Why seek repeal of AFSPA?

With the Indian Home Minister, P Chidambaram and Jammu Kashmir Chief minister, Omar Abdullah singing in unison (for the time being), the stage seems all set for repeal of Armed Forces Special Powers Act (AFSPA). Statements from various actors indicate that New Delhi may do something to appease the defiant people. But what can it offer. Not to speak of Azadi, demilitarization, autonomy or even self rule is definitely not on the menu. The repeal of AFSPA seems a good bargain notwithstanding severe opposition from the defense ministry. But will repeal of AFSPA really make any difference?

The timing of Chidambaram’s statement is very important. It came at a time when a section of political spectrum in Srinagar seemed desperate for the resumption of New Delhi -Hurriyat dialogue. In the coming days dialogue may be held and, most probably, New Delhi will repeal the draconian legislation after the dialogue to give Hurriyat leadership something to sell to the gullible Kashmiris. The Hurriyat chairman, Mirwaiz Umer Farooq while responding to Omar Abdullah’s statement on AFSPA in February this year described it as a ‘good beginning.’ Omar had talked about repeal of AFSPA.

For the past six months mention of AFSPA has become a necessary ingredient of the ‘separatist discourse‘. Barring Syed Ali Shah Geelani every body has been talking about repeal of this draconian law. Even academicians who miss no opportunity to appease the establishment have also been seeking its repeal. Most of the speakers at a seminar held by Greater Kashmir Foundation last week also sought repeal of AFSPA. According to some of them, it (repeal of AFSPA) would be an effective Kashmir centric confidence building measure (CBM).

Nobody should oppose dialogue for the sake of opposing it. But past experiences have shown that the leadership has yet to learn the art of dialogue. The dialogue has not yielded anything  positive  to date, and the leaders have publicly acknowledged it. A round of talks with the Deputy Prime Minister resulted in the  release of two political prisoners.

Therefore, repeal of AFSPA can do wonders to the psychology of the Hurriyat leaders!

The common people have also been discussing the draconian law. Many Kashmiris have also participated in blog discussions. One such comment merits special mention here. It is in response to the statement of Minister of State for defense M Pallam Raju, in which he stated that AFSPA was a necessary tool that had to be given to the armed forces. The blogger’s comment reads: "What a statement by the GOI. It is a slap on the face of people and  institutions that respect human rights. Essentially what is being said is that Kashmiris need to be suppressed by coercion and force. In the process if there are any abuses there will be repercussions for the Indian Army. Do Kashmiri politicians like Omar Abudullah have any semblance of respect for the common person?  If they have even an iota of honesty in them they should resign and join the movement to push out India from Kashmir. Alas, that is only wishful thinking, as we have historically been lead by people whose paramount interest is to stay in power and make money." This is a conscious Kashmiri speaking. There are many others like him.

While the commoners cannot be expected to be aware of the ground realities, the leaders cannot feign ignorance. However, Syed Ali Shah Geelani believes the Minister’s statement would deviate focus from the main issue. "Such statements have escalated human rights abuses in the past," he said. There are others who share Geelani’s `pessimism’. The Home Minister also stated that the `central forces’ shall be replaced with the local police. This is where the problem lies. The state does not have enough police men to take guard at this crucial juncture. The Home Minister could not be unaware of such vital information. So, was he lying? If yes, then Kashmiris have absolutely no reason to be optimistic.

Two years ago, the Prime Minister promised zero tolerance on human rights. Nothing changed. Slowly but surely the people realized it was aimed at engaging them. Lot of energy and resources were wasted discussing it. Once again the discourse has been changed. Now people have been talking about repeal of AFSPA. A critical analysis of seminars held in Srinagar during the past few months reveals that the discourse on AFSPA has already deviated focus from the main issue. It has now been reduced to the repeal of draconian laws.

Will repeal of AFSPA make any difference? The AFSPA is all about impunity. Innocent civilians got killed even when AFSPA was not there. The armed forces need not special powers to shoot a suspect. They can do it and they have been doing it and this is what they are here for. What they need is impunity and for the information of the Hurriyat leaders, AFSPA is not the only legislation that guarantees it. Impunity is available under the ordinary laws as well. Section 197 of Criminal Procedure Code (CrPC) also guarantees it.

The CrPC was enacted way back in nineteenth century but to date only a few people have commented on its deadly fangs. 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 the 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  why the same permission will not be granted under Section 6 of the AFSPA.

The people, by and large, tend to ignore Section 197 CrPC because being an ordinary law it does not attract attention. The United Nations Special Rapporteur on Extra- judicial, Summary and Arbitrary Executions also ignored it in its 57th session. The Rapporteur discussed impunity in detail and also sought repeal of AFSPA but did not utter a word on Section 197 CrPC.

While examining the Third Periodic Report of the Government of India, an expert of the United Nations Human Rights Committee (UNHRC) 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." Once again no mention of section 197 CrPC was made.

Repeal of AFSPA, therefore, is no victory. It will make no difference at all. What do the people, therefore, want? The leaders have to do a lot of home work to understand it.