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RIGHTS-INDIA: Moves to Scrap Hated Security Laws in Kashmir

Athar Parvaiz

SRINAGAR, Mar 5 2009 (IPS) - As political parties in Indian Kashmir debate the repeal of the Armed Forces Special Powers Act (AFSPA) in the insurgency-hit state, civil rights activists hope that this will fructify into a withdrawal of the sweeping powers given to armed forces in this state since 1990.

Jammu and Kashmir Chief Minister Omar Abdullah responding to the debate in the state assembly on repeal of the AFSPA.  Credit: Athar Parvaiz/IPS

Jammu and Kashmir Chief Minister Omar Abdullah responding to the debate in the state assembly on repeal of the AFSPA. Credit: Athar Parvaiz/IPS

The present debate was triggered by the killing of two youth by security forces a fortnight ago in Bumai-Sopore, some 50 km north of this city, the summer capital of Jammu and Kashmir state.

After the incident sparked protests by local people India’s Home Minister P. Chidambaram admitted that ‘’standard operating procedures were not followed by security forces’’.

The main opposition party in the Indian Kashmir assembly, Peoples Democratic Party (PDP) moved a resolution in the assembly days after the incident blaming the deaths of the innocent youth on ‘’unbridled powers given to security forces,’’ through the AFSPA.

"Scrapping of this Act (AFSPA) is a must to prevent loss of human lives at the hands of the troops,’’ PDP legislator Choudhary Zulfikar Ali told the Indian Kashmir assembly which is currently in session.

Most political parties in Muslim-majority Kashmir region favour repeal of the AFSPA irrespective of whether they favour secession from India or are nationalist.

The one exception is the right-wing Bhartiya Janta Party (BJP), which has a presence in the Hindu- dominated Jammu region of Kashmir. "If the AFSPA is scrapped, it would deprive the security forces of the necessary powers to fight insurgency,’’ says Chaman Lal Gupta of BJP. Jammu city serves as the winter capital of the state.

The AFSPA, a federal law, was introduced into Kashmir in 1990, a year after secessionist militants began an armed struggle against Indian rule and the region was put under the direct central rule.

"The Act was supposed to remain in effect for a short period, but successive governments that followed its imposition never showed any will to revoke it even after the security situation improved in Kashmir,’’ said Sheikh Showkat, a professor of law at Kashmir University.

‘’On the contrary, the National Conference government in 1997 enacted an additional law called the Disturbed Areas Act (DAA) and then declared the whole state as disturbed,’’ Shhowkat recalled.

Civil rights activists assert that the stage is now set for scrapping the Act going by the prevailing security scenario. "The chief minister himself announced in the state assembly that the number of militants, active in Kashmir, has been reduced to 800. This is far below the number of militants in early 1990s when their numbers ran into thousands,’’ says civil rights activist, Hameeda Nayeem.

India controls only two-thirds of the territory of Jammu and Kashmir while a third is administered by Pakistan. Both countries have laid claim to the entire territory ever since they gained independence from colonial rule in 1947 and were partitioned along religious lines.

India claims that Pakistan has been financing and backing separatist militancy in Kashmir in a bid to push for a permanent settlement of the territorial dispute but this has been steadfastly denied by Islamabad.

Several wars fought between the two countries have also failed to resolve the issue and the territory remains divided by a fenced Line of Control (LoC).

Pakistan’s civilian leadership under President Asif Ali Zardari has suggested that India and Pakistan could set aside the Kashmir issue for a future generation to resolve while concentrating on first improving bilateral relations.

This approach has led to a reduction of militant activity in Indian Kashmir which, at least partly, facilitated the smooth and peaceful conduct of assembly elections stretched over November and December, last year.

PDP president, Mehbooba Mufti says that the Working group regarding Confidence Building Measures (CBMs) set up by Indian Prime Minister Manmohan Singh during a Round Table Conference (RTC) on Kashmir in February 2007, had also recommended that the AFSPA should be repealed.

"If measures like revocation of AFSPA and troop reduction are taken, they can help build an atmosphere of goodwill among the people,’’ Mehbooba told IPS.

A working group, which was headed by the Hamid Ansari, now Vice President of India, had further recommended: "Certain laws made operational during the period of militancy (Armed Forces Special Powers Act, Disturbed Area Act) impinge on fundamental rights of citizens and adversely affect the public. They should be reviewed and revoked."

The Washington-based Human Rights Watch (HRW) observed in its report released in August 2008 that: "Enacted on August 18, 1958 as a short-term measure to allow deployment of the army against an armed separatist movement in India’s northeastern Naga Hills, the AFSPA has been invoked for five decades… A variant of the law was also used in Punjab during a separatist movement in the 1980s and 90s, and has been in force in Jammu and Kashmir since 1990."

"The AFSPA has not only led to human rights violations, but it has allowed members of the armed forces to perpetrate abuses with impunity. They have been shielded by clauses in the AFSPA that prohibit prosecutions from being initiated without permission from the central government. Such permission is rarely granted."

According to HRW the law grants the military wide powers to arrest without warrant, shoot-to-kill, and destroy property in the so-called "disturbed areas."

Abdul Rahim Rather, law minister of the provincial government said that although law and order is a provincial subject under the Indian federal system "the [Kashmir] state government has no power to scrap these laws’’.

Senior advocate Zaffar Shah opines that the government of Indian Kashmir cannot scrap the AFSPA on its own. "Since the Act is regarding the armed forces like the regular army and paramilitary forces, which are under the direct control of the federal government, the state government cannot scrap it."

But Shah says that the Kashmir government can make the Disturbed Areas Act (DAA), which applies to the state police, ineffective by simply withdrawing the notification which it had issued in 1997. "However, the approval of the entire assembly is necessary for its repeal.’’

Responding to the demand of the PDP regarding the scrapping of the AFSPA, Kashmir’s chief minister, Omar Abdullah recently said in the assembly that his government would work towards it. "My government is creating the conditions conducive for the withdrawal of the AFSPA from the state.’’

Abdulah’s statement was welcomed, among others by Mirwaiz Umar Farooq, leader of the Hurriyat, a grouping of several pro-independence political groups. "In the backdrop of our agenda, this statement can be perceived positively,’’ the Mirwaiz, an influential, hereditary religious leader, told IPS.

‘’Hurriyat wants revocation of all black laws and complete withdrawal of the army,’’ the Mirwaiz said. ‘’Statements cannot make any difference… something practical should be done. "

Rights activists say the sudden interest in repealing the draconian laws may have to do with the upcoming general elections. "These parties need issuses that appeal to the voters,’’ says Shaheen Iqbal, a human rights activist.

India’s Election Commission has announced five-phased, general elections in the country due to roll from Apr. 16 to May 13.

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