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| Can NC afford to take a decision on the Act? | | Discussion on AFSPA | | EARLY TIMES REPORT
JAMMU, Oct 4: The Armed Forces Jammu Kashmir Special Powers Act (AFJKSPA) is likely to invoke a serious discussion in the Legislative Assembly tomorrow (October 5). In the absence of Peoples Democratic Party (PDP), the National Conference has decided to play opposition as well and the Bhartiya Janata Party (BJP) has agreed. The repeal of the legislation has been ruled out by the Chief Minister and his Law Minister repeatedly.
The legislators have to take into consideration constitutionality of the Act besides its implications at the local, national and international arena.
In 2001, 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."
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.
Earlier, the United Nations Committee on the Elimination of all forms of Racial Discrimination brought up the issue of AFSPA while discussing India in 1996. The concluding observations contained in the UN document CERD/C/304/Add.13 of 17 September 1996 reads: "The committee is seriously concerned that the Kashmiris, as well as other groups are frequently treated, on account of their ethnic or national origin, in ways contrary to the basic provisions of the conventions. Clause 19 of the Protection of Human Rights Act prevents the National Commission on Human Rights from directly investigating allegations of abuse involving the armed forces. This is a too broad restriction on its powers and contributes to a climate of impunity for members of the armed forces."
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. But the notification has not specified 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.
The former Chief Minister, Ghulam Nabi Azad admitted on the floor of the house that the Disturbed Area Act had lapsed in 1998. He however said "Armed Forces Special Powers Act is Central Act, enacted by the Parliament of India. Therefore, the State Legislature cannot review or repeal this act." The state officials, however, do not subscribe to his views. According to them, once the act lapses all the notifications issued automatically lapse.
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?
The Law Minister while talking to a local daily said: "NC didn't enact the law. It was already there and centre directed us to give assent to it. We resisted but the center 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."
But can National Conference afford it? The government has issued very strong political statements during the past few days. The chief minister used martyrs for the persons killed during the past four months. Syed Ali Geelani, Mirwaiz and other separatist leaders have been demanding repeal of the legislation. Restoration of order has been linked to repeal of this legislation. The government, therefore, has to take a decision. Mere discussion will land the government in further trouble. The proceedings of Legislature cannot be confined to a mere discussion. A decision has to be taken. But how far can it go? |
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