Bumai Murders: Army’s Plea To Inquiry Officer Under AFSPA

This document is the army plea challenging the state government’s authority to constitute any investigation into the affairs involving the defence forces without the prior permission from the central government. The affidavit was in response to a notice that Commissioner Baramulla conducting a magisterial inquiry into the twin murders of two Bumai (Sopore) by 22-RR killed on February 21, 2009, had issued. It is part of the records after it was submitted to the Inquiry Officer. Police have already completed their investigations and identified the soldiers but is awaiting a formal sanction for prosecution.

BEFORE THE LEARNED DISTRICT MAGISTRATE, BARAMULLA CONDUCTING INQUIRY INTO THE BUMAI INCIDENT DATED 21 FEBRUARY 2009

In the matter of
Preliminary objection as to the jurisdiction and powers for making an inquiry into the matters relating to Armed Forces of the Union deployed in the State in aid to civil authority, a matter falling under item 2A of List-1 of the VII Schedule of the Constitution of India.

Commander, 5 Sector Rashtriya Rifles, C/O 56 APO
…………….. Applicant

May it please the Learned Inquiry Officer,

That I, IC_53668L Lt Col Jayant Janardhan Rajguru, General Staff Officer Grade 1 (Operations), HQ 5 Sector Rashtriya Rifles solemnly affirm and states on oath as under.

That I am the Operations Staff Officer to the Applicant and am specifically authorized and competent to file this application for and on behalf of the applicant.

The applicant herein most respectfully submits:-

1.    That a notice dated 24 February 2009 was recived by the applicant from your good office intimating that your good self has been ordered by the Hon’ble Chief Minister of the state of Jammu & Kashmir to carry out and Inquiry into the Bumai incident and that for the said purpose the Commanding Officer and Company Commander of 22 Rashtraiya Rifles (RR) are required to appear before your good self on 26 February 2009 at 1400 hours for their examination and recording statements.

2.    That the applicant craves leave to raise the preliminary objection as to the jurisdiction of the Inquiry constituted in this regard based on sound legal submissions as under.

Preliminary Objections:
3.    That the Armed Forces are deployed in Kashmir valley in aid to civil authority by virtue of Item No 2A of List-1 (Union List) of the VII Schedule of the Constitution of India. Besides, the entire State has been declared a disturbed area under the provisions of Armed Forces Special Powers Act (J&K) 1990, whereby the personnel of the Armed Forces are vested with special powers in order to facilitate discharge of their duties.

4.    That Section 5 of the Constitution of Jammu & Kashmir unambiguously lays down that the executive and legislative power of the State extends to all matters except those with respect to which Parliament has powers to make laws.

5.    That the areas of operation of laws to be legislated by the State Govt and Central Govt have been clearly demarcated in the lists specified in the Seventh Schedule of the Constitution of India. The relevant entry 2A of the List 1 of Schedule VII of the Constitution of India reads, “Deployment of any armed force of the Union or any other force subject to the control of the Union or ant contingent or unit thereof in any state in aid of the civil power’ powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.”

6.    That since 22 Rashtriya Rifles is deployed by virtue of power vested exclusively with the Central Govt under Item 2A of List-I of the VII Schedule, and are operating under the Armed Forces (Jammu & Kashmir) Special Powers Act, 1990 at the relevant time, the present Inquiry set up in exercise of the State’s executive authority is not legally competent to probe the conduct of 22 Rashtriya Rifles being a matter within the executive authority of the Central Govt.

7.    That the submission is further fortified by the provisions of Commission of Inquiries Act, 1952, wherein the appropriate Government under the proviso to Section 2 (a) inserted vide Act No 79 of 1971 as applicable to the State of Jammu & Kashmir clearly specifies that only the Central Govt is competent to constitute an Inquiry on matter related to entries enumerated in List-I of the VII Schedule of the Constitution of India.

8.    That the Applicant respectfully submits that it has been held by the Hon’ble Division Bench of the Gauhati High Court in Border Security Force versus State of Meghalaya and