What if AFSPA goes?

The Armed Forces Special Powers Act (AFSPA) is again in news. The Home Minister of India, Sushil Kumar Shinde, has ruled out its revocation for the time being. He wants the law to remain in force till there is calm in Kashmir.

Troops always enjoy `special powers’. Even during peace times nobody can dare to question their authority. In pre- 89 Kashmir, not a single soldier has been brought to justice even for heinous crimes.



Even Sher-e-Kashmir had to eat a humble pie when soldiers stormed Lal Chowk on a hot July evening. Kashmir’s super cop, Ali Muhammad Watali lost a few teeth in this incident. Nobody was taken to task. Not to speak of the civilians, successive governments have been taken for a ride by the men in uniform. The troops have occupied government and private land across the state even when AFSPA was not there.

The troops, therefore, are not concerned about `special powers’ because they always have it. They want impunity to exercise their special powers effectively. The people by and large believe that Section 6 of the AFSPA alone guarantees impunity. This is far from reality.  Impunity is also guaranteed by Section 197 of Criminal Procedure Code (CrPC). Very few people know about it and this is what makes it more draconian.

AFSPA being a special law attracts much attention. During the past six years it has been excessively discussed. The Supreme Court of India, the Amnesty International and the United Nations have expressed concern over the ` deadly fangs’ that this legislation possesses.  

The United Nations Special Rapporteur on Extra- judicial, summary and Arbitrary Executions lucidly summarised the impunity and extrajudicial executions in her report to the 57th session of the United Nations Commission on Human Rights:

“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.

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.”

No mention of Section 197 Cr PC was made either by the UN Special Rapportuer or UNHRC. Are they ignorant about it? No, they cannot be. But being an ordinary legislation, people simply ignore it.   The CrPC was enacted way back in nineteenth century but till date a few people have commented on it. In actual practice, Section 6 of the AFSPA has been overtaken by Section 197 of the Criminal Procedure Code amended in 1991 to provide virtual impunity to the armed forces. Impunity has been made a feature of normal criminal jurisprudence. In fact Section 197 of CrPC has made section 6 of AFSPA redundant. If the Central Government were to give permission under section 197 of the CrPC, there is no reason as to why the same permission will not be granted under Section 6 of the AFSPA.

There is no denying the fact that the public servants cannot claim impunity under Section 6 AFSPA and Section 197 CrPC if they misuse their official position. But who can determine that. Of course the courts. But can the courts take cognizance without prior sanction?

During the past two decades hundreds of petitions were filed by successive state governments seeking sanction to prosecute erring men in uniform.  The gullible people of Kashmir were repeatedly told that government of India was not interested in granting sanction. But the state government did not act in cases where it (sanction) was not needed. The state government could have taken action against the erring police men as AFSPA does not apply to them. Of course sanction is needed to bring a police man to justice but in such cases the sanction is to be given by the state government.

Kashmiris fully know that the ministers and legislators cannot do much apart from expressing concern over dilapidated roads. They cannot repeal AFSPA; there is nothing they can do about Section 197 CrPC. They could not implement the Resettlement Act. Their autonomy document was thrown in the dustbin. They facilitated repeal of Article 238 to Indian Constitution to kill Article 370. Our legislators have always been helpless. Will they ever admit it?

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