De-Stinging AFSPA

People protest against controversial AFSPA in Srinagar

Both the government and opposition are talking loud about the need to repeal Armed Forces Special Powers Act (AFSPA) and expressing helplessness to revoke it. What no one is telling is that the draconian Act can be rendered ineffective, if the state denotifies areas it has declared “disturbed”. Zubair A Dar reports.

Every human rights violation committed by armed forces in J&K is followed by a debate over the revocation of the Armed Forces Special Powers Act (AFSPA). It dies down with reluctance by New Delhi to revoke the law. This time, the act is again in focus after incidents of killings by armed forces in Bomai and Khaigam. The state legislature does not have the authority to repeal the law, but experts say the state government can make it ineffective by withdrawing notifications that have declared most of the districts as “disturbed areas”. However, the debates about the act hover around slogans and expressed inability of successive state government to revoke it. Nothing has been done beyond public appeals to New Delhi to revoke the act.

The AFSPA comes into effect only after an area is declared disturbed. Section 4 of the AFSPA lays down that the power to declare an area ‘disturbed’ lies with the Central Government as well as the Governor of the State. The act though does not describe the circumstances under which the authority would be justified in making such a declaration. Instead, the act only requires that the authority be “of the opinion that whole or parts of the area are in a dangerous or disturbed condition such that the use of the Armed Forces in aid of civil powers is necessary.”

In 1990, after the break out of armed rebellion, the law was extended to state. Rights activists however say that the armed forces exercise rights much beyond “aiding civil powers”.

“The intervention of armed forces in J&K can not be termed in aid of civil power,” says human rights activist, Parvaiz Imroz. “The question is whether they are in the control of the civilian government? Armed forces deployed here have the task of controlling the lives of people, not just counter militancy.”

With improvement in situation, experts say the state government can act within its right by withdrawing the notifications issued after imposition of president’s rule in 1990. At that time, Government of India justified the declaration by breakout of armed rebellion in J&K. The Parliament had the authority to exercise the functions of the J&K legislature under clause B of article 356 (1). It thus passed the Armed Forces (Jammu and Kashmir) Special Powers Act whereby the armed forces were conferred special powers to deal with the situation in the state.

Under AFSPA, however, the armed forces enjoy these special powers only in areas which are declared as “disturbed areas”. The power to declare an area as disturbed vests in the governor of the state as has been laid down by section 3 of the AFSPA. The Governor of Jammu and Kashmir accordingly declared districts of Srinagar, Budgam, Anantnag, Pulwama, Baramulla, Kupwara, Jammu, Kathua, Udhampur, Poonch, Rajouri and Doda as disturbed by issuing notification SRO SW 4 on July 6, 1990 and later again through SRO 351 on August 10, 2001.

In 1992, the president of India enacted J&K Disturbed Areas Act (President’s act number 4 of 1992). The act was intended at empowering the state government to declare any area of the state as disturbed area. The state legislature repealed the law and passed a new law (Act No 32 of 1997) namely the Jammu and Kashmir Disturbed Areas Act. Section 3 of the said act empowered the state government to declare any area of the state as a disturbed area. But the law was to remain in force for a period of only one year and the act lapsed on 8th October 1998. It doesn’t figure on the statute book of the state any more.

As the J&K Disturbed Areas Act lapsed, the only law empowering the state government to declare any area as disturbed was the Armed Forces (Jammu and Kashmir) Special Powers Act of 1990. The state government accordingly notified all districts in Valley as disturbed. Gradually districts in Jammu also came under its purview, including Jammu and Kathua. The APSFA hence applies to districts notified as disturbed by the state. Only Leh and Kargil districts remain outside the ambit. If the state government de-notifies areas as disturbed, the AFSFA is left ineffective.

Minister for law and parliamentary affairs Abdul Rahim Rathar, however, has a contrary opinion about the powers of the state government to de-notify disturbed areas. “Any withdrawal of notifications will tantamount to amendment of the AFSPA,” he says.

“The act was implemented to the state by Government of India with concurrence of the Jammu and Kashmir government. As far as the state government is concerned, it has become finality.” But section 21 of the General Clauses of the act provides – “Where, by any act or regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power exercisable in the like manner and subject to like sanction and conditions (if any), to add to, amend, vary or rescind the said notifications, orders, rules or bye-laws so issued.”

“General clauses act provides so for our laws, not the central laws,” says Rathar. “Had that been the case, we could have declared full autonomy in one day. There have been certain amendments done to the provisions laying down the authority of state government in maintaining law and order during governor Jagmohan’s rule before 1990. Once that has been done, the state has no authority to repeal those amendments.”

After the Bomai incident, Chief Minister Omar Abdullah sounded determined to act. “Revocation of the operation of AFSPA is a long standing demand. It is not an overnight development but with the improvement in situation it could be reviewed,” Omar told reporters on the sidelines of a function.

He even talked about the need to revoke the law in the state legislative assembly. But Omar’s government, like his predecessors, is perhaps ignorant of its powers or lacks the political will.

Experts say the government is caught in a quagmire of consensus building with New Delhi over the repealing of AFSPA. “Both central and state governments have the power to issue and withdraw notifications. But state’s withdrawal of notifications can trigger a constitutional crisis,” says Imroz. “New Delhi links the law to terrorism which is an item in the central list. That gives New Delhi overriding powers. The authority to enact or repeal such laws lies with the central government.”

First passed by the parliament in 1958 for “aiding civil power” in controlling secession in north east, the AFSPA has become an institutionalised form of impunity. It gives troopers and paramilitary unrestricted and unaccounted powers to shoot, arrest and search – all in the name of “aiding civil power.” The enforcement has resulted in numerous killings and arbitrary detention, torture, rape, and looting by security personnel in the north east (where it was made applicable to all seven states in 1972) as well as Jammu and Kashmir. Bomai and Kheegam are only the latest episodes of a series of violations unabated ever since the invocation of the law.

The worst aspect of the implementation of the law is the ease with which armed forces refuse to appear in courts of law for prosecution. The members of the Armed Forces in the whole of the Indian territory are protected from arrest for anything done within the line of official duty by Section 45 of the CrPC. Section 6 of the AFSPA gives troopers absolute immunity. It provides that a person wishing to file a suit against armed forces for human rights abuses must first seek the permission from GoI. Despite a First Information Report (FIR) registered against the security men in the Bomai incident, the local administration is powerless to prosecute them unless the GoI permits so.

Unfortunately, successive state governments too have been reluctant in prosecuting troopers even when the permission was granted by the home ministry. Details provided to the J&K high court by principal secretary Home department shows that GoI has granted permission for prosecution in 270 cases out of the 458 cases sent for grant of permission between 1990 and 2007. In four cases, GoI rejected sanction of permission. The list further shows that 122 cases have been referred to DGP Crime and Railways for clarification but the reply is yet to come.

While the state government has failed to act, the troopers who commit murders face a court martial, which in worst circumstances punishes the culprit by stripping off his job. Beginning with Pathribal, the army has been refusing to produce their men in civil courts for prosecution in human rights abuses. Even in the much publisiced staged encounter cases that surfaced in 2007, policemen were prosecuted but the troopers took refuge under the act.

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