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Caught in the act

J&K is under the thrall of a law that allows security forces to act with impunity. Soumitro Das writes.

india Updated: Nov 01, 2011 22:52 IST

A few weeks ago, we had our own Mumtaz Qadri moment. (Qadri was the Pakistani bodyguard who murdered Punjab governor Salman Taseer in January.) Many Indians celebrated the beating up of Prashant Bhushan by two goons for speaking out in support of a plebiscite in Kashmir. It was insinuated that Bhushan committed sedition.

It's a separate issue whether a mature democracy should have sedition laws at all. Britain abolished all sedition legislation in 2010, and that is the way most democracies are going. What is moot, however, is whether the sedition law that exists in India is a sedition law at all. The law states: "Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added." This is so vague that it can be used against anyone criticising the government in any manner whatsoever.

But was what Bhushan said about Kashmir based on the truth? Jammu and Kashmir chief minister Omar Abdullah recently suggested the need to revoke the Armed Forces Special Powers Act (Afspa). This week, the central government reacted to Abdullah by asking him to hold "more consultations" - a standard strategy for procrastination.

Although there are no official figures, there are roughly 650,000 military and paramilitary personnel in Kashmir. They are there, ostensibly, to prevent a few hundred militants from crossing over from Pakistan into the Valley every year and, if the infiltration is successful, to nab or kill them. The latter is done by means of cordon-and-search operations - a 'crackdown' in local parlance - where the entire male population of a locality is corralled into an adjoining area while the troops go house to house in search of the mujahideen. These troops operate under the auspices of the Afspa, which allows an officer:

To "fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law" against "assembly of five or more persons" or is in possession of deadly weapons.

To arrest without a warrant and with the use of "necessary" force anyone who has committed certain offences or is suspected of having done so.

To enter and search any premise in order to make such arrests.

The officer will not be liable for acts committed to any court of law established for common citizens. In other words, he can act with impunity.

The Afspa isn't the only piece of legislation under which the security forces enjoy impunity. There is also the Public Safety Act (PSA) under which the police can detain a person for up to two years without having to produce him before a magistrate. They can do this to anyone whom they deem to be guilty of undefined acts "prejudicial to the security of the State" and of extremely broadly defined acts "prejudicial to the maintenance of public order".

The conviction rate for attempt to murder in J&K is eight times lower than the national average, seven times lower for rioting, and five times lower for arson. In contrast, the number of persons in administrative detention without trial in J&K is 14 times higher than the national average - a possible result of the monthly or quarterly 'targets' or quotas of detentions apparently instituted by the J&K police.

The Supreme Court of India has termed this Act as a 'lawless law'. It's easy to see why.

Soumitro Das is a Kolkata-based writer

The views expressed by the author are personal