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Act now, act right

Sometimes the more the media covers a story the less you learn about it. The present debate over the Armed Forces (Special Powers) Act in Kashmir is an excellent example. Karan Thapar writes.

columns Updated: Mar 06, 2011 13:13 IST

Sometimes the more the media covers a story the less you learn about it. The present debate over the Armed Forces (Special Powers) Act in Kashmir is an excellent example. On the one hand, the acronym AFSPA has become a word pronounced Afspa. On the other, we know precious little about why it should be lifted, amended or kept intact. Coining the word has not lead to understanding its content.

The army says that AFSPA is neither the cause of the trouble nor will its lifting or amending be a solution. There’s truth in that. After all, not one of the over 100 killed since June was the victim of an army bullet. They died at police or CRPF hands. Second, the army is not present in the areas from which AFSPA is proposed to be lifted. Which means AFSPA is not an issue. It’s simply a convenient target because the real causes of the trouble are difficult to tackle.

There is, however, another view. AFSPA has become a metaphor for the denial of human rights. Its symbolism is more important than its reality. First, its content. Section 4 permits the use of force “even to the causing of death”. Admittedly such power is essential for curbing an insurgency but, not surprisingly, those on whom it’s used consider it draconian and unconstitutional.

Section 6 seems less defensible. It bars prosecution for killing or other violations “except with the previous sanction of the central government”. Such sanction is rarely, if ever, given. Consequently even though the CBI has indicted army soldiers for the fake encounter deaths at Pathribal in 2001, the government has refused sanction for prosecution. Human rights lawyers claim that in every case of disappearance, where the matter has gone to court, sanction for prosecution has been denied. Once again, Kashmiris keenly feel the injustice.

The second problem arises out of the indiscriminate use of the Act. By law it can only be promulgated in exceptional circumstances and for a limited duration. But in Kashmir it’s been in force since 1990 and long after the exceptional circumstances have ceased to exist.

The army’s case against amending AFSPA is simple. If protection is denied to soldiers tackling insurgency they will conduct operations “not on the basis of military judgement but on the need to defend (their) actions in court”. That can only benefit the insurgents.

This rules out amending Section 4 but does it close the door on changes to Section 6? Not necessarily. Section 6 prohibits prosecution without government consent but what if it were amended to give the government power to stop prosecutions rather than permit them? This would allow prosecutions to start. And the government would find it impossible to stop every single one.

Beyond the debate over amending AFSPA is the urgent need for a political message to the Kashmiri people. They deserve more but AFSPA has to be part of it. Why not start by lifting it from districts where there’s no army presence?

No doubt the experience of Manipur has shown this could be risky. So be it. But the time has come to take a few small risks for a bigger purpose. If the risk proves unsustainable, AFSPA can always be re-imposed.

Lifting AFSPA would be an act of trust. Such acts, however, are common elsewhere in the country. It’s time to try them in the Valley. After all, if we want Kashmiris to feel Indian we have to treat them like other Indians.

*The views expressed by the author are personal