Srinagar, June 21: After 54 years of its operation, the Government of India now mulls incorporating a clause in the controversial Armed Forces Special Powers Act (AFSPA) aimed at redressing complaints of human rights abuses committed by the members of armed forces in the areas where the Act is in vogue.
After stiff opposition by the Defence Ministry to the amendment in any existing clauses of the contentious law, the Central government seems to be working on a middle path by incorporating a fresh clause in AFSPA so that the grievances of the victims of rights abuses by the armed forces could be addressed.
AFSPA is presently in force in Jammu and Kashmir and the Northeastern states.
According to sources, Union Law Minister Salman Khursheed has been tasked with the job of getting the clause on rights abuses fine-tuned so that same could be then incorporated in the existing provisions of AFSPA.
National Commission for Minorities chairman, Wajahat Habibullah, told a Mumbai based newspaper that prime minister Manmohan Singh has asked the Union Home Ministry and the Law Ministry to frame rules in a manner that the grievances caused due to alleged human rights violations by the Army in Jammu and Kashmir and northeast are addressed adequately under the law.
Habibullah has been quoted as saying that one clause in AFSPA even supersedes the powers of the President and the PM that “a soldier can shoot without seeking orders from the superiors”.
“I believe AFSPA should be done away with. The government of India is working on a model to frame rules that would govern the AFSPA as so far we had no rules to govern the controversial Act,” he said.
The Armed Forces (Special Powers) Act (AFSPA) was passed on September 11, 1958, by the Parliament of India. It conferred special powers upon armed forces in what the act calls “disturbed areas” in the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. It was later extended to Jammu and Kashmir as in July 1990 after an armed struggle broke out.
J&K Law Minister Ali Muhammad Sagar said that he would not comment on the issue of the fresh clause. “Our Chief Minister’s stand on AFSPA is clear. We want it to go from most parts of the valley. There are certain parts of valley were Army has no role,” he said.
Commenting over the issue, senior counsel Zaffar Shah said that in Kashmir, it is part of our experience, that armed forces have misused AFSPA. “Cases investigated by police have proved the guilt of armed personnel. Under the Act, before a guilty armed personnel is prosecuted in a civil court, sanction of central government is necessary,” he said and added that till date, reportedly, no sanction for prosecution has been granted by the central government.
Shah said that proposed amendment in the Act will not redress the grievances. “If the central government is serious, they should remove provision of law which call for prior sanction of the central government. Further the civil courts should be given exclusive jurisdiction to deal with offenses committed by security forces by misusing AFSPA,” he said adding that suggested amendments do not remedy the injustices committed by security forces by misuse of Act. “It is only on eyewash. The act continues to be anti-people, in a democracy.”
PDP leader Naeem Akhter said that this only endorses the view that J&K is a dark patch on the constitutional horizon of country. “For the institutions like parliament, assembly and judicial system it is like no man’s land. The challenge in Kashmir is actually to reverse this position and ensure that rule of law and justice prevails. Political resolution will follow.”

BACKGROUND
The home ministry has proposed amendments to Section 4 of the Act to bring the army under the civilian control: No arrest without warrant from a civilian magistrate, no firing that may cause death without prior orders from civilian authorities and constitution of grievance redressal cells to attend to any violation of the human rights.
These provisions may be now incorporated in the rules in the making, though the defence ministry is against the redressal cells, pointing out that they are unnecessary because the army always hands over its personnel involved in any bogus encounters to the magistrate and the local police.
Last December, a parliamentary committee did not agree with repeal of the Act as recommended by the Justice Jeevan Reddy Commission. Instead, it stressed that the law should be made humane, in case its continuance in some areas is necessitated.
An Army note circulated in the Cabinet Committee on Security last year stressed that the army is called by the Centre or the state under Section 3 of AFSPA to operate in the “disturbed area” only to help the civilian government and hence their political leadership better take a call first to revoke the Disturbed Areas Act before amending AFSPA.
It pointed out that AFSPA has been already upheld by the Supreme Court in 1997, which passed a series of Dos and Don’ts to curb human rights violations, and that the army follows them religiously.
The seven-point guidelines issued by the apex court mandates handover of the arrested persons and seized property to the nearest police station with the least possible delay, follow the Criminal Procedure Code (crPC) in search and seizure operations, follow dos and don’ts of the army and compensate victim of any misuse or abuse of powers after a thorough inquiry.

Lastupdate on : Thu, 21 Jun 2012 21:30:00 Makkah time
Lastupdate on : Thu, 21 Jun 2012 18:30:00 GMT
Lastupdate on : Fri, 22 Jun 2012 00:00:00 IST