NC MLC disturbs Mufti’s Govt on non-existent “Disturbed Areas Act”

Ahmed Ali Fayyaz

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Jammu, March 24: The opposition National Conference member Dr Bashir Ahmad Veeri generated a high voltage drama in the Upper House of Legislature in the Indian-administered Jammu and Kashmir while floating a resolution---followed by an adjournment motion---on Tuesday for revocation of a law that has ceased to exist after October 1998.

The special law--- initially titled in Governor’s Rule in 1990 as “The Jammu and Kashmir Disturbed Areas Act, 1990 (Governor's Act No. 12 of 1990; in President’s Rule in 1992 as “The Jammu and Kashmir Disturbed Areas Act, 1992” and in Dr Farooq Abdullah’s civilian government in 1997 as “The Jammu and Kashmir Disturbed Areas Act, 1997---had given special powers to magistrates and officers of the armed branch of J&K Police for fighting militancy.

Being of temporary nature and subject to legislative review, the law expired on October 7, 1998, when Dr Abdullah’s government and following governments did not grant it’s enforcement any extension.

Veeri’s resolution, which was disallowed by Legislative Council Secretariat for being non-existent, read: “This august House resolves that in view of improving security environment in the State of Jammu and Kashmir, “Disturbed Areas Act” may be revoked with immediate effect in the larger interest of people of the State”.

Veeri pressed the matter in the House while bringing a motion, seeking adjournment of the Question Hour and a special debate on the laws that grant extraordinary powers and immunity against “any act done in good faith” by officers of Police and armed forces. Council officials said it was pending disposal with Chairman Amrit Malhotra whose is from Congress party and whose term would end on March 27.

With most of the people, including those in media, politics and bureaucracy, being little educated about the law, rejection of Veeri’s resolution generated a debate in different circles, particularly on television news channels. It was projected as if the PDP-BJP, headed by Chief Minister Mufti Mohammad Sayeed, was averse to a debate on the issue of special powers enjoyed by the armed forces. It forced the government to issue an official clarification in the evening, making it clear that the DAA had ceased to exist after October 7, 1998, and as such there could be no debate on its “revocation”.

The clarification has obviously put the NC MLC in an embarrassing situation. Not perhaps properly educated and prepared for a discussion on the subject, the MLC possibly wanted revocation of the two notifications, issued by Governor in 1990 and 2001, declaring entire State of J&K, excluding the Ladakh districts of Leh and Kargil, as “Disturbed Areas”, under Section 3 of a different law that granted special powers to the officers of the central armed forces fighting armed rebellion in the State.

The law related to the special powers of the military and paramilitary forces, including Air Force personnel engaged in counterinsurgency operations, was initially titled as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990.  It came into force on July 5, 1990, and was notified by Governor Girish Chander Saxena’s government on July 6, when Mufti Mohammad Sayeed was the Union Home Minister.

Section 3 of AFSPA authorises the Governor, but more significantly also the Central government, to declare any areas of the State as “Disturbed Areas) so as to grant special powers to the armed forces. The Governor’s notification was published under signature of Additional Chief Secretary (Home) J&K Government vide SRO NO. SW 4, Dated 6-7, 1990, in the State Gazette. It declared all six districts of Kashmir province---Srinagar, Budgam, Baramulla, Kupwara, Anantnag and Pulwama---besides areas falling in the 20 Km strip on the LoC in Jammu’s Poonch and Rajouri districts as “Disturbed Areas” and granted special powers to the central armed forces.

AFSPA-1990 received President’s assent on September 10, 1990. It was published by Legislative Department of the Union Ministry of Law and Justice in an extraordinary gazette of the Government of India on September 11, 1990.

The President issued a Proclamation on the 8th July 1990 under Article 356 of the Constitution of India, in relation to the State of Jammu and Kashmir declaring inter alias that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament. Parliament, under Article 357(1)(a) of the Constitution, conferred on the President, the powers of the Legislature of the State of Jammu and Kashmir to make the laws vide the Jammu and Kashmir State Legislature (Delegation of Powers) Act, 1992 (21 of 1992), as Governor had dissolved the State Assembly, following Chief Minister Farooq Abdullah’s resignation, in 1990. In 1992, Parliament ratified the Governor’s law as AFSPA-1992 in to-to.

When Dr Abdullah came back to power in 1996, his government left the AFSPA intact and the Governor’s “Disturbed Areas” notification, dated July 6, 1990, in force. It was never amended or repealed by the successive governments either.

On August 10, 2001, Governor, on the recommendation of Dr Abdullah’s Cabinet, declared all six districts of Jammu division---Jammu, Kathua, Poonch, Rajouri, Udhampur and Doda----as “Disturbed Areas” vide SRO 351. It was issued by Principal Secretary Home vide No: Home-219/97-ISA Dated 10.8.2001.

It is by virtue of these two notification, both issued under Section 3 of AFSPA, that Central armed force are enjoying extraordinary powers in Kashmir and Jammu provinces.

 Extraordinary powers under AFSPA

Under AFSPA, any commissioned or non-commissioned officer or warrant officer, is authorised

“(a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of  things capable of being used as weapons or of firearms, ammunition or explosive substances;

(b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which  armed attacks are made or are likely to be made or are attempted to be made, or any structure used as training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offence; 

(c) arrest, without warrant, any persons who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest; 

(d) enter and search, without warrant, any premises to make any such arrest as aforesaid or to recover any person believed to be wrongful restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawful kept in such premises, and may for that purpose use such force as may be necessary, and seize any such property, arms, ammunition or explosive substances”.

Besides, no criminal proceedings can operate under any such officer as all of the officers’ acts during counterinsurgency conditions are deemed to have been done “in good faith”.

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