The Additional General Secretary of National Conference, Dr Mustafa Kamal remains in news for his `controversial’ statements. While most of his statements are ridiculed or rubbished, his recent statement on AFSPA merits special mention here. He said AFSPA has become irrelevant. Yes, it has and Kamaal needs to be appreciated for his `courageous’ statement.
Senior officials of the home department say the Act has already lapsed as mandatory notices to keep the law in force have not been issued.
The AFSPA became an Act on September 10, 1990 when it got the concurrence of the then governor. Immediately after this, a notification declaring the Valley as disturbed area was issued. In 1992 the president of India repealed the Act and enacted Jammu Kashmir Disturbed Area Act. However, the duration of the Act for which it as enforced was not mentioned.
In 1997 the National Conference Government enacted the Disturbed Area Act 1997 declaring the whole State as “disturbed.” However, the duration of the law was only for one year. On October 1998, the NC government allowed it to lapse.
The matter was simply forgotten till August 10, 2001. On August 10, 2001 an order was issued by the then Principal Secretary Home Department of the Government of Jammu Kashmir extending disturbed area to Jammu province. The order says: “Whereas the Governor is of the opinion that the State is in such a disturbed condition that the Armed Forces in the aid of civil power are necessary to prevent the activities involving terrorist acts directed towards striking terror in the people. Now, therefore, in exercise of the powers conferred by section 3 of the Armed Forces (Jammu and Kashmir) Special Powers Act 1990, the Governor hereby declares the districts of Jammu, Kathua, Udhampur, Poonch, Rajouri, and Doda to be disturbed areas in addition to the districts of Srinagar, Budgam, Anantnag, Pulwama, Baramulla and Kupwara stand already so declared.” But the notification has not specified the time bar.
Senior officials of the Home Department said the government has to issue notification after the expiry of six months when it reviews the AF (JK)SPA. However, they admit that in case of Jammu Kashmir it has not been followed and notices were not issued.
Legal experts hold contrary views on the failure of the state government to issue notifications from time to time. Senior counsel, Zaffar Ahmad Shah, believes the state legislature can repeal the said act and its earlier enactment by parliament cannot stand in its way. “The AF (JK) SPA could be amended or repealed as it falls within legislative powers of the state. But it needs will of the legislators,” he said.
Another senior counsel and former Law Minister, Muzaffar Husain Beg says the AF (JK) SPA being a legislation enacted by the Parliament could not be repealed by the state legislature. “The state of Jammu Kashmir has surrendered its legislative powers to the union government by virtue of the instrument of accession”, he said in response to Shah’s views.
The former Chief Minister, Ghulam Nabi Azad admitted on the floor of the hose that the Disturbed Area Act had lapsed in 1998. He however said “Armed Forces Special Powers Act is Central Act, enacted by the Parliament of India. Therefore, the State Legislature cannot review or repeal this act.” The state officials, however, do not subscribe to his views. According to them, once the Act lapses all the notifications issued automatically lapse.
Noted Delhi based columnist, Guatum Navlakha, while taking a dig at National Conference (NC) and Peoples Democratic Party (PDP) said that the state legislature was so impotent that t cannot even discuss a central legislation not to speak of repealing it. He laughs at the autonomy and self rule slogans.