With no eyewitnesses it is the language of the barrel against the language of those buried. In this war of words the military claim the civilians killed to be ‘Over Ground Workers’ associated with militant organisations while as the people, the bereaved family members contest the claims and swear by the innocence of their kin slain in cold-blooded murders. They seek justice.
The spate of civilian killings by military personnel in Kashmir continues unabated with the latest killings at Shopian leading to mass shutdown across the valley.
The public outcry and call by separatists for mass protests is nothing new. Neither is the Army’s claim of an encounter, purportedly after militants opening the fire first.
In all likelihood the result of their cries and tears will go down the familiar path — that of the state government initiated inquiry – before biting dust with previous cases or defeated at the doors of the judiciary, if at all any makes it there.
Caught between the charges traded by the army and the police over criminal jurisdiction or between the state and central governments over political might, the hopes of the people may vanish soon.
A case in point is the Supreme Court staying investigations recently, as an interim measure, in January Shopian killings case wherein the army opened fire on youth who were allegedly pelting stones. The incident resulted in the death of three civilians, all killed by bullets fired by the army personnel.
The reason in this case cited has been the narrative that the FIR mentioned an officer, Major Aditya Kumar who led the convoy, in contravention of section 7 of the J&K AFSPA Act (1990). The said section bans criminal and civil proceedings against personnel, without prior sanction from the Central government.
Notably while he was not listed as an accused prima facie the court took strong exception, noting ‘he is an army officer not an ordinary criminal’. The irony in that observation is not lost on anyone.
Granting of blanket impunity as provided by the above section has deprived people from exercising their natural and legal rights. To that extent it has dealt a debilitating blow to the rule of law now seen as circumscribed by the provisions of ASFPA, while the section itself passes the baton from judiciary to executive decision making.
Various international organisations like the Amnesty International on more than one occasion have published reports saying that soldiers in India enjoy ‘impunity’ in Kahmir. It comes as no surprise, therefore, that in the last over 20 years not a single army personal has been tried in a civilian court. The Amnesty further highlights that more than 96 percent of complaints brought against the Indian Army in Kashmir have been dismissed as false and baseless by the army.
In 2016, the Supreme Court in a scathing criticism of the military excesses and flagrant violations made by army personnel under AFSPA, held “that there is no concept of absolute immunity from trial by a criminal court” and that every death caused there under should be thoroughly enquired into.
However it stopped short of altogether declaring as invalid the controversial section. Now with the stay on investigation, it seems unlikely the veil of immunity will be lifted from the section that accords sole power to the Centre.
Statistics throw a dismal picture with the Centre rejecting sanctioning of the J&K government’s prosecution of military personnel in 47 out of 50 cases submitted to it since 2001.
Further, in what constitutes a veritable travesty of justice, two verdicts affirming court martial of military personnel in rape – the 2000 Banihal one and the 2004 Handwara, were subsequently overturned by the J&K High Court.
NEED FOR REVOCATION
Since 1990 the Kashmiri people has had the double-edged sword of AFSPA hanging over their heads. State claims of crushing militancy notwithstanding, the blood trail of ‘collateral damage’ it leaves behind is enough to infer it has done more long-term harm than good.
The ‘morale’ of forces cannot be a reason to hold to ransom the intrinsic rights of an entire population subjected to disproportionate restrictions such as arrest under mere suspicion, search and seizure at will for a period of almost two decades.
The UN has repeatedly urged India to thoroughly review or repeal the Act that was a “symbol of excessive state power” and to “remove all legal barriers for the criminal prosecution of member of the armed forces”. Even state voices, namely the second Administrative Reforms Commission under Veerappa Moily, sought revocation of the controversial law as did the 2011 interlocutors report.
The Centre however refuses to blink an eye on AFSPA, citing national security concerns while civilian lives and security is trampled upon. Coercion not compassion seems to curry-favour the political establishment and gauging by past misadventures challenging the culture of institutional immunity seems a bleak hope.
AFSPA is both unnecessary, counterproductive as well as stands on very shaky moral grounds. It is unnecessary because according to the government estimations there are merely 200-300 active militants in the valley at present in comparison to over half a million army personnel.
It is counterproductive because military crackdowns have garnered nothing but ill-will for the Indian state particularly the Army. If the sentiments of national pride and honour for defence forces are found wanting it is for reason. The unspeakable institutional atrocities committed in Kunan-Poshpora are a case in point. The ruthless fist of AFSPA that has alienated the people like never before is also believed to have laid ground for the spurt of militant activity and left indelible marks on people’s psyche.
And finally a law which is in gross violation of human rights cannot ascertain its moral uprightness merely because it has legal backing. This law is even against the spirit of the Indian Constitution which accords primacy to human dignity and right to life.
‘Lex iniusta non est lex’ (An unfair law is no law) — is a well settled maxim. If only we could heed this especially in a law that has the potential to condone killing of innocents. Privileges entail responsibility, more so when human life is at stake. Hence it calls for a concerted effort from civil society, state government as well as the central government to sense the urgency and call for the revocation of this law.
Sheikh Attar and Palvi Singh Ghonkrokta are freelance journalists.
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