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.