AFSPA Snake And Ladder

Desperate to make some political capital, chief minister Omar Abdullah made a rushed announcement to withdraw AFSPA from some areas in the state. What followed is how fast politics in Kashmir reveals itself as a game to get to power irrespective of what the people may want or need. M Wani takes a look. 

Pathribal, Haigam and Ganderbal are three places in Kashmir, having four things in common. Like many other places throughout Kashmir these are locations were fake encounters took place. Second, the fake encounters were acknowledged by the state. Third, that the role of the army was established by the state or the central investigating agencies in all the three cases. And most importantly, the fourth which is common to many other cases in Kashmir, the army invoked the section 7 of the AFSPA to shield the involved personnel from prosecution in the courts in Kashmir.

The existence of the Act can be traced back to the Jammu and Kashmir Disturbed Areas Act, 1990. A temporary law, it was supposed to expire on July 18, 1992.  It was re-enacted as President’s Act in 1992 under Article 356 of the Indian constitution which gives the authority of legislating on J&K to the parliament.

The AF(J&K)SPA received the assent of the president of India on September 10, 1990 and was implemented from July 5, 1990. It applies to the areas declared ‘disturbed’ by state or the central government (under its section 3) for “the military forces and the air forces operating as land forces and includes any other armed forces of the Union so operating.”

On just the next day, the Governor’s administration declared all the (then) six districts in Kashmir disturbed besides the areas falling within 20 kilometres of the LoC in Poonch and Rajouri under the under section 3 of the Armed Forces (Jammu and Kashmir) Special Powers Ordinance, 1990.

Thus, both the acts existed at the same time uptil 1998. The major difference between the DAA and the AFSPA was that DAA applied to the state controlled security forces as well.

The DAA 1992 was to lapse in 1997. The Farooq Abdullah government replaced DAA 1992 by DAA 1997 for one year. After that the Act lapsed.

But the lapsing of the Act did not mean that the districts would cease to be disturbed. In fact government had invoked the Armed Forces (J&K) Special Powers Act for all these purposes even for declaring areas disturbed.
In 2001, the entire Jammu division including the (then) districts of Jammu, Poonch, Rajouri, Doda, Kathua and Udhampur were brought into the ambit of ‘disturbed’ areas according to the provisions in the AFSPA by the same state government.

The AFSPA gives the powers to the union armed forces to “fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area” and “arrest, without warrant, any persons who has committed a cognizable offence or against whom a reasonable suspicion exists” and to “enter and search, without warrant, any premises.”

What sets the law part, and sets it in contravention to the established human rights, is the impunity offered to the armed forces. The section 7 of the law which offers impunity to the army personnel states,
“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.”

The same section has been invoked by the army in Pathribal, Haigam as well as Ganderbal killings, to shield the accused.

In the Pathribal case the investigation was carriedout by the CBI, and it indicted five Army officers including a Brigadier for killing five civilians and dubbing them as militants. The CBI presented challan against them in Court of Chief Judicial Magistrate Srinagar.

The army, after its appeal on jurisdiction was rejected in the state high court, approached the Supreme Court challenging the jurisdiction of the CBI to file charge sheet against army without sanction from the central government. Section 7 of the Armed Forces Special Powers Act, 1990 was invoked again. After the imposition of a stay order, the case is pending before the Apex Court.

In Haigam, then in Ganderbal fake encounter cases, and in many other such cases, in which the state government established union armed forces as being accused, the same is done.

Wherever the case has not been taken to court as of yet, the state government applies for sanction for prosecution to the central government. The state home department of Jammu and Kashmir, replying to an RTI application by the Jammu Kashmir Coalition of Civil Society (JKCCS) states that till 2011 they have applied for sanctions for prosecution from Ministry of Defence and Ministry of Home Affairs under section 7 of AFSPA in 50 cases. Out of these 50 cases, 31 pertain to Ministry of Defence and 19 others have been sent to Ministry of Home Affairs.

According to the state home department, sanction for prosecution is awaited in 16 cases and declined in 26 cases. It claims sanction for prosecution has been “recommended” in 8 cases.

But the information differs from the information provided in the affidavit submitted by the Union Ministry of Defence on 5th June 2009, to the Jammu and Kashmir High Court, in the case of Ghulam Nabi Magray Vs Union of India. The affidavit states that the MOD has received 35 cases from the state government for prosecution sanctions under AFSPA, four more than sent by the state department. The affidavit also states that there is not even one case where sanction under AFSPA is granted for prosecution, in clear disagreement with the information provided by the state.
What is most interesting in the response from the centre is that it states that the cause of delay is the “undue delay, in some cases 14 to 15 years, for the police authorities to conclude the investigations and seek sanction for prosecution.”
It further states that “another aspect of delay is that the case diary (CD) file contains major inaccuracies and certain details at times are not even legible being handwritten on poor quality newspapers.”

But one of the reasons to the delay in the response to sanction for prosecution can be traced to a statement by the Army Chief in January. “I don’t know how much you are aware of the legal system in the Valley. There are various pressures out there. You are aware of Mian Abdul Qayyum, who was president of the Bar Association and is now in detention. He has been rabidly anti-Indian,” General VK Singh told reporters in New Delhi.

“With this kind of situation, what kind of justice would we expect or legal provisions would be followed, is the question mark. And that is why as per the laws and procedures laid down, we would like to complete our inquiry before we come to a conclusion,” he added.

The statement evoked sharp response from the state, signalling a developing rift between the army and the state on the issue of AFSPA.  Ajay Sadhotra, Provincial president and a spokesman for National Conference replied “Army should not overstep its brief. It is political decision whether to remove AFSPA or not. Omar Abdullah is committed to remove AFSPA where security situation permits. Judiciary in J&K is independent, nobody has a right to raise finger against the working of the judiciary.”

The rift became even more visible after a series of incidents started by the Machil fake encounter case, then an alleged abduction and rape.

At one time the twitter happy chief minister even tweeted that “…Guilty won’t be spared either AFSPA or no AFSPA.”   
On 21st October, addressing the police commemoration day function, the CM said, “with the gradual improvement in the security situation and return of peace, some laws (AFSPA) are being removed from some areas within next a few days.” This triggered a political storm.

The army response, that they were opposed to the removal of AFSPA was on expected lines.  Army’s Srinagar-based 15 Corps Commander Lt Gen S A Hasnain told reporters there that “the deliberations on the subject (revocation of AFSPA) are still going on.”

– Five grenade attacks in 48 hours followed, with the national media jumping to the occasion and opining that the condition was not ripe enough for the revocation, seeing the blasts as an evidence to the same.

In an interview with a local publication NC’s Mustafa Kamal pointed the finger of suspicion at the army. “Army was the only agency that opposed AFPSA revocation categorically.  Revocation of AFSPA hurts them the most. Army even toed the line of confrontation with Chief Minister Omar Abdullah to retain the draconian law, ” he said.

In reaction to Kamal’s statement, army spokesperson Lt Col. J.S. Brar said, “it is not worth any comment from our side.”

But the AFSPA revocation announcement issue deepened the rift betwen NC and its coalition partner, the congress, with state Congress chief Saifuddin Soz accusing Chief Minister Omar Abdullah of not consulting his party for evolving a consensus before the announcement.

This led some analysts to point out that the division was not just between the army and the state government, but that it was also a division between the army and the MOD (and to some extent the state coalition partner)on one side and the MHA and the state government on the other side.

-Bowing to the coalition pressure, Omar Abdullah went back on his earlier word of revoking the AFSPA within a few days. He tweeted, “It NEVER came as a proposal so how can it be deferred. It was always slated to be discussed formally in Jammu once offices open.”
So rests the AFSPA.

Ignorance Is Bliss?
As the debate over AFSPA peaked last week, people were laughing at the level of knowledge of the rulers and the media on the issue. There was lot of talk of revocation of the Disturbed Areas Act (DAA). In fact former Deputy Chief Minister MuzaffarHussainBaig vociferously sought its repealing. Kashmir’s major newspaper even ran special stories on how ‘experts’ want its revocation. Unfortunately neither of them knew that DAA is a dead law.

It was the government led by Dr Farooq Abdullah that replaced DAA 1992 by DAA 1997 with a life of one year. Then it was never extended and it lapsed. But that essentially never meant that state can not list or de-list areas as disturbed. Last time, it was done by Dr Farooq Abdullah government on August 10, 2001 by issuing SRO 351 that included entire Jammu division including the (then) districts of Jammu, Poonch, Rajouri, Doda, Kathua and Udhampur into the ambit of ‘disturbed’ areas. That was done under section 3 of the AFSPA.
But politicians have the tendency to forget. Last time in 2003, the opposition leader and now finance minister Abdul Rahim Rather came with a private members bill in the state legislature. He was seeking repealing of the DAA. After he was informed the status of the law, he withdrew the private members bill.

Even chief minister Omar Abdullah committed a mistake. He recently referred to ‘Unified Command’ which never exists. He was referring to the Unified Headquarters that he presides. In fact, the then governor S K Sinha was desperate to upgrade the UHqs to Unified Command that would gave it a much larger and powerful status that the loose structure it actually has right now.

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