RTI AFSPA and Vohra committee report: Nodal Ministry has not Issued any Guidelines for implementing J&K AFSPA

Several districts in the State of Jammu and Kashmir have been notified under the Armed Forces (Jammu and Kashmir) Special Powers Act (J&K AFSPA) enacted in 1990. The text of this law is available at:

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*Nodal Ministry has not Issued any Guidelines for implementing J&K AFSPA*

The J&K AFSPA permits even a non-commissioned officer of the armed forces to shoot to kill any person in order to maintain public order in an area declared as a “disturbed area” in the State. Law enforcement officers can even arrest a person using whatever force may be necessary if there is a suspicion that such person is likely to commit a cognizable offence (any offence where the accused may be arrested without warrant from a magistrate). One would ordinarily expect such a harsh law to be implemented on the basis of strict guidelines to prevent abuse of these powers. However the J&K AFSPA does not contain any provision that empowers either the Central Government or the J&K Government to make Rules for its implementation. Perhaps guidelines for use of force under J&K AFSPA may exist in other instruments. So we decided to submit a formal information request under the Right to Information Act, 2005.****

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We sought the following information from the Ministry of Home Affairs, Ministry of Defence and the Indian Army in separate applications:****

**1) **“A list of exact dates on which any rule, regulation, instruction, guideline, circular, office memorandum, standing order, standard operating procedure, gazette notification or any other written communication was issued by your Ministry in relation to the implementation of *The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990*. Please provide* *the subject matter of each such communication along with the designation of the signatory officer; and****

**2) **A clear photocopy of all rules, regulations, instructions, guidelines, circulars, office memoranda, standing order, standard operating procedure, gazette notification or any other written communication issued by your Ministry in relation to the implementation of *The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990*.****

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*The Public Information Officer for the Home Ministry stated that no guidelines had been issued for the implementation of J&K AFSPA* (copy of reply is in the second attachment). So we filed a first appeal with the designated appellate authority. *The First Appellate Authority has reiterated that no rules, regulations, guidelines or instructions have been issued by the Home Ministry for the implementation of J&K AFSPA* (copy of the order is in the third attachment). Readers may remember that under the Allocation of Business Rules, 1961, the Union Home Ministry is the nodal agency for the implementation of the J&K AFSPA under the Central Government (see under Dept. of J&K Acts : http://mha.nic.in/uniquepage.asp?Id_Pk=290) Yet it has not issued any guidelines or instructions for the implementation of this law till date.****

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*The Ministry of Defence did not respond to our RTI application. So a first appeal has been filed with them. The Indian Army sent us a reference number for our RTI application but no further reply was received. So we have filed a first appeal with the Indian Army citing this reference number. Decisions are due in both cases soon*.****

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*Vohra Committee Report on criminal-politician-bureaucrat Nexus Denied under the RTI Act*

We also sought an additional document from the Home Ministry in the same application:****

**3) **“A clear photocopy of the complete report along with Annexures, if any, submitted to the Government of India by the Committee established in July 1993 under the Chairmanship of the then Home Secretary, Shri N N Vohra.”****

The PIO transferred the application to another division but there was no reply. The same First Appellate Authority has rejected our request by mechanically citing Section 8(1)(a) without giving any reasoning whatsoever.

This important Report on the criminal-politician-bureaucratic nexus was discussed and debated widely in 1995 in the aftermath of the Naina Sahni murder case, infamously known as the Tandoor murder case. The main report was tabled in Parliament in August 1995. However this report is not accessible in the public domain either on the website of the Home Ministry or of Parliament. This is what prompted us to file a formal request for a copy of the report. *So the First Appellate Authority has essentially denied access to a report which was tabled in Parliament.*****

Readers will remember that Shri Dinesh Trivedi, MP who recently stepped down as Minister for Railways had participated in the Rajya Sabha debate on the Vohra committee report in 1995. He is said to have made a representation to the Central Government seeking disclosure of various reports from the intelligence agencies that formed the basis of the Vohra Committee report. As the Government did not comply with his request, he filed a public interest litigation (PIL) suit in the Supreme Court of India along with PILSARC and Consumer Education and Research Centre demanding publication of the background papers. In its 1997 judgement the Supreme Court reiterated the value of people’s right to know as a fundamental right implied under Article 19(1)(a) of the Constitution. However the Court on balance refused to order disclosure of the background reports as that would be harmful to the public interest ( copy of the judgement is in the fourth attachment).****

*So while the Apex Court upheld the confidentiality of the background reports in a pre-RTI era, the Home Ministry believes that even the main report of the Vohra committee tabled in Parliament cannot be disclosed under the RTI Act*. *It looks like the background reports remain sensitive even after 19 years and the main report has become more sensitive than earlier*. Under Section 8(3) of the RTI Act seven of the 10 exemptions under the RTI Act become inoperational for information that is 20 years old or more. However when a document is covered by the exemptions under Section 8(1)(a)- mostly relating to national security- it continues to remain exempt from disclosure unless the Information Commission orders disclosure in public interest. ****

*So now we will take the matter to the Central Information Commission.**

Incidentally Shri N N Vohra is now the Governor of Jammu and Kashmir.*****

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Venkatesh Nayak****
*Programme Coordinator*
*Access to Information Programme*
*Commonwealth Human Rights Initiative*
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*New Delhi- 110 017*

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