AFSPA in Jammu and Kashmir- A needed reform or an infringement of human rights?
This article was written by Niitya Ranjan, a student of Jindal Global Law School.
The Armed Forces (Special Powers) Act was implemented in Kashmir in 1990. It gives the armed forces the power to arrest people without a warrant, not allow a gathering of more than 5 people at a time, search homes without a search warrant, stop and search any vehicle- among other rules that infringe on basic human rights. “The law grants virtual immunity to members of the security forces from prosecution for alleged human rights violations. Not a single member of the security forces deployed in the state has been tried for human rights violations in a civilian court. The central government has denied permission, or ‘sanction’, to prosecute security force personnel under the AFSPA in every case brought against members of the army or paramilitary or has kept the decision pending for years.” (Amnesty International, n.d.)
The Armed Forces (Jammu And Kashmir) Special Powers Act, 1990 was implemented in Jammu and Kashmir on 5th July, 1990. The Act states that, “If, in relation to the State of Jammu and Kashmir, the Governor of that State or the Central Government, is of opinion that the whole or any part of the State is in such a disturbed and dangerous condition that the use of armed forces in aid of the civil power is necessary to prevent—
(a) activities involving terrorist acts directed towards overawing the Government as by law established or striking terror in the people or any section of the people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people;
(b) activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India from the Union or causing insult to the Indian National Flag, the Indian National Anthem and the Constitution of India.” (THE ARMED FORCES (JAMMU AND KASHMIR) ACT, 1990)
While many agree that the turbulent political climate, along with the increased threats from terrorist groups made the implementation of this law a dire need in 1990, most feel that enough time has passed for this law to be discontinued/replaced by other alternatives which do not infringe basic human rights. In 1990, there was a drastic increase in the number of terror attacks by insurgent groups in the state- most of whom were fighting for the recognition of Jammu and Kashmir’s independent status- which made the Government of India implement AFSPA as a means to contain the damage and help restore a sense of peace and normalcy in the affected areas. However, over the last 30 years, the tenor and climate of the state along with the security issues have changed drastically- leading to a need to review AFSPA and its validity. Many compare the AFSPA Act to the Rowlatt Act, 1919, as it can arrest any suspicious person solely on the basis of doubt. (Singh, 2019)
This act has been in place for over 30 years, and no concrete, non-politicised efforts to repeal it and replace it with a more citizen-friendly alternative have been implemented so far. In 2019, when the political parties released their manifestoes, the Indian National Congress aimed at scrapping AFSPA if it came to power, since they considered it to be legal cover with respect to ‘enforced disappearance, sexual violence or torture’. (First Post, 2019) Meanwhile, the current Prime minister’s take on the issue was- “Removing AFSPA from Jammu and Kashmir is the same as sending our soldiers to the gallows. I will never let this happen to our soldiers,” (First Post, 2019)
For years, Jammu and Kashmir have been a source of contention and animosity between India, Pakistan and the people living in Jammu and Kashmir. Political parties from all sides have turned people’s unrest and terror into political leverage for their own benefits. Time and time again, we have witnessed parties make empty promises to help secure their vote bank- without giving second thought to the innocent lives that are being lost, the infringement of basic human rights that has been going on for the past 30 years.
Historically speaking, “the people of Jammu and Kashmir, under the Independence Act of 1947, were free to accede, either to India or Pakistan, on the basis of their communal position. At the time of transfer of power, Muslims constituted about 87 per cent of the entire population and they had religious and cultural affiliation with Pakistan. Therefore, it had a natural affinity of allying with Pakistan. Shahid Amid and Som Nath Dar documented that Maharaja Hari Singh, under India’s pressure, decided against the people’s inclination the partition plan and chose to ally with India. However, signing of the Instrument of Accession, its terms and timings are still a controversy. According to the writings of British historian, Alastiar Lamb and Sten Widmalm, the Instrument of Accession was never signed at all rather it was forged afterwards. India, in the name of the Instrument of Accession, consolidated its troops in the Jammu and Kashmir territory before the people of Jammu and Kashmir could decide their fate. The people of Jammu and Kashmir rejected this ‘forced accession’ and fought against the forcible occupation by Indian military forces. Afterwards, when this situation intensified, the issue of Jammu and Kashmir was brought to the United Nations (UN) and a debate was started by the UN under the title “Kashmir Question” which was later changed to ‘The India-Pakistan Question.’ ” (Khurshid, 2016)
The UNSCR 91 rejected the formation of a constituent assembly and its decisions regarding the future of those living in Jammu and Kashmir. Inspite of that, India considered Jammu and Kashmir to be an ‘integral part’ of India- according to the instrument of accession. This resulted in two full fledged wars between India and Pakistan- the Indo-Pak war of 1965 and the Kargil war of 1991. Both these wars had a detrimental impact on both the countries- economically and otherwise. Ever since the partition of India, there was unrest in the areas of Jammu and Kashmir due to the heightened tensions between both India and Pakistan. Many terror attacks caused the Indian government to take a stand and therefore, resolve to implement AFSPA in 1990.
Apart from the fact that under AFSPA many basic human rights are curtailed, another major issue that has been observed is the misuse of power by the armed forces. There have been instances of gross corruption and complete abuse of power. An example of that would be the Kunan Pushpora incident in 1991. “Four personnel of the Rajputana Rifles allegedly raped at least 23 women in Kashmir’s twin villages of Kunan and Poshpora. It was supposed to be a cordon-and-search operation to trace militants, but turned out to be the blackest of nights in Kashmir’s violence-ridden history. As per the 2012 Jammu and Kashmir State Human Rights Commission (J&K SHRC) report – the men in the villages were first ordered to come out of their houses and taken to a separate location. Then members of the security forces who had “turned into beasts” forcefully entered these houses and “gagged the mouths of the victims and committed forced gang rape against their will and consent”. Even minor girls as young as eight years of age were not spared.” (Umar, 2017)
Even after such a horrendous crime had been committed, no justice was given to the victims. The Kunan Pushpora incident was one of the darkest and most gruesome acts of injustice that has gone unpunished due to the free reign given to the armed forces under the act. The case was not investigated with the same rigour as other rape cases- “there were unprecedented proportions of ignorance.” (Umar, 2017)
“Army officials are not immune under AFSPA if they sexually assault women or commit rape. Section 7 of the Act provides protection from prosecution for “anything done…in exercise of the powers conferred”. These “powers” include causing death, search and arrest without warrant; and they cannot be taken as a token of liberty to sexually assault residents. But, under AFSPA-related offences, military personnel cannot be prosecuted unless there is a prior sanction by the central government. Responding to an RTI application filed by an NGO, the Jammu and Kashmir Home Department stated that ‘no sanction for prosecution has been intimated by the Ministry of Home Affairs and Ministry of Defense to the State Government from 1990-2011 under the J&K Armed Forces Special Powers Act’ ” (Umar, 2017) This shows the level of deep-rooted corrupt practices that are prevalent in Jammu and Kashmir, which are overlooked under the garb of this act.
But Jammu and Kashmir are not the only places where AFSPA has been implemented- Many states in the North East were also subjected to this law. “It is effective in the whole of Nagaland, Assam, Manipur (excluding seven assembly constituencies of Imphal) and parts of Arunachal Pradesh. The Centre revoked it in Meghalaya on April 1, 2018. Earlier, the AFSPA was effective in a 20 km area along the Assam-Meghalaya border. In Arunachal Pradesh, the impact of AFSPA was reduced to eight police stations instead of 16 police stations and in Tirap, Longding and Changlang districts bordering Assam. Tripura withdrew the AFSPA in 2015.” (What is AFSPA, and where is it in force?, 2018)
“A 2016 petition by the Extrajudicial Executions Victim Families Association claims that around 1528 executions were carried out in just Manipur by the police and security forces. The series of disappearance of Kashmiri men have given birth to the new concept of half-widows, a reference to the wives of disappeared men who have no information of their husbands’ whereabouts. It is believed that the mass graves that have been found all over Kashmir contain the bodies of these “disappeared” men. Besides this, rape as a weapon of war used by security forces to humiliate and intimidate civilians routinely goes unpunished.” (Anu, 2020)
There was a lot more media attention given to the execution of AFSPA in the North East, with activists such as Irom Chanu Sharmila garnered a huge following with their radical ways of protesting. She went on a hunger strike for 16 years to show her dissent towards AFSPA. When the act was eventually repealed from Imphal, she ended her hunger strike. She acted as an inspiration to many, and soon there were multiple instances of peaceful protests taking place in different states of the north east to show their opposition to the Armed Forces (Special Provisions) Act.
All these efforts helped the people from these states retrieve the human rights that had been taken away from them. However, there has not been any impactful effort for the same when it comes to Jammu and Kashmir. The strict surveillance and regulations make it next to impossible for people to freely voice any opinions contradicting the authorities.
Another issue that has arisen is the abrogation of article 370 and article 35(a) under the Jammu and Kashmir reorganisation act, 2019. This act was implemented on 31st October, 2019 and led to the bifurcation of the state of Jammu and Kashmir into 2 union territories- Jammu and Kashmir, and Ladakh. This constitutional amendment initially left a lot of grey area about the future of the AFSPA. Nowhere did the government mention if it is being revoked or repealed. “Before the state of J&K was bifurcated, it was the MHA or the Governor that issued authority on Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (21 of 1990). The notification issued by cabinet secretary also renamed Department of Jammu and Kashmir in MHA as “Department of Jammu, Kashmir and Ladakh Affairs”. The notification said the MHA department will be responsible for all matters relating to the UT of Jammu and Kashmir or UT of Ladakh, including counter terrorism within J&K and coordination with the ministry of defence in regards to manning and managing the Line of Control between India and Pakistan, but excluding those with which the ministry of external affairs is concerned.” (Economic times, 2019)
It has been more than 6 months since the reorganisation act was implemented, and so far, the Home ministry has not commented on AFSPA at all. The state of Jammu and Kashmir is still in turmoil, fake encounters and reckless use of power is still at an all time high. In fact, with the communication barrier that was imposed in J&K, along with the massive blackout, it is safe to assume that the condition of the people living there has not improved. When the government was questioned about their decision to make the constitutional amendment which would lead to the bifurcation of an already turbulent area, they said- “We are committed to annulling Article 35A of the Constitution of India as the provision is discriminatory against non-permanent residents and women of Jammu and Kashmir. We believe that Article 35A is an obstacle in the development of the state. We will take all steps to ensure a safe and peaceful environment for all residents of the state,” “It also said: “In the last five years, we have made all necessary efforts to ensure peace in Jammu and Kashmir through decisive actions and a firm policy. We are committed to overcome all obstacles that come in the way of development and provide adequate financial resources to all the regions of the state. We reiterate our position since the time of the Jan Sangh to the abrogation of Article 370.” (Jacobs, 2019)
While many agreed with the government’s decision, most believed that Article 35A was a good compromise as it brought attention to the fact that Jammu and Kashmir was granted a ‘special status’ as opposed to it being seen in the same light as all other states in the Republic of India. “Jammu and Kashmir parties say Article 35A protects the identity of the people of the state and safeguards jobs and scholarships for state subjects.” (Jacobs, 2019) Thus, scrapping the article may have had an adverse effect on the people of J&K rather than a positive impact.
Keeping all these changes in mind, along with the fact that the current political atmosphere is dominated by a government that has highly nationalistic ideals, the oppressive blanket enveloping Jammu and Kashmir does not seem to be lifting in the near future. The ambiguity around AFSPA in the Jammu and Kashmir reorganisation act, 2019, leaves ample room for misinterpretation and mis-governance by all political parties and defence forces. Not only does this cement the lack of human rights in Kashmir, but it also brings to light an important question-To what extent are these acts and rules created to better the lives of the people or to what extent are they used as instruments of coercion and subjugation, in an increasingly turbulent, political environment.
Works Cited
(n.d.). Retrieved from Amnesty International: https://amnesty.org.in/campaign/broken-families/
(2019, April 9). Retrieved from First Post: https://www.firstpost.com/politics/narendra-modi-to-news18-removing-afspa-in-kashmir-is-like-sending-our-soldiers-to-the-gallows-i-will-never-allow-it-6412281.html
Anu, T. (2020, January 26). Seventy One Years of AFSPA: Failed State Machinery. Retrieved from https://www.newsclick.in/seventy-one-years-AFSPA-failed-sate-machinery
Economic times. (2019, November 5). Retrieved from Economic times: https://economictimes.indiatimes.com/news/defence/home-ministry-can-take-call-on-afspa-in-jk-and-ladakh-rules-notified/articleshow/71861648.cms
Jacobs, J. (2019, August 5). Retrieved from NDTV: https://www.ndtv.com/india-news/what-is-article-35a-and-why-it-is-a-sensitive-issue-in-kashmir-2080268
Khurshid, T. (2016). United Nations Security Council Resolutions: Status of the People of Jammu and Kashmir. Strategic Studies, 100-122.
Singh, H. (2019, April 30). Retrieved from Jagran Josh: https://www.jagranjosh.com/general-knowledge/what-is-asfpa-and-powers-given-to-armed-forces-1525695112-1
THE ARMED FORCES (JAMMU AND KASHMIR) ACT. (1990, September 10).
Umar, M. (2017, February 23). Retrieved from The Wire: https://thewire.in/rights/26-years-after-kunan-poshpora-army-still-enjoys-immunity-for-sexual-violence
What is AFSPA, and where is it in force? (2018, April 23). Retrieved from The Hindu: https://www.thehindu.com/news/national/what-is-afspa-and-where-is-it-in-force/article23648102.ece
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