Special powers to act and evade
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When Chief Minister Omar Abdullah announced the withdrawal of the Armed Forces (Special Powers) Act from certain areas areas in Jammu and Kashmir, it was a political move with many objectives.
The government, however, had to put the plan on hold. Though the Home Ministry has been in favour of a withdrawal, the plan came under severe criticism from the Army, which argued that a withdrawal, even if partial, would hamper its counter-insurgency effort because of the legal shield that the Act provides its troops.
The movement to remove the AFSPA is a popular one in Kashmir. The reason is not just the Act's draconian nature, which critics say takes away even the fundamental right to life in a disturbed area (see box), but also the way the Army has misused it to stonewall every effort to bring to book those involved in fake encounters, killings in custody, and even rape.
According to the AFSPA, any armed forces personnel involved in a human rights violation cannot be prosecuted without the approval of the Centre — of the Defence Ministry for the Army, and of the Home Ministry for paramilitary forces. This legal shield provided to armed forces personnel in a disturbed area is a protection "for acting in good faith" during operations.
This would imply that the shield is only for genuine mistakes committed during counter-insurgency operations. But police investigations have found that violations committed by armed forces personnel were not always in the line of their duty — for example involvement in rape, fake and staged encounters and killings in custody — in which case the immunity provision should not have been applicable.
The Army, however, has routinely been invoking the immunity clause to shield its men from prosecution in civil courts. Even in cases of serious rights violations investigated by the state police, with chargesheets filed, and which were subsequently forwarded by the state government to the Ministry of Defence, sanction for prosecution has been very rare. The Army has not allowed the prosecution of even those of its men accused of rape, sexual violence and murder of civilians who had been picked up and then killed in staged encounters. Cases in point are Machil in 2010, Ganderbal in 2007, and Pathribal in 2000.
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