Dear all,
Many of you are aware of the numerous stories of excesses committed by members of the armed forces and the police in the State of Jammu and Kashmir. This State has been placed under the Armed Forces (Jammu and Kashmir) Special Powers Act (J&KAFSPA), since 1990. Much like its predecessor, the Armed Forces (Special Powers) Act, 1958 (AFSPA) imposed in several parts of the States in northeastern India, this law gives even non-commissioned officers of the armed forces the authority and power to shoot to kill for the purpose of maintaining public order in the ‘disturbed areas’ of J&K (see attachment #1). So when such lethal power is vested in an official it is obvious that there must be some guidelines for the use of force in a sane society. We know that a list of Do’s and Don’ts under the AFSPA were issued by the Government of India for the guidance of the armed forces stationed in the northeastern States of India who are vested with similar powers. This list is available in the public domain thanks to its incorporation in the judgement of the Supreme Court of India (see attachment #2) in the landmark case- Naga Peoples Movement for Human Rights Etc. Etc. v Union of India (AIR 1998 SC465). The Government has not yet made this list public as is required under Section 4(1)(b) the Right to Information Act, 2005 (RTI Act).
Are there Do’s and Don’ts under J&K AFSPA?
Several parts of J&K have been brought under J&KAFSPA. So it is obvious that some Do’s and Don’ts may have been issued for the guidance of the armed forces in that State. If not there must be some circular or notification or guidelines stating that the Do’s and Don’ts applicable under AFSPA 1958 will be applicable under J&KAFSPA in a modified form. However no information about the Do’s and Don’ts issued under J&KAFSPA is available in the public domain despite seven years of the implementation of the RTI Act. These Do’s and Don’ts are in the nature of ‘norms for the discharge of functions’ of a public authority and also ‘instructions used by the employees’ of a public authority for the discharge of their functions under Section 4(1)(b)(iv) and (v) of the RTI Act. As they have not been made public we at CHRI sought a copy formally under the RTI Act from the Ministry of Home Affairs (MHA), the Ministry of Defence (MoD) and the Indian Army. MHA is the administrative department for the implementation of J&KAFSPA. The Indian Army had a considerable presence in the areas where J&KAFSPA is in force and the MoD is the administrative department for the Indian Army. As each of these three public authorities is more than likely to have the list of Do’s and Don’ts, we filed RTI applications with them.
Response from the Ministry of Home Affairs
The MHA played a round of pass the buck with the RTI application and came up with a reply that neither their Kashmir desks nor their Police division issued any list of Do’s and Don’ts under J&KAFSPA. When this reply was challenged before the First Appellate Authority (FAA) of the MHA the designated officer confirmed that no such notification had been issued by the Kashmir desks (see attachment #3 for the scanned copy of the FAA’s order). As the matter relates to the State Government, we were advised to file our RTI applications directly with the State Government. The FAA refused to transfer the RTI application to J&K because the RTI Act does not apply to J&K. So it became doubly clear that despite being the administrative ministry for J&KAFSPA under the Allocation of Business Rules, 1961 the MHA had not issued any directions, guidelines or instructions about the use of force to any of the paramilitary forces under its control which were operating in J&K.
It must also be mentioned that we had sought a copy of the report authored by Shri N N Vohra on the criminalisation of Indian politics from the MHA. Although tabled in Parliament this report is not easily available in the public domain. The FAA denied access to a report presented to Parliament under the RTI Act. So while elected representatives can have access to an important document in open session the citizen who elected them is denied access. Readers may recollect that noted activist Shri Subhashchandra Agarwal has been denied access to the annexures of this report. The former railway Minister Shri Dinesh Trivedi (then only an MP) lost a case to make these annexures public as the Supreme Court refused to order disclosure in 1997 (see attachment #4 for a copy of the judgement.)
Response from the Ministry of Defence
The MoD also played a game of soccer with our RTI application for more than 30 days but did not score any goals with us. As we did not receive either a rejection or copies of the documents sought we filed a first appeal. The FAA decided the matter within the time limit. The FAA ordered the Under Secretary (GS-V)-Pak to provide the list of Do’s and Don’ts and all guidelines, standard operating procedures and guidelines for the use of force issued under J&KAFSPA. As the FAA had taken more than 30 days to decide the first appeal he explained that he was “awfully busy and preoccupied with certain important works... However the appeal is being disposed off within the limitation period of 45 days from the date of receipt of appeal in the said exceptional circumstances.” (see attachment #5 for the scanned copy of the FAA’s order) We have not received even a shred of paper from the MOD since this order. They seem to continue to be awfully busy with important matters. RTI and transparency do not seem to be important enough yet.
Response from the Indian Army
The response of the Indian Army was the most efficient in the beginning. The PIO acknowledged our RTI application and even assigned a registration number. Then they also seem to have become awfully busy. So after waiting for more than 30 days we filed a first appeal. The FAA has issued an order on 5th June, 2012 directing the DDG RTI to furnish the information (see attachment #6 for the scanned copy of the FAA’s order). The office of the FAA sent us a copy of the order and declared that the appeal has been disposed off. It remains to be seen whether the DDG will supply any information. But the upshot of the exercise with the Indian Army is that we have learnt of the file numbers of two documents that may contain the information about Do’s and Don’ts:
i) DGMO / MO-2 note No. A/20008/1/MO 2 dated February 12 and
ii) ADG (D&V)/HR Cell note No. C/17732/6/RTI/AGGen/HRC dated 28 May 12
It must be noted that the FAA ordered the disclosure of only two paras from the first document and one para from the second document. However some enclosure to the first document are mentioned as being fit to be disclosed to us.
What is wrong with these FAA orders?
An Office Memorandum (OM) issued by the Department of Personnel and Training (see attachment #7) in July 2007 contains some guidelines for FAAs about how first appeals must be disposed of under the RTI Act. Para #4 of this OM states that where the FAA decides to grant access to information he may:
i) direct the PIO to furnish the information to the appellant or
ii) the FAA may himself provide the information to the appellant while disposing of the appeal.
The DoPT preferred the second option as the more desirable one. We know that the FAA of the Indian Army had access to the files from which documents were cited. Yet he preferred the bureaucratic first option. DoPT sent this OM to all ministries who in turn were required to bring these guidelines to the notice of FAAs in the public authorities under their jurisdiction. It looks like FAAs have not been sufficiently sensitised about these matters.
Meanwhile we wait with bated breath for disclosures from the Indian Army. As the Ministry of Defence is too busy to comply with its own FAA’s order, we will file a second appeal with the Central Information Commission.
Next we will send you the story of how the MHA has dealt with an RTI application seeking copies of the Standard Operating Procedures issued for the police forces to deal with large assemblages of people without the use of lethal weapons.
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Thanks
Sincerely,
Venkatesh Nayak
Programme Coordinator
Access to Information Programme
Commonwealth Human Rights Initiative
B-117, First Floor, Sarvodaya Enclave
New Delhi- 110 017
Tel: +91-11-43180215/ 43180201
Fax: +91-26864688
Skype: venkatesh.nayak@skype.com
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