Union Home Minister P. Chidambaram has done well to clarify that the exercise of lifting the Armed Forces Special Powers Act was initiated by the Cabinet Committee on Security, and is not being done on a whim by Jammu & Kashmir Chief Minister Omar Abdullah. Not surprisingly, the CCS is working on a political agenda aimed at restoring normalcy in the state, and the idea of lifting the heavy hand of security forces there has emanated from the Union government.
There is, of course, the well known position of the Indian Army, and the other security forces, who are dead set against any such move, claiming that it will give wind to the sail of the separatists and lower the morale of the forces. So vehement is their opposition that Minister of Defence, A K Antony, who is a member of the CCS, is said to be siding with them. Never mind that the Kashmir police chief S.M. Sahai is confident that state forces can deal with the situation on their own.
Across the world, in areas of conflict, there is often an unusual phenomenon—that of various parties developing a vested interest in its continuance. This seems to be the case with Israel, where hardliners of the Jewish state seem to be as wary of any efforts to promote peace, as are the extremists of the Hamas and Hezbollah.
The three are, to paraphrase Eliot, united in the strife that divides them. An onset of peace would undermine their positions with their respective people.
Are we witnessing a similar phenomenon in Kashmir and elsewhere in India? Have security bureaucracies who’ve gained enormous power and influence in the period of troubles developed a vested interest with the militants in ensuring that there’s no return to normalcy?
Ironically, they seem to be whistling against the wind. Peace seems determined to set in. Let us take the North-east, the region for which the AFSPA was initially mooted. It shows a varying but positive trend. Violence has been declining in Assam and Tripura and remains low in states like Meghalaya and Arunachal. In Nagaland and Mizoram, once affected by full-blown insurgencies, no security force personnel has been killed in the last two years. The only problem state really is Manipur, but more because of the nature of the militancy there, rather than any special threat to the security forces.
The Kashmir situation, is another case in point. Official figures show that there has been a sharp decline in violence since 2008 in terms of the conventional metrics—the numbers of civilians, security personnel and terrorists killed. The one issue that bothers the security establishment are the continued attempts, some quite intense, of militants trying to breach the Line of Control from Pakistan. The good news is that most of the attempts are thwarted and only a handful of militants actually get through.
So while there is a case for the continuance of the AFSPA in the areas around the LoC, where the chances of an armed clash are high, there is no reason why the state should not consider lifting it from some hinterland areas. And that is indeed what it has been contemplating. According to reports, it was considering lifting the disturbed area notification for the districts of Budgam and Srinagar.
The AFSPA was conceived of as a flexible instrument through which emergency could be imposed in specific areas, rather than the country as a whole. So it was originally imposed in the North-Eastern states and, in July of 1990, the Armed Forces (Jammu and Kashmir) Special Powers Act was passed. It was applied in conjunction with the Disturbed Areas Act passed by the state government in the same year. Initially the AFSPA was only applied in the Valley and the 20 km area around the Line of Control.
When, by 2000, the situation in other parts of the state had deteriorated, the AFSPA was invoked in the Jammu division and thus came to cover Jammu, Poonch, Rajouri, Doda, Kathua and Udhampur.
But what could expand, clearly does not seem able to contract. Unfortunately, this very flexibility is in question when the Army refuses to consider the partial revocation of the AFSPA. The reason why the Army has taken such a position is not difficult to see. In recent years there have been some serious charges against it of extra-judicial killings and even outright murder.
The way in which the AFSPA is misused is evident from what is called the Pathribal case. On March 20, 2000, 35 Sikhs were gunned down by Lashkar-e-Tayyeba terrorists. Five days later the Army killed the alleged perpetrators at Pathribal in an intense gunfight that charred the bodies of the terrorists beyond recognition.
Public protests led to an exhumation of the dead, and DNA tests proved that those killed were local villagers, not any alleged militants. The CBI took up the investigation and indicted five Army officers, including a brigadier for killing five civilians and claiming they were militants.
The Army has challenged the right of the CBI to file a chargesheet without the sanction of the central government citing the AFSPA. Privately, the Army admits what it says was a goof up, but its stand is that it was misled by the state police’s Special Operations Group into killing the innocents and that while they were being indicted, the state police personnel were getting away scot-free.
Similar cases dot the tortured Kashmiri landscape. A Ministry of Defence reply to an RTI request said that between 1989 and 2011, the Kashmir state home department had sought sanction to prosecute in 50 cases as per the AFSPA. Of these 31 related to the Army and the others to the paramilitary. Sanction had been denied in 42 of the cases. In another affidavit of 2009, relating to another case, the MoD said it had not given permission for any of the 35 cases for which permission for prosecution had been sought. The Army refuses to see that a law as draconian as the AFSPA must also have draconian safeguards.
It is the power of the Indian democracy that it insists that its forces have the right to kill only through a legal statute. But that statute, and the concept of the rule of law, must be respected in letter and spirit.
That has clearly not been the case. While it has given the necessary protection to many security force personnel, some bad elements have misused its provisions to commit patently illegal acts. The problem with the armed forces leadership is that it is not willing to recognise this. Its actions seem to equate the illegal actions with the legal ones. Their somewhat lame excuse is that a rigorous application of the law of the land will affect the morale of the forces.
Nothing can be worse for the morale than for murderers to equate themselves with the soldiers who legally fight armed insurgents at the risk of their own lives. Or for the murderers to claim they have acted on behalf of the state and, worse, have their superior officers protect them. That is what the current application of the AFSPA seems to amount to.
Kashmir stands at an important cross-roads right now. The authorities there insist that they can manage the situation in some areas minus the AFSPA. The government can agree to their demand by withdrawing the Army from areas where the AFSPA no longer holds.
The people in the Valley who have voted for peace through their actions deserve a dividend. A partial withdrawal of the AFSPA will impart invaluable momentum to a normalisation process that is already under way.
Mail Today November 2, 2011