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

by Fahad Shah I remember the day in Srinagar, fifteen years ago, during the 1996 assembly elections in Kashmir. I was playing cricket with my brothers when there was a loud bang on the iron gate, followed by the entry of a man in uniform. He was a Border Security Force (BSF) man, wearing a bulletproof waist over an olive green uniform and he had a rifle slung from his shoulder. We stopped playing and I stood there with my bat wondering who these men were as he walked in followed by several other men dressed like him. They asked for men, only ones who looked like adults. As children, we were ignored. The BSF man said, “Vote daalne chalo.” (Come to cast your vote) My father was not at home but my maternal uncle was. So they took him with them. This was not only during the elections. After that day, for years to come, forces would enter our houses, sometimes twice a week and search the entire house. They would dismantle everything inside and while the inhabitants huddled outside, even in the winter. Then it didn’t matter who you were – man, woman or child. That day, for the first time, I understood what elections mean in Kashmir. You are forced to vote. You are forced to leave your house. Your belongings are thrown here and there. You have no choice but to obey the orders. If you refuse you can end up with red marks on your body. You might be bed-ridden for a few days. You might even find yourself in prison. The Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA)  signed into law by the President of India in 1990 helps the forces to treat civilians that way.  As per the section 4, sub-section (d) of the act  armed force men, commissioned officers, warrant officers, or non-commissioned officers, can

“enter and search, without warrant, any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawful kept in such premises, and may for that purpose use such force as may be necessary, and seize any such property, arms, ammunition or explosive substances.”

They have the power “to break open the lock of any door, almirah, safe, cupboard, drawer, package or other thing, if the key thereof is withheld.” [caption id=“attachment_214158” align=“alignleft” width=“380” caption=“The debate on the partial removal of the act has been going on for a long time now. AP”]  [/caption] The debate on the partial removal of the act has been going on for a long time now. But I don’t see it being removed even inside the military cantonment areas like the one in Badami Bagh. Omar Abdullah has been unable to deliver on that election promise. On 24 November, 2011, The Economic Times wrote, “Despite the position Omar seems to enjoy in New Delhi, he appears to have failed to convince the forces who matter to even consider his suggestion that would have come as a major boost to his popularity after the major setbacks he has faced since he took over in January 2009. Curiously, the same forces opposing the move tooth and nail have always maintained that plebiscite was no longer valid due to successive elections in the state. The chief minister had won the elections on the promise of good governance and revocation of the draconian laws. So, how credible are these polls in terms of deliverance on the basic promises made to the people before these elections?” What that article does not say is how credible are these polls. Thousands of miles away from Kashmir, most Indians just read figures reported in the media about how the percentage of voting surges with evey poll. But those numbers don’t tell the entire story where so many people have so often been forced to vote. Whether during elections or for protests, draconian laws like AFPSPA come into handy for government forces in Kashmir. It gives the armed forces impunity. Last week on 10 February, Ashiq Hussain Rather, 22, of Lasser village of Baramulla district was killed by Rashtriya Rifles men just outside his house. On spotting the soldiers outside their house, Shugufta, his younger sister screamed in panic. Ashiq rushed out of his house. The family says that the soldiers gunned down Ashiq without any provocation. “But (the soldiers) ran away when a crowd gathered and we raised a hue and cry,” Mudassir Ahmad, Rather’s relative, told the Daily Mail. The government has ordered a probe, like many other probes which have never reached any conclusion. With the AFSPA in the state, the armed forces men who killed Ashiq cannot be prosecuted without the sanction from the central government. The act is a hurdle in the prosecution of armed forces. It has been widely condemned but it still continues. But in Kashmir you don’t even need the AFSPA to crack down on civilians. I remember covering the story of Omar Qayoom Bhat, 17, a class 11 student of Malik Sahib, Soura in 2010. Omar was beaten up by police and CRPF’s joint party on 20 August, 2010 and then allegedly “tortured” in the police station. On 24 August, 2010, he died after being on a ventilator for 51 hours. The hospital death certificate showed the cause of death was pulmonary hypertension with severely deranged blood gases, diffuse intrapulmonary haemorrhage and blunt trauma on chest. When we were at Omar’s home, talking to his father, the magistrate of the area arrived. He told us, “I was at the spot on the day of protests. When the protests started a Central Reserve Police Force officer told me to allow opening fire. I refused. I thought these are little children. How can they be shot. He asked for permission again but I refused. After sometime I heard gunshots. They started firing on their own…” I asked him, “How can they shoot without your permission?”  According to the Criminal Procedure Code, it is the local magistrate who can call the army to aid civil authority. The military commissioner has to obey him. The magistrate replied, “Well, my son, if  the law is to be followed then there is a complete procedure for opening fire during protests. There is a document which has three sections and is to be filled for permission. Like section A, shooting in air; B, below waist; C, on chest. But when protests start and  the forces can’t stop them, they open fire.” That is the everyday story of Kashmir. Why do the forces even need AFSPA here? They can do anything even without laws. AFSPA or no AFSPA makes no difference in Kashmir. The main problem, the cancer, still lies there.