AFSPA in Kashmir: "Armed Forces' Say Prevails Anyway"

By: Gowhar Geelani

There is a lot of noise in the media over AFSPA. Ask any senior Indian security official, a turn-coat politician or a retired Army General what AFSPA stands for. "Armed Forces Special Powers Act," they will say. Now pose the same query to an ordinary Kashmiri living there in the hapless Vale for the past two decades. The answer perhaps would be: "Armed Forces' Say Prevails Anyway".

Many experts on India's TV news channels and newspapers are debating the pros and cons of the proposed partial annulment of this draconian Act from a few selected areas of the Kashmir Valley. Much is being said about the "fissures" between the coalition partners in the state of Jammu and Kashmir, the National Conference and the Congress, over the "abrogation" of the AFSPA.

The glamour scenes of this staged drama are interesting. The lead role is being enacted by none other than Mr Omar Abdullah, the embattled Chief Minister of Jammu and Kashmir. Mr Saif-ud-Din Soz, President of the J&K Pradesh Congress Committee, seems satisfied with the role of a supporting actor. The people of Kashmir continue to be the real victims.

According to the Gazette of India, the Armed Forces [Jammu and Kashmir] Special Powers Act received the approval of the Indian President on the 10 September 1990. The Act, however, was deemed to have come into force on the 5 July 1990. What exactly is this Act? Basically, it is an Act that gives certain special powers to members of the armed forces in the disturbed areas in the state of Jammu and Kashmir. "Disturbed area" means an area which is for the time being declared by notification under section 3 to be a disturbed area.

There lies the root of the problem. How is an area declared disturbed and by whom?

The Governor of the state or the Central Government, may, by notification in the official gazette, declare the whole or any part of the state to be a disturbed area. In relation to the state of Jammu and Kashmir, the Gazette of India explains, if the Governor of that state or the Union Government, is of the opinion that the whole or any part of the state is in such a disturbed and dangerous condition that the use of armed forces in aid of the civil power is necessary to prevent- "activities involving terrorist acts directed towards overawing the Government, striking terror in the people or any section of the people, questioning or disrupting the 'sovereignty and territorial integrity' of India, or causing insult to the Indian national flag, the Indian national anthem and the constitution of India; etc.

Special Powers conferred upon members of the armed forces under the AFSPA can roughly be summarized as follows:

(a) Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may open fire if he/she is of the opinion that any person is acting in contravention or breach of any law or order;
(b) he/she may destroy any arms dump or any structure used as training camp for armed volunteers or utilized as a hide-out by armed gangs wanted for any offence;
(c) arrest, without warrant, any persons who has committed a cognizable offence or against whom a reasonable suspicion exists that he/she has committed or is about to commit a perceivable offence;
(d) enter and search, without warrant, any premises to make any such arrest as aforesaid;
(e) stop, search and seize any vehicle reasonably suspected to be carrying any person who is a proclaimed offender;
(f) power of search to include powers to break open locks; etc.

At a time when top Indian politicians are selling the news to the entire world about a record number of tourists visiting the Kashmir Valley this season, the massive voter-turn out in the just-concluded Panchayati polls, the successful completion of the holy Amarnath pilgrimage, the presence of only a few hundred gun-wielding youths where there were once thousands, and the state government's focus on the issues of "governance", "development" and "employment generation" in the state, how come many "wise men" in the Indian Parliament and Cabinet then justify the AFSPA in the same breath? Amazing.
Quite amazing is also the fact that as soon as Mr Omar Abdullah made his hasty and controversial announcement in a public meeting [he termed it as "good news"] about the partial withdrawal of the AFSPA, grenades were showered on the few bunkers of the paramilitary force, the CRPF, in Srinagar and South Kashmir. Though the Jamiat-ul-Mujahideen, a pro-freedom militant group in Kashmir, claimed responsibility for these attacks, many pro-India politicians in the Valley, including the General Secretary of the ruling National Conference, Mustafa Kamal, raised fingers of suspicion towards the vested interests in the Army, the opposition Peoples' Democratic Party as well as pro-freedom leaders. How come a place that was being described as the one fast returning to normalcy can all of sudden go volatile just because of one announcement made by a mercurial Chief Minister?
By the way, many wonder about the status of the judicial probe ordered into the death of a National Conference sympathiser, Haji Syed Mohammed Yousuf Shah, in Police custody on the 30 September. Two fellow National Conference workers, Muhammad Yousuf of Ganderbal and Abdul Salam Reshi of Kokernag, had accused the 61-year-old deceased S M Yousuf Shah of Anantnag, of taking Rupees 1.18 crores from them for "assuring them a ministerial berth and a berth in the J&K Legislative Council".
Mirwaiz Umar Farooq, chairman of a faction of pro-freedom alliance, the Hurriyat Conference, has said that the Army will not allow revocation of the AFSPA for obvious reasons. Addressing a group of people at Charar-e-Sharief, Budgam, he said: "If pro-India political parties in Kashmir are really sincere, they can repeal the Disturbed Areas Act on the floor of the J&K Legislative Assembly to make the AFSPA null and void."

Meanwhile, the Association of Parents of Disappeared Persons [APDP] has demanded to end the "culture of impunity" in Kashmir. In its press release, the APDP has said: "In Jammu and Kashmir, the 8000 people who were subjected to enforced disappearance have not disappeared because of the imposition of draconian laws like AFSPA, but due to an institutional policy of repression, where even the draconian laws were defied. AFSPA requires the arrested persons to be brought before the district magistrate within 24 hours, which of course has never happened in Jammu and Kashmir."

Some reports suggest that besides other recommendations the group of interlocutors on Kashmir have also called for a review and phased withdrawal of the AFSPA. Many political commentators in Kashmir have described the trio comprising of Mr. Dileep Padgaonkar, Prof. Radha Kumar and Mr. Ansari as a "bunch of jokers" who wasted one full year to compile a "laughable" report. Mr. Padgaonkar said that the separatists had "missed the bus", but in reality not a single passenger in Kashmir boarded this bus of interlocutors with "one driver, a conductor and a cleaner". Neither did the interlocutor's bus move beyond the main station [the Union Home Ministry] nor it had the fuel in the tank [the petrol prices have seriously gone up!] to take any serious decisions. It did not have a mandate to do that.

Omar Abdullah may be right in his claim that he has Union Home Minister, Mr. Palaniappan Chidambaram in loop on the issue of the AFSPA. But, there is all-powerful Ministry of Defence. Those army personnel found guilty of killing five innocent civilians in South Kashmir area of Pathribal, in 2000, are yet to be punished. That is why many wonder whether Omar Abdullah has the mandate to take any unilateral decision on the issue as contentious as the removal of the AFSPA. When it comes to Kashmir, the Indian Army has the final say!

The Rape of Loura Jane Lambie in Kashmir

Born in 1966, 24 year old Miss Loura Jane Lambie, a Canadian agricultural science student, was on a stroll on October 11th on the boulevard in Srinagar when it was just getting towards darkness. Near the Centaur Hotel, she was having a chat with three local boys asking them about what was going on in Kashmir and was immediately waylaid by personnel of the Indian National Security Guards (MSG) traveling in a white Maruti van. They were armed with automatic weapons and carried radios. One of them, tall but slim, warned Loura not to get into conversation with local Muslim youth. “All of them are very, very dangerous terrorists and can molest you in this desolate spot”, he told her.

When the guards asked her who she was, she replied “a Canadian”. “You shall have to accompany us to the police station” and thus Loura was asked to board the vehicle. Instead of any police station, Loura was taken to the Oberoi palace hotel where the Indian guards had a drink, from their own bottles because the hotel bar was closed. She did not drink even though she was invited to do so. Then guards then ordered her to board the vehicle again as they told her it was not safe for her to go back to the house boat at that late hour, for the Kashmiri militants could kill her at any spot. The guards also took away her purse. Loura was then taken to a garden near Chasma Shahi. It was 1 am on October 12th.

One of the guards directed Loura to undress but she did not oblige. Her clothes were torn and she was laid down on the ground and gang raped. She cried under the open sky but there was no one to listen to her moans and shrieks except the sleeping state governor, Girish Saxena, in Raj Bavan, which is situated only a few hundred yards from the scene of the incident. For a change, Loura was taken to another adjacent garden and the gang rape by five guards continued until finally she fell unconscious.
A semi conscious Loura was then dropped on the roadside, at a slight distance from where she had been picked up the previous evening. On being sighted by the locals, she was carried to the police station a Nehru Park where a case for kidnapping and rape was registered under sections 366 and 367 of the Rambir Penal Code under First Information Report No: 90/40. The police officer at the station recommended a medical examination of the victim and Loura was taken to Lal Ded Women’s hospital in Srinagar.

Two female doctors examined her ascertaining that dead sperms were found in her uterus and the passage leading to it. There were scratches on her thighs, arms and breasts, which testify that she resisted.

Loura Jane Lambie told pressmen that very day how brutally the security guards raped her. The matter when brought to higher authorities in the state and also when it was taken up with the government of India by the Canadian high commission in New Delhi, the state police registered the case against the guards, arresting two of them whom Loura had identified in a batch of sixty four guards paraded before her. She recognized them even though both of them had shaven of their beards.

Loura was kept in protective custody by the state authorities and was allowed an interview with the state governor on October 13th who promised stern action would be taken against the guards turned rapists.

The authorities acted swiftly in view of the Canadian government taking serious notice of the incident and it was in record time that an inquiry was conducted and the culprits punished.

Here lies the difference between the rape of a foreigner and that of a Muslim Kashmiri woman. The latter is treated as an allegation and passed of unnoticed and unwept.”