While framing their Common Minimum Programme, the People’s Democratic Party (PDP) and the BJP leaderships have discussed the possibility of lifting the Armed Forces Special Powers Act (AFSPA, and the coalition government may lift the draconian law from some areas in the Kashmir and Jammu regions.
The legislation has been widely discussed over the past few years.
In 2011, New Delhi had made clear that the state government had the authority to repeal the Disturbed Areas Act, but the latter immediately shot back that it could not be done without New Delhi’s consent. But legal experts believe that the state government can repeal the draconian Act without consulting New Delhi.
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 a Disturbed Area was issued. In 1992, the President of India repealed it and enacted the Jammu and Kashmir Disturbed Areas Act. But the duration over which it would remain in force was not mentioned.
In Naga People’s Movement of Human Rights versus Union of India, the Supreme Court of India held: “Section 3 of the AFSPA could not be construed as conferring powers to issue a declaration without any time limit.”
The SC ruling says that an area can be declared as ‘disturbed’ only “in grave situation of law and order” and a periodic review of the declaration made under Section 3 of the central Act should be made by the Government administration that has issued the declaration before the expiry of the six month period. As per the apex court ruling, it is mandatory for the union government to review the legislation and issue a fresh notification. New Delhi has failed to review the Act since August 10, 2001. This is a clear violation of the Supreme Court’s judgement. The special powers enjoyed by the armed forces in Jammu and Kashmir can, therefore be, invalidated by seeking judicial recourse.
In 1997, the National Conference government enacted the Disturbed Areas Act 1997, declaring the whole State as “disturbed.” This was to remain in force for only one year. On October 1998, the NC government allowed it to lapse.
The matter was simply forgotten till August 10, 2001, when an order was issued by the then Principal Secretary in the Home Department of the Government of Jammu and Kashmir to the following effect:: “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 terrorists 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, Anantanag, Pulwama, Baramulla and Kupwara stand already so declared.” But the notification did not specify the time bar.
Senior officers at the Home Department say that the government has to issue a notification after the six-month period expires when it reviews the AF(JK)SPA. They admit that in case of Jammu and Kashmir this has not been followed, and notices have not been issued.
Some serious questions arise. What had prompted the government to enact the Disturbed Areas Act in 1997 when the AF (JK) SPA was already in force? And why did the state government allow the Act to lapse in 1998?
When a senior journalist sought an explanation from the then Law Minister, Ali Muhammad Sagar, in 2011, the latter said: “The NC didn’t enact the law. It was already there, and the centre directed us to give assent to it. We resisted, but the centre remained adamant. Finally, we didn’t extend the law in October 1998 when it expired.”
According to officers in the law department, the state government need not discuss the issue in the legislature.
“The government can simply withdraw the notification. Once the notification is withdrawn, the armed forces shall be bereft of the special powers.”
Senior lawyer Zaffar Ahmad Shah believes the legislation can be challenged in the court if the government has failed to issue notifications. According to him, the failure of the government has violated the very spirit and object of the apex court judgement in the Naga Peoples Movement v/s Union of India case.
Shah believes that the state legislature can repeal the Act, and its earlier enactment by parliament cannot stand in its way.
“The AF (JK) SPA can be amended or repealed as it falls within the legislative powers of the state. But it needs the will of the legislators,” he says.