The Peoples' Democratic Party (PDP) and the BJP leadership discussed the possibility of lifting the Armed Forces Special Powers Act (AFSPA while framing the Common Minimum Programme (CMP).
The legislation has been widely discussed over the past few years. Amnesty International and other human rights organisations have repeatedly sought its repeal. The former state government seriously considered its repeal but for unknown reasons the idea was abandoned. The incumbent dispensation, though bound by its CMP, seems in no mood to lift the draconian legislation for obvious reasons.
In 2011, New Delhi made clear that the state government had the authority to repeal the Disturbed Area Act. However, the state government shot back immediately saying that it could not be done without New Delhi's consent. But legal experts believe that the state government can repeal the draconian Act without consulting New Delhi.
The AFSPA became an Act on September 10, 1990 when it got the concurrence of the then Governor. Immediately after this, a notification declaring the Valley as disturbed area was issued. In 1992 the President of India repealed the act and enacted Jammu Kashmir Disturbed Area Act. However, the duration of the Act for which it as enforced was not mentioned.
The Supreme Court in Naga People's Movement of Human Rights versus Union of India held: "Section 3 of AFSPA could not be construed as conferring powers to issue a declaration without any time limit."
The SC ruling says that an area can be declared as 'disturbed' only "in grave situation of law and order" and a periodic review of the declaration made under section 3 of the central Act should be made by the Government administration that has issued such declaration before the expiry of period of six months. As per the apex court ruling, it is mandatory for the union government to review the legislation and issue a fresh notification. New Delhi has failed to review the Act since August 10, 2001. This is a clear violation of the apex court judgement. The special powers enjoyed by the armed forces in Jammu Kashmir, can be, therefore, invalidated by seeking judicial recourse.
In 1997 the National Conference Government enacted the Disturbed Area Act 1997 declaring the whole State as "disturbed." However, the duration of the law was only for one year. On October 1998, the NC government allowed it to lapse.
The matter was simply forgotten till August 10, 2001. On August 10, 2001 an order was issued by the then Principal Secretary Home Department of the Government of Jammu Kashmir extending disturbed area to Jammu province. The order read: "Whereas the Governor is of the opinion that the State is in such a disturbed condition that the Armed Forces in the aid of civil power are necessary to prevent the activities involving terrorists acts directed towards striking terror in the people. Now, therefore, in exercise of the powers conferred by section 3 of the Armed Forces (Jammu 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 the districts of Srinagar, Budgam, Anantanag, Pulwama, Baramulla and Kupwara stand already so declared." But the notification did not specify the time bar.
Senior officials of the Home Department said the government has to issue notification after the expiry of six months when it reviews the AF (JK)SPA. However, they admit that in case of Jammu and Kashmir it has not been followed and notices were not issued.
Some serious questions arise. What prompted the government to enact the Disturbed Area Act in 1997 when the AF (JK) SPA was already in effect? And why did the state government allow the Act to lapse in 1998?
A senior journalist sought an explanation from the Law Minister, Ali Muhammad Sagar in 2011. He said: "NC didn't enact the law. It was already there and centre directed us to give assent to it. We resisted but the centre remained adamant. Finally, we didn't extend the law in October 1998 when it expired," Sagar said.
The state government, according to the law department officials need not discuss the issue in the legislature. "The government can simply withdraw the notification. Once the notification is withdrawn the armed forces shall be bereft of the special powers."
Senior Lawyer Zaffar Ahmad Shah believes the legislation can be challenged in the court if the government has failed to issue notifications. According to him, failure of the government has violated the very spirit and object of the apex court judgement in Naga Peoples Movement v/s Union of India.
Shah believes the state legislature can repeal the said act and its earlier enactment by parliament cannot stand in its way. "The AF (JK) SPA could be amended or repealed as it falls within legislative powers of the state. But it needs will of the legislators," he said.