New Delhi: The National Conference-led Jammu and Kashmir government had sought the removal of the Armed Forces Special Powers Act on two occasions, the NDA government informed the Rajya Sabha on Wednesday. Nagaland too had demanded its withdrawal, it said.
Minister of State for Home Affairs Kiren Rijiju, in a written reply, said: The J&K government wanted phased withdrawal of the Act from the State in years 2011 and 2013.
He said AFSPA was currently operational in Assam, Nagaland, Manipur (excluding Imphal Municipal Area), Tirap, Changlang and Longding districts of Arunachal Pradesh, 16 police station areas bordering Assam, a 20 km wide belt bordering Assam in Meghalaya and Anantnag, Baramula, Badgam, Kupwara, Pulwama, Srinagar, Jammu, Kathua, Udampur, Poonch, Rajouri and Doda districts in J&K.
In May 2015, the State of Nagaland did not support extension of AFSPA to the State, he said. AFSPA, 1958, has been withdrawn from the areas falling in the jurisdiction of 30 Police Stations of the Tripura State by the State Government of Tripura vide its notification dated 27.05.2015. The Union gov is committed to dealing with law and order and security situation with minimum use of force or special powers, the Minister said.
Disturbed Areas Act (DAA) and AFSPA in Kashmir
The Act was born during Governors Rule in 1990 as Governors Act No. 12. In 1992, it was replaced by the J&K Disturbed Areas Act. It was not referred to Parliaments Consultative Committee on J&K Legislation because of the urgency of the matter.
The state government could declare the whole or any part of J&K as a disturbed area, in which any magistrate or police officer of the rank of S-I or Head Constable (of Armed Police) or above could fire upon, or otherwise use force, even to the causing of death, against any person who is indulging in any act which may result in serious breach of public order. J&K Police could destroy any building they thought was being used, or could be used to carry out attacks.
The Act made police immune from prosecution without prior sanction from the state government. Why did it lapse? In 1997, when Farooq Abdullah was chief minister, the legislative Assembly ratified the law for one year.
But in October 1998, it was allowed to lapse in response to a huge wave of resentment against the misuse of its draconian provisions, especially in Kashmir, where police and armed forces were repeatedly accused of fake encounters, custodial killings and enforced disappearances.
AFSPA was enacted by Parliament on September 11, 1958. It was first implemented in the Northeast, and then in Punjab.
In September 1990, Parliament passed the Armed Forces (Jammu and Kashmir) Special Powers Act, which was deemed to have come into force retrospectively from July 5, 1990. When is AFSPA applicable? Only after an area has been declared disturbed.
The power to declare a territory disturbed initially lay with the states, but passed to the Centre in 1972. Section 3 of AFSPA (in J&K) says that an area can be declared disturbed if it is the opinion of the Governor of the state or the central government which makes the use of armed forces in aid of the civil power necessary.
The armed forces may shoot to kill or destroy a building on mere suspicion. A non-commissioned officer or anyone of equivalent rank and above may use force based on opinion and suspicion, to arrest without warrant, or to kill.
He can fire at anyone carrying anything that may be used as a weapon, with only such due warning as he may consider necessary. Once AFSPA is implemented, no prosecution shall be instituted except with the previous sanction of the central government, in respect of anything done or purported to be done under this Act.
The J&K government has two ways to declare an area disturbed. It could enact the DAA, or it could issue a notification under Section 3 of AFSPA.
In November 1997, the Supreme Court, while upholding the constitutional validity of AFSPA, said that Section 3 does not confer an arbitrary or unguided power to declare an area as a disturbed area, and that a declaration under Section 3 has to be for a limited duration and there should be periodic review of the declaration before the expiry of six months.
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