Allowing intrusion into people's private space, wresting powers from civilian authority, more powers to detain people on flimsy grounds and a new net of impunity - the proposed draft bill of J&K bill 2013 has sparked uproar among civil society, political class and human rights groups in Kashmir.
The bill, which is likely to come up during upcoming assembly session starting February 28, proposes to give free entry to police in every public place including private establishments where members of the public are present.
"It violates the constitution and therefore needs to be scraped," said Mehraj-ud-Din Mir, professor of criminal law at Central University of Kashmir (CUK).
The bill also suggests arming of village defence committees, powers to recruit within and outside police structure and impunity to cops.
"Section 92 provides that police officer to be always on duty. The language is not clear. It is to be re-casted, otherwise it will have far reaching implications at the operational level," said Prof Mir.
Besides, Section 54 (4) proposes that no officer above a DGP shall be appointed by the government.
Kalpana Tiku, who has moved a petition on social pressure group change.org against it, said the bill allows the state to declare any area disturbed, proposing setting up "Special Security Zones" where "administrative and development measures" are integrated with police response for "problems of public order and security".
"This is a move to wrest civil authority powers. Even magisterial powers are proposed to be wrest with the police," she said.
Several civil society groups are up in arms against the bill. "We condemn the attempt to put in place powers and structures that police have for long enjoyed and employed to carry out systematic human rights violations in Jammu and Kashmir," said Khurram Pervez, a human rights activists.
The bill proposes strange provisions wherein any person cleaning a furniture or vehicle, slaughtering an animal, cleaning a carcass or grooming an animal in a public place would invite punishment.
"So would those trespassing into a government building or land, and those driving, dragging or pushing any non-motorized vehicle at any time between half an hour after sunset and one hour before sunrise," says the bill.
It can detain a person who defecates or urinates in a public place with a view to cause "annoyance", breaking any queue in any public place and other similar "violations of public order" are also frowned upon. "Such offences would invite imprisonment up to six months or fine up to Rs. 2,000," it says.
Under fire, chief minister Omar Abdullah gave his first reaction. "It hasn't passed public scrutiny let alone been seen by me and the cabinet. Public feedback will be incorporated. There is no chance of bad legislation passing scrutiny," he said.
"Many provisions in this bill are undemocratic and anti-people. It would actually covert the state into a lawless state. On the one hand the government is making noises on scrapping the AFSPA and on the other it is proposing to provide similar immunity and unbridled powers to its own police," opposition Peoples Democratic Party president Mehbooba Mufti
"The police have numerous violations to its credit. It already enjoy unbridled powers and share the infamy of the allegations of fake encounters, custodial killings, blackmail, torture and extortion," said ruling National Conference MP Ghulam Nabi Ratanpuri.
"It is an effort to institutionalize the lawlessness. If passed, it would leave Kashmiris at the mercy of civil militia like Ikhwan and VDC's. More police powers will mean more draconian laws to add up to the AFSPA, DAA, and PSA," said moderate Hurriyat chairman Mirwaiz Umar Farooq.
"It's a covert attempt to impose Marshal Law in the state by putting civil liberties and rights into permanent abeyance. It is a brazen attempt by to unleash a new era of suppression in the state," said Peoples' Conference chief Sajjad Lone.
"It's a well planned official scheme to bestow police with unlimited and unbridled powers. Atrocities on common masses by the police and other security agencies are a known fact. The need of the hour was to impose effective curbs on the commission of such atrocities by framing reasonable and stable laws to the satisfaction of the people, where no government institution including that of police is above the law," said Jama'at-e-Islami spokesman Zahid Ali.
Provisions of bill
1) It proposes vesting of magisterial powers with police itself instead of a civilian magistrate
2) Like AFSPA provisions, the police officials shall be treated always on duty making prosecution of erring cops almost impossible
3) In case of non-rendering of assistance to a police officer an adult member of the public can be arrested
4) Village Defense Committees get statutory recognition
5) It makes statutory obligation that police officers enjoy all comforts
6) No role for leader of opposition in the constitution of State Security Commission
7) Creation of Special Security Zones (SSZ) borrowed from Disturbed Areas Act/AFSPA
Intruding private space
Acts prohibited are:
1) Breaking queue in any public place formed for the purpose of orderly delivery whether public or private
2) Defecating or urinating in a public place
3) Buying ornament, watch, pen,cycle, utensil or any valuable article from any person under the age of 14
4) Cleaning furniture, article or vehicle or grooms any animal in a public place.
5) Driving, dragging or punishing any non-motorised vehicle at any time between half an hour after sun set and one hour before sunrise
6) Not taking due care of pets
7) Buying ornament, watch, pen,cycle, utensil or any valuable article from any person under the age of 14
Specific concerns with the draft police bill expressed by civil society:
1) Powers for the Village Defence Committees's [VDC] and Special Police Officers [SPO] are wider and the checks are more limited. For example, earlier the appointment of a SPO was to be confirmed by a Magistrate. The Draft Bill no longer requires this.
2) Similarly, the concept of "community policing" is introduced under Section 32. It seeks to cultivate a culture of un-accountable collaboration with the system and corruption within communities by empowering untrained and unaccountable persons.
3) Section 92: A police officer shall be considered to be always on duty. This appears to be an attempt to legitimize all actions of the police as being part of the official course of duty, thereby providing, in effect, absolute immunity to the police as sanction would be required by the Government before a court may take cognizance of an offence.
4) The absolute powers are formally in:
a) Section 10(1) seeks to ensure zero transparency of the police by stating that all information with the police shall be "confidential" except when used for any official purpose.
b) Section 13, provides the police the right to ask for personal information from anyone - the only qualification being that "sufficient reasons" need to exist.
c) Section 14, and its broad phrasing, seeks to impose on the general public a duty to assist the police. Further, the Draft Bill allows for action to be taken against people who don't co-operate.
d) Section 24 provides absolute power to the police on personal information of the public from service providers, which is widely defined and includes cellular phone companies. Such broad powers ensure that the police can harass people by creating identity profiles.
e) Dissent is also now regulated under Section 81(4) which allows the police to regulate any activity or programme which is "otherwise lawful but has the potential of disturbing the law and order".