Case of Disturbed Areas Act (DAA) & legality of AFSPA in J&K

DAA was crafted during Governor’s Rule in 1990 as ‘Governor’s Act No. 12’ in J&K, which was further replaced to the J&K Disturbed Areas Act in 1992.

According to this Act, the state government could declare the “whole or any part… of J&K” as a “disturbed area”.

Under this Act any magistrate or police officer could use force, open fire 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 that could be used to carry out attacks.

Conducting all these activities Police are immune from prosecution without prior sanction from the state government.

Later DAA was removed due to huge wave of resentment against the misuse of its draconian provisions. But, under Armed Forces (Jammu and Kashmir) Special Powers Act, which came into force in July 5, 1990 got power to declare disturbed area under its section 3 implemented on the “opinion of the Governor of the state or the central government” to aid its civilian with by the use of  armed forces against any insurgencies.

Armed Forces Special Powers Act (AFSPA)

AFSPA was enacted by Parliament on September 11, 1958, which was first implemented in the Northeast, and then in Punjab. AFSPA in J&K came into force in 1990 with little difference in its provisions. AFSPA is enforced only after the area has been declared “disturbed” by the central government, unlike AFSPA (in J&K) where its section 3 declares disturbed area, which means in J&K AFSPA comes first and then declares disturbed area.

Under AFSPA “armed forces” may shoot to kill or destroy a building on mere suspicion. Once AFSPA is implemented, “no prosecution in respect of anything done or purported to be done by armed personals under this Act.

Absence of DAA and legality of AFSPA in J&K:

Even though DAA removed from J&K, the state government can declare disturbed area in two ways either to enact the DAA again, or to enact it under Section 3 of AFSPA.

To this extent, the J&K 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”.

The debate on DAA and legality of AFSPA

In November 1997, the Supreme Court said that “Section 3 of AFSPA in J&K 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”.

This raised the issue of legality of AFSPA to declare disturbed area and its existence in J&K, since no fresh notification has issued under AFSPA to declare disturbed area after the expiry of last notification in 1977.

Still in August 2001, the Home Ministry added districts of Jammu to the list of disturbed areas and thus raised the contention.

Considering SC’s order AFSPA can’t be implemented in J&K due to the absence of a valid notification under Section 3 of AFSPA. This will now lead to challenge every case on armed force personal in court that enjoyed immunity during the period when the notification had expired after its stipulated period of six months.

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