A number of legal luminaries have said that the Armed forces Special Powers Act (AFSPA) is draconian and should be revoked.
The AFSPA was revoked in Meghalaya and parts of Arunachal Pradesh and the legal experts said on Monday said that the law was being misused by army. They said that AFSPA “warrants its withdrawal from the state for having been used against people” and provides “immunity to army.”
Senior lawyer, Zafar Shah, said that there was a difference between Kashmir and the Central government over withdrawal of AFSPA in the state.
“According to GoI the militancy was continuing in Kashmir, therefore it is not withdrawing AFSPA. But it has been misused in Kashmir. People are being killed and now forces should become accountable,” Shah told Rising Kashmir.
He said AFSPA has been abused by forces as it has been used as a shield by those (forces) who are guilty of gross human rights violations in Kashmir.
“AFSPA has been used to grant immunity to those, who are otherwise accountable for their action in Valley,” he said adding that the removal of AFSPA from Kashmir has been a long pending demand. “The demand for its removal would continue.”
The Union Home Ministry Monday revoked the AFSPA from Meghalaya while diluting it in other regions of Arunachal Pradesh after recent review with the respective governments.
Noted human rights defender and lawyer, Parvez Imroz, said that AFSPA has failed in Kashmir as it has not met the desired result—to end militancy in Kashmir.
He said AFSPA was still in Kashmir due to continuing conflict—the intensity of which was “otherwise more of a non-violent and increasing.”
“Because that army has complete impunity under AFSPA, it is more to control people than to fight militancy. AFSPA is a license to control people and using all measure like disproportionate force on people. The fact is AFSPA has failed in Kashmir because it had not met the desired aim—ending militancy,” Imroz said.
He said the conflict has taken a different shape in Valley as people (non-combatants) were talking to streets to protest against the government and rights violations in Kashmir.
“It is a different dimension, they (Government) doesn’t know how to deal with the situation. If AFSPA has failed in Kashmir, the question is what after the Act?,” he said.
“AFSPA technically is to be used against combatants (militants), but it was being used against civilians. AFSPA can’t deliver. It is likely to continue there because the controlling mechanism of the state through AFSPA has failed,” Imroz said.
He said the Act was in violation of all the fundamental rights guaranteed under Indian constitution including “the right to life, right to movement, right to assembly free speech and others.” “It is completely in contravention of the fundamental rights guaranteed under the constitution,” he said.
The controversial Act allows the “armed forces” to shoot to kill or destroy a building on mere suspicion. A non-commissioned officer or forces’ personnel of equivalent rank and above may use force based on opinion and suspicion, to arrest without warrant, or to kill the suspect.
Under AFSPA there is “no prosecution… instituted except with the previous sanction of the central government, in respect of anything done or purported to be done” under this draconian Act.
Ishaq Qadri, the former advocate general of the state, said the state government should follow the suit and revoke AFSFA from the state.
He said it is the state government which has powers to revoke the draconian law and not the central government as it was the state governor who had issued the promulgation of the Act.
“The Governor can withdraw the promulgation of the Act on the recommendation of the council of ministers,” Qadri said.
He said in various episodes from 1990’s wherever army exceeded its powers, the cases against forces personnel could not be filed because it needs sanction from the central government.
“There is demand from both the divisions of the state for revocation of the Act as there are districts where there is no militant activity, so the government should lift the AFSPA because it curtails basic powers of citizens and provides extra powers to forces,” Qadri said.
Since 2001 the J&K government had sent 50 cases for sanction of prosecution against the armed forces personnel under AFSPA. The Union government, however, denied the permission in all the cases.
Earlier in January, Minister of state in the Ministry of Defence, Subhash Bhamre had said in Rajya Sabha the reason for “denial/ pendency” of prosecution sanction was on account of lack of sufficient evidence to establish a prima facie case.
The cases include “killing after abduction” “outraging the modesty of a woman”, “the disappearance of civilians, rape, and torture and killing.”