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AFSPA Meant To Check Terror, Not For Fake Encounters: Supreme Court Judge



The removal of AFPSA (Armed Forces Special Powers Act) and PSA (Public Safety Act) has found endorsement from Markandey Katju, a former judge of the Supreme Court of India. Katju commenting on AFSPA stated that Army personnel must know that they are not above the law, and cannot get away with anything as long as there is a constitution guaranteeing fundamental rights, including the right to life and liberty under Article 21.

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Katju’s article, ‘AFSPA: Army Men Cannot Get Away with Anything’ is a hope for Kashmir where for decades, the fundamental rights of people have been curtailed as the region is being governed by two controversial laws – the AFSPA of 1990 and the J&K Public Safety Act (PSA) 1978.

Security forces in the state have been enforcing these two laws against suspected militants and insurgents with increasing severity. AFSPA grants immunity to army personnel for shooting militants whom they think are likely to spread terror.

But it certainly does not authorize fake encounters or other kinds of atrocities. Experts say that this AFSPA act has not served the national interests and has in fact triggered, intentionally or not, the current spate of unprecedented insurgent violence in Kashmir.

In April 2018, AFSPA was totally withdrawn from Meghalaya, and from eight out of the 16 police stations in Arunachal Pradesh, more than a quarter century after it was first extended to these two states. The decision took into account the drop in levels of violence and the presence of insurgency in the two states.

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AFSPA was first imposed in 1958 in the Northeastern states of Assam, Manipur, Mizoram, Arunachal Pradesh, Meghalaya, Nagaland and Tripura with the aim of restoring normalcy in ‘disturbed areas’ of the country.

The same was applied to Punjab and Chandigarh for 14 years from 1983 to 1997 as a measure against the violent Khalistan movement. AFSPA was implemented in Kashmir in 1990. Mirwaiz Umar Farooq the Chairman of Hurriyat (M) called for the Act to be revoked from Kashmir too. He said the draconian and oppressive (AFSPA) law has played havoc with the lives of Kashmiris for over 30 years.

According to Observer Research Foundation paper, the Act since its inception has largely failed to achieve any of its primary objectives in the state. In 2016, the Supreme Court observed that indefinite deployment of armed forces in the name of restoring normalcy under AFSPA ‘would mock at our democratic process’.

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“Ordering a probe against fake encounters in Manipur, the Supreme Court, in its landmark judgement delivered in July 2016, remarked that ‘ordinarily our armed forces should not be used against our countrymen and women’ and that ‘every person carrying a weapon in disturbed area cannot be labelled as a terrorist or insurgent’.” These observations have to be applied to Kashmir too.

The paper says that popular sentiment in the rest of the country, fanned by political vested interests and a sense of misplaced nationalism, has come to largely view all Kashmiris, particularly the agitated youths, as misguided stone-pelters and terrorists. But it cannot be overlooked that the army has also taken cognizance of many cases and meted punishments to its personnel through army tribunals.

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