|| ZUHAIB YOUSF MIR
“Her beauty is her curse” I am sure the reader must have read this adage multiple times. In my perspective this line is most relevant to the context of Jammu and Kashmir in plethora of ways. Kashmir is a place of high mountains;meadows, serene rivers and all the forms of aesthetic beauty manifest in this world can be found in Kashmir. All this is a dreamland by those who visit as a tourist but un- fortunatelyfor the Inhabitants, Kash- mir is a place of wrongs, inequality, bereavement, annihilation and worst of all injustice.
These perils in para- dise have constantly molested and stripped it off its beauty not once but incessantly. One such peril that gives legitimization to all the perils and is in fact the major Act that governs military action in Jammu & Kashmir. It is the Armed Forces (Special Powers) Act, 1958 [as amended in 1972]. Human rights activists have long claimed that this Act is unconstitutional and violates international humanitarian law.
The Supreme Court has, like in the earlier case of TADA, maintained the validity of the law, but in view of the potential abuse of human rights has laid down some detailed guide- lines for its use. But are these details been really taken care of while carrying out the brazen atrocities on the population? The rest of the article will constitute how atrocities and in- human demeanor can be institutionalized and how a population is more sinned than the sin. One fact about the Act is that it gives no precise definition of “disturbed area.” The pronouncement of any area as ‘disturbed’ under Section 3 is the prerogative of the Governor of the State or the Central Govern- ment. The State legislature will have no jurisdiction in the decision and this is in contravention with the constitutional law as ‘public order’ is a State subject and comes under seventh schedule of the constitution.
Then Section 4(a) of the Act, even a non-commissioned officer can order his men to shoot to kill “if he is of the opinion that it is necessary to do so for maintenance of public orders” This gives discretion to even very junior officers. And prima facie evidence in many situations has been that many times this law has been used to satisfy some personal gain and to satiate a grudge. Likewise, Section 4(b) allows such military personnel to obliterate any shelter from which, in his view, armed attacks are likely to be made or which has been utilized as a shelter by absconders wanted for any offense.
This autonomy has permitted the devastation of large numbers of houses and other buildings in the State. According to a report by amnesty international property worth millions of rupees has been destroyed in the last 10 years alone. Section 4(c) of the Act permits the arrest without warrant, with whatever “force as may be necessary” of any person against whom ” a reasonable suspicion exists that he is about to commit a cognizable of- fence.”
This has provided the foundation of random arrests, and the use of brutal force including firing against innocent civilians. And this is also,purported by the local people, the reason behind unmarked graves and disappearances. One can imagine military personnel operating in a socially alien terrain, views and beliefs and theoriesand opinions and lastly reasonable suspicions are often wholly unfounded leading to human rights abuses.
Long decades of war has the potential that could break any society, squash its imagination, aspiration and spirits, and kill its determination. Graveyards, despair, gloom, disdain, sorrow stories in houses are endemic to Kashmir .. The visitor does not possess the capability to see what Kashmiris have witnessed, suffered from, and endured.
One of the members of association of parents of disappeared persons said that of the sections that is been ramantly misused is the Section 5 of the Act that explicitly outlines, “Any per- son arrested and taken into custody under this Act shall be made over to the office in charge of the nearest po- lice station with the least possible delays,”.
Section 6 exempts Army personnel from prosecution, stating that no prosecution legal proceeding shall be instituted, except with the prior sanction of the Central Government, against any person in respect of anything donein exercising the powers conferred by this Act.And this is where the major part of the fault lies. The central government has rejected permission to prosecute under section 7 of the AFSPA in almost every case brought against members of the army or paramilitary, or in a small number of cases, has kept the decision pending for years. And as we know justice delayed is justice denied.
Going by the facts, after assessing Police and court records pertaining to nearly 100 cases of human rights violations lodged by families of victims after 1990 showed that the Jammu and Kashmir police has often failed to register complaints or take action on registered complaints until they were compelled. Amnesty international reported that in some cases, army personnel have been reluctant or refused to cooperate with police investigations. The continued misuse of this law, and the immunity from prosecution it provides to military personnel, is a major source of human rights violations by army formations in the State.
In Geneva in March 1991 the members of the human rights committee agreed and were categorical that Acts like such are violative of several Articles of the International Covenant on Civil and Political Rights to which India is a signatory.On cannot be arbitrarily snatched away from the right to live. This is one of the fundamentals of the international law. India has endorsed this and cannot wish away
“Mohammad Amin Magray, uncle of 17-year- old Javaid Ahmad Magray, who was killed in April 2003 by security force personnel, told “If the Army knew they would be charged, and will have to go to court and be prosecuted, they will think ten times before they pull their triggers on an innocent”.
from this international declaration. Besides right to live is a fundamental right as per Indian constitution. On these grounds the legality and validity of this act is unfounded. Mohammad Amin Magray, uncle of 17-year-old Javaid Ahmad Magray, who was killed in April 2003 by security force personnel, told “If the Army knew they would be charged, and will have to go to court and be prosecuted, they will think ten times before they pull their triggers on an innocent”.
Long decades of war has the potential that could break any society, squash its imagination, aspiration and spirits, and kill its determination. Graveyards, despair, gloom, disdain, sorrow stories in houses are endemic to Kashmir .. The visitor does not possess the capability to see what Kashmiris have witnessed, suffered from, and endured. Arrests, disappearances, torture, assassinations, crackdowns, custodial killings, fear and failed promises of politics, Kashmir is too intimate with all these. Yet the hope, the will to forge a solution and most importantly the re- silience that few possess are still there.
The current Chief Minister of Jammu and Kashmir, Mufti Mohammed Sayeed, was the Union Minister for Home Affairs when the Indian Parliament enacted the AFSPA in 1990. After such a huge mandate that the people of Kashmir bestowed upon him, he now possesses a significant and legendary opportunity to work and exterminate the heinous law , which also happens to be a part of his “agenda of alliance” with the BJP.
Let us hope we are able to forge justice so that posterity judges and remembers Kashmir for the beauty it possesses and not for retribution be- cause I or anyone else who is an advocate of humanity thinks that a man’s life legacy and culture is less impor- tant than the letter of the lawless law.
- Zuhaib Yousf Mir
- MSc Economics
- University of Edinburgh
