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| Has AF(JK)SPA already lapsed? | | | Early Times Report
Jammu, Nov 19: While the Chief Minister goes from pillar to post to seek revocation of AFSPA, his Law Minister, Ali Muhammad Sagar believes the Act has already lapsed. Sagar admitted this while talking to a senior journalist two years ago. If this is true then Chief Minister's campaign is either politically motivated or totally unfounded.
"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 former Chief Minister, Ghulam Nabi Azad also admitted on the floor of the hose 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.
The legal experts, however, differ on the issue. Senior counsel, Zaffar Ahmad Shah, while talking to local English daily said 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 he very spirit and object of the apex court judement 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 "The AF (JK) SPA could be amended or repealed as it falls within legislative powers of the state.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.
Another senior counsel and former law minister, Muzaffar Husain Beg says the AF(JK) SPA being a legislation enacted by the Parliament could not be repealed by the state legislature. "The state of Jammu Kashmir has surrendered its legislative powers to the union government by virtue of the instrument of accession", he said in response to Shah's views.
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 In 1992 the president of India repealed the act and enacted Jammu Kashmir Disturbed Area Act.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.
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 says: "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 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.
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? And why is Chief Minister seeking its revocation now? |
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