NEW DELHI, Oct 27 � Even as the Centre dithered over taking a final call on the demand for repeal of the Armed Forces Special Powers Act (AFSPA), the Home Ministry has recommended amendments to the controversial Act, advocating strong grievance redressal mechanism to tackle abuse of the Act by armed forces.
The recommendation forwarded to the Prime Minister�s Office (PMO) by the Home Ministry is pending a final decision, as the heat over the issue rose to unprecedented level. A march from Srinagar is currently on its way to Manipur, even as the demand has taken a political colour in Jammu and Kashmir.
Part of the reasons for the PMO�s reluctance to act is the differences between the Home Ministry and Army over amending certain sections of the Act. The Army wants the political leadership to first take a call on withdrawing the �Disturbed Areas Act. Section 3 of the AFSPA says the Central and State governments are the authorised institutions to declare an area disturbed.
According to sources, faced with the prolonged impasse over the issue, the Ministry of Home Affairs has proposed several measures to neutralise the offensive clauses in the Act, believed to the root cause of growing unpopularity of the Act. Irom Sharmila�s fast demanding scrapping of the AFSPA, has entered 11th year.
The proposed amendment included inclusion of provisions for a grievance redressal mechanism to address complaints regarding abuse of the Act, dropping the phrase �even to causing of death� as a permissible consequence of firing, or use of force by the armed forces.
The Home Ministry has upheld Section 7 but added an amendment stipulating introduction of redressal mechanism under both civilian and armed forces administration to probe genuine complaints. The controversial clause offers protection of personnel acting in good faith in their official capacity. Prosecution is permitted only after sanction of the Central government.
Interestingly, 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.
The Home Ministry also wants all Army operations to be undertaken in presence of a civilian magistrate. Section 4 of the Act 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, shelters, hideouts and to stop, search and seize any vehicle.
However, the Defence Ministry has opposed this comparing it with a situation, where the Army is asked to assist the civil authority during a riot. It argues that 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.
The Home Ministry has proposed splitting search and seizure operations. It wants the seizure operations should be vested with the civilian administration. Under Section 6, the arrested persons and seized property are to be handed over to the police with least possible delay.
Significantly, Army also circulated a note to the Cabinet Committee on Security (CCS) arguing that the Army launches 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.
The Army has referred to the case of Human Rights Forum Vs Union of India and State of Manipur, filed in 1980, when the Supreme Court stated that after adjudicating the AFSPA for over 18 years, it had upheld the Constitutional validity of all the clauses of the Act. The court, at the same time, issued a series of do�s and don�ts. The Army has been following these guidelines religiously.
The Army has pointed out that it has been already following proposed amendments like handing over an Army personnel involved in an encounter to the local police and magistrate.