Every law enacted by Parliament requires the government to frames rules for its implementation. But the Centre has woken up to find the controversial Armed Forces Special Powers Act of 1958 operating without the requisite rules of governance.
The realisation dawned when the prime minister’s office stepped in to mend fences between the Union home and defence ministries that crossed swords over amendments proposed to the draconian Act to make it humane. Instead of amending the law, the PMO sought safeguards in the rules, but only to realise that they were never framed in the first place.
Disclosing this to DNA, National Commission for Minorities chairman Wajahat Habibullah said prime minister Manmohan Singh has now asked both the ministries to quickly frame the rules for the Act in a manner that they address the grievance caused due to the army’s human right violations in Jammu and Kashmir and the northeast where the law is in force.
Habibullah rues that one clause in AFSPA even supersedes the powers of the President and the PM that “a soldier can shoot without seeking orders from the superiors”.
“I believe AFSPA should be done away with. The government of India is working on a model to frame rules that would govern the AFSPA as so far we had no rules to govern the controversial Act,” he said.
The AFSPA grants immunity to the armed forces during their conduct of law and order duties and secures them from any arrest by civilian authorities. Human rights activists have been citing a plethora of cases wherein the army has misused this provision to kill innocent people.
Union law minister Salman Khurshid wriggled out when asked how the law was allowed to operate without the rules. He told DNA that he can’t comment offhand since framing of rules falls in the domain of the home and defence ministries and the law ministry is helping them to formulate them.
The home ministry has proposed amendments to Section 4 of the Act to bring the army under the civilian control: No arrest without warrant from a civilian magistrate, no firing that may cause death without prior orders from civilian authorities and constitution of grievance redressal cells to attend to any violation of the human rights.
These provisions may be now incorporated in the rules in the making, though the defence ministry is against the redressal cells, pointing out that they are unnecessary because the army always hands over its personnel involved in any bogus encounters to the magistrate and the local police.
Last December, a parliamentary committee did not agree with repeal of the Act as recommended by the Justice Jeevan Reddy Commission. Instead, it stressed that the law should be made humane, in case its continuance in some areas is necessitated.
An army note circulated in the Cabinet Committee on Security last year stressed that the army is called by the Centre or the state under Section 3 of AFSPA to operate in the “disturbed area” only to help the civilian government and hence their political leadership better take a call first to revoke the Disturbed Areas Act before amending AFSPA.
It pointed out that AFSPA has been already upheld by the Supreme Court in 1997, which passed a series of Dos and Don’ts to curb human rights violations, and that the army follows them religiously.
The seven-point guidelines issued by the apex court mandates handover of the arrested persons and seized property to the nearest police station with the least possible delay, follow the Criminal Procedure Code (crPC) in search and seizure operations, follow dos and don’ts of the army and compensate victim of any misuse or abuse of powers after a thorough inquiry.