‘Legitimate protection’

If AFSPA shields army men, Omar has been shielding the local police personnel by withholding sanction under CrPC

Thanks to Supreme Court observation on AFSPA, a reality has finally dawned on Chief Minister, Omar Abdullah. "AFSPA is for legitimate protection and not for protection of the acts of crime. And that is something we have always maintained," Omar said.

Omar said, "I do not think the armed forces have to commit rape, murder or any other such activities in order to perform their duties.

Questioning the extent to which the army can claim blanket immunity under AFSPA, the Supreme Court had said rape and murder committed by its personnel should be considered a "normal crime", and that there is "no question of sanction" from the government before prosecution of offenders in such cases.This is exactly what human rights defenders have been saying for the past two decades.  Interestingly the AFSPA itself lays down this condition. And, if Omar has not gone through the legislation till date, he has no right to launch a campaign against its revocation.

The hapless people have also been trying hard to bring another reality for Omar’s consideration. AFSPA is not applicable to the local police. Of course sanction is needed to bring erring policemen to justice but such sanction can be given by the Home Minister. And, Omar being the Home Minister of the state is empowered to administer justice.   
According to human rights defenders, double standards cannot help anybody. “If AFSPA shields army men, Omar has been shielding the local police personnel”, they said.

“Impunity for human rights offenders seriously undermines the rule of law, and also widens the gap between those close to the power structures and others who are vulnerable to human rights abuses. In this way, human rights violations are perpetuated or sometimes even encouraged, as perpetrators feel that they are free to act in a climate of impunity…, extrajudicial killings and acts of murder may sometimes also go unpunished because of the sex, religious belief, or ethnicity of the victim. Longstanding discrimination and prejudice against such groups are often used as justification of these crimes. The increasing difficulties in securing injustice alienate the people from the State and may drive them to take the law into their own hands, resulting in a further erosion of the justice system and a vicious circle of violence and retaliation. If unaddressed, such situations may easily degenerate into a state of anarchy and social disintegration.

Human rights protection and respect for the rule of law are central to lasting peace and stability. It is, therefore, crucial that conflict prevention strategies and post-conflict peace-building efforts include effective measures to end the culture of impunity and protect the rule of law.

In Bakhshish Singh Brar v Smt. Gurmej Kaur and Anr AIR 1998 SC 257, the apex court held: “It is necessary to protect the public servants in discharge of their duties. But it is equally important to emphasise that rights of the citizens should be protected and no excess should be permitted. `Encounter death’ by the police has become too common. In the  facts of circumstances of each case prosecution of public officers  and public servants functioning  in discharge of official  duties and protection of private citizens  have to be balanced  by finding out as to what extent and how far is a public servant working in discharge of his duties and whether the public servant has exceeded his limits.”

What is more worrying is the fact that the government frames special laws to empower the armed forces but no special safeguards are made available to the ordinary citizen to check misuse of the special laws.

While examining the third periodic report of the government of India, an expert of the United Nations Human Rights Committee stated: “Article 6 of the Armed Forces (Special Powers) Act, which prevented all legal proceedings against members of the armed forces, was extremely worrying; if the Government’s fear was that citizens would bring vexatious or frivolous actions, that was a matter better left to the courts to resolve. It was inadmissible for citizens to be deprived of a remedy as was at present the case.”

The UNHRC noted: “Criminal prosecutions or civil proceedings against members of the security and armed forces, acting under special powers, may not be commenced without the sanction of the Central Government. This contributes to a climate of impunity and deprives people of remedies to which they may be entitled.”

Section 6 AFSPA contemplates an act which is done by a public servant in his official capacity but which, at the same time, is neither his duty nor his right as such public servant to do as in that case he would not be  committing an offence at all and there would be no question  of prosecuting him or obtaining sanction for such prosecution.” AIR 1955 SC 287 (292,293).

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