AFSPA or no AFSPA, who cares? A view from Kashmir

The key recommendations of the Justice Verma Report

Political parties, human rights groups and various other organisations have made unheeded calls in the past for doing away with or amending the Armed Forces Specials Powers Act (AFSPA), but will the criticism of this  legislation by the Justice JS Verma committee be the turning point?

   Presenting the report to the Ministry of Home Affairs, a member of the committee Gopal Subramaniam today said that armed forces, including para-military forces, should be brought under common law when operating in conflict zones in order to stem the number of cases where women were sexually exploited. “There’s an imminent need to review the continuance of AFSPA in areas as soon as possible,” Subramaniam said, adding that mechanisms need to be put in place to take action against military and para-military forces in conflict zones.

Can’t security forces do without the shield of AFSPA? Subramaniam said that it had noticed the “impunity of systematic sexual violence” that was being legitimised by AFSPA and that measures to ensure the security and dignity of women would have a long term impact.  “General law relating to detention of women must also be strictly followed,” he said. The legislation, which allows personnel of armed forces to enter homes without a warrant and arrest people if they are perceived to be involved in a crime, has been cited by various human rights groups as being draconian and a denial of basic human rights to the people in states where it is implemented. The law which seeks to protect armed forces in conflict zones from being hindered by general law, requires sanction to prosecute personnel accused of crimes.

   However, in the context of sexual crimes against women the tide may be turning, with even the Supreme Court recently observing that in cases of rape and sexual assault security forces should not be able to shield themselves with the AFSPA. ““You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted, and that is our stand,” a Supreme Court bench consisting of Justices BS Chauhan and Swatanter Kumar noted recently.

   Those against the law argue that often the collection of evidence and prosecution of personnel charged with sexual crimes are delayed because of the sanction needed to prosecute then, resulting in weakening the case of the victims.  However, the Indian Army chief has so far shown no signs of wanting any dilution in the law in regions like Jammu and Kashmir, despite political pressure, and said it was “an enabler” for soldiers to fight militancy in an asymmetric environment.  Addressing reporters before Army Day, Singh had said that soldiers in the state work in an environment where it was difficult to differentiate between friend and foe as militants mingle with civilian population.  “These are enablers. They give additional powers,” he said, adding “There should not be dilution of AFPSA.”

He also said that such amendments should be made after consulting all stake holders.

The Army Chief has a point. In an asymmetric conflict zone, there is the need to ensure that every operation conducted by a security force is not hampered by legal red tape. However, sexual assault and crimes against women cannot be condoned under any legal provision and cannot be allowed to go unpunished.

Perhaps the JS Verma committee report will spur the talk with all stake holders that the Army Chief sought and a start could be made by allowing crimes against women to come under general law. Providing basic dignity and human rights to people already affected by internal conflict can never harm the sentiment towards security forces operating there. If it requires amendments to the AFSPA, then perhaps its time to start talking about it.

Source: http://www.firstpost.com/india/with-verma-committee-report-clamour-against-afspa-gets-louder-599663.html