Jammu & Kashmir: a messy legislative picture

Chief Justice (ret) J. S. Verma

Muzamil Jaleel, writing from Srinagar, points out another dimension of the Armed Forces (Special Powers) Act in The Indian Express:

At a time when the National Conference and the PDP are engaging in one-upmanship over the Armed Forces (Special Powers) Act and the impunity enjoyed by the armed forces, another central act adopted by the Jammu and Kashmir assembly earlier this year omitted a provision that allowed prosecution of public servants, including personnel of police and the armed forces, for crimes against women without the need for prior sanction from central authorities.

After the Criminal Law (amendment) Act, 2013, was passed by the Centre following the Delhi gang-rape, the J&K assembly adopted the amendments in March this year. However, the state law left intact the need for sanction for prosecution of public servants. No party objected to the continued impunity provided to public servants.

This comes when parties continue to attack AFSPA. During the current poll campaign, CM Omar Abdullah accused the Congress and the PDP of not supporting him in his effort to get AFSPA repealed. The PDP’s Nayeem Akhtar, for his part, claimed his party would get AFSPA repealed, saying Omar didn’t take any concrete measures.

One of the major criticisms of AFSPA is that once the police file and investigate a case against members of the armed forces, they need sanction, which is frequently denied, from the Ministry of Defence (to prosecute army personnel) or Home (paramilitary forces). Responding to an RTI application, Integrated Headquarters of MoD (Army) in April 2012 revealed that 44 cases had been received during 1990-2011 for sanction for prosecution under AFSPA from J&K government. The Centre denied sanction in 35 of the cases while nine were “under process in MoD/integrated headquarters of MoD (Army)”. In one case, the Army conducted a court-martial and convicted and punished a soldier with dismissal and ten years’ imprisonment.

After the Delhi gang-rape, one of the key recommendations of the Justice J S Verma committee was that sexual offences by armed forces personnel be brought under ordinary criminal law. In Kashmir and the northeastern states, where too AFSPA is in force, the armed forces have frequently got immunity from prosecution in civilian courts after their personnel have been charged with rape. In submissions to the Verma panel, activists and lawyers such as Vrinda Grover had suggested deletion of the need for sanction for prosecution. AFSPA’s immunity clause is circumscribed by “good faith”; it should come into play only when personnel make a “bona fide mistake” during operations, but they have invoked it in rape cases too.

You have to read the full article to really get the picture, but it certainly seems odd that a core element of the legal process would differ from one region to another even though the AFSPA applies in both.