Why Kashmir's political parties want AFSPA to go

During his six-year tenure, former chief minister Omar Abdullah was constant in his demand for gradual withdrawal of the Armed Forces Special Powers Act (AFSPA) from peaceful areas of Jammu and Kashmir. But he faced stiff resistance. Retired and serving Army generals went on record to say that the demand for removal of the AFSPA was propelled by separatists. In one of the presentations to Abdullah when he was chairing Unified Command meeting, the Army told him that the demand to remove the AFSPA originated either from ISI or Pakistan. Abdullah shot back saying, "Let me see where I fit in".

In 1993, a Unified Command was formed in Kashmir to give a coordinated response to the threat of insurgency.

The Unified Command, also termed the Unified Headquarters (UHQ) comprises the Army, Border Security Force (BSF), Central Reserve Police Force (CRPF) and the state police. The state chief minister is the chairman of the Unified Command. The general officers commanding (GOC) of 15 and 16 corps are security advisors to the chairman. The Army's northern command chief is also the advisor of chief minister in his new capacity as state security council head.

In spite of being the political head of the state and head of the Unified Command, Omar Abdullah during his tenure failed to convince the Army to remove the AFSPA though the leadership of the UPA II seemed in sync with his arguments.

Last year in November, while welcoming the life sentence of five Army personnel in the Machil fake encounter case in Jammu and Kashmir, former home minister P Chidambaram stated the AFSPA is an "obnoxious law" that has no place in a modern, civilised country. "It purports to incorporate the principle of immunity against prosecution without previous sanction. In reality, it allows the armed forces and the Central Armed Police Forces (CAPF) to act with impunity," Chidambaram had said in a statement.

It indicated that the political leadership of UPA II was convinced of Abdullah's views but that it had failed to convince the ostensibly "apolitical" Army. Abdullah would argue that violence in J&K was reduced to 80 per cent and the process to remove the law should start. Even in his last press briefing as chief minister, Abdullah ridiculed those who would argue that in 2014 there would be resurgence in the militancy in the state after drawdown of the NATO forces from Afghanistan. But the retired Army generals considered the AFSPA a holy book and Abdullah failed to make any headway.

Now again the issue has come to the fore as Mufti Muhammad Sayeed's the People's Democratic Party has demanded withdrawal of the law and seeks its mention in the common minimum programme of the PDP and BJP.

The stance for continuation of the law despite decrease in militancy and in spite of demands of its withdrawal by the political leadership of Jammu and Kashmir makes separatists say that the elected government and the elected political leadership of the state has no powers. They allege the real power lies with the security establishment.

Unlike popular perception that the AFSPA is in vogue in all of Jammu and Kashmir, the facts are otherwise.

The AF(JK)SPA was implemented in Jammu and Kashmir on September 10, 1990, after a notification was issued by the state government declaring the Kashmir Valley as a disturbed area under section three of the AF(JK)SPA.

Later, on August 10, 2001, an order was issued by the then principal secretary home department of the government of Jammu and Kashmir extending disturbed area to Jammu province. The order says: "Whereas the governor is of the opinion that the state is in such a disturbed condition that the armed forces in the aid of civil power are necessary to prevent the activities involving terrorists acts directed towards striking terror in the people. Now, therefore, in exercise of the powers conferred by section three of the Armed Forces (Jammu and Kashmir) Special Powers Act 1990, the governor hereby declares the districts of Jammu, Kathua, Udhampur, Poonch, Rajouri, and Doda to be disturbed areas in addition to the districts Srinagar, Budgam, Anantanag, Pulwama, Baramulla, and Kupwara stand already so declared".

It points out that the state government didn't issue disturbed area notice for ten years for Jammu province from 1990 to 2001. Similarly no such notification has been issued for the Ladakh region. The state government has many times argued that Ladakh does not fall under the definition of “disturbed area” as per an ordinance issued on August 10, 2001. Therefore, the AFSPA provision does not apply to Ladakh. The mainstream political parties argue even at the height of militancy if the whole Jammu division can remain without a disturbed area notice, why should it should remain disturbed now, when it is more peaceful?

Human rights activists here say the problem in Jammu and Kashmir is not the AFSPA but lawlessness with the police refusing to register complaints against the security agencies and the police in cases of human rights violation. That is why they say the AFSPA's withdrawal makes no difference until laws are followed.

While quelling 2010 protests in Kashmir, Jammu and Kashmir police, which doesn't enjoy immunity under the AFSPA, is accused of killing 112 youths. Not a single policeman has been booked so far in spite of the state government promising that the accused would be punished.

However, mainstream political parties feel if the AFSPA is removed it would give credence to the democratic exercise in Jammu and Kashmir. Otherwise, they say, it would be back to square one - that regardless of who wins elections, Jammu and Kashmir is governed by a security establishment that never changes.