A law of lawlessness

The Armed Forces (Jammu & Kashmir) Special Powers Act (AFSPA) has remained the source of pain, death and destruction of Kashmir since 1990. It became a subject matter of the debate last fortnight after Syed Ali Geelani suggested revocation of “all black laws” and Omar Abdullah’s beleaguered government picked it up for a debate with New Delhi. Not that Omar wanted its revocation but he wanted Delhi to lift it from Srinagar and Ganderbal besides two Jammu districts – Jammu and Kathua. This was part of the package he was initially keen to get but failed.

AFSPA is one of the many ‘relics’ of ruthless crackdown that the state initiated against militancy after it erupted in 1988 barely a year after an assembly election was rigged by the alliance of National Conference and Congress.

It was promulgated as an ordinance by the then governor Jagmohan along with another ordinance that implemented Disturbed Areas Act in select areas of J&K. The two laws are almost similar but there is a bit of difference.

AFSPA that offers the security agencies powers to do whatever it wants and offers them impunity from law cannot operate as long as the area is not declared disturbed by the established government. Jagmohan initially promulgated the Disturbed Areas Act under which it declared entire Kashmir Valley ‘disturbed’ and later AFSPA was promulgated that helped security agencies – army and other personnel of central agencies – to operate.

= Governor Jagmohan enacted Jammu and Kashmir Disturbed Areas Act, 1990 as Governor’s Act No 12. A temporary law was a temporary one under sub-section (4) of Section 92 of the state constitution and was supposed to expire on July 18, 1992.  It was re-enacted as President’s Act. Under Article 356, the president gives the authority of legislating on J&K to the parliament.

The law empowers administration the powers to declare the whole or any part of any district of J&K as ‘disturbed area’. In these areas, under DAA, “any Magistrate or Police Officer not below the rank of Sub-Inspector or Head Constable in case of the Armed Branch of the Police” is empowered to “fire upon, or otherwise use force, even to the causing of death, against any person who is indulging in any act which may result in serious breach of public order or is acting in contravention of any law or order for the time being in force, prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire arms, ammunition or explosive substances.”

The law also empowers “any Magistrate or Police Officer not below the rank of a Sub-Inspector” to “destroy any arms dump, prepared or fortified position of shelter from which aimed attacks are made or are likely to be made or are attempted to be made or any structure used as a training camp for armed volunteers or utilised as a hideout by armed gangs or absconders wanted for any offence.” DAA offers total impunity to the security men as “no suit, prosecution, or other legal proceedings shall be instituted except with the previous sanction of the state government against any person in respect of anything done or purporting to be done in exercise of the powers conferred by sections 4-and 5.

Governor’s administration on July 6, 1990 declared (SRO No SW 4) all the (then) six districts disturbed besides the areas falling within 20 kilometres of the LoC in Poonch and Rajouri. Instead of DAA, the state administration did it under section 3 of the Armed Forces (Jammu and Kashmir) Special Powers Ordinance, 1990.

In wake of a massacre of Hindus by militants in August 1993, the BJP launched a nationwide massive agitation seeking declaration of (then) Doda district as disturbed. For most of 1994 summer, they offered over 40,000 voluntary arrests across but the then Prime Minister P V Narasimaha Rao put his foot down and settled the issue by adding to the troop strength in the belt without declaring it disturbed.
In a quid pro quo, the gubernatorial regime approved setting up of Village Defence Committees.  Mostly comprising of Hindu ex-servicemen, these committees funded, trained and armed by the state became a new force that was used more against the Muslim populations rather than the militants for which they had the mandate.

But New Delhi could not wait for long. On August 10, 2001 the state administration then led by chief minister Dr Farooq Abdullah included (under SRO 351) entire Jammu division including the (then) districts of Jammu, Poonch, Rajouri, Doda, Kathua and Udhampur into the ambit of ‘disturbed’ areas. The extension in disturbed area territory of J&K was dictated by the massacre of 13 shepherds at Shrotidhar postures in Kishtwar and the militants attack at the Jammu Railway Station in which 13 others including some soldiers were killed. Inclusion of Jammu in the disturbed areas devoured the officially projected claim that militancy is just a Valley-specific phenomenon. This left the arid desert of Ladakh as ‘normal’ areas in J&K.

Any law promulgated during governor’s rule, under the law of the land, can stay beyond two years after the democratically elected government takes over. The DAA was lapsing on October 7, 1997. The then government led by Dr Farooq Abdullah replaced DAA 1992 by DAA 1997 for one year. It was enacted amid fierce opposition by the lawmakers who said it has been grossly misused. It was enacted with one amendment, by Communist lawmaker Yousuf Tarigami under which a police officer, if he causes a death or grievous injury, shall forward a report in writing to the nearest magistrate within 24 hours about the incident. The law lapsed and was never re-again.

But lapsing of DAA does not matter much. The only relief is that the state police that is under the nominal control of the state government does not have the impunity. It also does not mean that the state government cannot include or exclude areas falling termed disturbed earlier. The government had in fact invoked the Armed Forces (J&K) Special Powers Act for all these purposes even for declaring areas disturbed.

AF(J&K)SPA is basically a piece of parliamentary legislation that received the assent of the president of India on September 10, 1990 and was implemented retrospectively from July 5, 1990. It is applicable to the whole of J&K. It applies to the areas declared ‘disturbed’ by state or the central government (under its section 3) for “the military forces and the air forces operating as land forces and includes any other armed forces of the Union so operating.”
The law offers details of the activities – ‘a disturbed and a dangerous condition’ – the prevalence of which could lead to declaration of the area as disturbed. The activities include “terrorist acts directed towards overawing the government as by law established or striking terror in the people or any section of the people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people” and “activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India from the Union or causing insult to the Indian National flag, the Indian National Anthem and the Constitution of India.”

This law empowers any “commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces” to do whatever the DAA offers. In addition, it gives other immense powers which the DAA does not offer. These include “arrest, without warrant, any persons who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest”, “enter and search, without warrant, any premises to make any such arrest as aforesaid or to recover any person believed to be wrongful restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawful kept in such premises, and may for that purpose use such force as may be necessary, and seize any such property, arms, ammunition or explosive substances”, and “stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is a proclaimed offender, or any persons who has committed a non-cognizable offence, or against whom a reasonable suspicion exists that he has committed or is about to commit a non-cognizable offence, or any person who is carrying any arms, ammunition or explosive substance believed to be unlawfully held by him, and may, for that purpose, use such force as may be necessary to effect such stoppage, search or seizure, as the case may be.”

Searching powers to the armed forces officers under the AFSPA include “powers to break open lock of any door, almirah, safe, box, cupboard, drawer, package or other thing, if the key thereof is withheld”. Arrested persons and the seized property is supposed to be handed over to the police “with the least possible delay”.

The personnel exercising all these powers are supposed to be “acting in good faith” and “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.”

=AFSPA is one of the laws that India inherited from the Britons. In wake of Quit India Movement, British Viceroy Lord Linlithgow declared emergency, declared Congress illegal and enforced Armed Forces (Special Powers) Ordinance-1942 (AFO). Instead of doing away with it in 1947 after India became independent, New Delhi strengthened it (despite opposition by lawmakers terming it a lawless law) and invoked it in 1958 in Northeast and in J&K in 1990.

The law survived scathing criticism and massive agitations both in North East and in J&K. Amnesty International believes the law “violates non-derogable provisions of international human rights law, including the right to life, the right to remedy and the rights to be free from arbitrary deprivation of liberty and from torture and cruel, inhuman or degrading treatment or punishment (ill-treatment) as enshrined in the International Covenant on Civil and Political Rights (ICCPR), to which India is a state party since 1979, and other treaties and standards.”

As protests (mostly in North East) failed, a number of people knocked at the door of the apex court. It was in November 1997 that the Supreme Court heard petitions filed between 1980 and 1991 and upheld the constitutional validity of the law. It, however, ruled that the declaration of an area as “disturbed” should be reviewed every six months. Even a section of civil libertarians termed the ruling ‘shocking”. Prime Minister Dr Manmohan Singh even appointed a five member review committee under Justice (retd) Jeevan Reddy in November 2004. It submitted its report in June 2005 but there has been no follow up. Though its contents were never made public, the committee is reported to have recommended repealing the law and replacing it by something that is humane. The committee has said the law is “too sketchy, too bald and inadequate in several particulars”…and has become “a symbol of oppression, an object of hate and an instrument of discrimination and high handedness.”

Though no such committees were appointed in Kashmir context but the issue was taken up suo moto by Mohammad Hamid Ansari, now the Vice President, when he was appointed head of one of the five Working Groups on Kashmir. He submitted his report in April 2007 suggesting certain laws including AFSPA be revoked.

AFSPA is source to almost everything that is happening on the human rights front in J&K. There are custodial deaths, torture, enforced disappearances and sexual violence and hundreds of cases are already documented. At one point of time, the police in J&K was directed not to file FIRs against security forces or record accusations of misconduct by security forces in their daily logs.

Making security men accountable for what they do is a painful process even in cases where gross misuse of authority is clear. Never ever have the armed forces honoured the commissions of enquiry. Managing investigations of a case solely is the requirement of the victim. In October 2008, in case of Ghulam Nabi Magrey vs Union of India, the state government has informed the court that from 1990 to 2007 it had requested permission from New Delhi to prosecute members of the army or paramilitary for killings and other human rights violations in at least 458 cases. Though permission in 270 cases, by then, had been granted, it was never known what the follow up of the state government was. Some of the high profile cases pending against various security agencies are awaiting any formal permission.

=As militant violence nosedived, the issue of AFSPA revocation was always an issue. Barring Kashmiri Pandits and the BJP, nobody in the state opposes the revocation of the draconian law. But the issue cropped at a time when Kashmir burst in anger over a spate of killings that started in June. Serious opposition by the armed forces and unconditional support to it by a host of political parties has taken the issue to Delhi where it is increasingly becoming a fodder for the electoral politics.

But many people who are aware of the lawmaking say that chief minister Omar Abdullah has unnecessarily dragged New Delhi into the controversy knowing fully well that it will not concede the demand given the sharp divisions on the issue. Instead, they suggest, the state government could easily de-notify the ‘disturbed areas’ which it believes are peaceful and where AFSPA is no more required. This will require just an executive order from the state home ministry. AFSPA does empower the state government to notify and de-listed the disturbed areas.

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