In Indian occupied Jammu Kashmir, the armed forces may shoot to kill as they see fit. They can destroy the house of a Kashmiri civilian who invested their life earnings into building it, solely based on their suspicion. The soldier on the street decides if a boy strolling on the street is threatening. This power is enabled by law.

16 year old Ather Mushtaq Wani, 22 year old Aijaz Ganai and 25 year old Zubair Ahmad Lone are the newest victims targeted by such powers enjoyed by the Indian armed forces.

Families of three youth on January 4th staged a protest demonstration in Press Enclave Srinagar, demanding a fair investigation and return of bodies of the innocent trio. Photo Credit: Abid Bhat

In December 2020, as Dal lake and its floating vegetable markets froze over, the trio of friends had travelled from their hometowns to register to the University of Kashmir. They had no connection or involvement to militancy. Instead, they were caught in a ‘fake encounter’ - a term used to describe extrajudicial killings by the police or armed forces, who stage an encounter with ‘suspected terrorists’ to justify their murder of innocent civilians. Labels such as ‘freedom fighters’, ‘rebels’, ‘terrorists’ and ‘militants’ are standard for the Indian army and police officials to use in an attempt to defend their unlawful killings.

The murder of Ather, Aijaz and Zubair was framed in the same way. Kashmir Valley’s top police official groundlessly explained that the three were ‘supporters of armed groups and likely planning an attack’. The top army major general described them as ‘rebels about to carry out a big strike’. Both are claims confidently stated by powerful high ranking officials with no proof. Evidentially, criminalizing innocent civilians through extreme labels is a tactic regularly employed by armed forces to normalize their murderous actions. A week before the murder of the three youth, an army officer was accused of killing three labourers in a staged gun battle in July of 2020. The officer and his two accomplices were accused of planting weapons on the bodies of the victims to make it look as if they were armed fighters. These are the actions armed forces deploy in the name of ‘counter terrorism’. In the name of ‘countering rebel groups in Jammu Kashmir’, the reality we see is actually that of countering Kashmiris, countering Muslims and countering anyone who does not fit the Hindutva ideology of the central right wing BJP (Bharatiya Janata Party) led government.

Where these actions are clearly sectarian and criminal, we usually look to the law to provide fairness and due process. But what happens when the law itself enables such actions?

The Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA), enacted by the Indian government in 1989, is a key ‘counter terrorism’ law. It has been designed to allow excessive powers to the government and State bodies to carry out human rights violations without consequence. It protects military personnel responsible for serious crimes from prosecution. The Indian government’s responsibility to protect civilians from attacks by militants is then no excuse for an abusive law like the AFSPA.

Rights activists say that the recurring violations of human rights in Kashmir are due to the powers given to armed forces within this act. The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions and the UN Special Rapporteurs on violence against women, have called for the repeal of AFSPA and a replacement of a more ‘humane law’. Rightly so, the powers granted by this act are broader than that allowable under a state of emergency- they are completely against the basic rule of law.

Key sections of the AFSPA that authorize such powers are:

  1. Section 3 empowers the central government to declare any area in Jammu Kashmir a ‘disturbed area’. The is classified as any area that the use of armed forces is deemed necessary because of 1) activities involving terrorist acts threatening the sovereignty or territorial integrity of India or 2) activities causing insult to the flag, Constitution or national anthem of India. When armed forces personnel is ‘on duty’ in a disturbed area, all crimes carried out are to be treated as service-related acts instead of criminal offences.
  2. Section 4 empowers armed forces in a “disturbed area” to ‘fire upon or otherwise use force, even to the causing of death’, to arrest without a warrant any person who has ‘committed a cognizable (identifiable) offence’ or is under a suspicion to commit, to which the use of force can be used to effect the arrest ; and ‘to stop and search a vehicle’ suspected to be carrying a person who is an offender or is under the suspicion of committing a non-cognizable offence.
  3. Section 7 prohibits the prosecution of security forces personnel unless the Indian government grants permission or “sanction” to prosecute. In nearly three decades that the law has been in force in Jammu Kashmir, there has not been a single prosecution of armed forces personnel granted by the central government.

This means crimes of murder, extrajudicial killing, rape and enforced dissappearance committed by armed forces are eliminated from prosecution on the basis that all acts must be considered to be done in “good faith”, since the armed forces are constantly on active duty and under threat in “disturbed areas”. This was supported by the Supreme Court who upheld the constitutional validity of the AFSPA, ruling that the powers given to the army were not “arbitrary” or “unreasonable”. With this, the Supreme Court fails in its power to grant judicial remedies and uphold the basic rule of law.

The AFSPA is a product of the Indian government’s policy. As long as it provides a cover to the crimes of the armed forces and maintains India’s military power over Jammu Kashmir, it will remain. It will continue to nurture a climate of impunity and a culture of both fear and resistance by innocent Kashmiri citizens. It is a license to kill.

As we continue to support the fight for Kashmiri self-determination, we must not forget to expressly oppose the Indian government in its brutality.

#StandwithKashmir

More India Articles

Get Newsletter

Urgent Appeal

Support Rohingya Genocide Survivors

Event