Have we options on AFSPA?

Dr. K.N. Pandita

Once again a row has been kicked up in the legislative assembly over the Armed Forces Special Power Act (AFSPA). Acrimony between the ruling and opposition MLAs on the issue showed that more or less both sides were pandering to subjective approach to the matter.

In bringing accusations and counter accusations against one another, the spirit and the purport of invoking the act gets submerged under trivialities. It is rather ludicrous for any political party to change stance on serious national issues when out of power.

The essential question is whether political parties seriously want to address the phenomenon of abnormal conditions created by militancy that have led to immense harm to the state, or are they just trying to politicise it for gaining some sort of political mileage.

What the representatives of the people in the assembly should have done was to initiate a serious debate on the ground situation in the state, the level of infiltration and subversion and the extent to which security forces have been able to restore normalcy. As a precursor, this kind of debate would have facilitated a sensible and pragmatic handling of the matter without acrimony or animus.

Mr. Muzaffar Baig, the PDP MLA initiated a serious debate on the subject by raising the point that since Sheikh Abdullah had not accepted the amendment of 1972 to the AFSPA of 1958 when he returned to power in 1975, therefore, neither the Act nor the amendment was applicable to the State of Jammu and Kashmir.

But instead of debating the constitutionality and the applicability of the Act, the house got embroiled in accusations and counter accusations leaving the contentious issue simmer for another flare up sometime later.

The roots of this Act, known as Armed Forces Special Power Act (Jammu and Kashmir) 1990 are to be found in the history of colonial rule, which had made enactment in 1942 to suppress Gandhi Ji’s Quit India movement. In 1958, it appeared in its present form when armed insurgency surfaced in Assam and Manipur. Later on the Union Government extended the reach of the Act to other North Eastern states where insurgency had spread.

When armed insurgency broke out in Kashmir in early 1990, it was the then Governor Jagmohan who declared Kashmir a disturbed area and imposed AFSPA.

Article 21 of the Indian Constitution states that if the Governor of a State or the Commissioner of a union territory is convinced that there is much disturbance in the state, law and order are threatened and normal administration is likely to be disrupted, he can declare the area as disturbed. The next action to follow is the implementation of the Act.

The purpose is to help restore civilian authority in the disturbed area as soon as possible and withdraw imposition of the Act

It is a fact that when Mufti Muhammad Saeed was the Union Home minister, the AFSPA was enforced in the valley on his recommendation to the Union Cabinet.

It is also a fact that during his party’s three-year term in the office, no attempt was made to raise the question of continuation or otherwise of the AFSPA.

This answers the point raised by Mr. Muzaffar Baig of PDP in the state assembly session.

The crux of the matter is whether the conditions that forced government to declare Kashmir a disturbed region in 1990 have been eradicated or not. If they no more persist then continuation of AFSPA has no justification to be in vogue. In other words, the focus has to be on the nature, viability and intensity of ground situation rather than the Act itself.

Who is to adjudge and pass a verdict on the ground situation in the valley: certainly not the armed forces. It is the people who have been bearing the brunt all these years, who will decide what they want. Since in our democratic dispensation they articulate through their elected representatives, therefore, the local mainstream political parties will have to debate and decide whether ground conditions have changed or not. Obviously, keeping in mind the response of the legislators, we find here is divergence of opinion on the question. As such a decision on the withdrawal of the Act becomes elusive for want of consensus of opinion. Agreeing that consensual politics is nothing less than a wishful thinking, nevertheless the elected representatives have to shun disagreement on the basic pre-requisites of a normal peaceful civilian life in the valley.

If we take the recent pronouncements of the Prime Minister into account, which he said were based on reliable input from various sources including the intelligence agencies, then the inference is that in terms of security the country cannot lower its guard.

Knowing the meticulous planning and extensive networking of terrorists operating in the region, and their avowed thrusts deep in the country, Kashmir situation cannot be dealt with in isolation. In most cases investigated by security agencies so far, Kashmir appears to have been converted into focal point of terrorist planning for strikes at different places in the country. Therefore application of AFSPA has to be viewed in broader perspective than just in the context of Kashmir.

Nevertheless, there are indications that militancy in the valley has come down in terms of internal subversion and suicide bombing. It is possible to move about much more freely in the cities and towns of the valley today. It is also true that ordinary people in the valley are not willing to give shelter to the militants aiming at selective strikes or subversion.

This could surely pass for improved security conditions. The credit has to go to the security forces including the state police. From that point of view AFSPA has been successful to a considerable extent in restoring normalcy in the valley.

However, it is generally believed that AFSPA is a ‘Draconian Law’ or a ‘Black Law’. As a commentator put it, the law makes the Armed Forces much more powerful than the powerful Supreme Court in the country. And when such vast powers are vested in an organization, it can misuse them; in many cases it has misused them leading to violation of human rights. Such wrongdoings cannot be pardoned. No government will be happy with these lapses when they take place.

Many Human Rights organizations like Human Rights Watch have protested against the Act as a license to violation of human rights of the victims. Not only that, even the Commissioner of the UN Human Rights Commission, Mr. Navnetham Pillay asked the Government of India to repeal the Act as it was “a legacy of the colonial rule.”

All these factors prompted Home Minster Chidambaram to remark during his recent visit to the valley that the Act needed to be revised.

India is a democracy and no government can keep the people disgruntled for one reason or the other. As such, it is in fitness of things, that the government re-visits the essential clauses of the Act and examines if a via media can be explored. More offensive and arbitrary clauses should be crippled or made partially ineffective. The objective is to revive peoples’ trust in security forces as guardians of life and property.

We know that the opposition parties made AFSPA an issue following the ugly and unfortunate incident in Shupian. Without condoning acts of highhandedness, if any, of armed forces, we now know that Shupian incident is unrelated to AFSPA. It is not at all in the interests of the people of the state if sporadic incidents happening in the valley are attributed to the armed forces only to incite pent up sentiments of the people. In most cases, enquiries instituted into incidents have revealed that the armed forces were not involved. And if they were, the army authorities have taken proper action.

It is also important to look at the other side of the coin. While the opposition has made AFSPA an issue to indirectly discredit the armed forces, why should not they think it necessary to denounce militancy and militancy related activities. Is it not the duty of political leadership to make peace and tranquilly, law and order as prime issues, which we in the state needs to address? The simple formula is this: if there is no militancy, there is no presence of the army and there is no application of AFSPA or any other ordinance. Militancy will not be prevented or discouraged by letting the security men become the sitting ducks.

In final analysis, we think both pro and anti – AFSPA need to debate the issue with a spirit of seeing that peace and tranquillity are restored in Kashmir. It is not to win mileage over the opponent. While proper and adequate amendment to the AFSPA should be welcome, the parties with smooth relations with separatists and secessionists too need to impress upon them the need to understand that they are gradually loosing the support of the masses. The interests of the people of the state have to be uppermost in handling sensitive issues like this.
(The writer is the former director of the Centre of Central Asian Studies, Kashmir University).

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