The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990

Summary of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990
Purpose
• To confer special powers on members of the armed forces in terrorist affected areas (as declared under section 3 of the provided context, akin to "disturbed areas" in the original Act) of Jammu and Kashmir, now also applicable to the Union territories of Jammu and Kashmir and Ladakh.
Key Provisions
1. Extent and Commencement
• Extends to the whole of Jammu and Kashmir and now the Union territories of Jammu and Kashmir and Ladakh (as per Notification S.O. 3912(E), 30th October 2019).
• Came into force on 5th July 1990.
2. Definitions (Relevant to New Context)
• Terrorist Affected Area: An area declared as such under section 3 due to the scale and manner of terrorist offences.
• "Terrorist Act" and other key terms are defined or inferred through the Code (as per section 2(j) and 2(2)).
3. Declaration of Terrorist Affected Area
• Grounds for declaration include the scale and manner of terrorist offences necessitating special provisions.
• Declaration process involves the Central Government notifying the area, specifying the duration, and potentially constituting judicial zones.
4. Inferred Special Powers (Assuming Similarity to Original Act)
• Use of Force: Against persons engaging in terrorist activities, after due warning.
• Arrest Powers: Without warrant, for suspected terrorist activities or cognizable offences.
• Destruction of Encampments/Arms: Used by terrorists.
5. Other Provisions (Inferred from Original Act's Structure)
• Protection for Acting in Good Faith: Likely provision for protection against prosecution without Central Government's sanction.
• Coordination with Local Law Enforcement: Implied through the context of declaring areas and constituting judicial zones.

Legislative History:

The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990

Short Title The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990

Act Number / Year 41 of 1990

Act ID (India Code) 199041

Presidential Assent Date September 10, 1990

Enforcement Date September 10, 1990

Nodal Ministry Ministry of Home Affairs

Precedent & Statutory Rationale

• Background/Transition: In the late 1980s and early 1990s, the State of Jammu and Kashmir experienced an unprecedented escalation in militancy, cross-border terrorism, secessionist violence, and breakdown of public order. State police and local security apparatus alone proved inadequate to counter heavily armed insurgent groups. To empower the armed forces deployed in aid of civil power, the Governor of Jammu and Kashmir had promulgated an ordinance earlier in 1990. Parliament subsequently replaced the ordinance with a permanent central legislative statute to give legal backing to security operations.

• Rationale/Objectives: The Act was enacted by Parliament to enable certain special powers to be conferred upon members of the armed forces in disturbed areas in the State of Jammu and Kashmir. Its core purpose was to provide the military and paramilitary forces with necessary legal immunities and operational authorities to conduct counter-terrorism operations, maintain national security, protect territorial integrity, and restore public order in areas declared as "disturbed."

Parliamentary Trajectory & Legislative Milestones

• Formulation/Introduction: Introduced by the Ministry of Home Affairs as an urgent security measure to deal with extreme insurgency and terrorist threats in the northern border state.

• Legislative Passage & Assent: Passed by both Houses of Parliament during the monsoon session of 1990 and received presidential assent on September 10, 1990. (Note: The Act mirrors structural elements of the Armed Forces (Special Powers) Act, 1958 applicable to northeastern states).

• Statutory Mechanics & Provisions:

o Declaration of Disturbed Areas: Empowers the Central Government or the Governor of the State to officially declare the whole or any part of the State of Jammu and Kashmir as a "disturbed area" if opined that civil power needs assistance from armed forces.

o Special Operational Powers: Grants armed forces personnel (not below the rank of non-commissioned officer) powers to fire upon or use force against persons acting in contravention of law, destroy hideouts/munitions, stop and search vehicles, and arrest individuals without a warrant based on reasonable suspicion.

o Protection of Persons Acting under Act: Provides statutory protection and legal immunity, stipulating that no prosecution, suit, or legal proceeding can be instituted against any person in respect of anything done or purported to be done under the Act without the prior sanction of the Central Government.

• Presidential Assent: Received Presidential Assent on September 10,1990.

• Enforcement: Enforced on July 5, 1990.

Source: India Code Official Repository and Ministry of Home Affairs, Government of India Official Records.