It is official now. The Government of India has not given sanction to prosecution under Section 6 Armed forces Special Powers Act (AFSPA) even in a single case since 1990. In response to an RTI filed by a human rights defender, the State Home Department vide its letter No: Home/RTI/15/2012/1213 dated February 23, 2012 has said so.
The letter signed by the Additional Secretary to Government Home Department reads: “Kindly refer to your RTI application dated 12-01-2012. In this context, I am directed to convey that no sanction for prosecution has been intimated by the Ministry of Home Affairs (MHA) and Ministry of Defence (MOD) to the State Government from 1990-2011 under the (Jammu and Kashmir) Armed Forces Special Powers Act.” (SIC)
This is no ordinary response. It vindicates the stand of the human rights defenders that personnel of various security agencies operating in Jammu Kashmir enjoyed total impunity. This communication has, in a way, put the blame on Government of India causing miscarriage of justice but the state government cannot be completely exonerated for its failure to bring culprits to book.
Thanks to recent 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.
Incidentally, this is not the first time when the Supreme Court made such an observation. 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.”
In another case, the Court held: “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).
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.
And, for the information of the chief minister, many people were killed by the local police since January 31, 2010. New Delhi did not interfere when BSF commandant and one of his soldiers were put on trial for killing a youth near Nishat on February 5. But, the killers of Wamiq Farooq have not been arrested till date.
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.
Omar Abdullah must bear in mind that 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.
Many people including state’s think tanks and intelligence sleuths must have deliberated before framing the above mentioned communication. It can be used effectively for `maligning’ New Delhi for conferring total impunity on men in uniform operating in Jammu Kashmir. But it cannot bail out the Omar led government totally. Omar has to act now. Will he?
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