he recent report in The Hindu daily that prosecution sanctions sought against Army officers against whom serious charges of heinous crimes committed under cover of the Armed Forces Special Powers Act, AFSPA, including rape and murder, were shot down by the Union home ministry, exposes yet again the hollowness of the charge that the AFSPA is being unfairly defiled by activists with interests inimical to the Army as an organisation and the country as a whole. The contention has also been that the AFSPA is a tough but innocent piece of legislation meant to face an extraordinary situation, and that in the hands of a responsible and disciplined organisation like the Army, it can do no injustice. The argument further is that even if there are tendencies of the AFSPA being taken advantage of and used beyond expected norms, such tendencies would be checked in no time. The Hindu report has demonstrated that all the efforts to rescue the AFSPA from its demoniac image and give it a sanitised look are a deliberate cover up. It may be recalled, the AFSPA is well shielded from the country’s judicial system. Any allegation against soldiers acting where the Act is promulgated has to first have prosecution sanction from the Union home ministry before the soldiers can be taken to court.
Just to quickly recap The Hindu report, it said in the past four years alone, the Union home ministry rejected at least 42 requests to sanction the prosecution of military personnel found by the police to have engaged in crimes such as murder, homicide and rape in Kashmir. This report quite ironically comes in the wake of a Supreme Court judgement by a two-judge bench a week earlier that the AFSPA, ought not to cover cases in which crimes such as murder or rape were committed. Going into details, the report said 31 of the cases in which sanction was denied relate to rape, culpable homicide or murder. The others involve a wide variety of crimes, ranging from criminal trespass to illegal confinement. In not a single of these cases, had sanction been granted, it further said.
The report brings to the fore once again the glaring and blatant injustice brought about by a lack of accountability on one hand, and on the other the almost complete lack of transparency of the entire hierarchy involved in the execution and application of the AFSPA, from the ordinary soldier empowered beyond acceptable human norms by the Act to the Union home ministry which gives the soldier cover from scrutiny by the court of law for crimes the soldier commits under the Act. Thanks to the Right to Information, RTI Act, undoubtedly one of the most, if not the most progressive legislation the Indian Union has introduced since the day the country’s constitution came into being, not all filth of the officialdom can be swept under the carpet anymore.
There can be no doubt the AFSPA has outlived its days. It is indeed, as so many have argued, an Act to handle an emergency situation. But if this emergency has lasted over half a century, the prognosis cannot be still called an emergency much less tackled as an emergency. It is a much more sustained ailment and the therapy would have to be something radically different from how it is being treated currently. True, form the statist viewpoint, there can be no argument there still exists an extraordinary situation and the state is called upon to deal with the situation. What is however pertinent is, the instruments conjured up for this mission as well as strategies employed must change. The AFSPA must be repealed and a suitable replacement found. Or else, the AFSPA must be radically overhauled. In particular, it must be made altogether accountable to the court of law. Even if it can be argued that the state governments would be swayed by local sentiments, the prosecution sanctions which now come from the Union home ministry, perhaps could be made the responsibility of the state Governor, who is the eye and ear of the Centre. Because Governors are stationed in the states concerned, they would have a much better pulse of the place than some joint secretary or secretary in charge of the Northeast sitting in the Union home ministry in New Delhi. The argument that floods of civil litigations would stymie the function of the troops is also spurious. It implies there are too many infringements of the law under the AFSPA so that there would be too many cases to handle. If on the other hand, the apprehension is, there would be too many false litigations, it betrays a lack of faith in the judicial system’s ability to admit or reject these litigations depending on their merits. Furthermore, if this is the fear, a provision that makes false litigations liable to penalty could be introduced so that only genuine complaints are encouraged to be lodged at the courts.
Read more / Original news source: http://kanglaonline.com/2012/02/afspa-under-fire/