Justice Verma Committee is not the first official report seeking review of AFSPA. Since 2004, several official panels have made such recommendations. The only constant is the government in Delhi believes it is wiser not to fiddle with the ‘gospel’, a Kashmir Life report.
Even in Kashmir, many faces smiled as Justice J S Verma committee report on the amendments to the criminal law was submitted and simultaneously made public. It did mention the crisis in conflict-ridden Kashmir on account of the absolute powers that the state’s security paraphernalia is enjoying with impunity under the Armed Forces Special Powers Act (AFSPA).
“It has rightly suggested that no person, whether in uniform or in civvies, are above law when it comes to abuse of a woman,” industry lobbyist Shakeel Qalander told a news conference. “Now we expect justice in cases of the past two decades, where Indian civil society was silent all these years.” Prof Nayeema, his colleague in a civil society formation, had briefed Justice Verma committee about 900 rapes that various security agencies have committed.
Almost everybody has welcomed the recommendations. Chief Minister Omar Abdullah, who once promised withdrawing the AFSPA, has assured he will implement everything possible. He has even announced an all-party meeting to discuss the report.
Observations of the panel are candid and clear. Impunity for systematic or isolated sexual violence in the process of internal security duties, the report said, is being legitimized by the Armed Forces Special Powers Act. “We therefore believe that strong measures to ensure such security and dignity will go a long way not only to provide women in conflict areas their rightful entitlements, but also to restore confidence in the administration in such areas leading to mainstreaming,” the report reads.
It was on this basis that the panel recommended for immediate implementation that instances of sexual violence against women by members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law; special care must also be taken to ensure the safety of women who are complainants and witnesses in cases of sexual assault by armed personnel; and more importantly, judicially or legislatively appointed special commissioners be appointed for women’s safety and security in all areas of conflict in the country.
These commissioners, it was recommended, must have adequate powers to monitor and initiate action for redress and criminal prosecution in all cases of sexual violence against women by armed personnel; ensure the safety and security of women detainees in police stations, and women at Army or paramilitary checkpoints, and this should be a subject under the regular monitoring. The report has taken care of the happening in border areas where the populations usually rely on the armed forces. “The brutalities of the armed forces faced by residents in border areas have led to a deep disenchantment, and the lack of mainstreaming of such persons into civil society,” the report said. “Serious allegations of persistent sexual assault on the women in such areas and conflict areas are causing more alienation.”
The report seeks urgency in reviewing the continuance of AFSPA and AFSPA-like legal protocols in internal conflict areas as soon as possible. “This is necessary for determining the propriety of resorting to this legislation in the area(s) concerned,” it said. Seeking amendment in Section 6 of AFSPA, the panel recommends it to read like this: “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act. Provided that, no sanction shall be required if the person has been accused of committing an offence under Section 354, Section 354A, Section 354B, Section 354C, Section 376(1), Section 376(2), Section 376(3), Section 376A, Section 376B, Section 376C, Section 376D, Section 376D or Section 376E of the Indian Penal Code.”
The three member panel constituted in wake of the brutal gang-rape of a paramedic student in Delhi was received very well across India. It submitted its report in a record 30 days so that the Parliament in the budget session will debate and implement it. —
But this is not for the first time that changes in AFSPA were suggested or official panels recommended its review and rollback. In 2004, Ms Thangjam Manorama was raped and killed in custody of paramilitary Assam Rifles that triggered a massive agitation forcing the then Home Minister Shivraj Patil to set up a five-member committee under Justice B P Jeevan Reddy, a former apex court judge, for reviewing the AFSPA and to advise New Delhi “whether (a) to amend the provisions of the Act to bring them in consonance with the obligations of the government towards protection of human rights; or (b) to replace the Act by a more humane Act.”
In its 147 page report that it submitted on June 6, 2005, the Reddy panel recommended repealing AFSPA because the law “has become a symbol of oppression, an object of hate and an instrument of discrimination and high handedness.” Nothing happened despite the fact that the panel had recommended that provisions of the AFSPA be incorporated in the Unlawful Activities (Prevention) Act, 1967 and make it operable all over India.
The next was the Second Administrative Reform Commission. Led by Veerappa Moily, its purpose was to draft a plan of action for a complete makeover of public administrative system. Among many things, the Commission suggested in its fifth report on Public Order that was submitted to the government on June 1, 2007, it included abolishing of the AFSPA so that Unlawful Activities (Prevention) Act 1967 replaces it. Within days after the report was submitted, Defence Minister AK Antony rejected the recommendation.
Law Commission also supported the idea of repealing the law. Two of the four Working Groups that were set up by Prime Minister as part of the Round Table Conference (RTC) also suggested repealing the law. More recently, the three interlocutors led by journalist Dileep Padgoankar also made a similar suggestion.
In Kashmir, AFSPA continues to be a major issue throughout. It was implemented in 1990 by the then governor along with the Disturbed Areas Act through an ordinance. The latter designated areas (entire Kashmir) disturbed and gave some sort of impunity to the state police, paramilitary forces and Army. After an elected government took over in 1996, Dr Farooq Abdullah passed Disturbed Areas Act twice and then left it to lapse in 1998. Later, the state government invoked section (3) of the AFSPA to designate areas disturbed and extended it to whole state excepting the twin districts of Ladakh.
Now, the government intends to amend the list of designated areas and limit the AFSPA application to border areas and belts that still have significant militant movement. Chief Minister Omar Abdullah who had announced it in latter 2011 made a joke of himself by making an announcement and latter retracted it because the Army and the centre opposed the idea. He continues to be supportive of the idea that comparatively peaceful areas like Srinagar, Budgam, Kathua and Jammu should no more be covered by Disturbed Areas Act. But he is unwilling to make a commitment. This was despite the fact that former Home Minister P Chidambaram, once suggested him that he was within his authority to do whatever he wants.
Last time when AFSPA was tackled with a bit of “momentary seriousness” was when Mufti Sayeed started ‘blackmailing’ the UPA-I while his PDP was supporting the Ghulam Nabi Azad led government. In March 2007, Mufti threatened a pullout if his demands were not met by the Congress led centre. After three rounds of talks, Prime Minister Dr Manmohan Singh agreed setting up of an 8-member committee led by the then NSA, MK Narayanan, that would evolve a mechanism within 60 days on PDP’s three demands: revocation of Armed Forces Special Powers Act, troop cut and undoing the occupation of agriculture land and social infrastructure by the security forces. The initiative died within days, making Mufti to take on Congress at the peak of 2008 unrest.
But the law is not going. Within 24 hours after the report, law minister Ashwani Kumar reacted: “How do you divide the action taken in the line of duty where the circumstances are such that nobody knows what is going to happen?”
Now, different government institutions are trying to manage the crisis by creating different set-up to reduce the pain. While Justice Verma Committee recommendations offer one end of it, another is the Planning Commission. The 12th Plan document that National Development Council approved, a special mention of the crisis makes a mention. Women in disturbed areas, it says, face special issues including continuous Army presence, suspended civil rights and lack of normal access to facilities/services due to continuous violence. “They are most vulnerable to atrocities and need special attention in areas like healthcare measures, schools, free legal aid and so on,” the document reads. “Gender sensitization programs will be held for the authorities who implement specific legislations applicable to disturbed areas such as AFSPA.” The document says that the government will “initiate review of the AFSPA using a gender lens” that will envisage documentation of the gendered dimension of violations and creation of gender Resource Centres.
Even the employees serving central government agencies in the state are getting something called ‘risk allowance’ to perform in disturbed areas. Employees of the civil secretariat are also entitled to free rations and free boarding and lodging while in Srinagar. So the policy seems to be funding the pain management while helping pain to sustain. So enjoy AFSPA because policymakers think it is inevitable.
