Debating AFSPA

Date: 16 Dec 2011
History makes it clear that there is nothing new about the controversies pertaining to Armed Forces Special Powers Act
Dr Sheikh Showkat Hussain
Unlike previous summers, 2011 remained relatively calm and peaceful. The summer, however, remained associated with two important controversies pertaining to Kashmir situation. Tamil Nadu Assembly passed a resolution asking centre to grant amnesty to killers of Rajiv Gandhi. It put J&K legislatures in an embarrassing situation. Despite having much more powers than Tamil Nadu Assembly, the state legislature could not muster courage to pass a similar resolution about parliament attack convict Afzal Guru.

The state legislature lost whatever credibility it had for being indifferent to the plight of Afzal Guru. National Conference and PDP were accused of sabotaging the Assembly proceedings in order to avoid a discussion on a resolution relating to Afzal Guru. While they were trying to get respite from public fury on this issue, the controversy related to discovery of mass graves in vicinity of LoC cropped up. State Human Rights Commission endorsed presence of mass graves. The families of thousands of people who have gone missing during past two decades suspect that their loved ones have been buried within these graves after being killed in fake encounters and portrayed as militants ex-filtrating or infiltrating across LoC. The controversy pertaining to mass graves not only invoked attention of Indian electronic and print media but also got highlighted in the international media and European Parliament well. The central and the state government felt embarrassed and were looking for an avenue of diverting attention from these issues. Armed Forces Special Powers Act and the controversy relating to its revocation provided such an avenue.

The Act authorizes any officer of the armed forces not below the rank of JCO to target any one to the extent of causing death whom he suspects to be doing anything against law and order or carrying weapons or things that are capable of being used as weapons. Officer of the said rank can even blast any premises that are used or are likely to be used as a training camp or a hideout by an armed gang or an absconder wanted for any offence. The only thing that the officer concerned is required to do prior to such an act is to give a warning as he may consider necessary. The security forces are also authorised to enter within private premises without a warrant for search or for recovery of any person or property or explosive believed to be unlawfully kept over there. They also have powers to stop search and seize vehicles suspected of being used for carrying explosives or any person who is suspected of being associated with or likely to commit an offence. A member of armed forces accused of abuse of these powers he can only invoke legal proceedings with the prior permission of Indian government.

The Act is clearly against the international treaties on human rights to which Indian State is a party. Covenant on Civil and Political Rights does allow derogation during emergencies. The derogation, however, is not allowed in context of right to life, protection against torture, freedom of religion etc. The emergency has to be formal and derogating party has to communicate reasons, time span and the rights derogated to other parties.

AFSPA, on one side, exceeds beyond the limits of derogation by authorising deprivation of life, liberty, privacy and shelter. On the other side, it also takes away the rights to judicial remedies. The Act has been subject of controversies for a long time. Prime Minister Manmohan Singh acknowledged on August 15, 2005 in his speech from Red Fort that several aspects of the Act are against notions of basic human rights. He promised an amendment to this Act. Nothing of the sort has been done for past six years. Naga people’s movement of human rights challenged this Act in 1998. The Supreme Court of India which is supposed to be protector of human rights upheld its validity. The history makes it clear that there is nothing new about the controversies pertaining to Armed Forces Special Powers Act. The chief minister, however, revived these to divert the attention of world community from the issue of mass graves and his failure in facilitating legislative assembly in favour of Afzal Guru.

Strange aspect of the discourse relating to AFSPA, however, remains the modus operandi pursued by the state in the name of process of revocation of the Act. Instead of deliberating it in the representative assembly of the state, the discourse of the Act was initiated in the unified command.

Unified command is an extra constitutional body comprising of commanders of the very forces who enjoy immunity under this Act. Such an action on the part of the state makes it obvious that rule of law and the supremacy of the legislature in the state of Jammu and Kashmir remains the myth. The legislature is simply a camouflage to extra constitutional body which is operating in the name of unified command. By making the unified command to deliberate on revocation of APSPA the state also exposed the fact that the system in J&K does not have any regard for basic principles of natural justice. Cardinal principle of natural justice is that no one can judge of his own cause. The state by making Unified Command to deliberate on the issue makes those very security formation judge of a legislation of which itself is its main beneficiary. Latest move by the state to induct the provisions of Armed forces Special Powers Act within criminal procedure code sounds beginning of a process that will make security agencies immune from any legal action for all times to come. Such an initiative presupposes a permanent role of Army in civil administration. The security agencies otherwise choke the civilian space in J&K by getting involved in activities which are supposed within the domain of civil administration. They interfere with education, they get involved in sports activities, and they remain engaged in civic activities in the name of operation sadbhawna about which even the interlocutors have expressed their reservations.

For years Indian state has been portraying its army as the one which is disciplined and immune to any political influences. Continuous involvement of army in Kashmir seems to have reversed this orientation of Indian army. Its involvement in discourses related to revocation of Armed forces Special Powers Act conveys that Indian Army after tasting civilian powers has started to get addicted to these. The addiction may change priorities of army in context of its national politics as well.
The writer teaches International law at University of Kashmir and can be mailed at [Rising Kashmir]