by Abheet Singh Sethi

Mumbai: The Supreme Court’s recent stoppage of a Jammu and Kashmir (J&K) police investigation into the death of three people by the Indian Army in Shopian district on 27 January, 2018, is in line with the Central government refusal over the last 17 years to allow prosecution of soldiers in 50 cases.

No soldier can be prosecuted without sanction from Delhi under the Armed Forces (Special Powers) Act. The Centre has denied 94 percent (47) of the 50 requests while the remaining 6 percent (three) are pending, according to data tabled in the Rajya Sabha (Upper House of Parliament). The government has cited “lack of sufficient evidence to establish a prima facie case” in all cases.

“Under Section 6 of Armed Forces (Special Powers) Act, 1958 and 1990, no prosecution, suit or other legal proceedings 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,” according to a reply by Kiren Rijiju, minister of state in the home affairs, to the Rajya Sabha on 19 July, 2017.

AFSPA empowers the governor of the state or the central government to declare any part of a state “disturbed”, a region that requires the deployment of armed forces, according to this note by PRS India, an advocacy.

AFSPA protects security forces (army, central police forces and state police personnel) from investigation and murder charges in a variety of circumstances, arrest without a warrant and the destruction of property likely to be used as shelters by insurgents.

Amnesty International, a human-rights advocacy, has said the law contravenes international laws and United Nations humanitarian laws. Amnesty also said the AFSPA violates Article 32 of the Indian Constitution, which gives right to effective remedy to citizens, IndiaSpend reported on July 22, 2016.

“If AFSPA is repealed or diluted, it is the army leadership’s considered view that the performance of battalions in counter-insurgency operations will be adversely affected and the terrorists or insurgents will seize the initiative,” according to this column by Brigadier Gurmeet Kanwal (retired), distinguished fellow at the Institute for Defence Studies and Analyses (IDSA), New Delhi, in Rediff on 6 September, 2016.

Since 2000, the J&K government has sought the Centre’s approval to prosecute armed forces personnel for 10 alleged cases of killing civilians, six cases of disappearance of civilians, two cases of raping women, two cases of custodial death and other cases.

On 5 March, 2018, the Supreme Court decided to halt a J&K police investigation into the death of three civilians by army personnel in Ganovpora village in Shopian district on 27 January, 2018.

J&K Police had filed a first information report (FIR) against the personnel of 10 Garhwal Rifles on charges of murder and attempt to murder. Major Aditya Sharma, who was commanding the unit during the incident, was named in the FIR. The army claimed the firing was conducted in self-defence in response to stone pelting by a mob.

During the 5 March, 2018, hearing, the J&K government clarified that Kumar was not named as an accused in the FIR. The Centre argued that the J&K police could not register a case against army personnel in the Shopian case without the Centre’s approval as AFSPA was in effect in the state.

The SC has ordered the J&K government to halt the case until it delivers its final ruling on 24 April, 2018.

J&K witnessed 358 terrorist-related deaths in 2017 – 98 percent more than in 2013 when 181 deaths were recorded, IndiaSpend reported on 14 February, 2018, citing data from South Asian Terrorism Portal run by the Institute for Conflict Management, a Delhi-based non-profit.

Although more than twice as many terrorists were killed in 2017 (218) as in 2013 (100), civilian casualties more than doubled to 57 in 2017 from 20 in 2013. The data reflect an overall worsening in the security situation in J&K.