Explained: AFSPA-Disturbed Areas debate in J&K

The Act was born during Governor’s Rule in 1990 as ‘Governor’s Act No. 12’. In 1992, it was replaced by the J&K Disturbed Areas Act. It was not referred to Parliament’s Consultative Committee on J&K Legislation because of “the urgency of the matter”.

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What did the Disturbed Areas Act say?

The state government could declare the “whole or any part… of J&K” as a “disturbed area”, in which any magistrate or police officer of the rank of S-I or Head Constable (of Armed Police) or above could “fire upon, or otherwise use force, even to the causing of death, against any person who is indulging in any act which may result in serious breach of public order”. J&K Police could destroy any building they thought was being used, or could be used to carry out attacks. The Act made police immune from prosecution without prior sanction from the state government.

Why did it lapse?

In 1997, when Farooq Abdullah was chief minister, the legislative Assembly ratified the law for one year. But in October 1998, it was allowed to lapse in response to a huge wave of resentment against the misuse of its draconian provisions, especially in Kashmir, where police and armed forces were repeatedly accused of fake encounters, custodial killings and enforced disappearances.

What is the Armed Forces Special Powers Act?

AFSPA was enacted by Parliament on September 11, 1958. It was first implemented in the Northeast, and then in Punjab. In September 1990, Parliament passed the Armed Forces (Jammu and Kashmir) Special Powers Act, which was “deemed to have come into force” retrospectively from July 5, 1990.

When is AFSPA applicable?

Only after an area has been declared “disturbed”. The power to declare a territory “disturbed” initially lay with the states, but passed to the Centre in 1972. Section 3 of AFSPA (in J&K) says that an area can be declared disturbed if it is the “opinion of the Governor of the state or the central government” which “makes the use of armed forces in aid of the civil power necessary”.

What are the provisions of AFSPA?

The “armed forces” may shoot to kill or destroy a building on mere suspicion. A non-commissioned officer or anyone of equivalent rank and above may use force based on opinion and suspicion, to arrest without warrant, or to kill. He can fire at anyone carrying anything that may be used as a weapon, with only “such due warning as he may consider necessary”. Once AFSPA is implemented, “no prosecution… shall be instituted except with the previous sanction of the central government, in respect of anything done or purported to be done” under this Act.

Does the absence of DAA have an implication for the legality of AFSPA in J&K?

The J&K government has two ways to declare an area “disturbed”. It could enact the DAA, or it could issue a notification under Section 3 of AFSPA. To this extent, the Mufti government is right when it says that the lapse of DAA has nothing to do with the promise to “denotify disturbed areas” because the power to declare an area disturbed is “inherent in AFSPA”.

So what is the debate about?

What the government isn’t saying is that there isn’t a valid notification under Section 3 of AFSPA declaring any part of J&K as disturbed for more than a decade now. In November 1997, the Supreme Court, while upholding the constitutional validity of AFSPA, said that “Section 3… does not confer an arbitrary or unguided power to declare an area as a ‘disturbed area’, and that “a declaration under Section 3 has to be for a limited duration and there should be periodic review of the declaration before the expiry of six months”.

In August 2001, the Home Ministry added districts of Jammu (besides those in the Valley) to the list of disturbed areas. According to J&K Law Secretary Mohammad Ashraf Mir, another notification was issued in 2005.

However, constitutional lawyer and senior PDP leader Muzaffar Hussain Baig says that if a notification was not issued afresh after six months, AFSPA would be “illegal”. Even if a fresh notification were to be issued now, “it won’t have retrospective effect”, he said.

What are the ramifications of this situation?

In the absence of a valid notification under Section 3 of AFSPA declaring an area as disturbed, AFSPA can’t be implemented. Theoretically then, every case in which AFSPA was invoked during this period (when the notification had expired after the stipulated six months) and armed forces personnel secured immunity from prosecution, could be challenged in court.