J&K perhaps has a new normal. A rollback of the changes, with the restoration of Article 370, though being demanded by certain political parties, is quite unlikely. There is no political space for it at the national level. It was only a temporary provision, which rightfully stands nullified. Sooner than later, people shall reconcile, particularly as the violence levels are dipping. After the basic needs of a conflict-free Valley are met,the next requirement is of jobs,industry and trade. The shikaras in the Dal Lake need to ply on the gentle waters, and the carpet-makers need to charm the tourists with their exquisite wares. In such a happy Valley, the AFSPA can be selectively removed, with its removal linked to normalisation. It shall both be a healing touch as well as a political masterstroke. The law shall be happy.
It is over one year since the abrogation of Article 370. While the nation’s attention has been taken up by a larger strategic challenge from China, the Kashmir Valley is slowly returning to normal. Returning, debatable but yes, as the violence parameters are down, the security forces have neutralized a number of terrorists, internet is restored at many places, and the political activity is picking up in Srinagar and Jammu, albeit cautiously. Both the naysayers and the optimists have been proved wrong. The Valley did not burn post the removal of Article 370, as predicted naysayers, but nor did the investors flock to down-town Srinagar to set up Call Centers and fancy manufacturing units, as predicted the ever-optimists. However, Kashmir has lot of resilience, eventually the things will settle down, and then the elephant in the room shall once again loom large. The elephant is the Armed Forces (Special Powers) Act (AFSPA). The AFSPA question shall reemerge, and shall be an important cog, if not in the normalization process, then in the political process in J&K. By all predictions, the political process shall revolve around three key demands, restoration of the special status, restoration of the statehood, and the removal of AFSPA, perhaps in this order of priority.
The debate is divisive. In this maze of hardened opinions, many essentials have been lost. The utility of a legal cover for the security forces in any counter-insurgency situation cannot be overstated. However, firstly the politics. The divisive debate on the AFSPA may be out of primetime thanks to trio of China, Corona and (Rhea) Chakraborty, but is sure to gain prominence, as the newly constituted political parties in J&K shall try to woo voters while the older parties shall find new agendas. AFSPA shall be old wine in new bottle. In fact, the demands for the repeal of this Act or the contrary views are highly cyclic in nature. The removal demand fosters rather well during peace spells in J&K or when political mileage is in sight while these agitating voices fade away as soon as there is a spike in terrorist activities, a Pulwama-type heinous terror attack or the overall violence levels increase in the Valley. From one liberal end of the spectrum, which describes the Act as ‘draconian’ and ‘arbitrary’ to the other end led by the security establishment and the right- of-centre parties, which justifies the Act to enable security forces to combat terrorism, the stances have been hardened and there is apparently no middle path.
Secondly, the law. In fact, the law should always come first, not only for a lawyer like me, but for everyone, but I allow the politics as described above to take the centre stage. We begin with establishing the necessity of the law. No country in the world allows its soldiers to be devoid of legal cover while operating in combat, war-like, counter-insurgency, anti-terrorism, or related situations. It did not happen in Iraq, Afghanistan or Vietnam in overseas deployment, or it did not happen in Chechnya in Russia.
More about the law. It may be noted that there is nothing extraordinary or ‘Special’ about the Act. It is
named as ‘Special’ as there is no ordinary provision in the CrPC or IPC which can allow the Armed Forces of the Union to suitably act in a terrorism affected area. By all accounts, there is nothing arbitrary in the Act and its constitutional validity has been upheld by the Supreme Court of India in the 1998 Naga People’s Movement for Human Rights versus the Union of India. In fact, in this landmark judgment the Supreme Court made it mandatory for the Armed Forces to adhere to the highly comprehensive Do’s and Don’ts.
It may be noted that finally, it is a law, and violations of the law can be punished, and in fact while enabling the Security Forces to operate, the violations have not gone unpunished. For many years, the Army has been regularly giving out figures of Army personnel, including officers, who have been found guilty of human rights violations and awarded exemplary. This is in spite of being protected under the Section 6 of the Act. Therefore, it may not be inaccurate to state that the necessity of the act and the validity debate is settled, but the political situation and the healing debate is not.
According to the critics, the Act had become a symbol of the high-handedness of New Delhi and another example for their insensitivity to the people and the (earlier) democratically elected government of J&K. The way forward may lie here. A prerequisite to the Act is that the area should be declared “disturbed” under the Disturbed Areas Act, the enabling provision of law, which facilitates the summoning of the Army and any other security forces. In this, the final decision vests with the Centre with the State Government (or the Union Territory (UT)) only in a recommendatory, but not binding, role. The 1972 amendments to AFSPA extended the power to declare an area disturbed to the Central Government whereas in the 1958 version of AFSPA, only the State Governor had the power. This may be rolled back wherein the recommendations of the State Government, except in grave circumstances, with respect to the area being “disturbed” or otherwise, shall be necessary under Section 3 for the Act to be imposed. In spirit, if not in modalities, this arrangement shall be akin to the Status of Forces Agreement, which the UN and even US sign with the host country before deploying peacekeepers or troops. It shall give more power to the State, or now the Union Territory of J&K.
A precedent exists. On July 11, 2004, the alleged rape and killing of Thanjam Manorama, suspected to be a cadre of the People’s Liberation Army, sparked agitations throughout Manipur for the withdrawal of the AFSPA. In response, the AFSPA was withdrawn by the Manipur State Government from seven assembly constituencies of Greater Imphal in August 2004. The State Government acted unilaterally, despite reservations expressed by the Central Government. However, the Central Government conceded and commenting on the issue, Prime Minister Manmohan Singh stated that, “AFSPA was enforced in Manipur by an explicit decision of the Government of Manipur and hence they have a right to modify their decision”. If it can be done in Manipur, it may be replicable in J&K, a UT which is much closer to the hearts of policy makers in the national capital. Maybe giving a leading voice to the Governor, if not to the people, shall be the healing touch, which New Delhi is long searching for, particularly as the situation is returning to near-normal. This would be an incentive for conflict prevention in the J&K.
Lastly, some caution and taking take of the operating needs as well as the sensitivities of the security forces. The implementation in Manipur was not without its pitfalls. The Greater Imphal area had become a safe haven for the insurgents, wherein if not violent acts, but incidents of extortion, arms-smuggling, drug- dealing and plotting violence had become commonplace, putting significant strain on the Army and the Assam Rifles. Finally the security forces had to isolate the area and minimize the linkages between the AFSPA and non-ASPSA areas, and the situation still presents legal challenges to the security forces. A repeat wherein Sopore or Shopian becomes a ‘safe territory’ within the Kashmir valley cannot be allowed. The Governor shall have to ensure that while making his or her recommendations.
J&K perhaps has a new-normal. A roll-back of the changes and a restoration of Article 370, though being demanded by certain political parties, is quite unlikely. There is no political space for it at the national level. It was only a temporary provision, which rightfully stands nullified. Sooner than later, people shall reconcile, particularly as the violence levels are dipping. After the basic needs of a conflict-free valley are met, the next requirement is of jobs, industry and trade. The Shikaras in the Dal Lake need to ply on the gentle waters, and the carpet-makers need to charm the tourists with their exquisite wares. In such a happy valley, the AFSPA, can be selectively removed, with its removal linked to normalization. It shall both be a healing touch as well as a political masterstroke. The law shall be happy.
Major Nirvikar Singh, Retd, is an advocate in the Supreme Court of India.
