The mere declaration of democratic character in the preamble of the constitution is not sufficient to proclaim a country democratic. The whole world is against the lacunas in the democratic setup of Pakistan which has been frequently undermined by the military establishments right from its birth. The undemocratic establishments are always treated as a potent threat to world peace. Apart from being the threat to world order they pose an imminent danger to the life and liberty of the inmates in a particular nation. The undemocratic forces put to peril the very life and liberty of the citizens, the source of legitimacy of any state.
The much criticized tendency of otherwise world popular leader Indira Ghandi in 70s to rule India undemocratically is the lesson to these autocratic leaders. The tendency not only proved costly to India but also eliminated the perpetrator. Later on in the Indian constitution a paradigm shift was witnessed in the form of 44th Constitutional Amendment Act, which took every safeguard to check such undemocratic tendencies to flourish in future. But callously no heed was paid towards the unconstitutional, undemocratic legislations which are still enforced in the country like India. Perhaps these concern the citizens and not the working of the government, which is the only concern of the present day politicians. These laws find place in the statute books with the only object of protecting the so called sovereignty of the state at the expense of the popular human rights. The sovereignty and the fundamental rights are equally important to the democratic spirit of the nation. The balance must always be maintained, tilting the balance in favour of the popular Human Rights would not pose any threat to the nation but depriving the citizens of the fundamental rights is always fraught with disastrous consequences.
                The imposition of the strict laws  taking away the liberty of the citizens in the conflict zones, always proves counterproductive to the state, flaming the secessionist tendencies. The Jammu & Kashmir disturbed Areas Act, 1997; the Jammu & Kashmir Armed Forces Special Powers Act, 1990 are two such legislations which have been much criticized by the human rights organization, lawyers, journalists, social activists. Despite criticism from the International Human Rights Organizations like Amnesty International, Human Rights Watch these legislations are being used to shield the atrocities committed by the armed forces in the valley. 
               The preamble of the AFPSA reads the object of the legislation as “An Act to enable certain powers to be conferred upon the members of the armed forces in the disturbed areas in the State of Jammu & Kashmir.” The object of the legislation is amply clear that it only talks about the absolute powers conferred upon the armed forces. Interestingly by the purport of this legislation the armed forces are empowered to take any body’s life with out any accountability thus putting the Rule established under law (Article 21 of the Indian Constitution) to naught. Section 3 of AFPSA empowers the Governor or the Central government to declare whole or any part of the state as Disturbed Area but the declaration has to be for the limited duration. Such declaration must be reviewed after every six months to decide whether it should be continued or not. But in case of the state of Jammu &  Kashmir the situation is altogether different, after declaring the state as disturbed area the same declaration as if has never been reviewed. Because the imposition of the said Act has never been revoked since its imposition. Also it is worth to mention that in order to attract the foreign tourists to the valley; the successive governments in the valley have always declared the valley safe for the tourists, but unsafe for the natives by imposition of the Disturbed Areas Act, 1997. Pertinent to mention that the Supreme Court of India held that the declaration of disturbed area, does not amount to delegation of power of the Central Govt. to the Governor- it is a statutory conferment of power on the Governor- Moreover issuance of declaration by itself would not oblige the central Government  to deploy armed forces. (1998) 2 Supreme Court Cases.             
            Section 4 of AFSPA is the most hated provision of the legislation as it authorizes “Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces” to cause the death of any person contravening any law or order for the time being in force in a disturbed area. The section overlooks the distinction on the basis of the magnitude of crime in a disturbed area. Furthermore more adding the apathy to this unfettered power given under section 4, the Section 7 gives the immunity to the Armed forces in the disturbed areas for the prosecution, suit or other legal proceedings.
Exposing the human race to the vulnerability of the extinction in a democratic setup poses many unanswered questions to the very spirit of the so called democracy. At the same time it  projects the need of the change for the peaceful human existence. Democracy is to be made stronger and acts like these are the obstacles in the way.

(Shah Mubashir is Legal Practitioner at District Court Islamabad. Feedback at smazia29@gmail)

Lastupdate on : Tue, 15 Jun 2010 21:30:00 Mecca time
Lastupdate on : Tue, 15 Jun 2010 18:30:00 GMT
Lastupdate on : Wed, 16 Jun 2010 00:00:00 IST