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| A Look through the Mist | | AF ( J& K ) SP Act1990 is surely needed to effectively flush out enemy sponsored elements from civilian areas | | ( By 32512112011 Daya Sagar ) | 11/14/2011 11:02:27 PM |
| Provisions of the like of AFSPA are absolutely essential to tackle externally sponsored insurgency in a country. Without suchlike tools Army will not be able to function effectively in proxy war like insurgency situations. For special circumstances prevailing like that we had / have in north east / Jammu and Kashmir we require provisions of special laws .The provision / concepts that under acute emergencies of the disturbed conditions the choice for setting of the norms of "Do's & Don'ts" for the men working under AFSPA should be left only to armed forces ("armed forces" means the military forces and the air forces operating as land forces and includes any other armed forces of the Union so operating ) in a blanket manner has been questioned by some. No doubt such procedural provisions could be reviewed . But it has to be ensured that Armed Forces are not humiliated while on temporary duty in the civilian areas. Some people, who have not to bear the heat of working against militant insurgents, call the provisions of AFSPA as draconian laws. Where as certain amount of immunity for security forces operating under such conditions is imperative.
After mass exodus of the people from Kashmir valley and emergence of militants in JK from across the borders / LOC came The Armed Forces { Jammu and Kashmir } Special Powers Act 1990, No. 21 OF 1990 [10th September, 1990.]. The Act received assent of the President on 10th September 2010 and with this The Armed Forces (Jammu and Kashmir) Special Powers Ordinance, 1990 of 5 July 2000 was repealed.
Political debates on revocation / abrogation of AFSPA are not new , issue was hot in 2005 also. It is 2011 now. All these years demands have been raised by some for revocation/ even abrogation of AFSPA. In case the State government is of the opinion that over last six years conditions have much improved the areas so far declared as disturbed areas ("disturbed area" means an area which is for the time being declared by notification under section 3 to be a disturbed area. 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. ) where army / armed forces are not needed should be simply denotified . But those fueling the controversies need also to address to the question that why even six years after 2005 the Kashmiri migrants are still outside Kashmir valley, they are being paid migrant salary and migrant relief / migrant concessions that could be paid / extended only under very very extraordinarily serious circumstances. Baisae JK CM nein 21 Oct ko kaha tha ki jaldi hi J&K ke kush hisson se AFSPA / DAA ko hataa leeya jaega par yesh samaj nahin aeyaa ki oon hon ne saath saath yeh keon kaha ki boo abhee on eelakoan ke naam nahin bataa saktae. After that he has been quoted as having named Srinagar, Badgam, Ganderbal , Jammu , Samba as the likely areas and ruled out removing DAA/ AFSPA from Kupwara , Baramulla or LOC. Media debates must end, only then confidence and peace in common minds would be rebuild. No doubt J&K Government needs support from all rising above political gamesmanship for fighting out the anti India / separatist ideologies, and this need be given. Why not denotify disturbed areas? Armed forces would leave peaceful areas. AFSPA provisions will not be required for use by security forces. No controversies simply for local political gains should be nursed on serious issues of national importance. No country can afford , rather should not keep, army and para forces in civilian areas for longer periods.So, provisions in laws like AFSPA empower the Army to act firmly and swiftly where National integrity and even the geographical boundaries come under serious threats , If Army has to carry out search of the enemy elements , the operations are to be carried without losing even a thinking moment. The manner in which AFSPA is being "projected" ( even by some from mainstream political parties ) it is unfairly laying criminal allegations on the intentions of GOI. In 1950s violence almost became a way of life in north-east India. State administration and civil police was not capable of controlling even internal disturbances ( and could not even provide social and material security to the common citizen of India ). So the Armed Forces (Assam and Manipur) Special Powers Ordinance was promulgated by the President on 22nd May of 1958. Later the Bill { THE ARMED FORCES SPECIAL POWERS ACT, 1958 , Act No 28 of 1958 } was passed by the Parliament. After 1947 the dsiturbnces did not remain simply due to local reasons & foreign agencies too started promoting anti India elements and campaigns ). Later to have a check on the misuse of such laws as well as to increase the effectiveness modifications were made in a progressive manner like State of Arunachal Pradesh Act, 1986 (69 of 1986) as well as The Armed Forces { Jammu and Kashmir } Special Powers Act 1990. Like (1) AF (J&K) SPA so specifically refers under section 2 to "armed forces" as the Military forces and the air forces operating as land forces, and includes any other armed forces of the Union so operating (2) The "disturbed area" is an area which is for the time being declared by notification under section 3, to be a disturbed area. So declaring a area as disturbed areas and extension of the provisions of AFSPA has to be done by the CIVIL Authority and not by the Army or Security Forces at their own. So there should be no difficulty for any one in understanding the spirit and need for delegation of emergency authority. Similarly by 1990 ( 32 years since AFSPA 1958 ) conditions and concepts had changed , the techniques of enemy warfare too had changed . So while enacting the AF { Jammu and Kashmir } SPA 1990 some particular change / modification in the descriptions and sections was incorporated { Section 3,4,5,6 in particular }. In Section {3} disturbed and dangerous conditions were more elaborated as (a) activities involving terrorist acts directed towards over throwing the Government as by law established or striking terror in the people or any section of the people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people; (b) activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about secession of a part of the territory of India or causing insult to the Indian National Flag, the Indian National Anthem and the Constitution of India,….. In this section, "terrorist act" has the same meaning as in Explanation to article 248 of the Constitution of India as applicable to the State of Jammu and Kashmir. Similarly Section 4 Special powers of Armed Forces more description on seizer was given and sub section {e} was also added laying down (i) stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is a proclaimed offender, or any persons who has committed a non-cognizable offence, or against whom a reasonable suspicion exists that he has committed or is about to commit a non-cognizable offence, or any person who is carrying any arms, ammunition or explosive substance believed to be unlawfully held by him, (ii) and may, for that purpose, use such force as may be necessary to effect such stoppage, search or seizure, as the case may be..Under under Section 5 Power of search was included in more specific manner Changes were particularly made in Section 6 regarding handing over of the arrested persons and seized property to be the civil police. And the Clause -7 regarding protection of persons acting under the Act was re written as "Protection of persons acting in good faith under this Act.". From the modifications / descriptions / elaborations made over the years after 1958 it well reflects that the drafting committee for the Act was very serious while writing this Act.
We must understand that Indian Armed Forces ( Army / Air Force/ BSF) have to protect the borders from enemy aggression as their prime duty. Their Moral has to be kept high. No doubt civil administration too needs to work for reducing the local resentments so that the enemy / insurgents do not get local support.
The persons like Medha and Dr.Sandeep Pandey ( holding awards like Ramon Magsa ysay ) should be rather more careful while talking of human rights since they become part of news stories about persons like those who raised slogans against India and Indian security forces on 16th October in Srinagar . In case the men who have to fight at borders are at occasions called by civilian authorities for their help or they are required to flush out the enemy agents ( civil police having failed) then they can not be so simply asked to operate with only civilian criminal law as tools..
(Daya Sagar is Sr coloumnist of Kashmir affairs and a social activist dayasagr 45 @ yahoo. com 9419796 096) |
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