Amnesty International’s report on Jammu & Kashmir, ‘Denied’: Failures in Accountability in Jammu and Kashmir, reminds us of what we know but choose to ignore – that the Armed Forces Special Powers Act (AFSPA) confers an impunity on its personnel which is abused to commit the gravest violations of human rights, that civil courts cannot entertain charges against soldiers without sanctions from government which are almost never given, and the only recourse therefore is to the tender mercies of military justice which, like military intelligence, is usually a contradiction in terms.
The ground it covers is a via dolorosa, over which everyone who follows human rights to its crucifixion in that state must trudge. In 2012, for instance, when the UN Human Rights Council conducted India’s second Universal Periodic Review, the process through which every country’s record on human rights is assessed by its peers, the submission from the National Human Rights Commission included this:
“The Armed Forces Special Powers Act remains in force in Jammu & Kashmir and the North-Eastern States, conferring an impunity that often leads to the violation of human rights. This, despite the fact that India’s 2011 report on the Optional Protocol to the CRC states that “India does not face either international or non-international armed conflict situations”.”
Nothing has changed since then. By concentrating on AFSPA however, a blot though it is on Indian democracy, Amnesty’s report presents only a facet of the systemic faults that make it almost impossible for victims of human rights violations in J&K to get relief, or to punish the men who violated their rights.
The NHRC is the only body in the country that has a reasonably accurate tally of the number of deaths that take place every year in what are called encounters, and which tries to establish the truth in each case. Under its guidelines, police superintendents (SPs) must report to it within 48 hours any death in police action in their jurisdiction. Each case is then taken up by one of the five members, until all documents are received, at which point it is transferred to one of two division benches, with two members on each, which meet twice a week only on these “encounter killings”. J&K, however, is a blind spot for the NHRC, and where it has been able to do the least, for a number of reasons.
The problem is that the NHRC asks only for reports on deaths in police action. There is a legal reason for this, which brings no credit to our systems of governance. Unless the Army or paramilitary forces conduct a joint operation with the police, the SP simply receives a first information report (FIR) from them, but sees no reason to report deaths for which his force bears no blame. When J&K was at its most troubled, in the 1990s, the NHRC only received reports on a fraction of the deaths that took place, through sporadic complaints, some from NGOs which collated several cases, others from families of victims.
The NHRC is unable to get comprehensive reports from the Army or the paramilitaries because its powers vis-à-vis India’s armed forces are shamefully restricted by Section 19 of the Protection of Human Rights Act (PHRA). This lays down that the Commission can only act if it receives a complaint against them, when it may ask for a report from the Central government, and take a view on the reply it gets. If there is no complaint, and in J&K there were few because civil society was muzzled and the families terrified, there is no inquiry. And the inquiry cannot be as thorough as it is on encounter deaths or disappearances for which the police are responsible, because the NHRC can only act on what the Ministries of Defence and Home send it, which is whitewash stippled as typescript.
No other public servants enjoy this screening from the NHRC’s scrutiny, including police up against the Maoists in conditions at least as difficult as those where the armed forces are deployed. Section 19 of the PHRA is as obnoxious as AFSPA; both should be repealed, but are unlikely to be, because the armed forces will fight it tooth and nail. In a case pending for several years at the Supreme Court, the Commission has therefore urged it to read down the provisions of Section 19. However, in a PIL matter which it filed recently asking for a ruling that it had the power to demand substantive reports from the Central government on complaints against the Army, the court recently ruled against the NHRC. That does not bode well.
Kashmir body no solution
The Kashmiri families to which Amnesty spoke told it that after the State Human Rights Commission was formed they now had a body to which they could take their complaints. This is forlorn because though the J&K SHRC has been far more active than many others, which are moribund, it is also powerless to help. The state government ignores its recommendations, and on cases involving the armed forces, victims or their families get an entirely false hope that they can get justice through the SHRC, which, even without AFSPA, has no jurisdiction on complaints against central forces.
The sordid problem is that the government of J&K is so jealous of its special position under the Constitution that it sees the NHRC as a threat rather than an ally in trying to get redress and relief for the residents of the state. The PHRA lays down that it will apply to J&K only for subjects under Lists I and III of the Seventh Schedule of the Constitution. The state government’s interpretation of this provision is that the NHRC has no jurisdiction over its police, or the authority to call for reports either from them or from other civil servants on the subjects in List II. It takes this to absurd extremes.
In 2010, after the summer of rage in the Valley, the NHRC took suo motu cognizance of a report that investigated the deaths, and called for responses from the Centre and the state. Since the state government had given some financial relief to the families of the dozens of children who were killed or injured, the Commission asked for details, to determine if it should recommend that the Central government supplement it, and to get a sense of the grounds on which the state had acted, which would help it to vet the reports from the paramilitary force involved. To its astonishment, the state government refused, instead filing a writ in the J&K High Court in which it claimed that the NHRC was exceeding its jurisdiction, and asking that its proceedings be struck down as ultra vires!
Before this, on a case where the NHRC held the police responsible for a death and recommended relief, the state government took the same view, arguing that the Commission had no jurisdiction, and again took it to court. Faced with this self-defeating obstinacy, the Commission issued proceedings in which it argued that List II of the Seventh Schedule of the Constitution simply specified the subjects on which the state had the power to legislate. The Commission’s orders did not touch on its exclusive power to legislate on the police, they simply asked it to take action against delinquent policemen and give relief to their victims. Seemingly run by “litigious men whom quarrels move”, the J&K government took the NHRC to court on this as well.
More than AFSPA
On AFSPA, as Amnesty International notes, the Jeevan Reddy Committee found that “the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness”. What it does not recall is that the committee recommended that AFSPA be repealed for this reason, but also felt that in the North-East, there was an “overwhelming desire of an overwhelming majority of the region that the Army should remain (though the Act should go)”. No such distinction is made in J&K between the Act and its brutal wards, and the cure the committee prescribed – to transfer the powers of AFSPA to the Unlawful Activities Prevention Act – would be worse than the disease, spreading its contagion throughout the country.
Amnesty argues that “the continued use of the AFSPA violates India’s constitutional guaranteed rights to life, justice and remedy” and, by not addressing the violations committed under its cover, India has “failed its own Constitution”. These are strong words, though true, but AFSPA saps our constitutional structure in far more insidious ways. As a law that permitted the armed forces to be deployed in aid of civil authority, AFSPA as originally enacted conferred the power only on a state government to designate an area “disturbed”, after which the Army could enter. An amendment in 1972 extended the power to the Central government as well. The extraordinary implication of this is that states in which AFSPA applies could not be trusted to ask for Central help, which must therefore be foisted on them even if they do not feel the need for it. This amendment undermined the basic structure of the Constitution. On the one hand it makes elected state governments look like traitors if they decline to invoke AFSPA; when the army is deployed over their objection, it becomes an army of occupation.
Since the Centre’s decisions on whether AFSPA should be lifted invariably depend on the wishes of the Army, now openly voiced, it also gives the Army a veto on when, where and how long it should be deployed within the country, overriding the wishes of elected state governments. That is a subversion of democracy, and must be anathema. If for this government the Constitution is the only holy book, and if it is serious about cooperative federalism, it should repeal AFSPA for these reasons alone.
Satyabrata Pal is a former Indian diplomat. He served as India’s High Commissioner to Pakistan, and as a member of the National Human Rights Commission