Declared Areas to Disturbed Areas

If, in relation to the State of Jammu and Kashmir, the Governor of that State or the Central Government, is of opinion that the whole or any part of the State is in such a disturbed and dangerous condition that the use of armed forces in aid of the civil power is necessary to prevent—

(a) activities involving terrorist acts directed towards overawing the Government as by law established or striking terror in the people or any section of the people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people;

(b) activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India front the Union or causing insult to the Indian National Flag, the Indian National Anthem and the Constitution of India, the Governor of the State or the Central Government, may, by notification in the Official Gazette, declare the whole or any part of the State to be a disturbed area.

Explanation.- In this section, “terrorist act” has the same meaning as in Explanation to article 248 of the Constitution of India as applicable to the State of Jammu and Kashmir.

Analysis

Section 3: This section cites “disturbed area” by mentioning how & when an area can be declared disturbed. It grants the power to declare an area disturbed to the Central Government and the Governor of the State, even if the governor or the centre is only of the opinion the area can be declared as disturbed. It takes away the power from the state governments to declare the area as disturbed which was in actually cited in the 1958 version of the act where the power rested on the state authority however after 1972 the power was taken from the state and was shifted in the hands of the central government.

The 1972 amendments of AFSPA was highly argued in Lok Sabha debates voicing that the transformation of the powers to the central government would take away the states Authority. The 1972 amendment depicted that the Central Government is no more connected with the state government’s power. Rather, the Central Government now has the capacity to overrule the opinion of a state governor and declare an area disturbed. This happened in Tripura, when the Central Government declared Tripura a disturbed area, over the opposition of the State Government. In the 1972 Lok Sabha debates, Mr. S D Somasundaram argued that there was no need to transform this power to the Central Government, since the President had “the power to intervene in a disturbed State at any time” cited under the Constitution. However, this point was unnoticed and the Central Government was credited with the power to apply the AFSPA to the areas it wishes.

The vagueness of this definition of disturbed area was also challenged in Indrajit Baruav State of Assam case, however was sidelined by the court by highlighting the arbitrary fact that “ as the declaration depends on the satisfaction the government officials it is thus not subjected to the judicial review. The threshold and the brutality with in the law can be lucidly seen here where there is no mechanism for the people of the state to elucidate or challenge this opinion of the central government. This in a very open way shows that government in any case is not even least interested in putting safeguards on its application of the Law, I.e. AFSPA.

Here in the section 3 one more point which is of the vital importance is that it does not mention any time frame for reviewing the conditions of the area I.e. six months review etc where if the improvement is found taking place consecutively the declaration for restoring normalcy would be considered.

4.Special powers of the armed forces. -(Section 4)

Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,-

(a} if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances;

(b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offence;

(c) arrest, without warrant, any persons who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;

(d) enter and search, without warrant, any premises to make any such arrest as aforesaid or to recover any person believed to be wrongful restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawful kept in such premises, and may for that purpose use such force as may be necessary, and seize any such property, arms, ammunition or explosive substances;

e) stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is a proclaimed offender, or any persons who has committed a non-cognizable offence, or against whom a reasonable suspicion exists that he has committed or is about to commit a non-cognizable offence, or any person who is carrying any arms, ammunition or explosive substance believed to be unlawfully held by him, and may, for that purpose, use such force as may be necessary to effect such stoppage, search or seizure, as the case may be.

5. Power of search to include powers to break open locks, etc. -(Section 5)

Every person making a search under this Act shall have the power to break open the lock of any door, almeerah(Closet) , safe, box, cupboard, drawer, package or other thing, if the key thereof is withheld.

Analysis

Section 4 and 5: These are the sections which overrides all the International Humanitarian provisions and also contravenes the very basics of the Indian constitution. The section 4 empowers not only the commissioned officers or a warrant officer to use force but authorizes even a non- commissioned officer like Havaldar to use force for the variety of the reasons. Section 4 and 5 are the parts in the Act which confers you with the actual face of the brutality cited in the law. Here in section 4 & 5 powers are given to kill even causing to death, search & arrest without warrant, destroying property if there is even a suspicion of the arms or ammunition dump , seizing a vehicle, breaking locks etc, all such unconstitutional powers are granted to the armed forces. These powers are used by armed forces on just a condition of that “they have to be of the opinion that it is necessary”. The section 4 has been a chief source of guaranteeing the penetration of violence in the region. Based on just to be of the opinion the armed forces have terrorized the entire valley by skillfully using the provisions of the section 4 causing a innumerable number of human rights violations I.e. tortures , rapes, destruction of the property and live, disappearances etc which has not only amplified the anger within the people in Kashmir but has fueled and concreted their idea of a willful succession from the oppressive, tolerant , and injustice government.

6. Arrested persons and seized property to be made over to the police. -(Section 6)

Any person arrested and taken into custody under this Act and every property, arms, ammunition or explosive substance or any vehicle or vessel seized under this Act, shall be made over to the officer-in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest, or as the case may be, occasioning the seizure of such property, arms, ammunition or explosive substance or any vehicle or vessel, as the case may be.

Analysis

Section 6: This section states that after the military has arrested someone under the AFSPA, they must hand that person, illegal property, vehicle etc over to the nearest police station with the “least possible delay”. There is absolutely no definition in the Act of what constitutes the least possible delay. There are some case laws which establish that a duration of 4 to 5 days is too long. But since this provision has been interpreted as depending on the specifics circumstances of each case, there is no precise amount of time after which the section is violated. There has been innumerable cases of disappearances with the employment of this power, people have been arrested without the warrants and have been taken in custody for the long durations without extending the information to the nearest police station or the district magistrate about the people being arrested. It has been confirmed that the duration has extended to the months and years in some of the victimized cases under this ambiguity of the least possible delay. Though holding of the person for such a long duration without a review by the magistrate constitutes the arbitrary detention and authorizes a legal hearing but as entire judiciary is refuted by the AFSPA so no legal proceedings can be made against the armed forces functioning under the empowerment of this Act.

7. Protection of persons acting in good faith under this Act. -(Section 7)

No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

Analysis

Section 7: This section establishes that no legal proceeding can be brought against any member of the armed forces functioning under the Act, I.e. AFSPA, without the permission of the Central Government.

This section of the AFSPA provide armed forces with absolute immunity for all atrocities committed under the shield of this Act. A person wishing to file suit against a member of the armed forces for abuses under the AFSPA must first seek the permission of the Central Government. Nandita Haksar, a lawyer who has often petitioned in High Courts in cases related to the AFSPA, explains how this impracticality leaves the military’s victims without a remedy.

Given the above it can be seen that the armed force’s conduct operates above the law and the people are alienated from the state government, it is hardly surprising that no one would approach Delhi for such permission. Section 7 leaves the victims of the armed forces abuses without justice, thus granting the armed forces an unambiguous and liberal impunity.