ACHR WEEKLY REVIEW

Embargoed for: 3 December 2011
Review: 233/11

AG’s opinion on the AFSPA is non-est in law


Also available in Imphal Free Press

The proposal of Chief Minister Omar Abdullah for removal of the Armed Forces Special Powers Act (AFSPA) from certain parts of Jammu and Kashmir has exposed the fraught being played by the Central government on the basic tenet of the constitution i.e. federalism. As the Ministry of Defence opposed Chief Minister Abdullah’s proposal tooth and nail, the Ministry of Home Affairs (MHA) in order to extricate itself from the controversy sought an opinion from the Law Ministry. On 18 November 2011, Attorney General (AG) Ghulam E. Vahanvati informed the MHA that the Governor of the State is the final authority for declaration and revoking of the AFSPA as per Section 3 of the Act. The AG based his opinion on the Supreme Court (SC) judgement of 1997 that upheld constitutional validity of the AFSPA in the case of the Naga Peoples Movement for Human Rights Vs Union of India.

The AG’s opinion is all but absolute mis-interpretation of the SC judgement in the case of NPMHR Vs Union of India. The SC judgment did not examine as to whether it is the Governor, who is legally bound to operate on the advice of the State’s Council of Ministers, or the State Government, which is the actual authority for declaration or revoking of the AFSPA. The constitutional validity of the AFSPA was examined in the specific context of whether the Act is violative of the Constitution because ‘public order’, which is addressed in disturbed areas through deployment of the Central forces, is a State subject. The SC upheld that the AFSPA “is not a law in respect of maintenance of public order falling under Entry I and List II.” The Court also held that the AFSPA “does not displace the civil power of the State by the armed forces of the Union and it only provides for deployment of armed forces of the Union in aid of the civil power.”  The Court further clarified that “The expression ‘in aid of the civil power’ in Entry 2A of List I and in Entry 1 of List II implies that deployment of the armed forces of the Union shall be for the purpose of enabling the civil power in the State to deal with the situation affecting maintenance of public order which has necessitated the deployment of the armed forces in the State”. Therefore, the SC judgement reiterated the primacy of the State government and did not justify any discretionary power of the Governor as being interpreted by the AG. If there is no civil power in the State, Governor’s discretion would mean declaration of emergency and/or President’s rule under Article 356 of the Constitution. 

The AG has further failed to appreciate that the AFSPA cannot be considered as a stand-alone Act. The AFSPA comes into effect only after an area is declared “disturbed” under Section 3(1) of the Disturbed Areas (Special Courts) Act which is unequivocal about the role of only the State Government. Section 3(1) states “where a State Government is satisfied that- (i) there was, or (ii) there is, in any area within a State extensive disturbance of the public peace and tranquility, by reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities, it may, by notification in the Official Gazette, declare such area to be a disturbed area”. There is no reference to the role of the Governor under the Act and once the “disturbed area” notification is revoked by the State government, the AFSPA simply goes!

Major political parties such as the Bharatiya Janata Party, the AIADMK and the Trinamool Congress have been opposing the Communal Violence Bill on the ground that it poses a threat to federalism. However, these political parties have maintained silence on the opinion of the AG, while the BJP on record opposed the revoking of the APSPA from J&K.

It is essential to bear in mind that the Disturbed Areas (Special Courts) Act was enacted in 1976 to provide for speedy trial of certain offences through the establishment of Special Courts. While Special Courts have seldom been established, the Act has been abused discriminatorily against the States ruled by the minorities. At present, the areas declared disturbed are the entire  State of Manipur  (except Imphal Municipal area), Nagaland and Assam, Tirap and Changlang  district of Arunachal Pradesh, 20 km belt in the States of Arunachal Pradesh and Meghalaya having common border with Assam and 20 out of 22 districts in Jammu and Kashmir. The most curious case is Tripura which in September 2011 further notified 34 out of 70 police Stations as fully disturbed and six police stations as partially disturbed. According to the Tripura Police, 32 insurgency related incidents took place from January 2010 to September 2011 in which only one civilian and two security forces were killed. Though the Naxal affected States have been witnessing far more violence, the Centre has not declared areas in these Naxal affected States to be disturbed as they are ruled by the powerful State governments.

The declaration of certain areas to be ‘disturbed’ has effectively come to mean bringing these areas effectively under the Central rule without declaring the same publicly or under the Constitution of India. Those opposing the Communal Violence Bill need to take a principled stand. After all, the Disturbed Areas (Special Courts) Act in essence addresses the very issues of the Communal Violence Bill and not the insurgency or national security problems. If the Central rule can be imposed through the backdoor by abusing the Disturbed Areas (Special Courts) Act, there is no reason as to why the Communal Violence Bill would not be invoked for the same. Armed conflicts are increasing by the day and time has come to lay down the law clarifying the role of the Centre vis-à-vis the armed conflicts including the Naxal conflict. Ethnic origin and religious belief must not be seen to be the criteria to judge the competence of the leaders or Indian-ness of the people they govern. [End]