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What Is Afspa
What Is Afspa
What Is Afspa
What is AFSPA
Originally conceived for the seven sisters of the north east, the Armed Forces (Special Powers Act) or better known as AFSPA was given Presidential assent on the 10th September 1990 for the state of Jammu and Kashmir. The legislation speaks the necessity of its implementation as An Act to enable certain special powers to be conferred upon members of the armed forces in the disturbed areas in the State of Jammu and Kashmir. The Section 1 of the AFPSA notifies its extent to the whole of the State of Jammu and Kashmir where as the Section 2 give the required definition of disturbed area. (a) "Disturbed area" means an area which is for the time being declared by notification under section 3 to be a disturbed area; The section 3 of the act confers power to the governor of the state or the central government to declare any area within the state as disturbed area and application of this act thereof. The section 3 of the act though mentions the parameters of declaring such area as disturbed area , which are as under: (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. Whereas the Section 4 of the legislation seems to be a most questionable one, as it confers unchecked powers to the army. By a mere glance at this section one can easily draw inference from the Machiavellian prince which had truly unchecked powers for ruling the state.
Section 4 states: Special powers of the armed forces: Any commissioned officer, warrant officer, noncommissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,-
(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 noncognizable 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. By citing this section the paper wants to bring into the notice that, does not this section is a clear abrogation of the rights of the citizens as the current situation of Kashmir valley is very different as it used to exist a decade back. In the time of active civil society and new social movements prohibition on the assembly of more than five peoples draws sever criticism, also use of force to cause death is a clear abrogation of article 21 of the Indian constitution, which declares right to life as one of the basic premise of democracy. Also, the questionable point in this legislation is the clause (a) and (b) of the section 4 of the act confers the power upon the commissioned or any non commissioned officer to act on his own opinion which again is a matter of concern, the objectivity of this statement had abridged the rights of the people in lieu of security. The AFSPA(JAMMU AND KASHMIR) 1990 was initially invoked in the areas mentioned here under:
Keeping the above considerations the Jeevan Reddy committee recommended: The Armed Forces (Special Powers) Act, 1958 should be repealed. Therefore, recommending the continuation of the present Act, with or without amendments, does not arise. The Act is too sketchy, too bald and quite inadequate in several particulars. It is true that the Hon'ble Supreme Court has upheld its constitutional validity but that circumstance is not an endorsement of the desirability or advisability of the Act. When the constitutional validity of an enactment is challenged in aCourt, the Court examines (i) whether the Act is within the legislative competence of the Legislature which enacted it and (ii) whether the enactment violates any of the provisions of the Constitution. The Court does not - it is not supposed to pronounce upon the wisdom or the necessity of such an enactment. The Committee is of the opinion that legislative shape must be given to many of these riders. We must also mention the impression gathered by it during the course of its work viz., the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness. It is highly desirable and advisable to repeal this Act altogether, without, of course, losing sight of the overwhelming desire of an overwhelming majority of the region that the Army should remain (though the Act should go). Till now we had a glance at the legislation and it draconian effect on the valley, now I would like to take the readers to the current situation that the Kashmir is facing. 1. On Jan 8 2010 , Inayat Khan a 16 year old boy became the first victim of this military madness for the year. Inayat had just passed his SSC exams with excellent numbers. On this fateful day, while going for the tutions he was shot down by the troopers in budshah chowk Srinagar . Inayat lives close to another Inayat who was a musician and was killed by the troopers in 2006. Now both of them await justice in oblivion. 2. In the same month on Jan 31 2010 , Wamiq farooq a 13 year old from Rainawari was playing in the Ghanni Memoria Stadium. The troopers while chasing a group of