And this is not a matter of Kashmir alone.
The killing of four civilians in Handwara, Kashmir is ghastly and shocking. It is also UnIndian. Tragically however, Kashmiris have become more and more alienated, more bitter, more saddened, more hopeless. We say that Kashmir is an “atoot ang” (unbreakable part) of India, and then do this, not for the first time.
Firstly, the Disturbed Areas Act has clearly failed to resolve the alienation and simmering anger of the Kashmiri people. Once an area is declared a disturbed area, it becomes the enabling Act for the Armed Forces (Special Powers) Act, or AFSPA.
The British had promulgated the Armed Forces (Special Powers) Ordinance in 1942, which was the precursor for other such ordinances and Acts, like the Armed Forces Special Powers (Assam and Manipur) Act, 1958, and The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990.
So like the sedition law, the AFSPA too has colonial roots. It gives immunity to all acts committed under the law or “claimed to be done” under the law. The Supreme Court had laid down the do’s and don’ts as checks and balances. For instance:
1) No women should be kept in Army custody after dark, and should be handed over to the nearest police station.
2) Men should be handed over to the police within 24 hours.
These checks, over time, have been violated significantly.
The UN Rights Committee, the forerunner of the current UN Human Rights Council (UNHRC), found that the AFSPA was a violation of international human rights laws. It is also a violation of the international human rights laws India has signed and ratified, like the International Covenant on Civil and Political Rights, among others.
|Manipuri woman Irom Sharmila, has been fasting for 15 years for the withdrawal of the AFSPA.|
But is the AFSPA necessary? The Indian military and paramilitary forces are armed and well-trained. The violations of the military law and code of conduct can be taken up in a court martial, which has happened before in this region. This would also curb military excesses, which tend to occur when immunity is built into military law.
This is not a matter of Kashmir alone. Some years ago, a former Manipuri militant Manorma Devi who was unarmed was killed. She was repeatedly shot in the groin, so no injuries caused by rape would remain. A dozen Manipuri women disrobed outside the main Army camp in Imphal, Manipur and challenged the Army to rape them.
Later the Army camp was shifted from a historic fort to other premises. The Army’s excuse for shooting the unarmed Manorma Devi was that she was running away from the Army. But she was wearing a phanek (sarong). With that restricted dress on, how could she outrun a jawan wearing trousers? It is just not feasible. But the AFSPA gives immunity, so the judicial process is ruled out, and so is the court martial, unless the military so desires.
But won’t the removal of the AFSPA lead to a breakdown of law and order in conflict zones? The Army has the option of curfew, of arrest, of banning processions, buttressed by police actions which are known by their ferocity, as the recent events in the National Institute of Technology (NIT), Srinagar showed.
This special law is outdated and incendiary. For the sake of lawful rule, peace and civil rights, this law must be repealed. We must remember that a young woman in Manipur, Irom Sharmila, has been fasting for 15 years for the withdrawal of the AFSPA.
The civil society has had enough. In keeping with our obligations to international human rights laws, we must speedily withdraw this lawless law. Because of it many civilians have had to mourn their dead, even in Handwara. This must not happen again. And all required compensation must be swiftly given. Civil society and civil administration must be empowered, so that military intervention is minimised and scrutinised not only the under military law, but when necessary, under the empowered judiciary.