soniasarkar26

The Unbending Resilience of AFSPA

Posted on: July 31, 2016

It has survived calls for abrogation by some of the nation’s foremost political and civil society voices. It has survived an epic protest: last week Manipur’s Irom Sharmila decided to end her 16-year hunger strike to have it scrapped. What’s the reason that the Armed Forces (Special Powers) Act — or the debate over it — refuses to die? Sonia Sarkar reports Earlier this week, 16 years after she went on a hunger strike, Irom Sharmila announced that she’d had enough. She was going to call off the fast. Back in November 2000, Sharmila, then 28, had vowed she would not eat until the government repealed the Armed Forces (Special Powers) Act (AFSPA), a law that has been defended and decried alike since it was invoked in 1958. As year piled upon year and Irom held out with her protest, chained to a tube that force-fed her, charged with attempting to commit suicide, she began to symbolise a fight to the finish. Iron Lady, her many admirers began to call her, a woman of rare nerve and resolve who would eventually see AFSPA cast in the bin. But in the end, it is Irom who has had to bow out on her vow; AFSPA survives, its notorious lease on Kashmir and parts of the Northeast untouched.

Have Irom’s 16 years without a morsel been all in vain then?

“Exactly,” agrees Kiren Rijiju, the junior Union minister for home affairs, matter-of-factly. “The situation has not improved to the extent in Manipur that AFSPA can be lifted.”

Nothing, it seems, can dent this Act – not outrage or opposition from the country’s most influential corners, not even a marathon one-woman vigil that made Irom a global human rights cause celebre.

Clearly, the Indian state – and successive governments of varying hues and ideologies – will not give up on AFSPA because it is seen as a national bulwark of sorts, critical to safeguarding security interests and stamping out anything that would threaten them. It is probably worth noting that AFSPA reigns on India’s fragile territorial fringes – in Kashmir and across major parts of the Northeast. TADA and POTA can fall to public outcry and pressure; not AFSPA.

The provisions of AFSPA allow soldiers of the army and battalions of the Border Security Force (BSF) operationally placed under the army in counter-insurgency campaigns to arrest anyone without a warrant and carry out searches without consent. It also offers them, controversially, blanket immunities from persecution in cases of excesses committed.

“The big question is, why do we require an Act under which military forces are allowed to fight their own people,” asks social activist Gautam Navlakha. “That’s what Sharmila has been asking, too.”

Those who have been lobbying for the repeal of AFSPA believe that abuse of military powers is built into the Act; its provisions are a lure to human rights violations such as fake encounters, murders and rapes. There have been numerous cases where AFSPA is alleged to have been misused by security forces. Irom’s fast was triggered by one such – the killing by soldiers of 10 civilians waiting at a bus-stand outside the Manipur capital, Imphal.

It’s not just activists who want the removal of the Act. Supreme Court (SC) appointed committees, too, have described it over the years as “a symbol of oppression”, “an object of hate” and “instruments of discrimination and high handedness”.

Earlier this month, the SC ordered a probe into 1,528 cases of alleged fake encounters in Manipur that took place over the last 20 years. It also said that indefinite deployment of armed forces in the name of restoring normalcy under AFSPA “would mock at our democratic process”. The court observed that “ordinarily our armed forces should not be used against our countrymen and women”.

On the other hand, though, the army stresses it has a tough job fighting internal insurgencies – often arguing that it is not its mandate in any case, and defending AFSPA as an essential requirement. “If the army is deployed in a state to fight an internal situation, there has to be AFSPA, too,” asserts retired Lieutenant-General H.S. Panag, a counter-insurgency expert. “How do you expect the army to operate under civil magistrates?”

Security experts also believe that in strife-torn regions, the army should have the liberty to take on-the-spot decisions. “It’s not a football match but a struggle between life and death in a counter-insurgency situation,” says Delhi-based strategic affairs analyst Ajai Sahni.

Some retired army officers, however, admit in private that there are occasions when young officers get “carried away”. Often, says a retired senior officer, it is “patriotic zeal” that fuels them. “But there are also chances of getting awards if they kill more terrorists. So it becomes an obsession to kill and that leads to rogue operations.”

What troubles activists is that the law gives protection to such officers. A case against a soldier is registered under AFSPA and he cannot be tried in the civil court without the permission of the Centre. Rarely does the Centre give consent. In most cases, there is no trial, and when there is one, it happens in an army court. Only in a few cases have soldiers been court martialed.

There have been many such cases in Kashmir, too. In 1991, dozens of women in Kunan Poshpora, 120km from Srinagar, were allegedly raped by army men. Fifteen years later, the police is yet to close the investigations.

“When a case goes to the army court, very often there is a cover-up by the seniors,” says former BSF chief E.N. Rammohan, who has served in both Kashmir and the Northeast.

AFSPA is such a hot potato that even political parties try not to touch it. The Kashmir government, however, has lately been making noises against it. Last week, chief minister Mehbooba Mufti asked for the withdrawal of AFSPA on an “experimental” basis. In her earlier avatar as Opposition leader, Mehbooba led dozens of protest marches demanding the repeal of AFSPA.

What happened with her predecessor and National Conference leader, Omar Abdullah, is more interesting and symptomatic of the obdurate entity AFSPA is. During UPA II, when Abdullah was chief minister, he held detailed discussions with the then home minister P. Chidambaram, on repealing AFSPA, at least from some central districts of the Kashmir Valley. The two agreed – much later, Chidambaram was to write in his widely-read newspaper column that AFSPA “has no place in democratic society” – and were close to announcing a repeal when the security forces got into the act. They made a presentation to the two leaders, bluntly conveying that the army could not operate without AFSPA and would take its hands off counter-insurgency, the choice was theirs. The repeal never happened.

Civil rights activists in Kashmir believe, though, that political protestations are a sham. “Politicians are trying to tell the people that they have bargained well with the Centre. But the people of Kashmir don’t just want the Act to go; they want the army to go,” says Khurram Parvez, a Srinagar-based civil society activist.

To top it, the activists – and even some defence experts – believe that some state governments do not actually mind the presence of the army. “It is easier for a government to shoot a gun from the army’s shoulder. It is easier for governments to call an area disturbed and send for the army,” says retired Lieutenant-General J.B.S. Yadava, who’d also served in Kashmir.

Political ambivalence on AFSPA continues; some defend it strongly as an essential instrument of state, others flay it, especially when they are not in office. Former Union home minister Shivraj Patil admits that the law gives the army the “licence” to kill. But having said that he rushes to its defence: “The harshness can change but the law must stay,” he says. Lawyer and activist Nandita Haksar pooh-poohs the suggestion that AFSPA can be made more humane. “It’s not about making the Act nicer. It must go,” she says.

But for it to go, the state has to move. Minister Rijiju points out that a state imposes AFSPA, and it is up to the state to revoke it. Then, he at once goes out, as a central minister, to emphasise its necessity. So long as there is insurgence, AFSPA won’t go, he says. “As far as the Northeast is concerned, AFSPA will remain implemented.”

For all its infamy, and for all the names it has been called, AFSPA isn’t going anywhere for the moment. Its most prominent opponent, Irom Sharmila, will be gone from her long and hungry vigil against it later this week. When she leaves Room A-4 of the Imphal Hospital and steps out, she will still roam an AFSPA regime and come upon, all too frequently, the prickly barbed fences that represent it.

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