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

Savarkar 'criminally betrayed' Netaji and his INA by siding with the British rulers

By Shamsul Islam*
RSS-BJP rulers of India have been trying to show off as great fans of Netaji. But Indians must know what role ideological parents of today's RSS/BJP played against Netaji and Indian National Army (INA). The Hindu Mahasabha and RSS which always had prominent lawyers on their rolls made no attempt to defend the INA accused at Red Fort trials.

RSS supremo Deoras 'supported' Emergency, but Indira, Sanjay Gandhi 'didn't respond'

By Shamsul Islam*
National Emergency was imposed on the country by then Prime Minister Indira Gandhi on June 25-26, 1975, and it lasted for 19 months. This period is considered as ''dark times' for Indian democratic polity. Indira Gandhi claimed that due to Jaiprakash Narayan's call to the armed forces to disobey the 'illegal' orders of Congress rulers had created a situation of anarchy and there was danger to the existence of Indian Republic so there was no alternative but to impose Emergency under article 352 of the Constitution.

Letter to friends, mentors: Coming together of class, communal, corona viruses 'scary'

By Prof (Dr) Mansee Bal Bhargava*
COVID greetings from Ahmedabad to dear mentors and friends from around the world…
I hope you are keeping well and taking care of yourself besides caring for the people around you. I’m writing to learn how is the science and the society coping with the prevention and cure of the pandemic. I’m also writing to share the state of the corona virus that is further complicated with the long-standing class and communal viruses.

Hurried nod to Western Ghat projects: 16 lakh Goans' water security 'jeopardised'

Counterview Desk
Taking strong exception to "virtual clearances" to eco-sensitive projects in the Western Ghats, the National Alliance of People’s Movements (NAPM) in a statement has said urged for a review of the four-lane highway, 400 KV transmission line and double tracking of the railway line through the Bhagwan Mahavir Wildlife Sanctuary and Mollem National Park in Goa.

Disturbing signal? Reliance 'shifting focus' away from Indian petrochemical sector

By NS Venkataraman*
Reliance Industries Ltd (RIL), a large Indian company, has expanded and grown in a spectacular manner during the last few decades, like of which no industrial group in India has performed before. RIL is now involved in multi various activities relating to petroleum refineries, petrochemicals, oil and gas exploration, coal bed methane, life sciences, retail business, communication network, (Jio platform) media/entertainment etc.

Oxfam on WB project: ICT 'ineffective', privatised learning to worsen gender divide

By Rajiv Shah 
A top multinational NGO, with presence in several developed and developing countries, has taken strong exception to the World Bank part-funding Strengthening Teaching-Learning and Results for States (STARS) project in six Indian states – Himachal Pradesh, Kerala, Rajasthan, Madhya Pradesh, Maharashtra and Odisha – for its emphasis on information and communication technology (ICT)-enabled approaches for teacher development, student assessment and digital platform for early childhood education.

Case for nationalising India's healthcare system amidst 'strong' private control

Counterview Desk
A draft discussion note, prepared by Dr Maya Valecha, a Gujarat-based gynecologist and activist, sent to the People's Union for Civil Liberties (PUCL) as also a large number of activists, academics and professionals as an email alert, is all set to create a flutter among policy experts for its strong insistence on nationalizing India’s healthcare system.

Cruel legacy of Green Revolution? Covid-19 underscores 'risky, fragile' food system

By Moin Qazi*  The Covid-19 crisis has highlighted the risks of an unhealthy diet and the extreme fragility of food systems. The economic reconstruction that will follow the pandemic is the perfect opportunity to provide better nutrition and health to all. The pandemic should spur us to redefine how we feed ourselves, and agricultural research can play a vital role in making our food systems more sustainable and resilient.

Buddhist shrines massively destroyed by Brahmanical rulers in "pre-Islamic" era: Historian DN Jha's survey

By Our Representative
Prominent historian DN Jha, an expert in India's ancient and medieval past, in his new book, "Against the Grain: Notes on Identity, Intolerance and History", in a sharp critique of "Hindutva ideologues", who look at the ancient period of Indian history as "a golden age marked by social harmony, devoid of any religious violence", has said, "Demolition and desecration of rival religious establishments, and the appropriation of their idols, was not uncommon in India before the advent of Islam".