When Omar Abdullah suggested a reduction in the footprint of the Armed Forces Special Powers Act(AFSPA) it seemed a not unreasonable proposition. The Kashmir of today is vastly different from the troubled times when the law was first enforced 2 decades ago though the popular sentiment against the law is as high as ever. But the Army has reacted vehemently, insisting that any decision on special powers must be taken only through the hard matrix of security. In a polarizing debate, it is always best to keep it simple - so let us begin with the Army's proposition: Has the security landscape of Jammu and Kashmir changed to consider even a minor dilution of special powers? Or has the Army become a victim of its own successes? Srinagar: On September 13th, a joint team of the Kashmir police and the Army's Rashtriya Rifles tracked down to a house in the town of Sopore, one of Kashmir's most wanted terrorist leaders - Abdullah Uni of LeT.
After a brief operation, Uni, the chief operational commander was shot dead.
The army would argue that the Uni encounter or any such operation cannot take place without the AFSPA, especially key clauses like Section 4 and 7.
Section 4:
(a)Any (armed forces member) may fire upon or..otherwise use force, even to causing of the death against any person who is (contravening) the law.
(b)Arrest, search without warrant.
(c) Destroy any arms dump, fortified position or shelter.
Section 7:
No prosecution without sanction of the Central government.Except that Uni's death culminates a sustained offensive by security forces that have vastly depleted militant ranks. Almost 90 prominent militant commanders killed in the past 3 years across the valley - 18 in the first 10 months of this year, bringing down the total militant strength in the state to an estimated 300, a huge drop from the 10,000 during the peak days of the unrest.
Among those killed are:Ganderbal: Mushtaq Ahmed Khan, Commander, Hizbul Mujahideen
Awantipora: Sajad Ahmed Dar, Commander, Hizbul Mujahideen
Pulwama: Sajad Afghani, Commander, Jaish e Mohammed
Shopian: Qari Zubair, Commander, Jaish e Mohammed
Kupwara: Chota Saad, Commander, Lashkar e Tayyaba
With the army on the offensive, and militancy on the wane, the sense of normalcy is evident on the streets of Srinagar. The Army shared with us a list which shows a dip in overall violence in the last three years. Number of civilians killed is down to 20 from 31, number of security forces killed down to 15 from 41 and even encounters down to 54 from 117.
These figures have become central to the argument to reduce the footprint of special powers. But senior Army commanders in the valley who spoke to us, told us in confidence that their opposition to the move remains as strong as ever.
J & K: Army sources to NDTV 'Hardcore national security cannot be determined by statistics'
'Pakistan's intent has not changed'
'Kashmir still remains an insecure area'
But the state government says that they only want to remove AFSPA from districts like Srinagar, Budgam and Ganderbal in the Valley and Jammu and Samba in the Jammu region. These are districts where they are not actively involved in fighting militancy, and yet which have remained relatively violence - free.
Including civilians and armed forces, Srinagar has seen 7 deaths in the past year, Budgam only 1 while Ganderbal has seen 2 deaths.
But the army says that while they may not be fighting militancy in these districts is they have what they call Company Operating Bases there. For example 15 posts or about 1500 troops in Budgam, and another 20 bases, or 2000 troops in Ganerdba. If tomorrow they are attacked - how will they respond without special powers ?
General T.K Sapru, former GoC, Western Command says, " The Army's concerns, as I said in the beginning, is genuine definitely in that if you are going to be having a contingency where you want to deploy the Army on CI operations then you have to give them this Act. Without that they can't operate. That's the basic thing. But we have to take a decision, in that do we need in the next 6-8 months or 1 year... Do you visualize a contingency where the Army would need to be operating in Budgam and Srinagar. I think the answer could assumed to be a no for some time unless, of course, that the unforeseen can happen. But at that time why can't we invoke the Act again? There is no problem. If the nation at that point in time feels that there is a need, that things have now gone so badly out of control that we need to have the Act again, then we can again have it."
The Army's other argument, is that these AFSPA free districts may become safe havens
General Malik, former Chief of the Army Staff says, "You have to worry that area should not give shelter so that terrorists from other areas come settling down there. Mind you, it has happened many times earlier. I am aware of it. At one time we had vacated Sopore and Budgam and after sometime we had to carry out a major operation in Sopore. This kind of a thing is also possible."
But Pravin Swami, Chief of Bureau (Delhi), The Hindu says, "The Army isn't there anyway. So if these districts haven't become safe havens now, its surely not making the terrorists terrified over law. Criminals don't stop committing crimes because there is some harsh law somewhere, they stop committing crime because they think they'll get caught."
Even the CRPF with its 60,000 troops, an important player in Kashmir's theatre of security, says they are not averse to a reduction in AFSPA.
They say that some changes to Kashmir's criminal procedure code which differs slightly from the national version can provide them the legal protection.
CRPF's DG, K Vijay Kumar says, "One is the notification in 1976 by which CRP was given certain powers to operate in Jammu and Kashmir. The powers are ability to move around, to do searches, seizures and so on. And to have a certain protection from arrest or prosecution, that is the immunity. If this shield is given then the force is very facile and comfortable. That is one point. Secondly our CRP is dated 1973, now JK has CRP of the 1989 vintage. Now when you look at these two there are some issues there and perhaps we need to bridge the gulf there."
The army dismissed this, saying:
Army to NDTV: 'CRPF is not trained to take part in counter insurgency operations'
And so doesn't need laws like AFSPA, a claim that the CRPF hotly denies.
Dr. BN Ramesh, IG (Operations) CRPF in the Valley shows us a training session of his commandos and says, "They are certainly the best boys in the country. They have stood number three in the country."
Though a majority of its troops are used for security, the CRPF says their commandoes are a crucial asset to the army and police in fighting militants.
Ramesh adds, "The two latest killings of the commanders of the south Kashmir and North Kashmir namely Abdullah Uni and Abdul Rehman and before that there is an encounter of Ehsan bhai. All these major encounters CRPF goes."
But perhaps the biggest but largely ignored shift in the Valley's security dynamics is the growing role of the police force.
From a state of near -collapse during the first decade of Kashmir's militancy, the J&K police now occupies the front lines of counter insurgency operations, some with the Army, but also increasingly on its own.
Joint operations with the Army have doubled over the past 3 years, from 458 to 821. But solo police operations in the Valley have jumped more than 4 times from 179 to 814.
A change typified on the ground by men like Imtiyaz Hussain, the Superintendent of Police of the troubled town of Sopore.
Imtiyaz Hussain says, "I believe to a substantial extent we have been able to contain the LeT. But now what we are actually seeing now there has been an evolution in insurgency in Kashmir especially in Sopore. Its metamorphasizing from counter insurgency to the real kind of terrorism that we have seen in cities like Delhi or Mumbai or other places, sort of sleeper cells that get activated at a particular point of time, especially the HM, they still have a capacity of triggering IeD blasts."
Kashmir zone's IG, Police, SM Sahai says, "Well I mean the fact is that Police's capacities have increased over the years and is definitely playing a premier role today in tackling terrorism as well as the agitation. Undeniably capacity has increased and we're proud of that."
From a steep rise in militants killed, to an overall drop in violent incidents, to a proactive police. Through the prism of security, there seems to be a fair case to scale down AFSPA. So why the strong reservations from the Army? Some argue that the Army's anxieties are not just limited to the removing of special powers in 4 districts, but a wider question of their role in Jammu and Kashmir.
General B.S Jaswal, Former GoC-in-C, Northern Command says, "AFSPA has far reaching ramifications if in case it is removed. It is the cynosure in all these operations which are being carried out in JK happens to be the armed forces. And in case they disarm with AFSPA there are a whole lot of criticalities which will come in. Their efficacy and effectiveness will get totally diluted."
According to figures shared with us by the Army, there are about 60,000 troops protecting the line of control.
Army in J & K: The size factor: 60,000 troops deployed along LoCAnd its counter terrorism operations are carried out by about 64 battalions of its Rashtriya Rifles, approximately 64,000 troops.
Army in J & K: The size factor
64,000 troops (64 battalions) engaged in counter-insurgency operations.The question many ask: are so many troops needed to fight terrorists, whose numbers by all accounts has vastly reduced?
General Sapru says, "So when the terrorist initiated operations are not occurring then why should you have the kind of grid that we have today when at the same time you need these troops elsewhere on the Line of Control to stop the infiltration. If you can get the troops to be there, thicken up the Line of Control fence to the extent that they do not allow any terrorists to come inside. And also, likewise, to do it later, after the winter. That is mid-March to end-April."
The army says it is aware of the delicate balance between security concerns and public sentiment in the Valley but says the answer is not to reduce AFSPA or the number of troops, but increasing the footprint of its hearts and minds campaign - the brainchild of its main Kashmir commander, General Hasnain.
And while few would doubt the sincerity of the effort - some ask whether that sits at odds with the Army's stance on the AFSPA debate?
According to General Jaswal, "Seemingly it's a slight contradiction. You see AFSPA I would say has been highlighted in the negative by certain elements and these elements are the ones who are voicing the feelings of the people. I would like to re-iterate that our army is of the people, by the people and for the people. If that is so then WHAM (Winning Hearts and Minds) happens to be a very good interface between the people and the Army and I am fully for it."
Should the Army be paying more attention to the other factor that is driving the political thinking on the AFSPA, the strong public sentiment that believes the Act gives sanction to the Armed Forces to commit human rights violations?
The question of human rights violations by the Armed Forces in Kashmir is split around two grounds. One is of the scale, do these violations run into 100s as some claim or just a few as the Army claims? The second is the question of impunity. Does the Act actually make it difficult to hold the Armed Forces accountable as and when they do commit an abuse.
8 years on, the wounds are still fresh for the family of Javed Magray. Javed, a 17 year old boy was studying late in his house on the outskirts of Srinagar on a night in May 2003 when a patrol of the 119th Assam Regiment, which had a base nearby, knocked on the window.
Ghulam Nabi Magray, Javed's father recounts, "They made him come out from the window."
The next morning, the Army asked them to go to the hospital to collect his body.
Javed's uncle, Mohd Ashraf says, "They made him get up from his studies and come out through the window. Then they took him on to the street and shot him."
The Army filed an FIR claiming that Javed was a terrorist and that he was killed in an encounter.
But the Magray's are reasonably influential and a magisterial enquiry was ordered which attested to his innocence and his killing in cold blood.
The inquiry records how despite repeated requests, the army stonewalled attempts to question the guilty.
The inquiry named as guilty 9 army personnel, members of the patrolling unit.
The state government in what is, as we shall see, a rare gesture sought permission from the Centre to prosecute the Army men.
Which means recapping section 7 of AFSPA under which sanction is needed from the Centre to prosecute armed forces in civilian court.
For the army, the sanctioning authority is the Ministry of Defence and for central forces, it is the Home Ministry.
AFSPA: Section 7Sanction needed from centre to prosecute armed forces in civil court.
For Army, Sanction granted by MoD
For CRPF and BSF, sanction granted by MHA
Ashraf says, "They have killed a civilian. He was not a militant nor was he armed. He was in his house studying late at night. The only thing is that the light was on because of which they took him out from the window of the house and then shot him."
But it took that sanction request 4 years to reach Delhi. And there is still no reply. 8 years after Javed was killed, no answers.
There is no clarity on whether the Army punished those men. So all the family can do is wait. And remember.
Javed's mother Amina says, "He used to do all the work of the house."
The details obtained by Khurram Parvez, a human rights activist, of the number of cases in which the state government has sought sanction to prosecute the army exposes the flaws in the system of justice and which spares no one - from successive state governments, to the armed forces, to the Centre.
Khurram says, "The state government says it has applied for sanction in 50 cases so far. They are downplaying the atrocities perpetrated by the Army."
Based on data from the state government and the Army, from 1990 to the present, the state government has sought sanction to prosecute the armed forces only on 66 occasions.
Even to send those cases took an average of 8 years - delays which expose populist claims made by all political parties of their support to victims of rights violations.
Average time taken by state govt to send sanction request: 8 years
National Conference MP, Mehboob Beg says, "It doesn't matter, since they are all rejected anyway."
In almost all cases, regardless of the nature of the crime, the Armed Forces argued it was in the line of duty.
Khurram counters saying, "In every case they would say that it has happened in the line of duty, how can rape happen in the line of duty? How can people get killed and get buried in unmarked graves in the line of duty? Why secret cremations are treated as in the line of duty?"
And in figures that make New Delhi culpable, the Ministry of Defence or the Ministry of Home Affairs first sat on these requests for another 3-4 years and in almost every single case either rejected the sanction or put it in on hold.
Sanction Rejected: 28
Sanction pending: 30
Human rights lawyer Vrinda Grover says, "One of the biggest problems is there is no timeframe in this provision. Can we have a timeframe? A timeframe which says that within so many months you must grant sanction and if you don't it will be deemed to be granted? Can we also say there that if you reject sanction, as they have in many cases, will you please provide reasons so it looks like application of mind has taken place and it's a speaking order which would be justiciable."
From 1990 till today not a single Armed Forces personnel has been found guilty, and new cases albeit in fewer number are coming up.
Like that of Zahid Farooqui from Srinagar, 16 years old, a lover of cricket. Zahid lived in the Braine-Nishat neighborhood of Srinagar, abutting the Dal lake.
His cousin Mudassir Manzoor says, "Suddenly when we heard he is dead, we couldn't believe it."
Last February, he was hanging out with a friend on the banks of Dal when a jeep pulled up with a BSF commander, RK Birdi, who on his way back to his camp from a medical check up.
Zahid's neighbor, Manzoor Ahmad Sheikh says, "We don't know what happened exactly, but there was a verbal altercation. Then they went after the boys and from that spot, about 15 feet away, they opened fire on the boys."
Birdi was arrested and Zahid's family, along with the state government went to court. The state sought his custody saying that Birdi ordered the shooting of an innocent civilian on his way back from a medical checkup, and so clearly he was not on duty.
But in a typical closing of ranks, the BSF claimed rather bizarrely that Birdi was acting in the line of duty because the medical check up was part of official orders!
To the family's shock, the court accepted the argument and handed over custody of Birdi and his subordinate, Lakhwinder, to the BSF.
Manzoor says, "His duty was in Gulmarg. From there he came to Srinagar where he killed a person. On top of that he said this was 'active duty'.
The verdict only intensified the trauma of Zahid's father, a driver in the Public Health department.
Farooq Ahmad Sheikh, his father says, "We were broken. At that moment everything came to an end for us. If he was a militant or something like that then it is understandable. But he was just a school going child."
But when the family decided to keep up the legal battle, they say Zahid's father was called to meet the men who killed his son - again not unusual in cases involving Armed Forces.
Farooq says, "They were trying to negotiate with us. But we did not agree to anything. We have lost everything. We will now see what happens. We will go to the Supreme Court. We will fight and hopefully we will get justice."
As the turmoil of last year demonstrated, not every act of excess was of malafide intent.
On the outskirts of Sopore town, this is the family of 22 year old Shakeel Ahmad who was killed in June last year, one of more than 100 young men who died in the Valley's summer of unrest.
One of his sister's, Latifa Bano says, "He had gone to Sopore to get some electrical fittings. It was only at 6pm that we got to know that something had happened. After that we don't know what happened or how it happened. We never saw him after that. First we heard he was wounded so we tried to get to the spot, but we did not manage to get there."
The CRPF claims they fired because they were mobbed, a claim eyewitnesses deny.
And it doesn't take away from the grief or demand for tough and transparent action against the jawans who fired into the crowds.
Mugli Bano, his mother says, "It has been 1 year. We were told that the investigation would be done in 6 months. Even now nothing has happened. Why is it no one brings up this issue? They said they will give us money, but are they going to keep giving us money for the rest of our lives? Do they think we have sold our son? Why doesn't the Government talk about this? Even if they give us crores of rupees it will not be enough."
The CRPF says that like the Army, they fought in court to have the case tried internally - but were unclear about what that internal action has led to.
When asked about the punishment given to those who were involved in shooting incidents,
Ramesh says, "This is under investigation if at all there is any form of evidence that comes that people were not taken care."
So this much is true - taking legal action against the armed forces is not easy, not just because of AFSPA, but of a deep establishment reluctance to act against men in uniform.
Putting it into perspective, Vrinda says, "What I have regularly been saying even to people within the Army is that yes there are certain people who are committing violations but you are defending them as an institution and therefore you all then come under the scanner."
But what about the extent of violations?
The Army has argued that its internal justice systems deliver swifter justice. No one would have an argument with this, if the process more transparent and data less contradictory. This is as accurate and up to date that it gets, figures given to us this week by the Army's command in Jammu and Kashmir.
Since 1990, 1484 cases of human rights violations have been filed against the Army in J&K.
Only 43 cases were proven and action taken which is about less than 3%.
96 persons have been punished.
Period: 1990-2011
Source: Army HQ, SrinagarWhich cases, which persons, what action are details that cannot be revealed. There is no way of knowing if that list includes some of the most notorious cases of violations.
Like the Pathribal massacre, where the CBI has charged 5 army officers for murdering 5 men in 2000, and framing them as terrorists who carried out the massacre of Sikhs in Chittinsinghpora.
Or less famous violations, like the soldiers who killed Javed Magray.
What forces don't realise when they get into an argument about numbers is that the tinderbox climate of the Valley, each injustice is amplified many times over, casting a cloud over the Army's professional reputation, at the same time driving the sentiment behind the political decisions on the future of the Act.
If the valley today has a measure of calm, the armed forces have played a major role in it. Now, they are keen to play a role in building the peace dividend.
For that, some say, they should appear less adamant about a minor reduction in their footprint.
And they, as all armed forces, must ensure visible and clear justice against any of their own, who have committed a wrong.
(Inputs and photos - Niha Masih)