Repealing AFSPA—need of the hour

"The UN Special Rapporteur on extrajudicial, summary or arbitrary executions took a serious exception to concerns about unlawful killings, both in terms of prevention and accountability. His emphasis was on the use of force by state actors like the police and the armed forces."

By S. M. Hali

Christof Heyns, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, conducted a 12 days’ fact finding mission into Indian Occupied Kashmir. At the end of his tour, the UN Human Rights organization issued a formal Press Statement highlighting the concerns of the high level UN visit. Whereas, Christof Heyns took cognizance of India being a robust democracy, he also expressed serious concerns, stating that at the same time India faces many challenges to the realization of human rights, including movements aimed at separation or greater local autonomy, Maoist or Naxalite, insurgency, organized crime, and communal organizations opposed to secularism, plurality and equality.

The UN Special Rapporteur on extrajudicial, summary or arbitrary executions took a serious exception to concerns about unlawful killings, both in terms of prevention and accountability. His emphasis was on the use of force by state actors like the police and the armed forces. He highlighted the disproportionate use of force during demonstrations, which resulted in over 100 deaths, in 2010 in Jammu and Kashmir. His major concern was that demonstrations in New Delhi and other states were never treated harshly while unbridled force was unleashed on demonstrators in Indian Occupied Kashmir. A very relevant observation was that problems concerning excessive and arbitrary use of force by the police and armed forces are further aggravated by statutory immunities that restrict accountability.  The UN Rapporteur also noted what this scribe has cried hoarse through various articles on the subject. His observation: “A practice of what is called ‘fake encounters’ has developed in parts of the country. Where this occurs, suspected criminals or those labeled as terrorists or insurgents, and in some cases people on whose head there is a prize, are shot dead by the police, and a scene of a shootout is staged. Those killed are then portrayed as the aggressors who had first opened fire and the police escape legal sanction. According to the National Human Rights Commission (NHRC) 2 965 cases of ‘encounters’ have been reported between 1993 and 2010, though there is possibly under-reporting.”

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The learned jurist also took cognizance of the reprehensible aspect of custodial deaths, noting that there have been a large number of cases recorded on deaths that have occurred in police as well as judicial custody, often in the context of torture.  The most important comment from the UN Rapporteur came in the realm of the deployment of the excessive number of the Armed Forces deployed in so-called ‘disturbed areas’ in the North East and in Jammu and Kashmir and their being empowered by the draconian

Armed Forces (Special Powers) Act (AFSPA), which in effect allows the state to override rights in the ‘disturbed areas’ in a much more intrusive way than would be the case under a state of emergency, since the right to life is in effect suspended, and this is done without the safeguards applicable to states of emergency.

The eminent UN official noted with concern that AFSPA—continuously in force since 1990 in Jammu and Kashmir—has become a symbol of excessive state power. He took notice of the extensive evidence of action taken under this law that resulted in innocent lives being lost, in Jammu and Kashmir and in Assam, where witnesses from neighbouring states also assembled.

Christof Heyns has noted in the formal Press Statement that “A law such as AFSPA has no role to play in a democracy and should be scrapped. The repeal of this law will not only bring domestic law more in line with international standards, but also send out a powerful message that instead of a military approach the government is committed to respect for the right to life of all people of the country. The government-appointed Jeevan Reddy Committee and the Administrative Reform Commission have both called for its repeal. The NHRC told me during our meeting that they are in favour of its repeal and that they have commented in their submission to the 2012 UPR that AFSPA often leads to the violation of human rights. It is therefore difficult to understand how the Supreme Court, which has been so progressive in other areas, also concerning the right to life, could have ruled in 1997 that AFSPA did not violate the Constitution – although they tried, seemingly with little success, to mitigate its impact by issuing guidelines on how it is to be implemented.”

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The UN Rapporteur ruled that a number of UN treaty bodies have pronounced it to be in violation of International Law, namely HRC (1997), CEDAW (2007), CERD (2007) and CESCR (2008). He opined that the widespread deployment of the military creates an environment in which the exception becomes the rule, and the use of lethal force is seen as the primary response to conflict with a concomitant permissive approach in respect of the use of lethal force. This is also difficult to reconcile in the long run with India’s insistence that it is not engaged in armed conflict. Accountability is circumvented by invoking AFSPA’s requirement of obtaining prior sanction from the Central government before any civil prosecutions can be initiated against armed forces personnel. The information received through Right to Information applications, shows that this immunity provision effectively blocks any prosecution of members of the armed forces. The Centre has for example never granted sanction for civil prosecution of a member of the armed forces in Jammu and Kashmir.

Although this observation by a major international body comes twenty two years too late when thousands of lives have been lost to the odious and highhanded law since AFSPA clearly violates International Law, yet the sacrifices of those who lay down their lives may not be in vain if it is repealed sooner than later. It was high time that the UN took a serious view of India’s gross abuse of human rights in Indian Occupied Kashmir as well total disregard of the UN Resolutions, which grant the oppressed Kashmiris the right of plebiscite to decide their own fate, whether they will accede to Pakistan or India. Instead of honouring the UN pledge, India claims that Kashmir is its integral part and continues its reign of terror on the hapless Kashmiris. It is time this insufferable practice ceases and the Kashmiris enjoy the freedom they aspire for.