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| Omar needs to stick to his stand & not blink under critics' pressure | | Amending RPC | | Neha
JAMMU, Nov 26: On November 23, Chief Minister Omar Abdullah suggested a formula that would, according to him, not only make AFSPA non-applicable to certain areas of the state but would also give legal protection to the Army and paramilitary forces conducting anti-insurgency operations in Jammu and Kashmir. This means he and his government are now toying with idea of incorporating sections 45 and 197 (A) of the Indian Criminal Procedure Code (CrPC) in the Ranbir Penal Code (RPC) in order to evolve consensus over the issue. Section 45 protects members of the armed forces from arrest. "No member of the armed forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government," says section 45 of Indian CrPC. According to section 197-A of the Indian CrPC, no court can take cognizance of an offence committed by a public servant "while acting or purporting to act in the discharge of his official duty". He/she can be booked and tried only after the Union Government gives its nod.
One doesn't really know how the Army has taken this suggestion of the Chief Minister. In any case, it is for the Army and the Unified Headquarters (UHQ) whose meetings are presided over the Chief Minister to take a final decision. UHQ discusses threadbare the security-related issues and evolve and implement policies aimed at defeating the enemies of the country and maintaining peace. The suggestion of the Chief Minister needs to be considered and appreciated considering the fact that Omar Abdullah has finally recognized the gravity of the situation and acknowledged that the Army's viewpoint just cannot be brushed aside. The Army needs legal protection and the Chief Minister has said OK. In fact, he had to.
However, the problem of the Chief Minister is that he has landed himself in difficult situation - situation that would continue to haunt him. The people of Jammu province might not oppose the Chief Minister's new move because it does address the Army concerns. The people of Jammu province are part of the problem when it comes to the security-related and nation-centric issues. That the people of this province have not reacted adversely to the Chief Minister's suggestion could be taken to mean their consent. But the situation in Kashmir is altogether different. He has failed to carry conviction with those in Kashmir who are working overtime to ensure the political demise of the NC and fall of the NC-led coalition government.
The fact is that Omar Abdullah's suggestion has evoked a very negative response from the PDP and Kashmir-based community of lawyers. Talking to a correspondent of a local English language daily from New Delhi, former Deputy Chief Minister and PDP ideologue Muzzaffar Hussain Baig has said: "AFSPA comes into force when an area is declared disturbed but CrPC is always in force. When CrPC is amended, Army will operate with impunity even if the area is not declared disturbed. There are safeguards in AFSPA, first area should be decaled disturbed and army is called by the Governor on the advice of the council of ministers. If these two sections are included in CrPC even a Magistrate can call the Army". To be more exact, according to him, application of the CrPC to the state in full or the incorporation of sections 45 and 197 (A) in the RPC would mean the rise of a system under which the Army would exercise unbridled powers on a permanent basis.
Chief spokesman of the PDP Naeem Akthar has gone several steps further and opined that Omar Abdullah is "out" to empower New Delhi to dilute the autonomous status of the state. "We don't know how he will do that. It seems Omar treats people of JK as dumb-driven cattle. He wants to replace temporary law with a permanent law. One wonders how that can be done. Omar is trying to make people forget his misgovernance. He is out to sell whatever has been left of JK autonomy," he told the same daily.
The attitude of the Kashmir-based legal fraternity is no different. General Secretary of Kashmir High Court Bar Association (KHCBA) Ghulam Nabi Shaheen has, for instance, termed the Chief Minister's suggestion "as a move towards creating permanent Army rule in JK." "If any amendment is enforced in the CrPC, it (would) mean the Army will be empowered by the state constitution to have a role in law and order by direct applications of the law which is against the political interest of JK. Legally it means that state government will be incorporating AFSPA in the local laws of JK. This is against the international standards as AFSPA is a condemned law," he has told the same local daily. Riyaz Khawar, another senior advocate, has opined that the "inclusion of deleted sections of CrPC would lead to the 'erosion' of state's autonomy and state laws". "It means we will be giving powers to centre to erode the state laws. Inclusion of these two sections will provide impunity to not only the armed forces but even the employees of central government working in the state. If they commit any offence or crime when they are on duty in J&K, no action can be taken against them till the centre gives sanction for it. Amending CrPC in JK will make not only central forces but even its civilian employees more powerful," Riyaz Khawar has told the same daily. He has, in addition, said that Kashmir High Court Bar Association would "oppose any such move tooth and nail". "We call upon all political parties to mobilize public opinion against the proposed inclusion of the deleted sections of CrPC," he has, in fact, said. The upshot of the arguments advanced by the critics of Omar Abdullah was that "AFSPA is not a permanent feature. It can be revoked anytime. If CrPC is amended, Army will become a part of state's law and order machinery".
It is clear that the Chief Minister's critics in the Kashmir Valley would exploit his well-conceived suggestion to the hilt and create an impression that Omar Abdullah is not just power-hungry and unscrupulous but also an agent of New Delhi. Omar Abdullah would do well to meet squarely his critics' challenge and work in tandem with the Army. He has lost New Delhi confidence by demonizing the AFSPA. He can retrieve the situation to some extent by giving effect to what he solemnly said on November 23. He would lose whatever credibility he still has in case he decides otherwise. It's time for him to act and not dither. He should immediately convene cabinet meeting on the issue and send the cabinet decision to the state Governor, coupled with the suggestion that he should issue an ordinance or Governor's proclamation as the state legislature is not in session. |
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