AFSPA holding out through DAA
JK Govt Can Incapacitate The Act: Shah
Srinagar, July 5: At a time when the Central Government is contemplating to amend the Armed Forces Special Powers Act, legal experts here say, the Jammu and Kashmir government could practically make the Act null and void by withdrawing two notifications issued by the state government’s Home Department declaring areas disturbed under section-3 of the Armed Forces (Jammu and Kashmir) Special Powers Act.
Armed Forces (Jammu and Kashmir) Special Powers Act was enacted in 1990 by the parliament when the state legislature had been dissolved. On July 6, 1990 the then Additional Chief Secretary (Home) Jammu and Kashmir government issued a notification saying; “Governor of Jammu and Kashmir in exercise of powers conferred to him under section 3 of the Armed Forces (Jammu and Kashmir) Special Powers Ordinance 1990 notified all districts of Kashmir and areas falling within 20 kms in Rajouri Poonch district as disturbed.” Subsequently the Armed Forces (J&K) Special Powers Act was extended to all these areas by virtue of the Disturbed Areas Act.
On August 10, 2001, the then Principal Secretary Home Jammu and Kashmir issued another notification declaring all districts of Jammu division as disturbed to facilitate the extension of AFSPA to these districts. The notification says: “Whereas the Governor is of the opinion that the state is in such a disturbed condition that the use of Armed Forces in the aid of civil power is necessary to prevent the activities involving terrorists acts directed towards striking terror in the people.” Then the then Principal Secretary Home orders: “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 districts, Srinagar, Budgam, Anantnag (sic), Pulwama, Baramulla (sic) and Kupwara which stand already so declared.”
Senior counsel Z.A Shah says under the constitution, the Governor is to act on the aid and advice of council of ministers and the satisfaction as regards a situation being disturbed and dangerous is that of the Government not of the Governor. “It is only on the recommendation of the government that the governor will act under Armed Forces (J&K) Special Powers Act, 1990,” Shah said.
He said there is a Central Act by the name Armed Forces Special Powers Act, which applies to the states of Arunachal Pradesh, Assam, Manipur, 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 Central Government and the state Governor have power to declare any area of the state as a disturbed area.
He said Armed Forces (J&K) Special Powers Act is in force in Jammu and Kashmir by way of notifications issued by Home Department of the state government declaring first Kashmir valley as disturbed and later Jammu division.
He said in the instant case it was entirely for the Jammu and Kashmir government to withdraw the said notifications issued by it.
“There is no need to approach the Central Government,” he said.
Senior officials in the law department said that the State Government was competent to withdraw the notifications declaring the State as disturbed. “Once it withdraws the notification, armed forces cannot enjoy special powers,” said a senior official.
Shah says the withdrawal of the notification will have the effect of removing the legal basis of any action of commissioned officer/warrant officer/non-commissioned officer and the situation, if need arises, can be dealt with under other laws in force other than AF(JK) SPA.
The Law Minister Ali Muhammad Sagar said the State Government was discussing the AF (JK) SPA with the Central Government. He said there were many legal points raised by different people. “Everyone can interpret it in different way. This time we won’t go into legalities. But we have taken up issue with the Central Government and we are seriously pursuing it.”
Lastupdate on : Mon, 5 Jul 2010 21:30:00 Makkah time
Lastupdate on : Mon, 5 Jul 2010 18:30:00 GMT
Lastupdate on : Tue, 6 Jul 2010 00:00:00 IST
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