Before seeking law’s repeal to lift AFSPA in J&K, ask separatists to halt Protests, Violence

The government deserves praise for lifting Armed Forces Special Powers Act (AFSPA) from Meghalaya and most parts of Arunachal Pradesh. However, this must not act as a precedent to lift the law in Jammu and Kashmir. There has been no significant violence in Meghalaya and Arunachal Pradesh as opposed to Jammu and Kashmir.

It must be stressed that the application of AFSPA in itself can’t be condemned in isolation. Application of AFSPA is a necessary evil if the army is to operate in any given area. The recent statement by Mirwaiz Umar Farooq of the Hurriyat Conference, seeking a similar treatment for Jammu and Kashmir is completely misplaced. AFSPA is applicable in Jammu and Kashmir because the army is operating in the state, and the army is operating in the state because there is terrorism in the state.

Mirwaiz should, therefore, call for an end to the violence first. AFSPA can eventually be revoked if there is no sustained violence, as has been the case in Meghalaya and Arunachal Pradesh.

Demands for removal of AFSPA without a call to the insurgents to halt the violence amounts to holding the Indian State to ransom. The Constitution provides a framework, wherein separatist movements can exist in a non-violent way, which should be the method for the separatists, given they want to stick to their demands.

However, if the separatists resort to violence, the government has full right to respond with equal or more violence. The modern Indian State can’t stick to the Gandhian doctrine of non-violence when it is being attacked violently through foreign sponsored organised terrorist activity.

A law is only a medium through which a policy of the contemporary government is implemented. The present policy of the Indian State is that Jammu and Kashmir is an integral part of India. The separatists don’t believe in this policy. The only option before them is to petition and plead against this position of the State through means and methods available under the scheme of the Indian Constitution. If they don’t do that, it is only obvious that the Indian State will respond with full might and all the resources at its disposal.

The AFSPA is only one such instrument which the government has put to work to implement its policy.

Since the separatist movement has become violent in Jammu and Kashmir, the Indian State responded with violence, for which AFSPA was a necessary means. Also, the proportion of violence may have been greater in subduing the insurgency in the state. To complain against such proportion is only funny, because it can’t be expected out of any retaliation that it would be in the same magnitude as the attack. The Indian establishment has the necessary means to respond with the requisite proportion and hence it did, and it should, even if it is greater in proportion.

It has to be borne in mind that the army is not the police. It operates with a degree of discretion, which is absolutely necessary for it to function. In a war-like situation, the army personnel need to take instantaneous decisions which can only be trusted upon their discretion. AFSPA specifically does that. When an area is declared as a “disturbed area”, the army gets special rights to arrest, fire and search at the cost of the usual civil rights of the people. But these powers are very fundamentally necessary if the army is to function to its full efficiency.

Another provision which has acted a lot of criticism is that the army personnel are given immunity from civil and criminal laws while acting under AFSPA. Such criticism also completely misses the point — that the army is not the police. If the army personnel would have to remain cautious about some future criminal proceedings against their action, it is impossible that they would be in a position to act freely.

Having said that, however, this law can’t be used to commit crimes like rape by the army and then seek protection under AFSPA. The law doesn’t provide blanket immunity; it is subject to sanction by the central government. If there are such grave allegations against any army personnel and the evidence on record prima facie indicates commission of such an offence, it is incumbent upon the government to provide sanction and see to it that justice is delivered.

The activism, however, against the law in Jammu and Kashmir, is highly political and misplaced. The activists should advocate and work for a halt in violence and then ask for repeal of AFSPA. Only then will it make any sense.