Some things do not have a place in a civilised country. One of them is The Armed Forces (Special Powers) Act, 1958, hereinafter AFSPA.
AFSPA is unique in many respects. I cannot recall any other law made by Parliament which applies only to the Seven Sisters of the North East Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. In 1990, Parliament passed a similar law that would apply to Jammu & Kashmir.
Blow to jurisprudence
It is a short Act: there is a section containing the definitions and three sections that constitute the essence of AFSPA. The contents of the three sections knock out every cherished principle of criminal jurisprudence.
Section 3 enables the governor of the state (one of the eight) or the Central government to declare the whole or part of the state as a disturbed area. Once it is so declared, armed forces can be used in such area in aid of the civil power.
Armed Forces means the Army, the Air Force, and the Central Armed Police Forces (CRPF, BSF, ITBP, CISF). No time limit has been prescribed for the continuance of the declaration: hence the Supreme Court stepped in and ruled in the case of Peoples Movement of Human Rights that there should be a review of the declaration before the expiry of six months.
Once the armed forces are deployed, they will enjoy special powers conferred under Section 4. Not only superior officers, but any non-commissioned officer (and that includes a jawan) will enjoy such special powers. Here is a summary of the special powers:
1. Suppose an order is promulgated and assembly of five or more persons is prohibited. Anyone on the scene will be acting in contravention of any law or order. Normally, that person can be arrested. But, in a disturbed area, armed with special powers, the officer
may, if he thinks it is necessary, fire upon the person even to the causing of death.
2. The officer may destroy any shelter or structure from which armed attacks are likely.
3. The officer may arrest, without warrant, any person against whom the officer has a reasonable suspicion that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to make the arrest.
4. The officer may enter any premises, without warrant, to recover any person, property, arms or ammunition and may use such force as may be necessary.
Section 5 requires that any person arrested shall be brought to the nearest police station with the least possible delay. Note the differences from the normal criminal procedure. Not before a magistrate, but to a police station. Not within 24 hours, but with the least possible delay.
Immunity or impunity?
Section 6 gives immunity against prosecution. Such provisions are increasingly questioned because they encourage the armed forces to act
There is a widespread belief that even normal police powers are misused. Warrants are not obtained. Reasons are not recorded. Indiscriminate arrests are made.
Arrested persons are detained in police stations without any record and are produced before a magistrate long after 24 hours of arrest. Torture is not uncommon. Confessions are extracted.
Imagine the fears of the people in a disturbed area where even a newly-recruited jawan enjoys the special powers. Imagine also a situation where the jawan is working under stress long hours, little rest, darkness, threat of a terrorist or mob attack etc. It is a made-to-order situation for an explosion, and that is what is happening and what happened where AFSPA is in force.
The demand to repeal AFSPA is not a demand of the separatists in J&K alone. It has resonance among a cross-section of the people in the eight states as well as across the country. It has the support of academics, lawyers, non-government organisations and human rights groups. The Justice Jeevan Reddy Committee recommended its repeal and the Justice J S Verma Committee underlined the imminent need to review the continuance of AFSPA. Ms Irom Sharmila has been on a fast for 14 years demanding its repeal.
Tried, but failed
As home minister, I was convinced that AFSPA deserved to be repealed. Many senior officers of the CRPF and BSF agreed that they could discharge their responsibilities just as well without AFSPA. I proposed repeal; the Ministry of Defence and the defence forces opposed repeal, and the defence minister was unwilling to overrule them. A compromise was struck to amend the law. The National Security Adviser and I drafted the amendments. The most important one was to replace the offending words in Section 4(a) by the words use such minimum force as may be necessary. Other amendments were regarding classifying arrests and searches into cases requiring a warrant and cases not requiring a warrant; and producing a person arrested before a magistrate within 24 hours excluding the time for travel.
Alas, there was no decision on bringing an amendment Bill. Hence, we continue to live with a draconian law and aid, unwittingly, the campaign of the separatists. We are objects of ridicule among those who value and uphold human rights.
If there is one action that can bring about a dramatic change of outlook from J&K to Manipur, it is the repeal of AFSPA, and its replacement by a more humane law.
Author headed Union Home and Finance Ministries during UPA government.
On issuing admit card to a cow
Dr. Fayaz Ahmad Bhat
Jammu Kashmir State Board for Professional Entrance Examinations has issued an admit card to a cow with the signature of the Chairman on it. This reflects the sorry state of affairs of education, government and administration in the state. The following write up attempts to make sense of the episode, albeit in lighter vein.
The Gaws (cows) and Dands (ox) have been victim of human exploitation and brutalities since times immemorial. But with the change of government at Delhi (center) and in the state of Jammu and Kashmir, amid Modi wave in the country there have been positive changes and developments in the Insaan (human) Gupan (animal) relations. The government initiated many policies and programmes across the country for the welfare of Gupan community. Of these policies and programmes beef ban in the many states of the country was much discussed and praised. With BJP- PDP coalition government in the state headed by Mufti Mohammad Syed there was great pressure on the Syed from its coalition partner, BJP to take bold steps for the welfare and promotion of Gupan community.
It was fallout of beef ban in the country and great pressure on Syed from BJP that state government finally came with the policy for the welfare and development of the Gupan community. The state government formulated the policy which made Gupans eligible for competitive exams. The policy has been praised for its potential of liberating Gupans from age old chains and bondages of humans. It was outcome of the beef ban in the country and welfare policy the state that Gupans have finally decided to contend humans in all the walks of the life. It is Kachir Gaw (red cow) who has decided to take a lead and set an example by applying for Professional Entrance Examination (elitist exam of the state) in the state of Jammu and Kashmir. Appreciating and applauding her daughter Gura Dand,( Brown Ox) the father of Kachir Gaw appealed all cows to come forward and show humans beings their way and compete them in all the walks of life. It is 21st century the age of modernization, liberation and democracy in which none can deny freedom, liberty and equality to others, Gur Dand, said. While talking to media persons in the late evening Kachir Gaw, gave full credit to PDP-BJP coalition government of the state for curbing humans and creating conducive environment in the state in which a Gaw (cow) can challenge humans and debunk the traditional myth of human superiority. Days are gone when humans were milking a cow, now it is their turn, said Kachir Gaw.
The Chairman of Jammu and Kashmir Board of Professional Examination, while giving full credit to BJP- BDP coalition government of the state said that it is only with the policies and programmes of the government that all the communities of the state are feeling safe and free and have gained self confidence. The recent development is an example and it is first time in the history that a Gaw (cow) has applied for such competitive exam, the chairman added. He grilled all those who have raised question marks on the eligibility of Kachir Gaw. These are the people who are living in fools paradise, who make hue and cry on the eligibility of Kachir Gaw in 21st century in the age of democracy, equality, liberty and freedom.
The Minister of education while briefing the media persons defended the decision of the government said that a high level committee was set up to examine the eligibility of Kachir Gaw. The committee looked at the issue from various angles and perspectives and finally reached to the conclusion that it would be inhuman, illogical and illegal to bar the Kachar Gaw from appearing in the examination. The committee in their 200 long pages report has thrown weight behind their decision by producing examples of many Dands and Gaws enrolled in various educational institutions of the state and working in the various departments of the state. The report reads that it is very inhuman, illogical, and illegal to bar the Kachar Gaw from appearing in the examination when a Dand has already ruled the state for many years.
The National Commission for Gaws, has appreciated the decision of the government and said it would be written with golden words in the history. Many prominent Gaminists (as feminist related to women Gamists to cows) and Enimists (humanist to humans and Enimist to animals) called the development beginning of breaking natural bias.
Author teaches Sociology at Government Degree College, Banihal.
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