Sunday, March 25, 2007

'Legally forces don't enjoy special powers in JK'

Naseer A Ganai 
Srinagar, Mar 25: The special powers enjoyed by armed forces in Jammu and Kashmir under the Armed Forces (Jammu and Kashmir) Special Powers Act can be challenged and invalidated because New Delhi has not reviewed the law which is mandatory as per the Supreme Court of India ruling of 2001, a former minister told Greater Kashmir. 
 “Since August 10, 2001 the law has not been reviewed. Thus it is in total contravention of the Supreme Court ruling in Naga People’s Movement of Human Rights versus Union of India 1998,” said the minister who requested not to be named.
He said after the review of the law, the government has to issue a fresh notification. However, he said, government has not done it since 2001 which has led to a question whether armed forces are really enjoying special powers here.  
The Supreme Court in Naga People’s Movement of Human Rights versus Union of India says that “section 3 of 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 such declaration before the expiry of period of six months. 
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 and Kashmir it has not been followed and notices were not issued.
Legal experts here say if it is the actual position, then the government has to come clear about the Act itself.  
They say then in the past 17 years the State of Jammu and Kashmir legally remains “disturbed area” only for some years and for the rest of the time special powers enjoyed by troops were not holding any legality.   
The AF(JK)SPA got the concurrence of then Governor and it became an Act on September 10, 1990 and with it notification was issued declaring Kashmir Valley as disturbed area. In 1990, the then Governor enacted the Jammu Kashmir Disturbed Areas Act. On July 17, 1992, the Jammu and Kashmir Disturbed Areas Act 1992 was enacted by the President of India by repealing the Jammu and Kashmir Disturbed Areas Act, 1990, but the duration of the Act for which it was enforced is not mentioned in the notification.
Later in 1997 the then 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 didn’t see light till August 10, 2001. 
On August 10, 2001 an order was issued by the then Principal Secretary Home Department of the Government of Jammu and 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 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 Srinagar, Budgam, Anantanag (Islamabad), Pulwama, Baramulla (Varmul), and Kupwara stand already so declared.”  
But the notification has not specified the time bar. 
According to senior counsel Zaffar Ahmad Shah, the disturbed area under AF(JK)SPA means “an area which has for time being declared so by notification under section 3 of the Act.” He said, “It cannot be of indefinite duration. Therefore the Supreme Court has observed that having regard to the definition of disturbed area, the words ‘for the time being’ imply that declaration under section 3 has to be for a limited duration and cannot be presumed to be a declaration which will operate indefinitely. So therefore the declaration has to be reviewed before the expiry of a period of six months.” 
Shah said if there hasn’t been a review of the notification, then the continuance of these notification could be challenged. He said emerging view is that in exercise of special powers by the armed forces there is no legitimacy and the spirit of law has been thrown to winds. 
However, leader of opposition and senior National Conference leader Abdul Rahim Rather said if they were not reviewing it, it was pure non-compliance of the law, but it could not be proved in the court of law. 
“They will sex-up records to prove they have been doing it. But if issuance of notice is necessary, then they have not issued notices over the years. And with it legality of AF(JK)SPA could be questioned,” Rather told Greater Kashmir. 
He said AF(JK)SPA has been implemented in the state with the concurrence of the Governor, but concurrence of the Governor should not be construed as concurrence of the Jammu and Kashmir Government. 
“Government means council of ministers headed by Chief Minister,” Rather said, describing very enactment and its extending to the state as violation of Article 370 and the Constitution of the Jammu and Kashmir. 

Saturday, March 24, 2007

Can state legislature pull curtain over draconian Acts?

State, centre differ over JK as disturbed area; Legal experts say state politicians can put brakes on special powers to armed forces
Naseer A Ganai 
Srinagar, Mar 24: Does New Delhi have the ultimate power to repeal the draconian laws in Kashmir and decide whether the state is disturbed or not, or the state government too can maneuver, legally or politically, to rid the people of these laws? Legal experts and politicians in the state have different takes over the issue.
Two acts, one enacted by the State Government and the other by the Central Government have totally different position over the question whether the state is disturbed or not. 
Under the Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA) 1990, a central Act, Jammu and Kashmir has been declared Disturbed area, but the State Government which enacted Disturbed Areas Act 1997 for one year has not extended the Act in 1998, thus giving the impression that the state is not a disturbed area. 
The armed forces can only enjoy special powers in an area, which is being declared as “disturbed.”  
The section 3 of AF (JK) SPA says if the Governor of that State (Jammu and Kashmir) or the Central Government, is of the opinion that the whole or any part of the State is in such a disturbed and dangerous condition that the use of armed forces in aid of the civil power is necessary to prevent -
(a) Activities involving terrorist acts directed towards overawing the Government as by law established or striking terror in the people or any section of the people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people;
(b) Activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India from the Union or causing insult to the Indian National Flag, the Indian National Anthem and the Constitution of India, then the Governor of the State or the Central Government may, by notification in the Official Gazette, declare the whole or any part of the State to be a disturbed area.
The Jammu and Kashmir Disturbed Areas Act received an assent of the Governor on October 8, 1997 and the Act was extended to whole of the Jammu and Kashmir State. It says it shall remain in force for period of one year from the date of its commencement.
Confirming expiry of the DAA last month, the Chief Minister Ghulam Nabi Azad told legislative Assembly in reply to a question that that Disturbed Area Act enacted by the State Legislature has 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.” Officials here said that once the act lapses all the notifications issued under it automatically become null and void.
But the question is why the Government Jammu and Kashmir in 1997 enacted Disturbed Area Act declaring whole State as “disturbed” and later after its expiry didn’t deem it necessary to extend it and in such case what is the position of special powers enjoyed by armed forces. 
The NC senior leader Ali Muhammad Sagar said that NC didn’t enact the law. “It was already there and 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,” Sagar said.
Now the lawyers and legislators perceive the development differently with some openly saying that if the Disturbed Areas Act enacted by the State Government in 1997 after repealing of the Disturbed Areas Act 1992 has lapsed, then the special powers enjoyed by the Armed Forces under Armed Forces (Jammu and Kashmir) Special Powers Act automatically cease to exist. 
“This will not make any difference with regards to AFSPA,” says former Law Minister Muzaffar Hussain Baig.
He says AFSPA is still applicable in the State even if JK Disturbed Areas Act has lapsed. He quotes section 3 of the AFSPA and says the Centre Government can declare any area as disturbed. He said the act has to be revoked by the Centre and it would make no difference even if the State government seeks its revocation by passing a resolution in the assembly. 
Baig said the State could not do anything in this regard as it has surrendered its legislative powers to the government of India through Instrument of Accession. 
Senior legislator Abdul Rahim Rather holds same view but he insisted that first one should know history of extending AF (JK) SPA to the State. He said New Delhi wanted to extend the AFSPA to the State when NC was in power. “But we firmly put our foot down. And when in 1990 New Delhi nominated Jagmohan as Governor for the Jammu and Kashmir State, National Conference resigned. And within days Government of India with Mufti Muhammad Sayed its Home Minister extended the AFSPA to the State and the then Governor Jagmohan gave the concurrence to it,” Rather said.
He described extending of the Act to the State as one among scores of ugly example how NewDelhi eroded Article 370. He said only New Delhi could revoke the law.
Riyaz Hussain is additional advocate general of the State. He describes disturbed area and Armed Forces (Jammu Kashmir) Special Powers Act as co-terminus and says when the State Government refuses to accept Jammu and Kashmir as disturbed area, Special Powers enjoyed by armed forces under AFSPA cease to function here. ‘This is debatable and tricky question too. If State Government says there is no disturbance how come Centre comes to conclusion there is disturbance. I think in such a situation Armed Forces Special Powers Act has no validity in the State of Jammu and Kashmir,” he said.
Guatum Navlakha columnist and prominent Kashmir commentator has different take on the issue. He said once the AFSPA is invoked in any State, then it does not require review or renewal of the parliament. He said under constitution of the Jammu and Kashmir, the concurrence of the State Governor is concurrence of the State Government. “The state legislature of Jammu and Kashmir is so powerless and so impotent that it cannot even review or discuss a centre law. In such situations it puzzles one when PDP and NC promises people of self-rule and autonomy to people,” he said. 
However, he too says it has to be seen what prompted the then Government to pass the DAA 1997, when AF (JK) SPA was already in effect and later why the state government didn’t extend the Act on its expiry in 1998. “It is serious debate,” he said.
Can AF (JK) SPA be amended or repealed by legislature?
Senior counsel Zafar Ahmad Shah has most extreme view on the AF (JK)SPA itself. 
He says, “Armed Forces (Jammu and Kashmir) Special Powers Act was framed in 1990 by parliament when the state legislature had been dissolved. But after elections of 1996, the State legislature can repeal the said act and its earlier enactment by parliament cannot stand in its way.” 
Elaborating, he said there seems to be confusion with regard to Armed Forces (Jammu and Kashmir) Special Powers Act. 
“There is a central act by the name Armed Forces Special Powers Act. The said Act applies to the states Arunachal Pradesh, Assam, Manipur, Mahalaya, Mizoram, Nagaland and Tripura. It is not applicable to the Jammu and Kashmir,” he said.
In 1990, he said, the parliament enacted another similar law called Armed Forces (Jammu and Kashmir) Special Powers Act. Under section 3 of this act both the centre government and the state Governor have power to declare any area as a disturbed area. 
Shah said 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.
“AF (JK) SPA is in force in the State by way of notifications issued by Home Department of the State Government declaring first Kashmir valley as disturbed and later Jammu division through another notification,” he said. 
He said earlier Disturbed Areas Act of 1997, the legislature had declared whole State as disturbed area but after the lapse of the act, it is the notification under section 3 AF (JK) SPA issued last on August 10, 2001 which has declared an area to be disturbed,” he said. 
He said it was entirely for the state government to withdraw the said notifications issued by the State Government and it is also entirely for the legislature to amend said act. “There is no need to approach the centre government and the position was not projected correctly before the people in this whole matter,” he said. 
Senior officials in the law department said that the State Government was competent to withdraw the notification declaring the State as disturbed. “Once it withdraws the notification armed forces cannot enjoy special powers,” said a senior official.





Last time when whole JK was declared disturbed 


Srinagar, Mar 22: Last time the State Government issued a notification declaring disturbed areas under AFSPA was on August 10, 2001. 
The order issued by Principal Secretary Home Department of the Government of Jammu and Kashmir 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 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 Srinagar, Budgam, Anantanag, Pulwama, Baramulla, and Kupwara stand already so declared.” Officials said earlier notification was issued during governor’s rule in 1990.  



Kashmir’s AFSPA in UN 


The United Nations Committee on the Elimination of all forms of Racial Discrimination brought up the issue of AFSPA while discussing India in 1996. The concluding observations contained in the UN document CERD/C/304/Add.13 of 17 September 1996 reads: “The committee is seriously concerned that the Kashmiris, as well as other groups are frequently treated, on account of their ethnic or national origin, in ways contrary to the basic provisions of the conventions. Clause 19 of the Protection of Human Rights Act prevents the National Commission on Human Rights from directly investigating allegations of abuse involving the armed forces. This is a too broad restriction on its powers and the contributes to a climate of impunity for members of the armed forces.”