Repealing AFSPA by notification

Peoples Democratic Party and the BJP leadership discussed the possibility of lifting the Armed Forces Special Powers Act while framing the common minimum programme. The coalition government may lift the draconian law from some place in Kashmir and Jammu regions. In 2011, New Delhi made clear that the state government had the authority to repeal the Disturbed Area Act. However, the state government immediately said 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 GC Saxena. 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 In 1992 the President of India repealed the act and enacted Jammu Kashmir Disturbed Area Act.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 DAA 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 until 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 DAA to Jammu province as well. 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 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 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 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 AFSPA. However, they admit that in case of Jammu and Kashmir it has not been followed and notices were not issued. The state government, according to the law department officials, need not to discuss the issue in the legislature. They believe that the government can simply withdraw the notification. Once the notification is withdrawn the armed forces shall be bereft of the special powers.

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