Confusion over AFSPA
Questions raised over ratification of DAA in J&K
All it takes is an army general’s assertion to puncture
chief minister Omar Abdullah’s mythical balloon of Armed Forces Special Powers Act revocation. The army commander northern command, General K.T.
Parnaik, in Jammu, asserted on Army Day that it was for the Union Ministry of Home Affairs and the Defence Ministry to decide on any review of the
AFSPA. Earlier, army officers including the army chief have put their foot down to any talk about AFSPA review or revocation. Such statements reflect
two things. One is the powerlessness of the chief minister who claims to have all the powers in his hand, by virtue of heading the Unified Command
headquarters comprising the agencies engaged in counter insurgency operations in Jammu and Kashmir. Second, it is the increasing might of the army top
brass in making assertions that are political in nature or the prerogative of the Executive of the country. Besides, the fresh statement only adds to
the already existing confusion about who has the ability to call the shots on the issue of AFSPA. About a week ago, a response to an RTI application
revealed that Jammu and Kashmir in the last nine years has never made any proposal for reviewing or revoking the AFSPA, a draconian law that remains
in the eye of the storm owing to the continuum of human rights abuse at the hands of security forces. For several months, chief minister Omar Abdullah
is trying to offer statement after statement, almost trying to sound very convincing in his argument that partial revocation of AFSPA is just around
the corner. His father Farooq Abdullah asserts that it is within the powers of the chief minister to decide about the revocation of the law. Just
about two months ago, Omar made a similar assertion that his government has the authority to revoke the AFSPA. And the union home ministry and defence
minister have only added to the confusion by maintaining cryptic silence both over the issue and the speculative media reports that indicate anything
from the two ministries agreeable about revocation to their strong opposition on grounds that any revocation would aid terror groups.
But despite
all this euphoria and confusion built up around AFSPA, technically, the chief minister may not be wrong in asserting that his government has the
authority to decide on a law which has evoked widespread resentment, because of both its abuse and its over-use in shielding indisciplined and brutal
personnel within the armed forces. AFSPA can be extended to any part of the country only after the state government declares the area as disturbed.
The AFSPA has a legitimacy only as long as the Disturbed Areas Act has been invoked and it is well within the powers of the state government to extend
or withdraw that. Interestingly, AFSPA may already have lost the constitutional legitimacy it seeks, despite being violative of basic democratic
principles, with DAA not having been legally ratified since a decade. The Act which was brought about in 1990 in the Valley and militancy hit areas of
Jammu and Kashmir was later extended to all of the state with the enactment of Disturbed Areas Act 1997, though only for a year. However, after it
lapsed, it was never ratified and as per a supreme court ruling, no area of the country can be declared disturbed for an indefinite period. Whether or
not, the Indian mandarins can manage to challenge this legally or not, the fact remains that the state government has no visible intentions of
withdrawing the Disturbed Areas Act. Such inaction betrays the bid to use the issue and blow the trumpet of partial revocation by the ruling party in
the state as a political gimmick. Besides, it also betrays the inability of the state government to challenge the might of the all powerful authority
in New Delhi, even if legally and politically correct arguments can guide the course of such a stand.
[editorial-Kashmir Times-Jan 18, 2012]
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