Justice Verma’s Suggestions On AFSPA Welcomed in Kashmir

Those fighting for the complete removal of the controversial Armed Forces Special Powers Act (AFSPA-1958) in India’s troubled Jammu and Kashmir and North East, may find a moral backing in the Justice Verma Committee’s recommendations. The three-member panel set up to look into the possible amendments in the criminal laws related to sexual violence against women has called for an immediate “review ofAFSPA” in conflict zones to deter sexual violence against women by members of the armed forces.“The armed forces or uniformed personnel must be brought under the purview of ordinary criminal law,” the committee has recommended.

Justice Verma Committee, comprising Retired Justice J S Verma, Retired Justice Leila Seth and Solicitor General Gopal Subramanium, was constituted on December 23, 2012 following an alleged gang rape of a 23-year-old girl in Delhi on December 16 which triggered nationwide protests. The panel report, over reforms in anti-rape laws, was submitted on Wednesday (January 23) to the Indian Home Ministry.

AFSPA grants the military immense powers of arrest, search, the right to shoot to kill, and to occupy a property in counter-insurgency operations. The Indian government has often claimed that its troops need such powers as the army has been deployed to defend the national security, at serious risk from armed combatants, in Kashmir and the North East. But rights activists and victims of the armed forces’ abuse continue to call AFSPA a ‘draconian law’ which is not in conformity with the international laws signed and ratified by India.

The panel observed that offences against women in border areas / conflict zones and their legal protection has been “often neglected” and “we notice that impunity for systematic or isolated sexual violence in the process of internal security duties is being legitimized by the AFSPA, which is in force in large parts of our country.”The panel reported, “It must be recognized that women in conflict areas are entitled to all the security and dignity that is afforded to citizens in any other part of our country. India has signed the International Convention for the Protection of All Persons from Enforced Disappearance.”

Justice Verma committee sought, “Sexual violence against women by members of the armed forces or uniformed personnel should be brought under the purview of the ordinary criminal law.”The panel has called for “imminent need” to review the continuance of AFSPA and AFSPA-like legal protocols in internal conflict areas as soon as possible. It asked for an immediate resolution of jurisdictional issues and for simple procedural protocols to be put in place to avoid situations where police refuse or refrain from registering cases against the paramilitary personnel.

The panel has sought review of Section 6 of AFSPA which bars legal proceeding against any member of the armed forces acting under the AFSPA, without the permission of the central government. This section has often left victims of the armed forces’ abuses without a remedy.

Justice Verma committee has recommended that no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

“Provided that, no sanction shall be required if the person has been accused of committing an offence under Section 354, Section 354A, Section 354B, Section 354C, Section 376(1), Section 376(2), Section 376(3), Section 376A, Section 376B, Section 376C, Section 376D, Section 376D or Section 376E of the Indian Panel Code, 1860,” reads the committee in its 630-page report to the government. Section 376 IPC deals with the punishment for rape while Section 354, IPC deals with assault and use of criminal force against women with intent to outrage her modesty.

The recommendation on AFSPA has come at a time when the central government, especially the defense ministry continues to view AFSPA as an anti-militancy law and the Defence Minister Arackaparambil Kurien Antony even making it clear recently that the government “is not going to decide in haste over the removal of this anti militancy law” from Jammu and Kashmir where the Act is in force since 1990. The government maintains the same stance for the North East too.

But Khurram Parvez of Kashmir’s reputed Jammu and Kashmir Coalition of Civil Society (JKCCS) says “the recommendations are too little and have come too late”. “It’ll have a retrospective effect,” Khurram says. “For Kashmiri’s ASFPA is not a single issue. In the 2011 Kulgam rape by the armed forces we saw how the state government proved the women was mad. We are living in such a place where impunity is larger than the law.”He says, “Police rarely files FIRs when such cases erupt leave alone finding loopholes in the AFSPA”.

“A huge force of Ikhwanis (militants-turned government militia) was created and they are still being reared. It is an illegal entity and the government of India is protecting it,” Khurram says, adding, “There is an impression sent out that bad laws in Kashmir have created a bad situation. Laws are not the issues here but existence of anti-people forces which New Delhi supports.”

JKCCS convener Khurram claims that his group has collected over 300 cases of rapes committed by army personnel and other state-backed armed groups during past two decades, but these women continue to wait for justice.

The ACT is, however, dear to the army, which believes, it can’t operate in insurgency-hit zones without special powers. “We need AFSPA. We can’t operate without it. In Kashmir we are passing through a self-imposed embargo. I mean, we don’t operate independently these days. We give a greater responsibility to police during search or anti-militancy operations. Army not only shares intelligence details with the local police but conducts operations along with them,” a top army official, who refused to be named, told TEHELKA.

Justice Verma’s panel had sought suggestions from Kashmir’s Hamida Nayeem, chairperson of Srinagar-based Kashmir Centre for Social amp Developmental Studies KCSDS. Nayeem couldn’t be reached for her comments.

From the North East the panel was given suggestions by many others including Binalakshmi Nepram—founder of Manipur Women Gun Survivors Network. Nepram told TEHELKA that her group welcomes the justice Verma panel’s recommendations over AFSPA. “We had suggested to the panel that violation of women’s rights by armed forces should be a part of the recommendations. I’m glad that such a recommendation on AFSPA has been brought under the ambit of women’s safety,” she said.

On 5 January, Amnesty International (AI) too had submitted a series of recommendations to the Verma panel. In a statement sent to TEHELKA, AI’s spokesperson Tara Rao said, “The calls for review of the AFSPA are very welcome. This is a ‘lawless law’ that is only increasing frustrations and suffering among people in the conflict areas. Amnesty International has consistently demanded repeal of this legislation.”

He said the recommendation to appoint special commissioners, to monitor and initiate action, for redress and criminal prosecution in all cases of sexual violence against women by armed personnel in conflict areas in particular need to be studied in detail.

While the government has promised quick action on the Verma panel’s suggestions, it’ll be interesting to see how it reacts to the recommendations on the controversial AFSPA.