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Wednesday 9 November 2011

Phase Out The Withdrawal Of AFSPA

7 November 2011
Military might
Phase Out The Withdrawal Of AFSPA
By Sankar Sen
OMAR Abdullah’s demand for the withdrawal of the Armed Forces Special Powers Act (AFSPA) from four districts of Jammu & Kashmir has triggered a controversy. He has been criticized for jumping the gun and taking a unilateral decision without consulting others concerned. The Army as well as the Defence ministry has opposed the withdrawal on the ground that it will affect the army’s operations against militants in Jammu & Kashmir. The force may even be demoralized if it is exposed to malicious prosecution. 
The Army chief, General VK Singh, has stated that it will be impossible for the Army to operate without the cover of the Act as the force will get bogged down in legal battles. The military brass has also taken strong exception to the remarks of the National Conference leader, Mustafa Kamal, that the army was behind the grenade attack in Srinagar on 25 October. Kamal was forced to retract his statement.
Enacted in 1958 as a short-term measure to allow deployment of the Army against separatists in the Naga hills, the AFSPA has been used throughout the North-east, particularly in Assam, Nagaland, Tripura and Manipur. A variant of the law was used in Punjab in the Eighties and the Nineties, and it has been enforced in Jammu & Kashmir since 1990. The law comes into operation only after a declaration is made under Section 2 of the Act that a particular area is disturbed.  It provides special powers to the members of the armed forces to deal with the terrorists operating in these areas. It authorizes any commissioned or non-commissioned officer to fire at or use force even to the extent of causing death against any person who is acting in contravention of the law. It prohibits  the assembly of five or more persons or the carrying of weapons. Section 6 of the Act gives the armed forces immunity from prosecution and other legal proceedings without the consent of the central government.
Human rights activists and civil society groups have criticized the Act as a draconian law, giving untrammelled and unaccounted powers to the security forces to carry out operations in the disturbed areas. They contend that the Act has been grossly misused. There has also been international criticism of the AFSPA. In 1997, the United Nations Human Rights Commission expressed concern over the “climate of immunity” provided by the Act.  Human Rights Watch, an internationally recognized NGO, has said that “abuses facilitated by the AFSPA have led to anger and disillusionment against the Indian State. This has encouraged militant groups to flourish in the North-east and Jammu & Kashmir.”.
Attempts have also been made to seek judicial review of the law on the ground that it is repugnant to the right to equality and the federal structure of the State. The Supreme Court in the Naga People’s Movement for Human Rights vs. Union of India held that the enactment is constitutionally valid, “even though it appears to be harsh on the face of it, it was a necessity”. The court has further held that deployment of the army is meant to supplement and not replace the existing State machinery. Justice Jeevan Reddy Committee, which examined the provisions of the Act after ascertaining the views of various stakeholders, observed that the Act should be repealed. It would be more appropriate to insert necessary provisions in the Unlawful Activities Prevention Act instead of suggesting a piece of new legislation.  It held that the Act “has become an object and instrument of discrimination and high-handedness”. It suggested that the Act be repealed.
The Second Administrative Reforms Commission also recommended that the Act should be repealed. In April 2007 a working group in Jammu and Kashmir appointed by the Prime Minister suggested that the Act be revoked.
However, the Union cabinet did not act on these recommendations in the face of objections from the armed forces. Since 2002, Sharmila an activist in Manipur has been on hunger-strike demanding repeal of the Act. The government has responded by keeping her in judicial custody and forced feeding through a nasal tube.
Section 6 of the Act provides that a person arrested and taken into custody under this Act shall be made over to the officer-in-charge of the police station without delay together with a report of the circumstances occasioning the arrest. The Jeevan Reddy Committee stated that “the least possible delay” should be considered in the light of Article 22(2) of the Constitution which confers the right on the person arrested or detained in custody to be produced before the Magistrate within 24 hours of such arrest (including journey time). The committee also said that while providing protection against civil or criminal proceedings in respect of the acts or deeds done by such forces while carrying out the duties entrusted to them, “it is equally necessary to ensure that where they knowingly abuse or misuse their powers they must be held accountable and must be dealt with the law applicable to them”. The legal mechanism should ensure that such incidents do not take place and that adequate remedial measures are taken when such incidents do take place.
Jeevan Reddy Committee also recommended the creation of grievance cells. Many people, particularly in the North-east, have complained about the problems faced by those who seek information about family members and friends who have been picked up and detained by the armed forces. There have been many cases of disappearance of those picked up without warrants. There is need for a mechanism which is transparent, quick and involves authorities from the agencies concerned as well as civil society groups to provide information on whereabouts of missing persons within 24  hours.
The AFSPA has thrown up a complex and contentious issue. There are indeed serious human rights violations in the enforcement of the Act but these are often justified as necessary and not viewed as repressive because of threats to the security and integrity of the nation posed by the terrorists.
The need for providing security and protection to the personnel of the armed forces bearing the brunt of attacks by the terrorist cannot be over-emphasised. However, the army’s presence in the four districts of Jammu and Kashmir proposed to be de-notified is not significant. Police and para-military forces, notably the CRPF, are mainly deployed there. The DG, CRPF, has said that it has no objection to the withdrawal of AFSPA from these districts because other Sections of the law such as 197 CrPC and CRPF Act provide members of the CRPF protection against prosecution during their lawful discharge of duties.
The Union home minister has clarified that Omar Abdullah’s proposal was neither sudden nor unilateral; it had been vetted by the Cabinet Committee on Security (CCS). The decision regarding withdrawal has to be a political one. Crucial is the stand  of the army and the Defence ministry, but the government has to take its own call and if necessary overrule the objections of the army. Omar Abdullah’s demand may or may not be politically motivated, but the issue raised by him calls for reflection. The AFSPA, as recommended by various committees and commissions, must be withdrawn and the process has to be carefully calibrated and gradual.
The writer is Senior Fellow, Institute of Social Sciences, former Director-General, National Human Rights Commission, and former Director, National Police Academy

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