Gopal Subramaniam, a member of the committee, while presenting the report to the home ministry, said that soldiers facing assault charges should be tried under criminal law, and the AFSPA on the whole should be put under review. “We notice that impunity for systematic or isolated sexual violence in the process of Internal Security duties is being legitimised by the Armed Forces Special Powers Act, which is in force in large parts of our country. It must be recognized that women in conflict areas are entitled to all the security and dignity that is afforded to citizens in any other part of our country,” the committee observed.
For the last three years, J&K chief minister Omar Abdullah has been advocating the withdrawal of the Act, at least from the areas where Army isn’t involved in counter-insurgency operations in the Valley. Not only the report of three government interlocutors, but home minister P. Chidambaram also backed the idea.
Last week, however, Chidambaram passed the blame buck onto the defence ministry saying that the army is opposed to any change in the Act. “You should ask the question to the armed forces and ask why are they so opposed to even some amendment to AFSPA which will make [it] more humanitarian… if the Army takes a very strong stand against any dilution or any amendment to AFSPA, it is difficult for a civil government to move forward,” said Chidambaram.
But this statement of the home minister fails to convince Sanjoy Hazarika, Director, Centre for North East Studies at Jamila Millia Islamia, who says that Chidambaram “like a clever politician” blamed the army but the government was equally guilty as it has “abdicated responsibility in the matter.”
Claiming that it raised a startling issue about democracy, the rule of law and of civilian control over the military, Hazarika says: “After all, Chidambaram did not say why the Government of India has refused to publish the Reddy Committee’s report or even table it in Parliament eight years after it was submitted.”
The Justice Jeevan Reddy Committee was set up after massive agitation following the alleged rape and murder of Manorama Devi in July 2004 in the custody of Assam Rifles in Manipur. In protest, outraged women belonging to a group called Meirapaibi (torchbearers) stripped outside the base of Assam Rifles in Imphal, holding the banners, which read “Indian Army Rape Us”.
In the report, which was submitted to the government on June 6, 2005, the committee unanimously recommended repeal of the AFSPA. "...recommending the continuation of the present Act, with or without amendments does not arise. The Act is too sketchy, too bald and quite inadequate in several particulars," said the report, which was first published by Hindu newspaper.
When asked why the army was against repealing or amending the Act, Khurram Parvez, human rights activist replies that army is worried of being dragged to civil courts. “All the old and new cases will be re-opened against the Army. They would be tried in civil courts and there would be no impunity for them. And even if one officer of the Indian army is prosecuted, the entire force will be demoralized, which they (government) don’t want,” Parvez believes, adding, “They want to encourage them (armed forces).”
Hazarika, however, says that army’s worry is a “real concern” but adds that it can’t be a rationale for blocking efforts to repeal or amend the Act. “Come up with an alternative instead. But the MoD has not or is perhaps unable to do so,” Hazarika suggests.
The part of the Act open to abuse, experts and human rights activists believe, is its section 6, according to which “no prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the Central Government against any person in respect of anything done or purported to be done in exercise of powers conferred by this Act.”
“There are so many rape cases against Army like Kunan Poshpora mass rape. Has any army man been punished? No. You can kill a militant ‘in the line of duty’ but how can you justify rapes ‘in the line of duty’? We have got this information through a Right to Information (RTI) appeal, according to which the state government has asked for sanction in about 60 cases against the army, but they haven’t got a sanction even in one case,” Parvez informs.
Echoing similar views, Hazarika says: “In last 54 years, not a single army, or paramilitary officer or soldier has been prosecuted for murder, rape, destruction of property (including the burning of villages in the 1960s in Nagaland and Mizoram).”
While writing about the AFSPA, one can hardly miss the infamous Pathribal ‘fake encounter’ in which five innocent civilians were gunned down in “cold blood” and passed off as Lashkar-e-Toiba terrorists ‘responsible for the massacre’ of 35 Sikhs in Chattisinghpora in the Kashmir Valley. The central Bureau of Investigation (CBI) had called the killings as “cold blooded murder” and asked for the prosecution of the accused in civil courts while the army claimed that the incident took place in the “line of duty”.
“You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted, and that is our stand,” declared a bench of two Supreme Court judges Justice Swatanter Kumar and B.S. Chauhan, who were intervening in the Pathribal case where CBI was seeking to prosecute the army officers.
Calling them aberrations to the law of military conduct with civilians, Hazarika says: “It’s simple: you don’t rape or murder ‘in the line of duty’. And the Army is upset that the Justice J.S. Verma Committee even suggested that military men accused of sexual assault should be tried under normal law and not be protected by the law that guarantees absolute protection: Immunity.”
The army, on the other hand, has made it clear that it is not in favour of repealing or amending the act, which it says is like its “Bible”, and it will be left with the prospect of fighting “with one hand tied” if the Act is removed. "Partial revocation of AFSPA will result in emergence of sanctuaries and safe havens for terrorists. One should not view security situation of reduced violence in one summer (in the Valley), but allow consolidation of gains made before taking a call on revocation of AFSPA,” former Army Chief General VK Singh had said in December last year.
Today, the situation, according to Hazarika, has become much more complex because the window of opportunity provided by the Reddy Committee has virtually closed. “The Army has bolted it because it does not want to be seen as the villain of the piece. It did not ask to go anywhere. It was sent to Nagaland and Manipur. But now it must, in its own interests and that of the country, get out of places where threats to national security simply do not exist, and when the central government thinks it should leave. After all, if required, the security forces can always be summoned again,” he says.
Parvez believes that the Act, instead of curbing violence, is providing legal immunity to people “who inflict violence on innocent Kashmiris.” He is also unhappy that the debate is projected in a way that every wrong happens in the state only because of AFSPA. “It is being projected that everything will be fine in the state if the Act is repealed, which is not true.”
“This is not the only Act which has to go. Though we know that it provides immunity from prosecution to Central armed forces, but we also know that nobody from J&K police has been punished so far. There are unconstitutional counter insurgency groups like Ikhwan-ul- Muslimeen which were created and funded by the government,” he says.
He says that the “Indian State has always undermined law when it comes to Kashmir”. Buttressing his claims, he says: “The Supreme Court has stayed the execution of Veerapan’s aides whose mercy petition has been rejected by the president. The same didn’t happen in the case of Afzal Guru’s hanging. What happened after his mercy petition was rejected. Nobody even got to know about it. Indian law is against Kashmir and Kashmiris,” he alleges.
Though there are no signs that the Act will be amended or repealed, but Parvez believes “lawlessness” will continue to prevail in the state even if “we hope against the hope”. “For us, AFSPA is not sacred, it is a violent Act. According to AFSPA, you have to produce arrested people before executive magistrate within 24 hours. Do they do it in Kashmir? No, they don’t. That is why people disappear in custody,” Parvez fears.
Only after a region is declared “disturbed,” the AFSPA can be implemented there, and the power is wrested with both state and central governments. When asked what stopped Omar Abdullah government from revoking the Disturbed Areas Act if wants the AFSPA to go, Parvez says, “The state government can pass a resolution in the legislative assembly and revoke Disturbed Areas Act (DAA). AFSPA would automatically go. This is just a political game. By not doing this, they are undermining the sanctity of the legislative assembly. They are telling people that they are powerless when it comes to Army.”
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