Home >Opinion >Columns >Opinion | J&K bifurcation leaves a host of unresolved issues

The bifurcation of the state of Jammu and Kashmir into two Union territories of Jammu and Kashmir, and Ladakh, has left in its wake some unresolved issues. One of them, of course, is the speed of developments, the blitz of law and speech-krieg that has left several government departments struggling to play catch-up.

For instance, nearly a fortnight after a Presidential order on 5 August confirmed the bifurcation, and the over-riding of Article 370 of the Constitution applicable to J&K, the website of the Jammu & Kashmir division of the ministry of home affairs (MHA) continues to identify the Union territories of J&K and Ladakh as being part of J&K state.

That will surely be reconciled shortly. As will the administrative transfer of J&K and Ladakh directly under the purview of the home ministry. MHA is the nodal ministry for all Union territories with regard to legislation, finance and budget—and appointments. Ladakh, as a Union territory without a legislature, will be directly overseen by what is known as the home minister’s advisory committee, chaired by the home minister, or the administrator’s advisory committee, which for all practical purpose is an adjunct of that ministry.

Another matter is the status and application of The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. It’s a cousin of The Armed Forces (Special Powers) Act, 1958, which is applied in several parts of North-East India. For application of AFSPA, as both legislation are commonly known, a particular area must first be declared “disturbed" by the local government.

Both versions of AFSPA have, for several decades, provided the Armed Forces a free hand in conducting operations—a cause of judicious interdiction, as well as the root cause of grave human rights violations. Among other things, both versions of AFSPA provide India’s Armed Forces and operational adjuncts, such as Assam Rifles and Rashtriya Rifles, immunity and impunity in areas that the Act is enforced, to kill at will anyone, even on the merest suspicion of breaching law and order, of being a rebel sympathizer, let alone an active rebel. They can arrest anyone without warrant, and search any premises without warrant in pursuit of their mission. This writ extends to “(A)ny commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces…in a disturbed area…".

While much is common to both forms of AFSPA, the one applicable to all J&K has additional, micro-detailed parameters (even though troops in North-East India act thus in any case). The Kashmiri cousin of AFSPA permits troops to “stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person, who is a proclaimed offender, or any person who has committed a non-cognizable offence, or against whom a reasonable suspicion exists that he has committed, or is about to commit, a non-cognizable offence…".

Another micro-detail for Jammu and Kashmir permits the “power of search to include powers to break open locks, etc.—every person making a search under this Act shall have the power to break open the lock of any door, almirah, safe, box, cupboard, drawer, package or other thing, if the key thereof is withheld".

This is hardly trivial pursuit. And, along with policy and packages, the government has promised the people of the bifurcated Jammu and Kashmir state, details as to security aspects would surely be part of the hearts-and-minds approach. Will Ladakh come under the purview of The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990? Will Jammu? Will it only be applicable in Kashmir? Will the law now be modified to reflect new politico-geographical appellation? How long will AFSPA be enforced?

The Armed Forces have consistently argued against revocation of AFSPA in J&K. Former chief minister of J&K, Mehbooba Mufti even ruled out revoking AFSPA in the state’s erstwhile legislature, in early 2018, on account of the “prevailing" security situation. She even praised the Indian Army as “the most disciplined force in the world". Those were still days when the Bharatiya Janata Party hadn’t snapped ties with Mehbooba’s Peoples Democratic Party (PDP) and withdrawn support to her government—leading to a chain of events, from imposition of central rule to cauterizing of Article 370 to bifurcation of the state. The people had a right to know then. The people have a right to know now.

This column focuses on conflict situations and the convergence of businesses and human rights and runs on Thursdays.

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