Author: Saadut
•12:09 AM

There has been lot of rhetoric on AFSPA lately in the power corridors of Kashmir. Media took the rhetoric bait and went into a AFSPA v/s no AFSPA debate, with many experts who never had ever experienced AFSPA themselves, distributing free ‘gyaan’ on this act and Kashmir. No soon had the political chair expressed views on AFSPA, Army raised the red flag demarcating their own lines on the ‘who has what of’ control in the state, political class seemingly relegated to spectator class. Not having to take the army ‘no’ as an answer, the political seat undertook a Delhi yatra hoping to get the political brass there aligned to this idea. The Delhi winter prevailed upon the Kashmir political chill and no real ice could be broken, fatigues stole a march and the political class escaped to some silence.

While the AFSPA talk generated a lot of debate outside Kashmir, on ground zero in the valley it was virtually a ‘no show’ political performance. Not that Kashmiri’s don’t despise the draconian law, but the amount of trust deficit for the power politicians on the ground is so high that no level of political posturing would prove the rhetoric spinning politicians sincerity towards the good of common people. The same political class that is viewed to have survived on the blood gore of the common man for decades could not make believe their cry against the same tool that nurtured their power continuity.

For those who have been clamoring for repeal of AFSPA must remember many of the human right violations in Kashmir have been blamed on the local police whose prosecution should have not been limited for the state by AFSPA. The promise of ‘action within 24 hours ‘ for the 29th June 2010 killings of three innocent youth (aged 23 years, 20 years and 25 years), who were shot dead in the lawns of a house in SK Colony, Islamabad, Anantnag has not seen the light of ‘justice’ yet. Neither has the Sopore custodial killing of July 2011, which was described as gross human right violation & inexcusable”, seen any of the promised “Swift & exemplary action. No delays, no cover ups, no excuses. That's all I can promise & ensure. It's not enough, of that too I'm aware” till date.

2010 saw massive protests where more than a hundred youngsters were shot dead by police and paramilitaries in Kashmir. The expressions of disillusionment and political discontent were met with bullets and jack boots. Hopes of any ‘justice’ farfetched, police have often been accused of not even registering basic FIR’s on most of the killings of 2010. And no the denial or approval for registering of proper FIR in killings is not subject to any AFSPA. Even after a lapse of almost two years there was no progress by the police in the killing of Tufail Matto, a teenager who was killed by a projectile fired by the police while he was coming back from tuitions in July 2010, prompting the Jammu and Kashmir High Court this September to ask the DGP (Director General of Police) for constituting a fresh SIT to probe the killing. Justice here too takes a backseat, while families run pillar to post, AFSPA or no AFSPA.

“There are cases that have seriously embarrassed us and put us on the defensive. Pathribal is one of them and unfortunately Machil is developing into another one. The reluctance of the defense establishments to be seen to be taking action on what clearly are the cases of human rights violations is something i am unable to paddle,” in an interview given to a national news channel. While they may be making Pathribal an example of ‘justice withheld’, the state has not been able to push New Delhi in providing the go ahead for prosecution of the accused. There has still been no prosecution in the Machil fake encounter where police have charge-sheeted 11 persons including a Colonel and 2 Majors of the Army, before the Court of CJM (Chief Judicial Magistrate) in North Kashmir, Sopore.

In a state where the writ of state runs less than the writ of fatigues, both the army and local police have been seen to violate human rights with impunity. Just days after 2 innocent civilians were killed by troops of Rashtirya Rifles near Bomai in north Kashmir (In Feb 2009) and hours after the home minister of India had promised action in the Bomai killings, Indian paramilitary CRPF killed an innocent carpenter (35 year old) at Kheegam village near Pakherpora. Justice again awaited.

It has been openly believed that many renegades have had political affiliations and patronage in Kashmir, renegades who have been accused of murdering countless innocent people. One among them a prominent renegade from Pampore is accused of killing 23 civilians from that area, and currently facing trial for killing a Nishat civilian 15 years ago. Not only have these renegades worked outside the ambit of law, the prosecution for their lawlessness never happened for decades, and this prosecution had nothing to do with AFSPA or no AFSPA.  In yet another 14 year old case the state has not been able to pursue the successful extradition of Major Avtar Singh from California, USA, accused of killing human rights activist Jaleel Andrabi and many others in 1996, even after having been declared a proclaimed offender by court. And I am not sure if there is any clause in AFSPA stopping extradition of accused.  

These custodial killings in Kashmir could just be tip of the iceberg, as per the APDP (Association of Parents of Disappeared Persons) around 10,000 have gone missing during the two decades of conflict pointing out that most of them went missing in custody. In fact APDP had released a report in 2008 called “Facts Underground” where it had mentioned about the presence of unmarked graves in Kashmir.  The reports of 21,56 unidentified bodies at 38 grave sites in north Kashmir districts and almost 2500 unidentified graves from Poonch district adding to the worst fears of the families of the disappeared of Kashmir. The SHRC report called for probing of these unidentified mass graves by an ‘impartial agency’, “A proper FIR should be registered keeping in view the claims and investigated thoroughly by an impartial agency — not only in north Kashmir but across the state wherever such unmarked graves exist”. But any credible and impartial investigation is still awaited.   

While we could go on and on listing the human rights violations by paramilitaries and police in Kashmir, there could be very few instances where justice may have been dispensed.

AFSPA should be undoubtedly revoked from wherever it has been implemented; an act which inherits its legacy from a British India Ordinance (AFO 1942) then used against the ‘Quit India’ movement, and cannot be used as a state tool in a democratic setup. Not only is the act draconian in nature, it closes all doors on human justice with failed redressal mechanisms.  But before the politicians try to raise a din about this inhuman act, they need to do a retrospection of their own state apparatus. How many of rights violations from their own forces have been noted, prosecuted and acted upon? How does the political class use the state might to further political ends. Do the state attempts to barricade civil attempts for justice not go contrary to its claimed intent behind AFSPA revocation talk? It would be worthwhile if the process of ‘passing on dividends of peace’ and ‘ensuring justice’ got a start from the state itself. The incidents of ‘baptism by fire’ for the politician shall abound in Kashmir. Before the power corridors look out towards bigger power centers of New Delhi for remedies, they need to start the mechanisms of justice within this place.

On their part the Indian Army has also been attempting to create a greater space for itself in the decision making of Kashmir affairs. From its basic role of ‘assisting the civil administration’ it seems to have taken over the mantle from the same civil administration, assuming more self allotted powerful roles in this volatile region. ‘The Hindu’ (Nov 11th 2011) reported “The Army's top commander in Jammu and Kashmir has said the country could be compelled to grant the State independence by 2016 if government plans to lift the controversial Armed Forces Special Powers Act from some areas go ahead”. The statement raised more questions than it answered, about the intensions behind Army asking for continuity of AFSPA in the state. Was the act required to keep in check the few hundred militants reported to be operating in the state or was AFSPA a tool to be used in controlling the civilian population here? Whatever happened to the claims that the common population having been won over by democratic methods in Kashmir? At its best the statement pointed to the widening gap between the common Kashmiri and the Indian main stream, which was to be bridged by AFSPA.

Killings of civilians in Kashmir could be conveniently tagged by as ‘collateral damage’ but what do you tag the reports of rape by the men in uniform, protected by AFSPA? The village women of Kunan Poshpora, in north Kashmir await justice since February 23, 1991.

Pertinently when during the Bomai killings the state government promised protesting locals to relocate the local RR camp within 12 days, prompting a senior defense officer of northern command to comment that a district commissioner had ‘no domain over security issues and cannot dictate to us what to do’ (Greater Kashmir, March 7th 2009). Finally the highest office of the state government had to take up the matter with New Delhi, only after which the camp could be ‘relocated’ 2 kms away. In a scenario where the state cannot on its own even get an army camp, accused of killing innocent civilians, relocated a few thousand meters, expecting them to flex authority for prosecuting the accused army officials is too much and then at the extreme end to revoke AFSPA is too much of dreaming. The interest of Army in continuity of AFSPA in Kashmir is seen as an attempt to hold on to unprecedented authority on the daily lives of civilians and in the fear of losing the impunity that they operate with. When the political administration cannot even ensure security of its civilian population from the forces that it was supposed to command for the protection of state, a political administrative catastrophe is ensured. The common man becomes the proverbial wheat being ground between the two grinding stones, one who is relegated to a mere war statistic.

Till the time barricades of justice in Kashmir are not removed and the political courage shown to unravel, uncover and accept the wounds inflicted on Kashmir and have justice delivered, Kashmiri’s shall take all the rhetoric talk as just another non-serious political repertoire. In legal terms AFSPA survives only on DAA (Disturbed Area Act) for which the state has all the powers to recommend revocation, on the ground level, in real terms such an action from the state is found wanting.

The intent of justice will hold true only when charity is started from home. And not all who call for justice against human rights violations are enemies of the state.

Nov 19th 2011, Srinagar

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