AFSPA has no legal sanction

Disturbed Area Act expired in 1998

Amidst the deafening noise of the heated debate that is going on the issue of the proposed partial withdrawal of the dreaded Armed Forces Special Powers Act (AFSPA) from some select parts of Jammu and Kashmir, the bare fact that the said law have no legal cover or sanction and that its provisions are being invoked deceitfully as the same have no legal sanction or cover. As per the statute book, provisions of AFSPA can be invoked by the Army and other paramilitary forces only in areas that fall within the purview of the Disturbed Area Act DDA). That is, AFSPA can come in operation only in those areas which have been declared as being ‘disturbed’ under the provisions of the DAA.

As per the official records, We could lay its hands on, Jammu and Kashmir was brought under the purview of the DAA in 1990 by the then Governor Jagmohan, when entire Kashmir valley was caught in unprecedented militant violence and there happened to be no trace of any governance worth its name. At that time, Jagmohan invoked the provisions of DAA to confer special powers to the police (not Army), special powers to conduct searches, arrest those suspected of being involved in militancy related activities and also the power to open fire on what could be called as ‘unlawful assemblies’. That time, Army was not formally called to deal with the militancy and instead this job remained entrusted to the otherwise non-operational police and paramilitary forces.

The promulgation of Governor Jagmohan was to remain in force till July, 1992, when the centre invoked the provisions of AFSPA, as the state continued to remain under the direct central rule.

Incidentally, AFSPA, during this period, remained in force only because the state, which was for all practical purposes under the direct central rule, had declared Jammu and Kashmir valley as “disturbed”. In July 1992, with the armed rebellion only spreading, the President — the state was by now under President's rule — re-enacted the law and since then it was extended by the parliament every year, till a civilian government was formed in Jammu and Kashmir in 1996, with National Conference ‘sweeping’ the polls and Farooq Abdullah taking over as the chief minister of the state.

In 1997, National Conference government brought an enactment before the state legislature, replacing the old disturbed Area Act that was promulgated in 1992, by the President. The enactment adopted by the two houses of the state legislature in 1997, lapsed only a year after, 1998 and was never extended after that by the legislature.

This means that in the eye of the law, Disturbed Area Act is no longer applicable in any part of Jammu and Kashmir and consequently the dreaded AFSPA has lost its validity as the latter can be operational only in the areas that stand declared as ‘disturbed’, under the DAA. If one goes strictly by the provisions of the law, then from 1998, AFSPA in Jammu and Kashmir is being invoked in gross violations of the law and all the actions taken under the Act are illegal and unconstitutional.

Jammu and Kashmir’s Law secretary G H Tantray is on record to have confirmed that “The Act, enacted by the Assembly in 1997 to replace the old Disturbed Areas Act, 1992 lapsed only a year later in 1998”.

For quite some time it is being argued on behalf of the proponents of AFSPA that unless Disturbed Area Act is not withdrawn by the state government the law remains in force. They dare the state government to issue notification for the withdrawal of the DAA if it seriously and sincerely wanted to revoke AFSPA.

State government, on its part, might well decide to withdraw the Disturbed Areas Act, but doing that would be nearly impossible, because the law doesn't exist anymore on the statute book.

In fact, former Deputy Chief Minister, Muzafar Hussain Baig, who also held portfolio of Law in the previous government, pointing to this glaring illegality and impropriety had moved a resolution during the 2009 budget session of the Legislative Assembly calling upon the House to declare the existence of AFSPA in Jammu and Kashmir as ‘illegal and unconstitutional’ as the DAA no longer was operative in the state. Baig contended that when the very source from which the AFSPA derived its powers and authority was non-existent, how AFSPA could be in operation.

However, ironically, the Omar Abdullah government, which is now very vocal in calling for the revocation of AFSPA, vehemently opposed the resolution moved by Baig.