The Tripura government’s recent decision to revoke the Armed Forces Special Powers Act (AFSPA) has once again kick started a debate – why can't Jammu and Kashmir follow suit? But in case of Jammu and Kashmir, there is always more noise than action. Since 1996, when an elected government came to power, political parties have used it as an issue to fetch votes. They have raised the pitch many a times, but ultimately given up to Delhi’s veto over the issue.
Tripura was brought under AFSPA in 1997 and Jammu and Kashmir in 1990. The Tripura government justified the revocation by saying that it was not needed since militancy was almost gone. In case of Jammu and Kashmir too, the situation that was prevailing in state in 1990 has changed. If the militants were operating in thousands, today they are just a few hundred. But the law's psychological impact has done more damage to a sense of normalcy than anything else. Why is the AFSPA hated in Kashmir? To my understanding, it is not the just the law that has infringed upon civil liberties in the state, but the large number of armed forces that are present in the name of security, who have used their unbridled powers and escaped the law. Examples of Pathribal, Bandipore, Ganderbal, Handwara and Machil are still fresh in the minds of the people.
The issue here is, can or will the state government move towards its revocation? Technicalities apart, it takes political courage to do away with the law. One thing, however, is clear. In the past, the Indian Army has proven more powerful than the political leadership as far as its retention is concerned. Former chief minister Omar Abdullah made an announcement on October 21, 2011 that AFSPA would go soon. He presumably had the backing of then home minister P Chidambaram, but could not overcome the challenge thrown by the Indian Army. Omar flip-flopped till the time he was out of power. With the new government in power, they too had to make it part of the “Agenda of Alliance”, but there is no clarity in that as well. “While both parties have historically held a different view on the Armed Forces Special Powers Act and the need for it in the State at present, as part of the agenda for governance of this alliance, the coalition government will examine the need for de-notifying ‘disturbed areas’. This, as a consequence, would enable the Union Government to take a final view on the continuation of AFSPA in these areas,” reads the agenda document. Thus it is clear that no firm position has been taken, as this examination could well take full six years of the government. The ball has been thrown into Delhi’s court.
Past experiences have shown that state governments are hardly empowered, especially in Kashmir where a national party is in the ruling coalition. More than a decade has been consumed in committee meetings and reports. but there is no headway. When the PDP founder Mufti Mohammad Sayeed threatened to upset the Ghulam Nabi Azad government and raised the issue of withdrawal of armed forces and AFSPA (obviously he had not reconciled with the handing of power to Azad), the Government of India announced to set up two committees to be directly supervised by Defence Minister AK Antony. The announcement was made on April 1, 2007 and subsequently a committee headed by then Defence Secretary Shekhar Dutt was set up to review troop deployment and consider relocation and reconfiguration of Indian armed forces from schools. The committee did its work but the one on AFSPA was never set up.
Moreover, two high-powered committees were constituted on September 29, 2010, as a follow-up to the Centre’s direction. After the Cabinet Committee on Security (CCS) announced the eight-point package for Jammu and Kashmir, that included a review of areas declared disturbed, two committees, one each for Kashmir and Jammu, were constituted for the purpose during a Unified Headquarters meeting in Srinagar on September 29, 2012.
Soon after Omar announced on October 21, 2011 that AFSPA would be partially withdrawn it raised hackles within the Indian Army, which opposed it tooth and nail. “Time has come for the revocation of laws (AFSPA and Disturbed Areas Act), which were introduced in the state after the onset of militancy, from some areas of the state within next few days. We have already identified the places from which the Act will be withdrawn, but I am not in a position to name those areas,” Omar said in 2011. However, it could not be implemented. And on October 21, 2012 he reiterated his commitment at the same place ie Police Complex Zewan, saying “Situation and circumstances allow revocation of AFSPA from certain pockets of JK. You have areas where there is no operational role of Army as the militancy in the state is at its lowest ebb. There are lesser casualties and therefore the situation is conducive for its revocation. I will purse further for AFSPA revocation and it is worth a mission,” He demitted office but mission remained there.
No less than a Working Group set up by then Prime Minister Manmohan Singh has recommended its repealment as a major confidence building measure. The Group headed by Mohammad Hamid Ansari (now the Vice President) had made it clear that it was necessary to do away with this Act as it impinges on the fundamental rights of the people. "Certain laws made operational during the period of militancy impinge on fundamental rights of citizens and adversely affect the public. They should be reviewed and revoked. Law and order matters should be dealt with, to the maximum extent possible, through normal laws," read the recommendations of the group. Not only this group, but the high powered Justice Jeevan Reddy Commission set up in the wake of strong protests in Manipur, has also recommended the scrapping of this draconian law, which the experts believe does not conform with the strong democratic fundamentals India has.
In Kashmir, it has been observed that under the shade of these laws first implemented through Governor’s Ordinance on July 6, 1990 and then extended through an Act of Parliament on September 10, 1990, the Armed Forces have misused their powers. Because the Act provides sweeping powers leading to making them immune to any misconduct. For example see Section 6 of the Act, “No prosecution, suit or other legal proceedings 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 powers conferred by this Act”.
Jammu and Kashmir has surely seen a tough time with violence taking a heavy toll. But in the past few years we had moved a lot towards what GoI itself calls as normalcy with dwindling numbers of militancy, restoration of democratic institutions and notably large participation of people in the elections. Delivery of justice to the victims of violence is the first step towards achieving the goal of political stability, which could pave way for resolution. But as long as it is seen as a law and order problem that needs sending in more and more forces, it will complicate the situation. Footprints of armed forces must be removed from the scene so should government come clean on the laws that infringe upon the civil liberties of the people. So Jammu and Kashmir must emulate Tripura.
The author is a veteran journalist from Srinagar and the editor-in-chief of Rising Kashmir
Tripura was brought under AFSPA in 1997 and Jammu and Kashmir in 1990. The Tripura government justified the revocation by saying that it was not needed since militancy was almost gone. In case of Jammu and Kashmir too, the situation that was prevailing in state in 1990 has changed. If the militants were operating in thousands, today they are just a few hundred. But the law's psychological impact has done more damage to a sense of normalcy than anything else. Why is the AFSPA hated in Kashmir? To my understanding, it is not the just the law that has infringed upon civil liberties in the state, but the large number of armed forces that are present in the name of security, who have used their unbridled powers and escaped the law. Examples of Pathribal, Bandipore, Ganderbal, Handwara and Machil are still fresh in the minds of the people.
The issue here is, can or will the state government move towards its revocation? Technicalities apart, it takes political courage to do away with the law. One thing, however, is clear. In the past, the Indian Army has proven more powerful than the political leadership as far as its retention is concerned. Former chief minister Omar Abdullah made an announcement on October 21, 2011 that AFSPA would go soon. He presumably had the backing of then home minister P Chidambaram, but could not overcome the challenge thrown by the Indian Army. Omar flip-flopped till the time he was out of power. With the new government in power, they too had to make it part of the “Agenda of Alliance”, but there is no clarity in that as well. “While both parties have historically held a different view on the Armed Forces Special Powers Act and the need for it in the State at present, as part of the agenda for governance of this alliance, the coalition government will examine the need for de-notifying ‘disturbed areas’. This, as a consequence, would enable the Union Government to take a final view on the continuation of AFSPA in these areas,” reads the agenda document. Thus it is clear that no firm position has been taken, as this examination could well take full six years of the government. The ball has been thrown into Delhi’s court.
Past experiences have shown that state governments are hardly empowered, especially in Kashmir where a national party is in the ruling coalition. More than a decade has been consumed in committee meetings and reports. but there is no headway. When the PDP founder Mufti Mohammad Sayeed threatened to upset the Ghulam Nabi Azad government and raised the issue of withdrawal of armed forces and AFSPA (obviously he had not reconciled with the handing of power to Azad), the Government of India announced to set up two committees to be directly supervised by Defence Minister AK Antony. The announcement was made on April 1, 2007 and subsequently a committee headed by then Defence Secretary Shekhar Dutt was set up to review troop deployment and consider relocation and reconfiguration of Indian armed forces from schools. The committee did its work but the one on AFSPA was never set up.
Moreover, two high-powered committees were constituted on September 29, 2010, as a follow-up to the Centre’s direction. After the Cabinet Committee on Security (CCS) announced the eight-point package for Jammu and Kashmir, that included a review of areas declared disturbed, two committees, one each for Kashmir and Jammu, were constituted for the purpose during a Unified Headquarters meeting in Srinagar on September 29, 2012.
Soon after Omar announced on October 21, 2011 that AFSPA would be partially withdrawn it raised hackles within the Indian Army, which opposed it tooth and nail. “Time has come for the revocation of laws (AFSPA and Disturbed Areas Act), which were introduced in the state after the onset of militancy, from some areas of the state within next few days. We have already identified the places from which the Act will be withdrawn, but I am not in a position to name those areas,” Omar said in 2011. However, it could not be implemented. And on October 21, 2012 he reiterated his commitment at the same place ie Police Complex Zewan, saying “Situation and circumstances allow revocation of AFSPA from certain pockets of JK. You have areas where there is no operational role of Army as the militancy in the state is at its lowest ebb. There are lesser casualties and therefore the situation is conducive for its revocation. I will purse further for AFSPA revocation and it is worth a mission,” He demitted office but mission remained there.
No less than a Working Group set up by then Prime Minister Manmohan Singh has recommended its repealment as a major confidence building measure. The Group headed by Mohammad Hamid Ansari (now the Vice President) had made it clear that it was necessary to do away with this Act as it impinges on the fundamental rights of the people. "Certain laws made operational during the period of militancy impinge on fundamental rights of citizens and adversely affect the public. They should be reviewed and revoked. Law and order matters should be dealt with, to the maximum extent possible, through normal laws," read the recommendations of the group. Not only this group, but the high powered Justice Jeevan Reddy Commission set up in the wake of strong protests in Manipur, has also recommended the scrapping of this draconian law, which the experts believe does not conform with the strong democratic fundamentals India has.
In Kashmir, it has been observed that under the shade of these laws first implemented through Governor’s Ordinance on July 6, 1990 and then extended through an Act of Parliament on September 10, 1990, the Armed Forces have misused their powers. Because the Act provides sweeping powers leading to making them immune to any misconduct. For example see Section 6 of the Act, “No prosecution, suit or other legal proceedings 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 powers conferred by this Act”.
Jammu and Kashmir has surely seen a tough time with violence taking a heavy toll. But in the past few years we had moved a lot towards what GoI itself calls as normalcy with dwindling numbers of militancy, restoration of democratic institutions and notably large participation of people in the elections. Delivery of justice to the victims of violence is the first step towards achieving the goal of political stability, which could pave way for resolution. But as long as it is seen as a law and order problem that needs sending in more and more forces, it will complicate the situation. Footprints of armed forces must be removed from the scene so should government come clean on the laws that infringe upon the civil liberties of the people. So Jammu and Kashmir must emulate Tripura.
The author is a veteran journalist from Srinagar and the editor-in-chief of Rising Kashmir