AFSPA rigmarole

For some time, MLAs* in opposition have been raising hue and cry for withdrawing AFSPA**. Separatist groups strongly support the demand. They are prompted by militant leadership which presumably has come under pressure of security forces destroying their dens and hideouts where they dump arms and ammunition in large quantity to continue armed insurgency and disruption of law and order in the state. Political parties that want withdrawal of AFSPA actually want to score a point in winning the favour of sections of population. Amusingly, of late, Chief Minister Omar Abdullah has also joined the tantrum and has even moved officially to break the deadlock. The issue of AFSPA has been made controversial and complicated because there is clash of views on the subject. 

The NC leadership as well as the party in opposition and its allies look at political nuances of the demand while the Army and security forces differ from it because they look at it from security point of view. The clash of views has deepened, and more recently the Home Minister has come out with a statement that unless the State government clarifies its position on the Disturbed Areas Act, AFSPA will not be withdrawn unilaterally. Thus as far as the position of the Union Home Ministry on the issue is concerned, it has made it clear that not AFSPA but the Disturbed Areas Act (DAA) is the key to disabling AFSPA. The question of reforming AFSPA is not a Kashmir-related issue. However, the case merits close examination.

“Because of continued abetment and support from across the border to the militants it was felt that additional measures are taken to curb the militancy effectively and in a shortest possible time. In these circumstances the Jammu and Kashmir Disturbed Areas Act, 1990 (Governor’s Act No. 12 of 1990) was enacted, The actions taken under the Act have shown considerable improvement but the circumstances and the conditions due to which the law was enacted continue to be the same.” This is the preamble of the Act. The fundamental question is this: have the circumstances and conditions owing to which the law was enacted changed or continue to be the same?” It was desired to determine an answer to this question that the Chief Minster constituted a committee in 2010 to address the issue and report. The Committee held two meetings so far. But the reaction of the army and the security forces is already known to all including the government. During the meeting, Lt Gen Husnain pointed out that militancy was still a threat perception in the state and that there should be no dilution of the AFSPA in any of the areas in the Kashmir Valley, reported The Hindu. Apart from that the Defence Ministry has raised objection to the lifting of the controversial AFSPA, saying infiltration attempts were still continuing and terrorists could not be given any “opportunity to succeed” there. “Militancy has come down substantially but at the same time our feedback is not giving us comfort. Attempts for infiltration are still continuing… We cannot take any step that will give an opportunity for militants to succeed there,” Defence Ministry A K Antony had told reporters in New Delhi.

This is the ground situation in Kashmir. We have noted that for last three months or more, reports from reliable sources speak of nearly 3,000 well- armed terrorists waiting in the wings along LoC to infiltrate into our side of the line. A number of these attempts have been foiled by the Army but there is no relent from the other side. The recent incident of infiltration attempt in Gurez is still fresh with us and the killing of 13 terrorists in one strike shows that the terrorists are determined in pursuing their mission. Add to it the bold threats issued by Pakistan –based LeT chief of waging a jihad in Kashmir and Islamabad unable to contain his vitriolic.

There is also a legal aspect of the question of lifting DAA. It was the President of India who issued a Proclamation on the 8th July 1990 under Article 356 of the Constitution, in relation to the State of Jammu and Kashmir declaring inter alias that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament. Parliament has, under Article 357(1)(a) of the Constitution, now conferred on the President, the powers of the Legislature of the State of Jammu and Kashmir to make the laws vide the Jammu and Kashmir State Legislature (Delegation of Powers) Act, 1992 (21 of 1992). In this background it is only the President of India who can order lifting of DAA and not the State government. The State government can, at best, recommend to the President the areas in J&K where the application of Disturbed Areas Act is no more needed. With the lifting of DAA in such areas or the entire J&K State, the AFSPA loses its force and the army can be partially or fully withdrawn from that area. DAA essentially gives three main powers to the police/security forces and these are:  (a) Power to fire upon persons contravening certain orders. (b) Powers to destroy arms dump, fortified positions, etc. and (c) Protection of persons acting under Section 4 against prosecution. Now if the State government is convinced that these powers should no more be exercised by the security forces, it is free to make such recommendations to the President. The onus rests with the State government. This should clear the position of the Army, and the people in general in Kashmir, including the vociferous political chapters and government quarters, have to be clear in their minds what they are asking for and with what consequences. It is one thing to play the card of politics but another thing to understand and react to the ground reality in Kashmir. The Government is bearing enormous expenditures on providing security to the political leaders and other important social figures who are asking for withdrawal of AFSPA. The Union Home Ministry would be very happy if the state exchequer was saved the huge expenditure on account of providing them security. Once the DDA is lifted, AFSPA stands withdrawn and so does the security to the politicians and others.

* (Member of the Legislative Assembly /India);

** (Armed Forces (Special Powers) Act, 1958).

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