[Reader-list] dna edit: The case against AFSPA

[Asit Das]

*dna* edit: The case against AFSPA
Friday, Dec 27, 2013, 7:42 IST | Agency: DNA

The Machchil fake encounter case is the exception that proves the rule;
justice cannot be served when the security apparatus is above the law
 [image: Pic for representational purpose.]
Pic for representational purpose. - Pratham Gokhale/DNA

The army’s decision to court martial six of its men for their involvement
in the 2010 Machchil fake encounter case is both welcome and open to
interpretation. Justice for the cold-blooded murder of Reyaz Ahmed Lone,
Shahzad Ahmad Khan and Mohmmad Shafi by army men is in itself an unalloyed
good. But the tricky part is liable to come when the court martial is used
to bolster the argument that it is possible for the army to police its own,
as it inevitably will be. The corollary, of course, is that justice can be
served within the framework of the Armed Forces Special Powers Act (AFSPA).
That is a mug’s game. Machchil is not an indicator of the army in Jammu &
Kashmir and the northeast becoming more accountable. It is, if anything,
the exception that proves the rule.

Consider the fact that Machchil is the first instance of major action being
taken against a serving army official for involvement in human rights
violations. This when AFSPA has been in effect in various parts of the
country since 1958. Pathribal, Chattisinghpora, Sopore, Shopian and any
number of such instances bear testament to the manner in which Kashmiris
have been systematically alienated. The International People’s Tribunal on
Human Rights and Justice pegs the number of people gone missing in the
state since 1989 at over 8,000. From international bodies such as Human
Rights Watch and Amnesty International to domestic activists, observers
hold the instances of rape and extrajudicial killings as numbering in the
tens of thousands. And this is one state. Look further east and there is
the 2004 Manorama Devi incident, while a case concerning 1,528 alleged fake
encounter deaths in Manipur is now before the Supreme Court.

AFSPA draws upon the antecedent of Section 197 of the Criminal Procedure
Code, 1898 — a handy little piece of legislation introduced by the British
to protect their officials engaged in the imperial endeavour. It doesn’t
take any great stretch of imagination to see the symbolism inherent in now
using such a law against people on the fringes of the Indian state. A
democratic nation is founded on the principle of equality before law. When
a vast section of the security apparatus in parts of the country is exempt
from this principle, what remains is, by definition, no longer democracy.
And the military’s logic — that AFSPA is essential to fighting militancy —
is deeply flawed. Instilling a siege mentality in the people of a state
does not tamp down such sentiments; it feeds them.

The various organs of the Indian State have flubbed every opportunity to
bring about a change.

>From Prime Minister Manmohan Singh to then-Home Minister P Chidambaram,
various members of the executive have spoken of the need to take another
look at AFSPA — and left it at that. The SC buckled in the Pathribal case
last year when it upheld the AFSPA provision that the prosecution of army
personnel in states where the act is in effect must be sanctioned by the
government. Given political exigencies, that is as good as granting
immunity. Earlier this month, Lt Gen Gurmit Singh, commander of 15 Corps of
the army’s Northern Command had said: “I don’t want any such person in the
Indian Army who is found guilty of rights violation and any such official,
whosoever he may be, will be prosecuted.” An admirable sentiment — but the
only way in which it will be fulfilled is if the country’s civilian
authorities rediscover their spine and democratic principles and move to
repeal AFSPA.