Assembly Elections in Jammu & Kashmir, India: A glimmer of hope for the repeal of the Armed Forces (Special Powers) Act, 1958

The Indian state of Jammu & Kashmir (J&K) has long been the focus of enduring tensions between India and Pakistan. The recent elections – which have resulted in a coalition government formed by the People’s Democratic Party (PDP) and the Bhartiya Janta Party (BJP) – have brought to the fore issues relating to the impunity granted to the security forces under the Armed Forces (Special Powers) Act, 1958 (AFSPA). The AFSPA is presently applicable in parts of J&K and certain states in North-east India.

By Anubhav Tiwari. Anubhav is a qualified advocate from India presently pursuing an LLM in International Human Rights and Humanitarian Law.

In its ‘World Report 2015’ Human Rights Watch described the AFSPA as a piece of legislation which allows members of India’s security forces ‘to enjoy impunity for serious human rights violations’. While the PDP echoes the sentiments of the people in pushing for repeal of the AFSPA, the BJP has generally maintained that the AFSPA is of operational significance to the security forces and is therefore essential for the security of the country. However, this is the first time that the BJP is a part of the government in J&K, and it remains to be seen whether the party is willing to change its views in favour of the coalition understanding. Till now, there has been no concrete announcement from the newly formed government on the issue of AFSPA, though it is highly anticipated in the coming days.

So what is the AFSPA, and why is it applied to J&K?

The 1990s in J&K were marked by a sharp surge in conflict between armed groups and the security forces, resulting in an increased military presence, and prompting the application of the AFSPA to the region. This emergency legislation has two key elements:

  • First, it precludes review of the security forces before civilian courts absent – elusive – central government approval. Central government approval is not forthcoming since it is argued that ‘effectively’ disarming armed groups in such a difficult security situation is incompatible with review before civilian courts, and review before military tribunals is presented as an effective alternative. This has not been the case, however, as the military tribunals have themselves contributed to a sense of impunity. Convictions are rare, and a large number of cases are dismissed on grounds of lack of evidence.
  • Second, the AFSPA grants wide powers to the security forces such as the authority to use lethal force on grounds of mere suspicion, arrest any person against whom a reasonable suspicion exists that he/she has committed or is about to commit an offence, enter and search any premises for purpose of arrest or to recover any person, arms, explosives. Under the sweeping powers of arrest and to enter any premises without due procedure and safeguards, the doors are swung open to perpetrate wider human rights abuses such as arbitrary detention, torture whilst in detention and other incidents including rape and enforced disappearances. Further, the right to use lethal force gives an impetus to carry out arbitrary killings on a mass scale, violating the basic right to life of the civilians. Moreover, accountability or safeguard measures are not even mentioned in the AFSPA.

These two factors have contributed to a deterioration of the situation on the ground, and the creation of an atmosphere that encourages continued human rights violations. When combined with the wide authority granted to the security forces vis-à-vis the provisions of the AFSPA, the impunity engendered by the absence of effective judicial review has resulted in a significant deterioration of the human rights situation.

The question remains as to why are human rights violations occurring against civilians by the security forces on such a widespread scale?

The human rights abuses can be attributed to extreme counter-terrorism measures in the ‘wider interests of security’ which have had significant consequences for the civilian population at large. It seems that the security forces are using extreme measures so as to demoralise the population from supporting the separatists and to extract information about the terrorists. The difficulty of identifying the enemy amongst the people is a challenge which the forces are addressing by broadening the scope of who can be considered as a suspect. Not surprisingly this has had a devastating effect on the population.

There is a perception that the population’s basic human rights have been sacrificed in the interests of security. This environment, coupled with a significant military presence, has resulted in a climate of pervasive fear. Residents are worried that they or their families will be caught up in a counter-terrorist operation, and become victims to serious human rights violations. The absence of effective judicial review means that security forces can continue to infringe upon or violate civilians’ human rights without the threat of accountability. This in turn has resulted in a worsening of the situation on the ground, contrary to the very aims of introducing this emergency legislation which was to address the urgent security issue and bring stability to the region.

During the Universal Periodic Review of India before the United Nations Human Rights Council in 2012, member states recommended that the AFSPA be repealed. Moreover, international organisations such as Amnesty International and Human Rights Watch have been continuously pushing attention towards this repressive legislation. However, strong resistance from the military on the grounds of operational necessity has meant that no change has occurred. In India, there exists no mechanism by which the military can be asked to justify its methods of conducting operations and AFSPA contributes to this by granting immunity for any actions they may deem necessary for their operations.

Politically, the issue has come to the crossroads after the recent elections in J&K. It is hoped that the coalition government would agree on withdrawal of AFSPA from J&K by seriously considering the greater harm posed by it. The government has to acknowledge that respect for human rights and rule of law may lead to an improvement of situations in J&K in a way that has not been achieved by high handed counter-terrorism measures under the garb of impunity.

Disclaimer: The views expressed herein are the author(s) alone.

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