By Anirudh Prakash
Impunity, the ability to wield power without accountability, seems to be habit- forming. That is the only credible explanation for the reluctance of the Army and the Congress to allow Omar Abdullah to withdraw the Armed Forces Special Powers Act from parts of Jammu and Kashmir where the state government does not perceive it to be necessary. Withdrawal is not without its risks.
But change always involves risk. It is not possible to exit from the endless cycle of violence in the region without taking risks. A central report is believed to have recommended repeal of the AFSPA. And the Centre’s most recent intervention, by a group of three interlocutors, has supported repeal. The issue is no longer whether the AFSPA should go, but when it should go.
Omar Abdullah has been seeking a rollback of the law for two years, and this could be the decisive moment. The Kashmir insurgency is at its lowest ebb for multiple reasons, local and geopolitical.
In fact, the government is on top of every insurgency on Indian soil, to the extent that when some Western nations issued adverse travel advisories a couple of weeks ago, the Ministry of External Affairs made so bold as to protest. It is now time to roll back the AFSPA, which was part of the solution, because it is slowly becoming part of the problem.
The Act was passed by Parliament in 1958 to contain unrest in the Northeast, which had always been a problem area.
The region, through which the cultures of South Asia transition into those of Southeast and East Asia, was carved up between India, Myanmar and China after the end of the British Raj, without the local communities being consulted.
States like Nagaland, Manipur and Mizoram, which fell to India’s share, have strong identities and aspired to be independent long before India was. The tradition has created intractable insurgencies which the AFSPA was created to quell. However, it has also institutionalised State violence in the region, creating an atmosphere in which the very idea of peace seems illusory. WikiLeaks documents reveal that the US considers the Northeastern states under AFSPA to be like colonies of India, rather than full states.
The Act — or a derivative legislation, rather — was applied to Jammu and Kashmir in 1990, at the height of the separatist movement, when peace was clearly unthinkable and the priority was to secure our territory. Today, the situation is completely different and peace is a credible option — but an option which may be lost again if the AFSPA alienates the population.
And it does. The AFSPA may be effective against insurgents, but it is a thorn in the side of the law- abiding citizenry because it mandates the use of military force on mere suspicion. The officer ordering the use of force does not have to record it and is not susceptible to legal action in the event of error. The AFSPA is based on a colonial law invoked in emergency situations which, however, required officers to put their actions on the record and provide reasons for taking them. In contrast, the independent Indian version is a masterpiece of impunity and secrecy, depriving victims of error of the possibility of seeking redressal.
The AFSPA impugns the Constitution on two counts. It is completely non-transparent and confers impunity, though all actions in a democracy, except the exceptionally sensitive, should be susceptible to open judicial or political oversight. And it violates the principle that central laws should be uniformly applied all over the country, to all citizens.
It militates against the principle of equality before the law as much as the special status of Kashmir does.
Apart from Constitutional issues, the AFSPA was intended to be briefly applied to stabilise disturbed areas and pave the way to political solutions. It was not supposed to be the solution itself, as it is now seen. Unfortunately, it has remained in force for half a century in the Northeast and almost a quarter of a century in Jammu and Kashmir.
What makes the reluctance of the Army and the Congress incomprehensible is that Omar Abdullah is asking not for repeal of the law, but for a gradual rollback of the law’s application in areas where the military is not involved in keeping the peace. There are no counterinsurgency operations in the areas earmarked for rollback and the troops freed up by a reduction of the Army’s footprint would actually strengthen border security. This is a sensible, tentative step in an incremental process, not the radical and ill- advised change of course that detractors are projecting it as.
The objections against a rollback of the AFSPA are not very convincing. It is argued that areas where it is lifted would become terrorist bases. Why aren’t they already, it might be argued in turn, since the Army does not conduct counter- insurgency operations there anyway? It is also argued that lifting AFSPA and moving out troops would weaken the security of the border. This is clearly fallacious, since Abdullah is not pleading for a reduction in troop strength. In fact, his proposal would free up troops from internal security duties and thereby increase the security of the border. It is also argued that without the legal impunity conferred by AFSPA, the armed forces would be hamstrung and fail to react credibly in an emergency.
This is misleading, because the Act did not have to be invoked in the state’s response to the biggest terrorist crises, including the carnage in Mumbai and the attack on Parliament.
In short, it is difficult to think of a credible reason to stall Omar Abdullah’s initiative. Rather than harming the security situation, it would probably create a more secure climate in Jammu and Kashmir, and perhaps in the Northeast, too, thereafter. The timing is just right, when Kashmir is seeing tourist arrivals unprecedented in a quarter of a century.
And when, just as significantly, the refusal of Afzal Guru’s mercy petition has failed to create any unrest in the Valley.
The alternative is unthinkable — a permanent state of unrest, constantly ebbing only in order to flow again, in various parts of the country. And the endurance of the international perception that India does not have the right to stake claim to vast tracts of territory, because people there feel that they live under a force of occupation, rendered untouchable by a law which confers impunity. INAV