Blanket impunity to armed forces and blanket rejection of demand for repeal are both unacceptable. Hansraj Ahir’s contention, while abjectly rejecting the demand for withdrawal or amendment of the Armed Forces Special Powers Act (AFSPA), that a proposal was under consideration to make the AFSPA “more operationally effective and humane” is misleading and marked by ambiguity. The AFSPA gives the armed forces unbridled powers to arrest without warrant, shoot at sight and open firing in civilian areas as part of counter insurgency operations without being held accountable and without giving an explanation for the justification of their acts. Jammu and Kashmir, where AFSPA has been in existence for nearly three decades, has a poor track record of massive allegations of human rights violations by the armed forces which remain uninvestigated till date.
In most cases, AFSPA is used as a shield by the security forces to evade prosecution. Without amending the draconian provisions of the act, which give unlimited powers to the armed force personnel without being questioned and held accountable, there can be no practical way in which the law could be made operationally more humane or effective. Clearly, certain provisions of the act offer blanket impunity to the armed forces personnel and while political and official patronage to the security personnel in the face of allegations of human rights violations makes it difficult to legally press for charges against them, the AFSPA stands as a formidable iron curtain between the disenchanted masses craving for justice and the truth. In not a single case till date has sanction for prosecution been granted.
The armed forces, however, have acted against some of its personnel in a handful of cases through departmental enquiries and court martial proceedings. But neither is such an investigation transparent nor a substitute for justice which does not only need to be done but also needs to be seen to be done. Barring Macchil fake encounter killings, in which four army personnel were convicted in a court martial proceedings, the judgement of which was reversed by the Military Tribunal, the court martials have ended up either in sentences that are not commiserate to the nature of the crime or have ended in clean chits for the personnel, the latter being more the case. The Pathribal encounter is an exemplary case where it took 14 years and the intervention of the Supreme Court to even begin court martial proceedings against military men despite clinching evidence in the case. A year-long cosmetic trial ended in a one line acquittal of the accused without any explanation or clarification emerging publically.
For long, successive governments at the Centre have shown reluctance to revoke the act, fully or partially, or tamper with its draconian statutes, despite several reports of several commissions appointed by governments from time to time including the Justice Jeevan Reddy report suggesting major amendments to the act or its partial revocation. The decision stems less from reason and more from political vote bank compulsions. Even when militancy was reduced to almost negligible levels in Jammu and Kashmir, there was clear reluctance to tamper with the act. Having built up the hype against militancy in Kashmir, no party in power is ever willing to take that risk. It need not be elaborated that militancy has resurfaced and increased despite excessive militarization and the prevalence of AFSPA, which shows the limitations of its ineffectiveness. This also illustrates the fact that an unnecessary law that is seen have draconian provisions can act as a catalyst in deepening public anger and pushing young men towards insurgency. Recognising this reality, many political groups have been batting for revocation of AFSPA or at least diluting its draconian provisions. Though the Congress maintained a different position while in power, many of its leaders are now throwing their weight behind amending AFSPA. Last week, Congress Shashi Tharoor stated that AFSPA had done “more harm than good”. Describing the language of the provisions in AFSPA as “offensive” to the sensibilities of any democrat, he said, “I think a significant section of the political establishment, certainly speaking for my party, would be in favour of amending (the) AFSPA.” The CPI (M) in its all state conference in Srinagar, earlier this week, also pushed for repeal of AFSPA. Most political groups in Jammu and Kashmir are also in favour of partial or full revocation of AFSPA. In Kashmir, the spiraling anger is a writing on the wall that Indian government improve its human rights track record. AFSPA is one major reason for such rampant abuse. In fitness of all this ground reality and the increasing political voices for dispensing with AFSPA, at least in its present form, must be paid heed to. A law that is in striking contradiction to democratic norms and spirit cannot be treated as sacred.