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16 April, 2012

A colonial legacy that must go

BRP Bhaskar
Gulf Today

The Indian government is under increasing pressure from within the country and outside to curb the gross human rights violations resulting from prolonged use of the armed forces to deal with internal disorder.

Deployment of army personnel to deal with uprisings is a colonial practice. The British rulers were fighting rebellious elements in the northeastern region, as also the northwestern region which now forms part of Pakistan, till their very last days in the subcontinent.

Since insurgency in the northeast continued to be a problem, the government re-enacted in 1958 the colonial-era Armed Forces Special Powers Act (AFSPA) and brought it into force in the northeast. Following a spurt in terrorist activity, the law was extended to parts of Jammu and Kashmir in 1990.

AFSPA allows military personnel deployed in areas, which the government has declared as “disturbed”, to fire upon and even kill anyone acting in contravention of law and search any premises and arrest without a warrant anyone who has committed or is suspected to have committed certain offences. It grants security personnel immunity against legal action.

Although the law prescribes a six-month time-limit for an order declaring an area as “disturbed” the government has circumvented the restriction by repeatedly re-promulgating orders. Thus the draconian measure has been in force continuously for well over half a century in the northeastern states and more than two decades in Kashmir.

As a result, the fundamental rights guaranteed by the Constitution remain abridged in these areas. The bulk of the people of the northeast are tribesmen with distinct cultures of their own. J and K is a state with a Muslim majority. These demographic factors give the story of denial of democratic rights an additional dimension.

In the affected areas there have been continuous anti-AFSPA protests, the most poignant of which is the 11-year-old fast by Manipur poetess Irom Sharmila whom the authorities are keeping alive through forced nasal feeding. Since public opinion in the mainline states is muted, the government has found it easy to ignore the local protests.

The large number of cases of missing persons reported from areas where AFSPA is in force and the unearthing of an unmarked mass grave in Kashmir have fuelled civil rights groups’ demands for repeal of the law.

Kashmir Chief Minister Omar Abdullah has demanded that AFSPA be withdrawn in view of the decline in militant activity in the state. In its report to the Central government, the team of interlocutors headed by journalist Dileep Padgaonkar has drawn attention to the recommendations of various bodies, including the Justice Jeevan Reddy Commission, to repeal AFSPA or at least amend it to bring it in line with the criminal law. It wants the army to remain in the barracks and policing functions to be transferred from the paramilitary units to the state force under a phased programme.

Last week Home Minister P Chidambaram flew to Kashmir to persuade the Chief Minister to accept a modified version of AFSPA. This appears to be part of an attempt to soften public opinion in view of the adverse observations made by the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, at the end of his recent visit to India.

Heyns, who had met government representatives as well as rights activists in different parts of the country during the 12-day visit , described AFSPA as a symbol of excessive state power which “clearly violates international law” and asked that it be scrapped. This recommendation is sure to figure in the report he submits to the UN Human Rights Council.

It is not the Central government alone that wants to keep the AFSPA alive in some form. The Bharatiya Janata Party, which is in power in several states, is an even more ardent advocate of its ruthless application than the Congress, which heads the ruling coalition at the Centre. The Communist Party of India (Marxist) favours its withdrawal from Kashmir, but wants it to continue in Tripura, where it is in power.

Sudhir Vomnatkere, a retired major-general who had headed the Army’s human rights cell, in a recent interview to a website threw light on a little known aspect of AFSPA. When an area is declared as “disturbed”, there is political darkness under which “corruption of various kinds – political, economic, financial, money, women, drugs, smuggling etc” can go on, he said.  Clearly, AFSPA must go – in the interests of democracy. -- Gulf Today, Sharjah, April 16, 2012.

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