Theme: Government

AFSPA in Jammu and Kashmir

Most of the provisions of the Armed Forces (Special Powers) Act, 1990 (AFSPA) applicable in Jammu and Kashmir are similar to the Armed Forces (Special Powers) Act, 1958 which is applicable in the North-Eastern States. The armed forces have broader investigation powers in Jammu and Kashmir:

  • Under the AFSPA (Jammu and Kashmir), the powers of the armed forces extend to breaking open any lock, door, almirah, safe, box, cupboard, drawer, package or other thing, if the keys of these cannot be found.
  • Any Commissioned Officer, Warrant Officer or a Non-Commissioned Officer can stop, search and seize any vehicle or vessel if they suspect that they are carrying:
    • Any person who is a proclaimed offender;
    • Any person who has committed a non-cognizable offence;
    • A person against whom a reasonable suspicion exists that they have committed or is about to commit a non-cognizable offence;
    • Any person who is carrying any arms, ammunition or explosive substance unlawfully.

Who investigates terrorist and unlawful activities?

Apart from the regular investigation authorities, such as the police, the Government has set up a special National Investigation Agency to investigate and prosecute offences related to explosive substances, atomic energy, nuclear weapons, unlawful activities, terrorist activities, hijacking, etc.

 

Powers of National Investigation Agency Officers

NIA officers have the power to investigate these offences and arrest people involved in such offences. NIA officers have all the powers, duties, privileges and liabilities of police officers while conducting an investigation. The administration of the NIA lies with its Director-General, who enjoys the same powers as a Director-General of Police.

While investigating any offence under the Act, the NIA can request a State government to associate itself with the investigation. The NIA can also take the approval of the Central government to transfer a case to a State government for investigation and trial. For doing this, the NIA will take into account the seriousness of the offence and other relevant factors.

 

Special Courts for NIA 

Further, the Central government can choose Session Courts in different States to function as Special Courts for the trial of NIA offences. These Special Courts are chosen in consultation with the Chief Justice of the High Court of the respective State. Every offence investigated by the NIA is tried by the Special Court which has authority in the local area where the offence was committed.

Do’s and Don’ts of the Army While Providing Aid

The Supreme Court has listed guidelines for the armed forces while providing aid to the civil authority.

What should the army do?

  • Maintain communication with the civil authorities if possible by telephone or radio.
  • Get the permission or an official order from the Magistrate to provide aid.
  • Minimize the force and injury to any person or property.
  • These guidelines must be followed when open firing is required:
    • Give a warning in a local language that firing will take place.
    • Attract attention before firing by a bugle or other means.
    • The armed forces should be distributed in fire units with specified Commanders.
    • Control fire by issuing personal orders.
    • Note the number of rounds fired.
    • Aim at the front of the crowd rioting or inciting to riot, not at the crowd behind. Aim low and shoot for effect.
    • Light Machine Gun and Medium Gun should be kept in reserve.
    • Once the object has been achieved, cease fire immediately.
  • Immediate steps should be taken to secure any wounds or injuries
  • Maintain cordial relations with civilian authorities and paramilitary forces by ensuring high standard of discipline.

What shouldn’t the army do?

The guidelines for the armed forces also include what they should not do or refrain from doing. These are:

  • Excessive force, or hand to hand struggle with the mob should not be done.
  • No one should be ill-treated, in particular, women and children.
  • There should be no harassment of civilians or torture by the armed forces.
  • No communal bias should be present while dealing with the civilians.
  • Armed forces should not meddle in civilian administration affairs.
  • There should be no surrender or loss of weapons.
  • Presents, donations and rewards should not be accepted.

Who are the authorities under the UAPA law?

Given below are the authorities under UAPA law-

Tribunal

The Central Government (when necessary) constitutes a tribunal known as the Unlawful Activities (Prevention) Tribunal, consisting of one person appointed by the government. The Tribunal has the power to decide whether there is enough reason for declaring an association unlawful.

 

Review Committee

The Central Government constitutes Review Committees, each of which is headed by a Chairperson who is/has been a High Court judge, and two other members.  A Review Committee has the power to denotify a person or organisation from being declared as terrorist.

Can you get bail for UAPA cases?

Yes, but the UAPA has special bail conditions for a person accused of being involved in a terrorist activity or involved with a terrorist organisation. The accused cannot get bail:

  • Unless the government’s lawyer has heard the bail application.
  • If the court thinks that there is a reasonable possibility that they actually committed the offence that they have been accused of.

If a UAPA offence is committed by a person who is not an Indian citizen, or a person who has entered India illegally, the court will not give bail. Such a person can get bail only in very exceptional circumstances and the court has to record the reasons for granting bail.

The Supreme Court has held that violation of the fundamental right to a speedy trial is a ground for the constitutional court to grant bail in UAPA cases.

If you want to know more about Bail, check out our explainer.