Co-Written by Sheikh Attar and Palvi Singh Ghonkrokta
The spate of civilian killings by military personnel in Kashmir continues unabated with the latest killings at Shopian leading to a mass shutdown across the valley.
The public outcry and call by separatists for mass protests is nothing new. Neither is the Army’s claim of an encounter, purportedly after the militants opened fire first.
With no eyewitnesses in sight it is the word of the fatal gun against the word of the now dead. The word of military personnel claiming the civilians were ‘over ground workers’ of militant organisations versus that of bereaved family members who swear by the innocence of their children, alleging cold blooded murder and seek justice.
In all likelihood the result of their cries and tears will go down the by-now-familiar path of a state government initiated inquiry before biting dust with previous cases or at the doors of the judiciary, if at all it makes it there.
Caught between the charges traded by the army and the police over criminal jurisdiction or between the state and central governments over political might,their hopes may vanish soon.
A case in point is the Supreme Court staying investigations, as an interim measure, in the recent (January) Shopian killings case where the army opened fire on youth who were allegedly pelting stones, resulting in the death of three civilians.
The reason cited was because the narrative of the FIR mentioned an officer, Major Aditya Kumar who led the convoy, in contravention of section 7 of the J&K AFSPA Act (1990). The said section bans criminal and civil proceedings against personnel, without prior sanction from the Central government.
Notably while he was not listed as an accused prima facie the court took strong exception, noting ‘he is an army officer not an ordinary criminal’. The irony in that observation is not lost on anyone.
. Granting of blanket impunity as provided by the above section has disenfranchised people from exercising their natural and legal right. To that extent it has dealt a debilitating blow to the rule of law now seen as circumscribed by the provisions of ASFPA, while the section itself passes the baton from the judiciary to executive decision making.
Various international organisations like the Amnesty International on more than one occasions have published reports saying that soldiers in India have ‘impunity’ in Kahmir.It comes as no surprise,therefore,that over the past 20 years not a single army personal has been tried in a civilian court.The Amnesty further highlights that more than 96 percent of complaints brought against the Indian Army in Kashmir have been dismissed as false and baseless by the army.
In 2016 the Supreme Court in a scathing criticism of the military excesses and flagrant violations made by army personnel under AFSPA, held “that there is no concept of absolute immunity from trial by a criminal court” and that every death caused there under should be thoroughly enquired into.
However it stopped short of altogether declaring as invalid the controversial section. Now with the stay on investigation, it seems unlikely the veil of immunity will be lifted from the section that accords sole power to the Centre.
Statistics throw a dismal picture with the Centre rejecting sanctioning of the J&K government’s prosecution of military personnel in 47 out of 50 cases submitted to it since 2001.
Further in what constitutes a veritable travesty of justice, two verdicts affirming court martial of military personnel in rape – the 2000 Banihal one and the 2004 Handwara, were subsequently overturned by the J&K High Court.
NEED FOR REVOCATION
Since 1990 the Kashmiri population has had the double edged sword of AFSPA hanging over their heads. State claims of crushing militancy notwithstanding, the blood trail of ‘collateral damage’ it leaves behind is enough to infer it has done more long term harm than good.
The ‘morale’ of forces cannot be a reason to hold to ransom the intrinsic rights of an entire population subjected to disproportionate restrictions such as arrest under mere suspicion, search and seizure at will for a sustained period of almost two decades.
The UN has repeatedly urged India to radically review or repeal the Act that was a “symbol of excessive state power” and to “remove all legal barriers for the criminal prosecution of member of the armed forces”. Even state voices, namely the second Administrative Reforms Commission under Veerappa Moily sought revocation of the controversial law as did the 2011 Interlocutors report.
The Centre however refuses to blink an eye on AFSPA, citing national security concerns while civilian citizens’ lives and security is trampled upon. Coercion not compassion seems to curry favour with the political establishment and gauging by past misadventures challenging the culture of institutional immunity seems a bleak hope.
AFSPA is both unnecessary,counterproductive as well as stands on very shaky moral grounds.It is unnecessary because according to the own government estimations there are merely 200-300 active militants in the valley at present in comparison to over half a million army personal.
It is counterproductive because the military crackdowns have garnered nothing but ill will for the Indian state particularly the Army. If the sentiments of national pride and honour for defence forces are found wanting it is with reason. The unspeakable institutional atrocities committed in Kunan-Poshpora are a case in point. The ruthless fist of AFSPA has alienated the people like never before, is believed to have laid ground for in the spurt of militant activity and left indelible marks on the people’s psyche.
And finally a law which is in gross violation of human rights cannot ascertain its moral uprightness merely because it has legal backing.This law is even against the spirit of the Indian Constitution which accords primacy to human dignity and right to life.
Lex iniusta non est lex (An unfair law is no law) is a well settled maxim. If only we could heed this as much especially in a law that has the potential to condone killing of innocents. Privileges entail responsibility more so when human life is at stake.Hence it calls for a concerted effort from civil society,state government as well as the central government to sense the urgency and call for the revocation of this law.
Sheikh Attar and Palvi Singh Ghonkrokta are freelance journalists.