Skip to main content

Pointed question by senior legal expert: Would Modi want armed forces special powers Act dropped?

By Our Representative
Will Gujarat chief minister Narendra Modi seek to drop the current provisions of the Armed Forces Special Powers Act – under which Central forces are stationed in several states like Manipur, Assam, Jammu & Kashmir etc. for maintaining public order – in case he comes to power in Delhi? Senior Gujarat High Court advocate Mukul Sinha has obliquely suggested that this should happen logically if one agrees with the legal objections Modi has raised to the prevention of the communal violence Bill, which is proposed to be placed in the upcoming winter session of Parliament.
Wondering if Modi would like to "repeal the Armed Forces Special Powers Act (AFSPA) on the ground that this law wholly violates the federal powers of these three states”, Sinha in a recent in-depth analysis (click HERE) on Modi’s opposition to the Bill has said, the revised version of the Bill says that in case the local district magistrate declares an area “disturbed and seeks the assistance of Central forces, Central Government can send armed forces to that area for maintaining public order.”
Even as saying that it is “ridiculous to expect a district magistrate to go against the state government and discharge his duties”, Sinha has accused Modi of fueling a “hypocritical debate”, Sinha says the CM has attacked the “toothless provision” to suggest that it would destroy the federal structure of the constitution. Sinha says, “Modi is shouting on top his voice that our Constitution does not permit the Centre to send forces to any state or make any law in this regard, thus questioning the legal basis of the communal violence bill”.
In fact, Sinha adds, Modi “is instigating several other state governments to oppose the bill on the ground that the law would curb the autonomous power of the state, thus dubbing it anti-federal.” He insists, “The entry no 2A of List 1 of Union list gives exclusive authority to the parliament to legislate for providing for deployment of any armed force of the Union in any state in aid of the civil power.” He adds, “Under this entry AFSPA was enacted. Under section (3) of AFSPA, if the governor of a state is of the opinion that it is necessary to use the armed forces in aid of the civil power, he or she could declare the whole or any part of such state to be a disturbed area.”
Pointing out that “under section (4), the armed forces could assume power to help the civil forces maintain public order”, Sinha insists, “Thus Modi’s claim that Centre cannot legislate or send central forces for maintaining public order in a state has no legal basis at all.” 
While not supporting the idea of Central forces directly intervening for maintaining public order in a state, as this would in fact depend on who really would be controlling the Centre, the senior advocate argues, “A far better idea would be create an independent statutory authority which should be empowered to monitor the communal situation in any part of the country and direct immediate deployment of central forces supervised by special officers under it. If the consent of the states are required to enact such a law, let consent be taken instead of rushing a toothless Bill.”
Modi in his letter to the Prime Minister opposing the Bill (for full text click HERE) had expressed “serious concerns” about its “constitutional validity, legality and efficacy.” He said, “To begin with, your government’s attempt to legislate on an issue of ‘law and order’ and ‘public order’ both of which are items in the List II (State List) of the Seventh Schedule betrays its contempt for the federal structure and the separation of powers.” 
He had added, “The Union List (List I) has 97 entries in it and you will agree that there are a whole range of issues in that list which are waiting for legislation. However, rather than addressing issues which are in its domain, the Government of India seems to be under some compulsion to encroach upon the issues in the State List. Is it because the implementation has to be done by the State Governments?”
Sinha observes, “A question that should perplex many of us, especially to those of us who understand the nuances of the Bill, is as to why Modi is opposing such a toothless piece of legislation which cannot prevent any organized violence against the minorities. Modi’s latest tweet asking all the state governments to oppose the bill despite the several amendments agreed to by UPA, exposes his fear that enactment of the law would act as a legal hurdle in the way of BJP’s future communal campaign of instigating communal violence as they did in Muzaffarnagar.”

In any case, Sinh adds, the Bill has “failed to address the fundamental reason as to how targeted violence against a particular community is carried out in a large scale. Without the active complicity of the government and its police force, no such violence can take place”, wondering, “Does the Bill give the Central government any statutory powers to reach armed forces to save the victims from the targeted violence aided and abetted by the State?”

Comments

TRENDING

Hindus to be 'sent' to Kashmir? Despite Israeli settlements, peace eludes the region

By Anand K Sahay*
Curfew, news and communications blackout, transportation shut-down... News reports from Kashmir are worrying. So are the views relayed through the media, especially television. Old-fashioned repression seems to be consorting comfortably with expressions of concern “for our Kashmiri brethren”. We are looking at Orwell’s 1984 in the making.

Impact of state repression? Kashmir's 65% people prefer independence: Cambridge study

By Rajiv Shah 
Even as the Government of India’s controversial move to abrogate Article 370 of the Constitution and bifurcate Jammu and Kashmir (J&K) into two union territories is not only refusing to down die but has acquired international dimensions, a recent study, published by the Cambridge University Press, has claimed “pro-independence attitudes” among that 65% of Kashmiris, warning, this sentiment worsens when the state machinery resorts “repressive violence”.

Congress' anti-democratic laws led to Modi govt's 'Constitutional' changes: Scholars

Counterview Desk
A large number of academics* said to be belonging to several Indian and international institutions, even as taking strong exception to the Narendra Modi government's alleged move to amend the Constitution through "illegitimate" means, have taken strong exception to their colleagues in academia who we have become "all too accustomed to adopting a calculated silence in the face of such indignities."

Dholera 'inundated': Gujarat govt tries selling low lying area as top smart city site

Counterview Desk
Even as the Dholera Special Investment Region Regional Development Authority (DSIRDA) of the Gujarat government was busy organising a junket for Gujarat-based journalists for the area sought to be sold as an ideal special investment region (SIR) for industrialists, well-known farmers' activist Sagar Rabari has wondered why no investor has so far agreed to put in money in an area situated in Ahmedabad district along the Gulf of Khambhat.

Kashmir normal? Schoolboys, teenagers being arbitrarily picked up, detained: Report

Counterview Desk
A four-person team, consisting of Jean Dr├Ęze, well-known development economist; Kavita Krishnan, who is with the Communist Party of India (Marxist-Leninist); Maimoona Mollah of the All India Democratic Women's Association (AIDWA); and Vimal Bhai of the National Alliance of People's Movements (NAPM), back from a five-day fact-finding mission (August 9-13) from Kashmir, has said that people they spoke to “expressed their pain, anger, and sense of betrayal against the Government of India.”
In a report, “Kashmir Caged”, released along with a short eight-minute film, they said, the abrogation of Articles 370 and 35A, dissolution of the state of Jammu and Kashmir (J&K), and bifurcating it into two Union Territories, is not being supported by anyone they met, except for BJP spokesperson on Kashmir affairs Ashwani Kumar Chrungoo, who claimed 46% vote share in J&K.
Excerpts from the report: When our flight landed, and the airlines staff announced that passeng…

Modi's Gujarati mind? Why govt move to 'sell-off' defence PSUs isn't in national interest

By Sandeep Pandey*
The Standing Committee on Defence, 2017-18, of the 16th Lok Sabha highlights the idea of Buy Indian-IDDM (Indigenously Designed Developed and Manufactured). The Committee expressed concern over the import content of equipments produced and developed by Defence Research and Development Organisation (DRDO), Ordnance Factories (OFs) and defence Public Sector Undertakings (PSUs) because of the dependence it creates for military hardware on foreign suppliers.

Central Gujarat effluent channel 'releasing' highly polluted industrial wastewater: PM told

Counterview Desk
Senior environmentalists of the Paryavaran Suraksha Samiti (PSS), Vadodara, Rohit Prajapati and Krishnakant, in an open letter to the Prime Minister, the Gujarat chief minister, the Gujarat chief secretary, and senior Government of India and Gujarat government officials dealing with environment, pollution and climate change have said that the authorities’ response their pleas to take action against the leakages and flow of polluted wastewater from the effluent channels of Central Gujarat industrial areas has met with complete inertia.

Can't go to court with RTI information, rule Ahmedabad authorities: Kankaria accident

By Pankti Jog*
In a shocking reply to an application filed by me, the Ahmedabad Municipal Corporation (AMC) authorities have said that the information provided under the Right to Information (RT) Act should be used in court or in a judicial process. The Act is known to be a major tool that enables citizens to seek certified copies of documents, records from any public authority of state and Central government within 30 days, as per provisions of the Act.

Quit India Movement 'betrayal' and dubious role of Hindu Mahasabha, RSS leaders

By Shamsul Islam*
After the recent guillotine of Article 370, Hindutva ideologue Ram Madhav, while celebrating the occasion stated that it was honouring of the sacrifices of Dr Shyam Prasad Mukherjee and thousands others who laid down their lives for its removal. It is to be noted that Dr Mukherjee was a cadre of RSS and was groomed into a Hindutva leader by another Hindutva icon, VD Savarkar.

Strategy for united struggle against Hindutva 'fascism': Ideological silence is 'no option'

By Dr Bhabani Shankar Nayak*
Electoral alliance and opportunism of national and regional political parties, neoliberal economic marginalisation and soft secular Hindutva line pandering to Hindu majoritarianism laid the foundation of Hindutva fascism in post-colonial India.