A tussle between the Home and Defence ministries has delayed changes in the controversial and sweeping Act
By Iftikhar Gilani
New Delhi. Nov 4 : In a ‘fake encounter’ in Pathribal in 2000, six civilians were killed by the Army after being branded as foreign militants
As Chief Minister Omar Abdullah renews the debate on the issue of withdrawal of the contentious Armed Forces Special Powers Act (AFSPA) from some selected areas, Prime Minister’s Office (PMO) is sitting on a file on a Home Ministry proposal seeking amendments in the law, which gives sweeping powers to the armed forces, for over a year.
After a tussle between the Home and Defence ministries over amending the law and failing to take a final call, the PMO is now pinning its hopes on the Supreme Court, which is expected soon to interpret Army’s Special Leave Petition (SLP), which seeks immunity from prosecution of its officers involved in a ‘fake encounter’ in Pathribal in 2000 in which six civilians were killed after being branded as foreign militants.
Interestingly, the Central Bureau of Investigation (CBI), which had found a prima facie case against the Army officers, has pleaded the Supreme Court to vacate the stay on the trial, being conducted by the Chef Judicial Magistrate of Srinagar. The civilians were shot five days after the killing of 35 Sikhs in Chatisinghpura village in Anantnag district on eve of the visit of then-US President Bill Clinton on March, 2000. CBI counsel Ashok Bhan told a two-judge bench that a prima facie case existed against Brigadier Ajay Saxena, Lt. Col Brajendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena, Sudedar Idrees Khan and others.
The Army has said in its plea that their personnel seeking immunity under Sections 6 and 7 of the AFSPA, 1958, which has been rejected by lower courts as well as Jammu and Kashmir High Court. Last year, while admitting the special leave petition (SLP) against the High Court order, the apex court also stayed proceedings at the trial court.
CBI counsel Ashok Bhan said that immunity was not available under any law when innocent persons have been in cold blood in fake encounters to win laurels and medals. Vacation of the stay order would of great public importance, address sensibilities of Kashmiris and uphold the rule of law. “Therefore, the stay should be vacated in broader public interest and allow CJM Srinagar to proceed with the case,” he added.
Last year, at the behest of Prime Minister Manmohan Singh, the Home Ministry had circulated a draft of amendments to the controversial law to the members of Cabinet Committee on Security (CCS). Countering the Home Ministry proposal, the Defence Ministry circulated its own draft note opposing any changes.
Modelled on the Armed Forces (Special Powers) Ordinance, promulgated by the colonial British government on 15 August, 1942, to suppress the Quit India Movement, the AFSPA was initially supposed to have remained in operation for one year to tackle the Nagaland problem. Parliament enacted a fresh law Jammu and Kashmir Armed Forces Special Powers Act in September 1990 to cover Jammu and Kashmir incorporating clauses of Disturbed Areas Act also in the Section 3 of JKAFSPA.
Under Section 6 of this law, “No prosecution, suit or other legal proceedings 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 powers conferred by this Act.”
Amendments proposed by MHA
1. Dropping the phrase “even to causing of death” as a permissible consequence of firing, or use of force by the armed forces
2. Providing for a grievance redressal mechanism to address complaints regarding Armed Forces Special Powers Act (AFSPA) abuse.
3. Section 4 gives the Army powers to search premises and make arrests without warrants, to use force even to the extent of causing death, destroy arms/ammunition dumps, fortifications/shelters/hideouts and to stop, search and seize any vehicles. The amendment stipulates that such operations be undertaken in presence of a civilian magistrate.
4. Under Section 6, the arrested persons and seized property are to be handed over to the police with least possible delay. An amendment to this clause requires splitting search and seizure operations and seizure operations should be vested with the civilian administration.
5. Section 7 offers protection of personnel acting in good faith in their official capacity. While upholding the clause, the proposed amendment stipulates to set up a rederessal mechanism under both civilian and armed forces administration to probe genuine complaints.
6. Prosecution is permitted only after sanction of the Central government. Section 7 is similar to the Criminal Procedure Code’s (CrPC) Section 45, which bars arrest of public servants, and Section 197 provides impunity against prosecution. While the Supreme Court has mandated a government sanction prior to initiating prosecution against police personnel for excesses or killings committed during the maintenance of law and order, the applicability of Section 45 of the CrPC is not allowed in J&K, where the Ranbir Penal Code is applicable and ipso facto the personnel of the armed forces can be arrested for any perceived excesses.
Army note circulated in the Cabinet Committee on Security (CCS)
1. Section 3 of the Armed Forces Special Powers Act says the Central and state governments are the authorised institutions to declare an area disturbed implying that the political leadership should take a call first on revocation of Disturbed Areas Act before adjudicating on changes in the AFSPA. It is evident that the Army is in operation to help the civilian government in the Disturbed Area. Therefore, it is a political call to revoke the Disturbed Areas Act tag before revoking AFSPA.
2. The case of Human Rights Forum Vs Union of India and State of Manipur, filed on 10 October, 1980, in the Supreme Court clearly states that after adjudicating the AFSPA for over 18 years, the apex court had finally upheld the Constitutional validity of all the clauses of the Act. The court, at the same time, passed a series of Do's and Don'ts. The Army has been following these guidelines religiously.
3. The Army has been already following proposed amendments like handing over an Army personnel involved in an encounter to the local police and magistrate. Even in case of the latest alleged fake encounter at Machil sector in Kupwara district, the Army had informed the local police within 24 hours.
4. Section 7 of the AFSPA offers protection to security personnel acting in good faith in their official capacity, and their prosecution is permitted only after sanction of the Central government.
5. Section 4 gives the Army powers to search premises and make arrests without warrants, to use force even to the extent of causing death, destroy arms and ammunition dumps, fortifications or shelters or hideouts and to stop, search and seize any vehicle. Section 6 stipulates that arrested persons and seized property are to be handed over to the police with least possible delay.
6. Comparing this action with a situation where the Army is asked to assist the civil authority during a riot, it is not practical to look for a magistrate during an encounter or to wait for a search warrant to enter a house where the militant is likely to be hiding. Any delay would allow him to get away thereby nullifying the efforts of the Army to conduct pro-active actions.
Supreme Court Guidelines On AFSPA Issued In 1997
1. A person arrested and taken into custody in exercise of the powers under Section 4(c) of the Central Act should be handed over to the officer-in-charge of the nearest police station with least possible delay so that he can be produced before the nearest Magistrate within 24 hours of such arrest excluding the time taken for journey from the place of arrest to the court of magistrate.
2. The property or the arms, ammunition etc., seized during the course of search conducted under Section 4(d) of the Central Act must be handed over to officer-in-charge of the nearest police station together with a report of the circumstances occasioning such search and seizure.
3. The provisions of Cr.PC governing search and seizure have to be followed during the course of search and seizure conducted in exercise of the power conferred under Section 4(d) of the Central Act.
4. Section 6 of the Central Act in so far as it confers a discretion on the Central Government to grant or refuse sanction for instituting prosecution or suit or proceeding against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act does not suffer from the vice of arbitrariness. Since the order of the Central Government refusing or granting the sanction under Section 6 is subject to judicial review, the Central government shall pass an order giving reasons.
5. While exercising the power conferred under clauses (a) to (d) of Section 4, the officers of the armed forces shall strictly follow the instructions contained in the list of ‘Do’s and Don’ts” issued by the army authorities, which are binding and any disregard to the said instructions would entail suitable action under the Army Act, 1950.
6. The instructions contained in the list of ‘Do’s and Don’ts” shall be suitably amended so as to bring them in conformity with the guidelines contained in the decisions of this Court and to incorporate the safeguards that are contained in clauses (a) to (d) of Section 4 and Section 5 of the Central Act as construed and also the direction contained in the order of this Court dated 4 July, 1991, in Civil Appeal No. 2551 of 1991.
7. A complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act shall be thoroughly inquired into and, if on inquiry it is found that the allegations are correct, the victim should be suitably compensated and the necessary sanction for institution of prosecution and/or suit or other proceeding should be granted under Section 6 of the Central Act.
Source: Tehelka.com
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