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Friday, December 19, 2014

Kashmir and AFSPA

The sentencing of five army personnel, including the commanding officer of 4 Rajput regiment, for the murder of three young Kashmiris, is a major development for the promotion of human rights and ending the policy of impunity with which the army and police forces have operated in some parts of the country. It will also help to make the fight against Islamist militancy and radicalism more effective.
In April 2010, the three Kashmiris—Shezad Ahmed, Riyaz Ahmed and Mohammed Shafi of Nadihal village of Baramulla were lured by two local counter-insurgency agents to the Kalaroos village in the Machil sector near the LoC. They were promised jobs as porters, instead they were handed over to the army personnel who killed them near the Sona Pindi post and claimed that they were Pakistani infiltrators.  After a hue and cry and despite the efforts of some senior officers, the Army took up their court martial proceedings in December 2013 and the verdict was passed on Thursday. It will now go through the appeals process.
The sentencing of the men is only the tip of the iceberg of the issue of some 3,000 unknown men who lie buried along the Line of Control in Kashmir. While most of them are militants who tried to infiltrate or leave the Valley during the 25-year old insurgency, there is a suspicion among many that they have also fallen victim to the greed of rogue army personnel. This is an issue the country needs to confront with some urgency.
The issue is directly linked to that of the Armed Forces Special Powers Act which gives military personnel indemnity against killing people in an insurgency-hit area. The indemnity is meant to protect the personnel from prosecution and legal action. However, it is only for actions done in the exercise of their duty, but the forces have often used it to cover up actions that were in clearly illegal and some of them ought to be classified as murder. But while the intention of the act is to protect soldiers who have acted in good faith, often it is used to protect people who have clearly violated its intention and carried out acts that are clearly illegal.

There is little doubt that if the armed forces and police personnel are to operate in insurgency-hit areas, they need legal protection against suits and prosecution for acts they may carry out in the exercise of their duties. However, equally, there is need to protect the ordinary citizens from palpably illegal actions carried out by security forces’ personnel using the act as a shield. The best way out of this conundrum is to ensure that the draconian provisions of the law are balanced with equally draconian penalties against those who wilfully misuse the act.
The government needs to consider, too, that the situation in most insurgency-hit parts of the country is very different from the time the law was passed. Whether it is the North-east or J&K militancy is at an all time low and this is not because of the AFSPA, but the changed political dynamics of the region. It would be fitting for the government to consider the abrogation of the act in line with the improved situation there.
The role of the army and police is to fight against those who violate the laws of the land and try to overthrow its legal government. But by equal measure, it is the duty of these forces to uphold the law and any violation of the rights of non-combatants and innocents deserves punishment. In our country, as is well known, even the President cannot order the death of a person. It can only be done by the courts of law and through due process.
Most people in India are not quite aware of the extent of human rights violations and illegal acts that have taken place in Kashmir and other places like Nagaland and Manipur.  Torture was fairly common, there were a lot of extra-judicial killings and cover-ups of incidents were common.
The interesting thing is that the Indian Army usually took a tough approach towards such actions and many of its soldiers were court-martialled and jailed for excessive use of force, custodial killings and rapes. However, the army, in its wisdom, did not publicise this. However, other forces like the BSF and CRPF more often than not failed to act against their personnel in many of the very obvious atrocities that took place and which only added fuel to the fire of militancy.
Ironically, the government was much tougher on violations in the pre Nine-Eleven era. After the “Global War on Terror”, the government has taken the excuse of terrorism to deny justice to the innocent who have been victimised in the name of fighting terror. In the past the government used to provide details on the personnel punished and even publish them in the Home Ministry annual report. Now that tradition is forgotten and the lobby in support of maintaining the AFSPA, regardless of the dramatic improvement in the ground situation, has become impossible to counter.  
The problem is that many of the atrocities took place in the very small area of the Kashmir Valley. It has understandably left behind a residue of bitterness which will not be easy to eliminate. Actions like the Army’s decision to acknowledge a mistake in the killing of two young men in Budgam earlier this month, and the sentence to the Rajput regiment personnel, are an important first step. The people know that we cannot turn back time or get back their loved ones, but an acknowledgement of the truth of what happened in the past helps in the healing process.
An expanded version of article published in Nai Dunia November 18 2014

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