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AFSPA in Kashmir – “Armed Forces’ Say Prevails Anyway”: Gowhar Geelani

October 30, 2011

Guest post by GOWHAR GEELANI

There is a lot of noise in the media over AFSPA. Ask any senior Indian security official, a turn-coat politician or a retired Army General what AFSPA stands for. “Armed Forces Special Powers Act,” they will say. Now pose the same query to an ordinary Kashmiri living there in the hapless Vale for the past two decades. The answer perhaps would be: “Armed Forces’ Say Prevails Anyway”.

Many experts on India’s TV news channels and newspapers are debating the pros and cons of the proposed partial annulment of this draconian Act from a few selected areas of the Kashmir Valley. Much is being said about the “fissures” between the coalition partners in the state of Jammu and Kashmir, the National Conference and the Congress, over the “abrogation” of the AFSPA.

The glamour scenes of this staged drama are interesting. The lead role is being enacted by none other than Mr Omar Abdullah, the embattled Chief Minister of Jammu and Kashmir. Mr Saif-ud-Din Soz, President of the J&K Pradesh Congress Committee, seems satisfied with the role of a supporting actor.

The people of Kashmir continue to be the real victims.

According to the Gazette of India, the Armed Forces [Jammu and Kashmir] Special Powers Act received the approval of the Indian President on the 10 September 1990. The Act, however, was deemed to have come into force on the 5 July 1990. What exactly is this Act? Basically, it is an Act that gives certain special powers to members of the armed forces in the disturbed areas in the state of Jammu and Kashmir. “Disturbed area” means an area which is for the time being declared by notification under section 3 to be a disturbed area.

There lies the root of the problem. How is an area declared disturbed and by whom?

The Governor of the state or the Central Government, may, by notification in the official gazette, declare the whole or any part of the state to be a disturbed area. In relation to the state of Jammu and Kashmir, the Gazette of India explains, if the Governor of that state or the Union Government, is of the opinion that the whole or any part of the state is in such a disturbed and dangerous condition that the use of armed forces in aid of the civil power is necessary to prevent– “activities involving terrorist acts directed towards overawing the Government, striking terror in the people or any section of the people, questioning or disrupting the ‘sovereignty and territorial integrity’ of India, or causing insult to the Indian national flag, the Indian national anthem and the constitution of India; etc.

Special Powers conferred upon members of the armed forces under the AFSPA can roughly be summarized as follows:

(a) Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may open fire if he/she is of the opinion that any person is acting in contravention or breach of any law or order;

(b) he/she may destroy any arms dump or any structure used as training camp for armed volunteers or utilized as a hide-out by armed gangs wanted for any offence;

(c) arrest, without warrant, any persons who has committed a cognizable offence or against whom a reasonable suspicion exists that he/she has committed or is about to commit a perceivable offence;

(d) enter and search, without warrant, any premises to make any such arrest as aforesaid;

(e) stop, search and seize any vehicle reasonably suspected to be carrying any person who is a proclaimed offender;

(f) power of search to include powers to break open locks; etc.

At a time when top Indian politicians are selling the news to the entire world about a record number of tourists visiting the Kashmir Valley this season, the massive voter-turn out in the just-concluded Panchayati polls, the successful completion of the holy Amarnath pilgrimage, the presence of only a few hundred gun-wielding youths where there were once thousands, and the state government’s focus on the issues of “governance”, “development” and “employment generation” in the state, how come many “wise men” in the Indian Parliament and Cabinet then justify the AFSPA in the same breath? Amazing.

Quite amazing is also the fact that as soon as Mr Omar Abdullah made his hasty and controversial announcement in a public meeting [he termed it as "good news"] about the partial withdrawal of the AFSPA, grenades were showered on the few bunkers of the paramilitary force, the CRPF, in Srinagar and South Kashmir. Though the Jamiat-ul-Mujahideen, a pro-freedom militant group in Kashmir, claimed responsibility for these attacks, many pro-India politicians in the Valley, including the General Secretary of the ruling National Conference, Mustafa Kamal, raised fingers of suspicion towards the vested interests in the Army, the opposition Peoples’ Democratic Party as well as pro-freedom leaders. How come a place that was being described as the one fast returning to normalcy can all of sudden go volatile just because of one announcement made by a mercurial Chief Minister?

By the way, many wonder about the status of the judicial probe ordered into the death of a National Conference sympathiser, Haji Syed Mohammed Yousuf Shah, in Police custody on the 30 September. Two fellow National Conference workers, Muhammad Yousuf of Ganderbal and Abdul Salam Reshi of Kokernag, had accused the 61-year-old deceased S M Yousuf Shah of Anantnag, of taking Rupees 1.18 crores from them for “assuring them a ministerial berth and a berth in the J&K Legislative Council”.

Mirwaiz Umar Farooq, chairman of a faction of pro-freedom alliance, the Hurriyat Conference, has said that the Army will not allow revocation of the AFSPA for obvious reasons. Addressing a group of people at Charar-e-Shareef, Budgam, he said: “If pro-India political parties in Kashmir are really sincere, they can repeal the Disturbed Areas Act on the floor of the J&K Legislative Assembly to make the AFSPA null and void.”

Meanwhile, the Association of Parents of Disappeared Persons [APDP] has demanded to end the “culture of impunity” in Kashmir. In its press release, the APDP has said: “In Jammu and Kashmir, the 8000 people who were subjected to enforced disappearance have not disappeared because of the imposition of draconian laws like AFSPA, but due to an institutional policy of repression, where even the draconian laws were defied. AFSPA requires the arrested persons to be brought before the district magistrate within 24 hours, which of course has never happened in Jammu and Kashmir.”

Some reports suggest that besides other recommendations the group of interlocutors on Kashmir have also called for a review and phased withdrawal of the AFSPA. Many political commentators in Kashmir have described the trio comprising of Mr. Dileep Padgaonkar, Prof. Radha Kumar and Mr. Ansari as a “bunch of jokers” who wasted one full year to compile a “laughable” report. Mr. Padgaonkar said that the separatists had “missed the bus”, but in reality not a single passenger in Kashmir boarded this bus of interlocutors with “one driver, a conductor and a cleaner”. Neither did the interlocutor’s bus move beyond the main station [the Union Home Ministry] nor it had the fuel in the tank [the petrol prices have seriously gone up!] to take any serious decisions. It did not have a mandate to do that.

Omar Abdullah may be right in his claim that he has Union Home Minister, Mr. Palaniappan Chidambaram in loop on the issue of the AFSPA. But, there is all-powerful Ministry of Defence. Those army personnel found guilty of killing five innocent civilians in South Kashmir area of Pathribal, in 2000, are yet to be punished. That is why many wonder whether Omar Abdullah has the mandate to take any unilateral decision on the issue as contentious as the removal of the AFSPA. When it comes to Kashmir, the Indian Army has the final say!

That is AFSPA – Armed Forces’ Say Prevails Anyway.

(Gowhar Geelani is a Kashmiri journalist. Contact gowhargeelani at gmail dot com.)

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8 Comments leave one →
  1. shama zaidi permalink
    October 31, 2011 11:16 AM

    why such a hullabaloo about the number of indian army soldiers who have been killed? isn’t it their job to die for the country, not kill for the country as those who refuse to rescind afspa insist? 2000 odd soldiers vs. 100,000 civilians killed? what kind of arithmetic is this?

    • Chintan Talajiya permalink
      November 15, 2011 6:52 PM

      Well, Shama, to correct you, the job of the Indian Armed forces is to protect the Country and not die for the Country. Factually, out of 1511 cases registered against Armed Forces related AFSPA, 97% were proved wrong (so, keep the arithmetic for yourself) .
      Talking about the people missing in Kashmir, it has nothing to do with AFSPA as the Association of Parents of Disappeared Persons [APDP] declared that the disappearance was not due to AFSPA.
      Well, if the political parties would so worried about the kashmiris, the day would have come to declare the entire state as ‘disturbed area’. If they would have sincerely supported the Indian government right from the beginning then, “Kashmir would have been heaven on earth”

  2. Rajarshi Roy permalink
    October 31, 2011 12:43 PM

    This article doesn’t seem to analyse or provide a viewpoint which has not already been provided. Nor is there any factual information which has not surfaced in the mainstream media.

    Moreover, the author fails to distinguish between Ministry of Defence and the Indian Army. Here, it may be worthwhile to point out the concept of civilian supremacy which prevails in India. Army HQ reports into the civilian Ministry of Defence and not the other way round. It is the democratically eleceted representatives of the people who call the final shots, unlike our neighbours where Army HQ has the final say.

  3. Varun Shekhar permalink
    November 16, 2011 8:13 PM

    “why such a hullabaloo about the number of indian army soldiers who have been killed? isn’t it their job to die for the country, not kill for the country as those who refuse to rescind afspa insist? 2000 odd soldiers vs. 100,000 civilians killed? what kind of arithmetic is this?”

    That’s one of the most anti-national, anti-patriotic statements I’ve ever heard. Oh, and it’s also sick and perverse. There have been more than 2000 security personnel killed- it’s more like 5000, with thousands more injured and maimed. The so called 100,000 killed were killed in different circumstances-terrorism, anti-terrorist actions and infighting.

  4. November 18, 2011 12:58 PM

    I guess there needs to be sanity in the entire debate. The problem here lies in the culture of impunity a conflict promotes. Let us not forget that the Army man who lives in Kashmir probably believes that all Kashmiris are terrorists. Equally, every Kashmiri who believes the Indian governments have only made mockery of them think the Army is the real terrorist. This mistrust then spreads and leads to a culture of impunity. Initially, soldiers, for fear that some local people may want to kill them, abruptly kill people out of fear. This stirs the local people into protests against the army. Then the army believes they can’t trust anyone, and so kill people either out of fear or even due to enemity. This leads to a counter-cycle where the local people feel they need to take out the guns. The cycle can start in the reverse way also. The result is virtually the same. I am afraid, AFSPA has been misused to save even those who have indulged in fake encounters. Now that can’t be accepted. It can’t be.

    Removing AFSPA will alone not help the things, since Kashmir police have been involved in fake encounters as well. What has to be done is something else. Let a commission of judicial powers be formed and investigate all cases of disappearance, fake encounters and other issues and be given powers for ordering investigation of all kinds and around say 3-4 years for conducting cases. Even a Special Investigation Team can be formed for this. Also, let all kinds of people involved in crimes (terrorists, army officers and the like) be tried through civilian courts and not through defence courts. Let the punishments be decided based on that. And let not any ministry, including the Defence Ministry, be allowed to block prosecution of anybody.

  5. arshid permalink
    February 5, 2012 12:31 AM

    it is not a tribal state dear it is kashmir

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