Opinion Rethink and redeploy

General Hasnain, in his closely argued “‘Victory’ in the Valley” (IE, December 11), has contended that “Kashmir is far too complex for inexperienced minds to fully comprehend and there are so many stakeholders, it confounds even those who have a semblance of an idea.” True enough, if one is seeking to master the Kashmir “issue”. Except that, the issue under discussion is simple: it has to do with the heavy army deployment in civilian areas in Kashmir when the need for it is long past. And that stands tacitly acknowledged by the army in resolutely, and to my mind, wisely, having refused to intervene more than staging a march on the outskirts of Srinagar when a desperate state government pleaded for it, with the Valley roiled in civil turmoil in 2010.
But the simplistic assertion by Shekhar Gupta (‘Disarming Kashmir’, National Interest, IE, December 7) that the issue in Kashmir is one of a (won) proxy war is in denial of the fact that the outbreak of 1989, which persisted into the late 1990s, was a civil insurgency stemming from the widespread frustration of Kashmiri youth with what they perceived to be the purloining of democratic freedoms promised in the state’s accession. This insurgency was indeed defeated by the army. But the question now must be: Does that call for disarming Kashmir? In specific terms, should that mean withdrawing laws like the AFSPA that, put bluntly, allow free exercise of power to the army? Does failure to withdraw amount to conferring the right to veto on the army?

While explicating the AFSPA bill in the Lok Sabha in 1958, the then Union home minister stated that the act was subject to the provisions of the Constitution and the CrPC. If that was to be the case, then why was the AFSPA not drafted to say “use of minimum force” as in the CrPC? If the government truly meant to have the armed forces comply with democratic norms, then the AFSPA should have had a specific clause enunciating compliance with the CrPC. But this law overrides the CrPC. A Kashmiri under the AFSPA is actually deprived of Article 21 of the Constitution, the fundamental right to life. Although it cannot be so construed legally, the public is convinced that this has allowed the army to overlook alleged custodial killing of the kind perpetrated in Machil, which triggered the disturbance in J&K in 2010. Only at the close of 2013 did the army, in a decision lauded as a break from its past record in Kashmir, bring the case to court martial.

Because of features that directly contravene democratic policy, there would be a good case for the complete revocation of the AFSPA. The changing situation of J&K would also merit such consideration. However, in that state, the government continues to persist with its own Public Security Act, 1982 (PSA) — a law enacted on the basis of the allowance that the state enjoys under Article 370 — which is of more universal application than AFSPA. This PSA is also the most draconian of its kind in India, although there have been recent amendments to debar its application to minors.
Nonetheless, it cannot be denied that, given the concentration of security forces on both sides of the Line of Control, continuing infiltration — even though diminished — and an increasing military presence of China’s People’s Liberation Army in the northern areas of J&K, there would be a case for continuation of army deployment at present levels, if the military so judges. If the army feels it requires continuation of the AFSPA to discharge its responsibilities, no other agency is qualified to credibly challenge that view. However, if it is decided that the operation of the law must continue, it is essential that the process followed in applying that law must be spelt out, as in any other law, with details of how the powers conferred by it are to be exercised.

It is by this means that the army presence, if it is to be retained at present levels, must be brought into full conformity with the principles that must dictate its functioning, including adherence to the practice of common law. Although the army may have instructions or general orders on how powers under the AFSPA must be exercised, these can hardly be a substitute for statutory rules enforceable by courts of law.

The army’s legal branch is working on formulating rules notified by the law. But to conform to the Constitution, just as it is the responsibility of the state government to withdraw its own laws that contravene the principles of democracy, it will also be necessary for the ministry of home affairs (MHA) to review its functioning in relation to the prosecutions permissible under the AFSPA. Members of the military are in any case protected from arrest for anything done within the line of duty under Section 45 of the CrPC. Section 6 of the AFSPA, however, provides what amounts to total immunity. To prosecute against a member of the armed forces for abuses under the AFSPA, permission must be sought first from the Central government. The record shows that such permission has not been given, even when the case is clearly one of fake encounter established by premier investigative agencies. The MHA is committed to reviewing its procedures relating to this. But this is an area that must also be covered by rules to ensure that permission, if not refused in a given timeframe, will be presumed to have been given.
It must be conceded that in reducing the military presence in the state, the army’s opinion must prevail. The civilian authority might weigh the necessity of assigning this task to the army, which is beyond an army’s regular responsibility of defending borders. This does not confer a veto, but simply applies a basic principle of management. The armed forces must be convinced by government and representatives of the public of the arguments to rescind the AFSPA, given the protection already extended to them by existing law.
But there is an alternative. The deployment of the army extensively in civilian areas in Kashmir is a hangover from the demands of the war of 1947-48. This explains why there is heavy deployment in Pattan, on the crossroads between Baramulla and Sopore, in Palhalan, located on the karewa (highland), and Shalteng, once on Srinagar’s outskirts and today a suburb.

Clearly, the premier threat today of war between two nuclear armed states is no longer a military assault through a march along the highway on Jammu or Srinagar; it is infiltration. So, the army would do well to consider redeployment along the more vulnerable areas along the LoC, in areas with a scattered population comprised mainly of Gujjars migrating seasonally to the highland pastures. Tensions between the army and local civilian populations — characteristic of the Valley in these civilian areas but not along the LoC, where the need for deployment is understood by civilians as necessary for their protection — spring from the feeling amongst civilians that the army is an occupation force, despite laboured efforts by military authorities to dispel such an image. Nor is the army presence here required for maintenance of law and order.

Such redeployment will require heavy financial investment. But surely the need to allow India’s citizens in J&K the exercise of fullest constitutional freedoms must be the paramount consideration, as it is my view that there is no other means of bringing the conflict to a close. It is only by giving the Kashmiris a sense of being a free people, guaranteed to them under India’s Constitution, Article 370 notwithstanding, that we might truly capitalise on the army’s “victory”.

The writer is the 21st chief of army staff