AFSPA repeal: A step towards ‘Naya Kashmir’

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AFSPA repeal: A step towards ‘Naya Kashmir’

Friday, 03 May 2024 | Abhinav Narayan

AFSPA repeal: A step towards ‘Naya Kashmir’

Amit Shah’s proposal to repeal AFSPA in J&K could restore normalcy, but it must consider the broader implications and evolving security of the region

Recently, the Union Home Minister Amit Shah said that the Centre will consider the removal of AFPSA in J&K. This statement assumes significance as it reflects the Government’s vision towards J&K and most importantly Prime Minister’s promise of Naya Kashmir. Soon, after the Lok Sabha elections, the focus will be panned towards J&K as the Union Territory is scheduled to go for polls in September this year. After abrogating article 370, the Government seems to turning towards solving another long-standing conundrum in J&K- AFSPA. At the security and strategic level, this attempt will accelerate the cleaning of Pakistan’s propaganda by cleaning up their psychological warfare designs in J&K and will provide full throttle for holistic development. Before the Government sets its approach, it must see the bigger picture first. 

The Armed Forces (Special Powers) Act gives sweeping powers to armed forces (which also extends to CAPF under Section 2) and most significantly provides them legal immunity for their actions under Section 7 of the act. However, the Supreme Court in 2016 struck down this blanket protection from prosecution. The Supreme Court said “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both”.  The sweeping powers under Section 4 of the act include 

·1, Arrest without warrant, 

·2. Fire (After due warning) upon or use other kinds of force even if it causes death, against the person who is acting against law or order in the disturbed area for the maintenance of public order.

·3. To enter and search any premises in order to make such arrests, or to recover any person wrongfully restrained or any arms, ammunition or explosive substances and seize it.

·4. Stop and search any vehicle or vessel reasonably suspected to be carrying such person or weapons. The AFSPA debate stems from two perspectives first is security necessity and second is cases of extrajudicial killings in the Northeast. The most debatable part is the second one which has made this act controversial. In 2004, a thorough review of the act of was done by the Justice Jeevan Reddy Commission which concluded that the act should be repealed and observed that “agitations such as in Manipur and elsewhere are merely the symptoms of a malaise, which goes much deeper” and called on the Government to address the “core issues.”. However, the importance of National security somehow gets shadowed by a few cases of misuse of the act. 

Call for AFSPA comes under extraordinary situations which if not controlled or mitigated can result in serious consequences from the genocide of Kashmiri Pandits in 1990, 1986 Kashmir riots killing 2000 2000 people primarily Hindus, Sopor firings in January 1993 killing 40 people to Bij Behara firings in October 1993 killing 60 people. Such horrifying incidents need stringent measures in place and a certain amount of free pass to operate efficiently. “We feel that by revoking special legal provisions, which are in place here, definitely our operational capabilities will be compromised,” General Officer Command (GOC) of Army’s Srinagar-based 15 Corps Lieutenant General Syed Ata Hasnain said in 2011. To deal with a situation that is spiralling out day by day in a state requires effective operational dominance over the adversary which can only be possible if armed forces can freely operate. 

The imposition of AFSPA in the state or UT itself explains that the state has almost lost its capacity to deal with the situation and when the state loses its capacity then it means that the adversary or any adverse situation will soon grip the state leading to mayhem and breakdown of national security. Such situations of breakdowns are not ordinary and demand extreme measures and interventions to normalise and any constraints in intervention will affect the normalisation process therefore to let “normalisation” progress an effective emergency response mechanism is required which AFSPA provides. A call for the removal of AFPSA should only come when the security environment is significantly improved or secured as hurried removal might bring back the old situation. The case of a fresh wave of radicalisation in 2018 in J&K after the killing of terror poster boy Burhan Wani is one incidence where a cautious decision must be made to decide the removal of AFSPA.

AFSPA is not immune; it has its limitations and misuses. For example, the Nagaland case in 2021 of killing innocent 14 civilians or the 1995 Kohima Massacre where 16th Rasthtriya Rifiles fired upon civilians mistaking the sound of the tyre bursting for a bomb attack killing 7 and injuring 36. The free pass or the freeness in the name of operational efficiency or capabilities has also led to some serious consequences which are eroding the primary objective of the act. The AFSPA Act is in place to mitigate the extreme situation in the state and to aggravate it. Such incidents aggravate the situation and further complicate the situation in a state. Therefore, these immunities either required a removal or needed a proper check to put caution in the exercise of powers by the armed forces which later was done by the Supreme Court in 2016. 

AFSPA cannot stay for long as extraordinary or exceptional situations are temporary and once under control, AFSPA could be withdrawn. If it goes beyond necessity, then AFSPA’s presence would hinder the normalisation process. The normalisation process does not only include fighting with the adversary it also includes the restoration of a peaceful and harmonious environment. A state of being normal is only when the state begins to function without any constraints, fear and anxiety. AFSPA being in place distorts the state of being “normal” and rather heightens the anxiety and fear which in the long run affects the democratic ecosystem and governance in a state that might further lead to socio-political instability if overlooked. The case of J&K ever since the removal of Article 370 has significantly improved there was a 66 per cent drop in terror cases in J&K. The union territory has also seen a significant drop in terror recruitment under Army’s Operation Sahi Raasta. According to reports only seven youth joined terror groups last year. 

As the security environment in J&K is significantly improved, a call for the removal of AFSPA is well reasoned. Now, the CAPF presence would easily tackle any security situation if arises as the substantial threat of terror now seems to be subsiding. Like the Government withdrew AFSPA from Punjab in 1997 it should soon take a call on J&K as well, though few CAPF presence can be there considering bordering areas the operation of the act must be withdrawn.

The removal of AFSPA will facilitate and exhort confidence and peace among people. Most importantly, eliminates the sense of fear and accelerates the pace of normalisation and developmental processes at socio-political levels. The Prime Minister’s promise in Naya Kashmir lies beyond the security to society and politics which will only strengthen after the removal of AFPSA.

(The author is an Advocate based out of New Delhi, views are personal)

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