At a time when the National Conference and the PDP are engaging in one-upmanship over the Armed Forces (Special Powers) Act and the impunity enjoyed by the armed forces, another central act adopted by the Jammu and Kashmir assembly earlier this year omitted a provision that allowed prosecution of public servants, including personnel of police and the armed forces, for crimes against women without the need for prior sanction from central authorities.
After the Criminal Law (amendment) Act, 2013, was passed by the Centre following the Delhi gang-rape, the J&K assembly adopted the amendments in March this year. However, the state law left intact the need for sanction for prosecution of public servants. No party objected to the continued impunity provided to public servants.
This comes when parties continue to attack AFSPA. During the current poll campaign, CM Omar Abdullah accused the Congress and the PDP of not supporting him in his effort to get AFSPA repealed. The PDP’s Nayeem Akhtar, for his part, claimed his party would get AFSPA repealed, saying Omar didn’t take any concrete measures.
One of the major criticisms of AFSPA is that once the police file and investigate a case against members of the armed forces, they need sanction, which is frequently denied, from the Ministry of Defence (to prosecute army personnel) or Home (paramilitary forces). Responding to an RTI application, Integrated Headquarters of MoD (Army) in April 2012 revealed that 44 cases had been received during 1990-2011 for sanction for prosecution under AFSPA from J&K government. The Centre denied sanction in 35 of the cases while nine were “under process in MoD/integrated headquarters of MoD (Army)”. In one case, the Army conducted a court-martial and convicted and punished a soldier with dismissal and ten years’ imprisonment.
After the Delhi gang-rape, one of the key recommendations of the Justice J S Verma committee was that sexual offences by armed forces personnel be brought under ordinary criminal law. In Kashmir and the northeastern states, where too AFSPA is in force, the armed forces have frequently got immunity from prosecution in civilian courts after their personnel have been charged with rape. In submissions to the Verma panel, activists and lawyers such as Vrinda Grover had suggested deletion of the need for sanction for prosecution. AFSPA’s immunity clause is circumscribed by “good faith”; it should come into play only when personnel make a “bona fide mistake” during operations, but they have invoked it in rape cases too.
The central Criminal Law (amendment) Act, 2013, incorporated to CrPC section 197 an explanation that says that “for the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354 A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of IPC”.
These sections cover offences such as “rape”, “sexual harassment and punishment for sexual harassment”, “assault or use of criminal force to woman with intent to disrobe”, “voyeurism”, “stalking”, “rape”, trafficking, “sexual intercourse by a person in authority”, “words and gestures and act intended to insult the modesty of a woman”, “disobeying direction under law”, “fails to record FIR”, “punishment for non-treatment of victim”, “disobeys the direction of law regulating the manner in which he shall conduct such investigation”.
The J&K assembly, however, passed the law without doing away with the need for sanction for prosecution of public servants. There is no impunity provided to public servants in the amended law in the northeast states.
When contacted, Chief Minister Omar Abdullah said, “I don’t know about it and I will have to check with the law department”. State law secretary M Ashraf Mir told The Indian Express, “It happened before I took over. There was a committee made with the director (prosecution), the advocate general, and the special secretary (law) to see which amendments we would adopt from the central law”. Advocate general Ishaq Qadri said, “We had not proposed to drop this explanation. There should not be a need for prior sanction to prosecute public servants in cases of crimes against women.”
The J&K Act does add “the driving licence of the accused of rape” or other sexual assault cases “shall stand suspended from the date the accused is challenged in a competent court of law till the announcement of the judgment” and if guilty, “shall have no right to drive any vehicle in the state and his licence shall stand cancelled on conviction”.
Request & denial
44 requests for sanction to prosecute defence personnel, 1990-2011
35, the number of cases in which sanction denied
9 “under process in MoD/integrated headquarters of MoD (Army)”
As per RTI reply by MoD, which also mentioned a court-martial and conviction
1997, Anantnag: A housewife accused an army officer of rape; state’s request for sanction to prosecute “under consideration in army headquarters/ Ministry of Defence”.
1999, Rafiabad: Army major accused of raping a housewife; request for sanction to prosecute “under consideration”