Srinagar, Oct 27: Amidst the din about the state government’s announcement to partially revoke the controversial Armed Forces Special Power (AFSPA), legal experts on Thursday said the Jammu and Kashmir government could practically make the Act null and void by just revoking the Disturbed Areas Act (DAA).
While talking to Greater Kashmir former law minister and senior Supreme Court lawyer Muzaffar Hussain Baig said; “The Government can simply declare that no area in JK is disturbed. If such an announcement is made, AFSPA will cease to exist on its own.”
“Lifting DAA does not mean that Government cannot seek Army’s help. If at any point of time government requires Army’s help in any situation, it can be asked to step in, but the Army will have to operate under the Criminal Procedure Act (CrPc),” Baig said. “Under CrPc Army is bound to follow the orders of the Magistrate. It cannot carry out nocturnal searches nor can it burn the habitations on the basis of mere suspicion.”
Baig while commenting upon applicability of AFSPA in any state said; “This Act came into force by virtue of entry 2-A in the list-1 of schedule 7 in the constitution of India, but AFSPA is not applicable in JK as the state enjoys special status under Article 370. Till date no government in JK has asked centre to extend this entry to the state.”
He said that for AFSPA to be applicable, any area first has to be declared Disturbed.
“In 1997 National Conference government led by Dr Farooq Abdullah had declared the state of Jammu and Kashmir as disturbed, but this Act got expired in 1998. Since then it has not been re-enacted,” he added.
Asked then how come AFSPA is still applicable in JK, he said, “It has no legal justification.”
Senior counsel Zaffar Ahmed Shah said if the state government really wants to revoke AFSPA from few areas of the state, it can ask the Governor to do so, there is no need for it to approach the Centre. “Governor can do it on the advice of the council of ministers.”
Shah seconded Baig saying; “AFSPA is a central Act which applies to the states of Arunachal Pradesh, Assam, Manipur, Mizoram, Nagaland and Tripura. It is not applicable to Jammu and Kashmir.”
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 the powers to declare any area of the state as 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.
Pertinently, in September this year, Chidambaram had said that if state would be able to lift the Disturbed Areas Act (DAA) then AFSPA won’t be applicable to Jammu and Kashmir.
The Centre’s interlocutor Radha Kumar on October 18 had said the State Government had the powers to lift AFSPA from Jammu and Kashmir if it can do away with the Disturbed Areas Act (DAA).
“AFSPA is closely related with DAA. The lifting of DAA lies within the domain of the state government. They can lift as well as impose it,” she had said.
Modelled on the Armed Forces (Special Powers) Ordinance, promulgated by the colonial British government on 15 August, 1942, to suppress the Quit India Movement, the AFSPA was initially supposed to have remained in operation for one year to tackle the Nagaland problem. Parliament enacted a fresh law Jammu and Kashmir Armed Forces Special Powers Act in September 1990 to cover Jammu and Kashmir incorporating clauses of Disturbed Areas Act also in the Section 3 of JKAFSPA.
Under Section 6 of this law, “No prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the Central government, against any person in respect of anything done or purported to be done in exercise of powers conferred by this Act.”

Lastupdate on : Thu, 27 Oct 2011 21:30:00 Makkah time
Lastupdate on : Thu, 27 Oct 2011 18:30:00 GMT
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