Draconian Law

The Emergency that continues: 25 years of AFSPA in Jammu & Kashmir

In September 1990, Parliament passed the Armed Forces (Jammu and Kashmir) Special Powers Act, which was 'deemed to have come into force' retrospectively from July 5, 1990.

The 40th anniversary of the declaration of Emergency in India has suddenly seized the media with an overflow of opinions, looking-back-in-anger stories and premonition of times to come. Maybe for good reason, the excesses of the darkest years of Indian democracy are being invoked as an alarm bell to people in power.

Unfortunately, we tend to view such events in isolation.  Most of the learned writers have been reminding the readers about the context in which the Emergency was imposed, but I am yet to come across any piece which makes the point  that this was not new to the Indian state. Emergency insiders like PN Dhar earlier revealed that these excesses were not occurring for the first time, just that they were occurring during the Emergency on a massive scale. The flagrant abuses of power under the Emergency, then, were perhaps only a logical culmination of a culture of disregarding the law in India.

July 5 marks 25 years of yet another anniversary that needs to be remembered. For in September 1990, Parliament passed the Armed Forces (Jammu and Kashmir) Special Powers Act, which was “deemed to have come into force” retrospectively from July 5, 1990.

The passing of the Armed Forces Special Powers Act in 1958, long before Indira’s 1975 promulgation, was equal if not worse than the provisions of the Emergency.

AFSPA, as a precursor to Maintenance of Internal Security Act, was used extensively before and during the Emergency. These Acts protect individuals representing the state when they commit murder. And they facilitate detaining, harassing and killing civilians based on mere suspicion – or sometimes just on the whims – of personnel in the forces. All these laws were carefully worded so that no offence needed to be committed by the "locals" to justify even a noncommissioned officer of the Indian Army taking drastic or even lethal action.

September 1958

When the Act was introduced in Parliament, the then Minister of Home Affairs, Pandit GB Pant, explained the reason for the Bill in the Lok Sabha in these words:
“This is a very simple measure. It only seeks to protect the steps that the armed forces might have to take in disturbed areas.”

Yes, it is indeed a “simple measure” – an army personnel can fire upon you on mere suspicion.

It was contested by other members in both the houses of Parliament. Dr Krishnaswami (Chingleput) said that the Bill contravened the provision of the Constitution and transferred the Executive power to the Centre. He said this could be brought only by a Proclamation of Emergency promulgated under Art 352 of the Constitution.

While the 44th Amendment ensured that those days of Emergency may not revisit us, but it has now been 25 years in Jammu and Kashmir and more than half a century in India’s North East that the draconian emergency act, AFSPA is still in place. When the Bill was being passed PN Sapru had warned in the Rajya Sabha:
“…….My second criticism of this Bill is that it is a permanent measure and the law which it enacts is of a very, very drastic character, and it places that law permanently on the statute book…….”

The Speaker that day had hardly anytime to discuss the Bill that has been at the heart of democratic India’s biggest challenge in the last 65 years.

In the Rajya Sabha, Mr Mohanty debated vociferously against the unconstitutionality of the Bill and asked,
"How can we rush through the legislation with our eyes wide open when it has obviously this constitutional lacuna?’

The Bill was passed with a voice vote, with some opposition to the manner in which it was being passed; but the Deputy Speaker declared, "The ayes have it". The longest known internal emergency was thus put into place – by an Act that continues to be in force in the North Eastern states and Jammu & Kashmir.

***

Jammu and Kashmir

It was a winter evening. On a local tip off, an Indian army unit operating in Kashmir’s Kupwara district arrested a young man suspected to be involved in gun running. He was picked up from a place called Gulgolosa. As the team was crossing a log bridge on a rivulet the Company Commander slipped and fell in to the water. He was carrying a 9mm carbine that fires with a jerk, so as he fell, it fired a burst of six rounds and the suspect died on the spot. Under the cover of Armed Forces Special Powers Act, the accident was officially shown as an encounter. This is routine in the Valley.

Far more gross acts of violation have been reported over the years.
“You get information that some guy is involved in gun running. You have no idea whether this is true. So you pick up the guy, you interrogate him. Now, an infantry man is not trained or authorised to carry out interrogation. They can only do spot questioning and they are to be produced in front of a magistrate within 24 hours. Unfortunately many of these "interrogations" have led to death in custody or the victim being maimed for life. Often, it later turned out, the information came from villages to settle personal scores.”

Human right defenders and the media have chronicled the excesses, though the Indian State and the Indian army have been perpetually in denial. So has the political class that exacted the gains but did nothing to repeal the Act.

It would be hard to identify a single unit of the Indian army that has not been a part of human right violations intentionally or unintentionally and has got away under the provisions of the AFSPA.

A retired army officer once recounted:
“Sometimes we behaved like militants and the militants like security forces. The State machinery was perceived as a tool of oppression and seldom seen as a guardian. AFSPA is a bad Act. But if you remove AFSPA the army will lose whereas if you continue with AFSPA for 25 years then India is surely losing the war.” 

***

Kishalay Bhattacharjee is a senior journalist. His book Blood on My Hands: Eyewitness Accounts of Staged Encounters is forthcoming by HarperCollins Publishers India in August.

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