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| Centre makes move to amend AFSPA, give it 'humane' touch | | | SYED JUNAID HASHMI
EARLY TIMES REPORT
JAMMU, Sept 1: Assenting to the request of Chief Minister Omar Abdullah, Union Home Ministry has circulated draft note with proposed amendments to the union law and defence ministries for their comments with a rider to furnish the same within shortest possible time.
Official sources in New Delhi informed early times that both the ministries have been asked to go through proposed amendments carefully and give their opinion on whether the same should be carried out or not. Once the opinion is received from these two ministries, sources affirmed that union home ministry would list the amendments before union cabinet for its approval.
They added that after the approval of union cabinet, the draft bill would either be introduced in the parliament for passage. Once the bill is passed, sources disclosed that act would come into force across the state of Jammu and Kashmir barring the districts where it is proposed to be revoked through the same bill.
They did not also rule out the possibility of union government invoking the amendments in the draconian AFSPA for Jammu and Kashmir through an ordinance which would later be ratified by the parliament within a period of six months. Sources further said that on the recommendations of the state government, centre is also seriously considering to revoke AFSPA from districts of Jammu, Kathua, Srinagar and Budgam while the amended act would remain in force in others parts of the state.
They confirmed that proposed amendments would curb unbridled powers and unflinching impunity being enjoyed by the central security forces. Regarding the proposed amendments, sources said that barring Section-4 of Armed Forces (J&K) Special Powers Act-1990 which is being amended, no other section of the central act is being amended in general neither is any section being deleted.
They informed that this amendment will remove provision in Section 4 which gives soldiers above and including the rank of non-commissioned officer the authority to fire upon and even kill individuals so long as they are "of the opinion that it is necessary to do so for the maintenance of public order," said sources.
They added that draft has also incorporated safeguards or list of "do's and don'ts" as stipulated by the Supreme Court of India in its 1997 judgment on the constitutionality of AFSPA. However, section 3 which vests powers in the governor to declare an area as disturbed and section 7 which guarantees impunity to the central forces from being tried in a local court are both
not being amended.
Section 3 pertains to power to declare areas as disturbed. It states "If, in relation to the state of Jammu and Kashmir, the governor of that state or the central government, is of opinion that the whole or any part of the state is in such a disturbed and dangerous condition, the governor of the
state or the central government, may, by notification in the official gazette, declare the whole or any part of the State to be a disturbed area.
Sources confirmed that despite repeated requests to allow state assembly to pass a decree on the security situation of Jammu and Kashmir, union government has decided against the same. Further, they said that there are meager possibilities of any change in stance of central government in the near future. Section 7 of AFSPA-1990 says "No prosecution, suit or other
legal proceeding 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 the powers conferred by this Act."
Sources affirmed that this section has been left untouched due to stiff opposition from the army and other central forces fighting militancy in Jammu and Kashmir as well as in the north-east. Army referred to continued support to militancy from across the border and urged the centre not to withdrawn this provision which would embolden the separatists and other
anti-national elements, asserted sources.
Sources asserted that centre has reportedly heeded to the caution of the army and decided against "doing too much with the act". Another major amendment is the incorporation of a new section in the act which paves way for arrest of the army personnel allegedly involved in fake encounters and custodial murders killings. The proposed amendments would ensure that the
accused is handed over to local police authorities for prosecution.
Sources affirmed that sub-sections of section-4 which confer special powers to the armed forces are also being amended. Extraordinary powers awarded to the non-commissioned officers under the Act which made it a symbol of oppression are being taken away. Sources said that sub-section 4(a) which empowers non-commissioned officers to "fire upon or use force, even to the
causing of death" is being amended.
Under the amended act, non-commissioned officers shall be prohibited from ordering use of fire-arms while commissioned officers shall not use firearms against persons except in self-defense or defense of others against imminent threat of death or serious injury, informed the sources.They disclosed that in further amendments, presumption of innocence of the alleged absconders
should be guaranteed and principle of proportionality of force must be respected under section 4(b) of the AFSPA. Sub-section (c) would in the amended act now make it mandatory for the central force to seek warrant for arresting a suspect, informed the top sources in the union ministry.
They said that in case of arrest without warrant under exceptional circumstances as provided under sections 41 and 42 of the Criminal Procedure Code of India, amendment would stipulate that the arrested person is handed over to police within 8 to 12 hours. Further, the amended act would also make it mandatory for the armed forces to handover a report to the nearest
police station explaining the grounds and circumstances under which arrest had to be made without warrant.
Amended AFSPA-1990 would further implore upon security forces to hand-over roperty or the arms, ammunition seized during the course of search conducted under Section 4(d) of the AFSPA to officer-in-charge of nearest police station together with a report of the circumstances occasioning such search and seizure.
Further, in the amended act, army would have to follow the provisions of CrPC governing search and seizure during the course of search and seizure conducted in exercise of the power conferred under Section 4(d) of the AFSPA-1990.
Section 5 of the act is being dropped, said the sources. This section provided powers to the army to break open the lock of any door, almirah, safe, box, cupboard, drawer, package or other thing, if the key thereof is withheld. Human rights activist are of the firm opinion that amending this
section would do little in curbing extraordinary powers enjoyed by the army and other central forces. |
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