Dr. Sadaf Munshi

India’s extremely controversial Armed Forces Special Powers Act (AFSPA) – a cruel, repugnant law used in Jammu & Kashmir since 1990 and in the Northeast since 1958  – permits, according to its critics, a localized form of de facto emergency rule. The provisions of AFSPA include the power of the armed forces to make preventive arrests, to search premises without warrant, and to shoot and kill civilians. The Act gives legal immunity to the armed forces implicated in a wide range of criminal activities.

Torture, brutalities, arbitrary staged killings, enforced disappearances, sexual assault and rape have become an ancillary to the “security” concerns associated with AFSPA. The Act was initially passed by the Indian Parliament on September 11, 1958 in response to the continued unrest in the Northeast, specifically Assam and Manipur, amidst the demand for a “Free Sovereign Naga Nation”. Ironically, AFSPA has its roots in the British Indian Empire’s Armed Forces Special Powers Ordinance of 1942, which was promulgated on August 15, 1942 in order to suppress the Quit India Movement – a civil disobedience movement that started around the same time in response to Mahatma Gandhi’s call for Satyagraha (nonviolent resistance). The legal framework for the implementation of the AFSPA is provided by another colonial Act, the Disturbed Areas Act.

In Retrospect: Fake Encounters and Other Civilian Killings in Kashmir    

Because AFSPA provides a protective cover and complete immunity against trial for various kinds of (otherwise) criminal activities (including rape and sexual assault), fake encounters have been fairly common in the Indian administered Kashmir over the last many years. Technically, a “fake encounter” is a staged shootout operation, an intentional and organized killing of citizens — nationals or foreigners — by the armed forces. There are different motivations and incentives for such extra-judicial killings — procurement of awards, medals or promotions, vigilantism, targeted assassinations, and orders from the higher-ups (the latter perhaps in an exercise to demonstrate “action” in response to any previous terrorist activity). The modus operandi associated with such “encounters” include:

• Picking up of victims surreptitiously from a certain place and killing them elsewhere in a far off place where the residents are unable to identify them; this helps to present innocent civilians as “foreign militants named X, Y, Z”,
• Pretending as if the act were part of a standard “security” operation,
• Planting weapons, arms and ammunition against the dead bodies in an exercise to presenting them as threats and justifying the killings,
• Changing the clothes of the victims and even burning the dead bodies to make identification difficult,
• In certain cases, explaining the discrepancy in police records that show that the individual was in custody at the time of his “encounter” by stating that the suspect had “escaped”.

Let’s take a look at a few organized “encounters” we have seen in Kashmir valley in the last fourteen years and some of the consequences related to them:

On 25th of March 2000, five innocent civilians were killed in a staged shootout by the Indian security forces at Pathribal — a village in the Anantnag District of Kashmir. The forces had claimed that the men were the “foreign militants” responsible for the massacre in which 35 members of the Sikh community had been murdered earlier that month on March 20th at Chattisinghpora – another village in Anantnag. After massive protests, the bodies of the slain men were exhumed and an investigation began. In 2006, five officials of the Rashtriya Rifles 7th Battalion were indicted and held guilty of “cold-blooded murder” of the five men after an inquiry by the Central Bureau of Investigation (CBI). A chargesheet was filed in a designated court in Srinagar (the summer capital of Jammu & Kashmir) against Brigadier Ajay Saxena, Lt Col Brajendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena and Subedar Idrees Khan. The five civilians had been allegedly abducted and killed in a staged encounter.  This was followed by many years of a legal battle, with the CBI pressing for the trial and the Army seeking immunity under AFSPA.

The specter of fake encounters continued to be repeated over the years. One of these happened in early 2010. On April 30th that year, bodies of three men were exhumed in the Kupwara District. The slain youth had been reported missing from a village Nadihaal in Rafiabad immediately after they had gone with an ex-Special Police Officer allegedly “in touch with the Army” (Hindustan Times, May 28, 2010). The killings took place at Machil, and were followed by protests and more civilian deaths. Earlier, in February 2010, a 16-year-old boy was killed in a bullet injury while playing cricket near a tourist place; this killing also had triggered massive protests. The following months in the summer of 2010 saw a bloodbath, which led to the loss of about 118 more innocent civilian lives in Police firing. The whole episode was accompanied by stringent curfews and a complete breakdown of communication between the government and the public. The entire population of the valley was literally held hostage in their houses for a period of three months.    

Only three years later, in September 2013, four people were shot dead by the Central Reserve Police Force at Gagran in south Kashmir’s Shopian town. The men, initially claimed by the Police to be “militants” belonging to the terror group “Lashkar-e-Taiba”, later turned out to be civilians with no prior records or association with any known militant organization. Given major discrepancies and gross violations such as these one is bound to suspect any new arrests and allegations by the government forces. 

Is There an Effective Strategy in Place to Resist AFSPA?

In 2011, Omar Abdullah, the chief minister of Jammu and Kashmir, started a campaign to have the AFSPA withdrawn from the state, but his pleas largely fell  to deaf ears. One of the ensuing debates in this exercise was whether to repeal the Act (while keeping the Armed forced in the concerned areas where their presence is seen as a necessity by the government incapable of “dealing with the situation” which it claims to be “still worrisome”) partially from some areas that are deemed to be ‘safer’ or more peaceful than others or from all the regions altogether.

On August 8th 2011, in what appeared to be a “toughening” of its stand against extra-judicial killings, the Supreme Court of India said that those responsible for fake encounters should be given death sentence and hanged. Nevertheless, this was more talk and little action. Recall that in 2006, the CBI had sought trial for “exemplary punishment” of the accused officers in the Pathribal killings. In 2012, however, in a significant deviation from its 2011 position, the Supreme Court granted the Army involved in the Pathribal “encounter” two options for conducting the proceedings: through a civil court or through its own Court of Inquiry. Of course, the Army chose the latter. In January 2014, the Army’s Court of Inquiry (CoI) declared the matter of the death of the five civilians killed at Pathribal as “closed” claiming immunity under the AFSPA. Of course, in December 2013, an Army court did order “court martial” proceedings against six people (one colonel, one major and four others) in connection with the 2010 Machil fake encounter case. This, however, would only pass as a token gesture, and given what followed in the context of the Pathribal case too little and too late.

Conclusion

India has a record of brutality and injustice in scores, even hundreds, of cases throughout the country. One notable example is the 2001 case of a bakery worker of Jaunpur killed in Mumbai, allegedly in response to “Sten-gun wielding terrorists firing on the police from the terrace of the bakery”; notably, the 17 policemen who raided the bakery and an adjacent “madrasa”, found no terrorists or Sten-guns. Scores other cases where innocents were picked up on “suspicion” and languished in jails for years without a fair trial. Some of these were held for over a decade before they were released for “lack of evidence”. Amidst such a grim state of affairs it is only hoping against the hope that justice will ever be delivered.

(Jan. 5, 2016)