arbitrary Executions also ignored it in its 57th session. The Rapporteur discussed impunity in detail and also sought repeal of AFSPA but did not utter a word on section 549 CrPC.
While examining the third periodic report of the government of India, an expert of the United Nations Human Rights Committee stated: "Article 6 of the Armed Forces (Special Powers) Act, which prevented all legal proceedings against members of the armed forces, was extremely worrying; if the Government's fear was that citizens would bring vexatious or frivolous actions, that was a matter better left to the courts to resolve. It was inadmissible for citizens to be deprived of a remedy as was at present the case."
The UNHRC noted: "Criminal prosecutions or civil proceedings against members of the security and armed forces, acting under special powers, may not be commenced without the sanction of the Central Government. This contributes to a climate of impunity and deprives people of remedies to which they may be entitled." Once again no mention of section 549 CrPC was made.
Repeal of AFSPA, therefore, is no victory. It will make no difference at all. The Jammu Kashmir high Court Bar Association, Srinagar had plans to challenge section 549 in the high court. This was announced by the bar President during a press conference a few years ago. However, it seems that the Bar has not preferred the petition till date. The problem in Jammu Kashmir is that the criminal justice system has not been allowed to function properly for political reasons.
But why blame New Delhi alone. Successive state governments have also strangled the system for political reasons. The Jammu and Kashmir police personnel who are not covered by AFSPA have never been brought to justice for the crimes they have committed in the garb of security of state. Of course sanction for prosecution is needed in such cases as well but it is to be accorded by the state government and not by New Delhi.