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19 July, 2016

New flare-up in Kashmir

BRP Bhaskar
Gulf Today

Ten days of violence touched off by the killing of Burhan Wani, a 22-year-old Hizbul Mujahideen commander, by security personnel have thrown Kashmir valley into another phase of turmoil.

At least 40 persons were killed and about 3,000 injured during the protests. Police pellets hit more than 100 persons in the eye, resulting in blindness.

As I write, many areas are still under curfew and internet services remain suspended. Newspaper offices have been raided in an action reminiscent of the days of Indira Gandhi’s Emergency rule.

Security forces eliminated Wani in a planned operation. His home-town was cordoned off ahead of the funeral but about 40,000 people gathered to pay him homage and his comrades gave him a 21-gun salute.

Wani’s seven-year career in terrorism was not too bloody. He is said to have picked up the gun after humiliation by the police who stopped and abused him and his brother while on a joyride on a friend’s new motor bike. The brother, who was working for his Ph.D. degree, was killed last year.

Wani was wanted in four cases of shooting, none of which was fatal. Although Hizbul named him its commander, he was a home-grown militant. He did not go to Pakistan for training and he did not show signs of religious indoctrination.

The sense of outrage the valley witnessed on his death was of a kind not seen for a long time. The police response was so grossly disproportionate to the situation that the victims drew sympathy even from Kashmiri Pandits who had fled the state after terrorists targeted its members in an earlier phase of militancy.

In a statement, the Kashmiri Pandit Sangharsh Samiti condemned the killings and the use of pellets as a means of crowd control. It said the attacks on property left behind by Pandits were not what the Muslim majority wanted but were the work of miscreants seeking to take advantage of the situation.

Pradeep Magazine, a journalist belonging to the community, wrote: “Today, when I see that horrifying image of the young girl blinded by the violent response from the security forces, I want to respond with love, warmth and compassion to all those who have suffered in this long-drawn conflict that does no credit to either side.”

The state of Jammu and Kashmir has been subjected to contrary pulls and pressures from the dawn of Independence. Its Hindu maharaja toyed with the idea of an independent state while Sheikh Abdullah’s National Conference, which led the movement against his rule, favoured accession to India. Pakistan claimed it in the name of its Muslim majority. A raid by tribesmen equipped by Pakistan, forced the maharaja to accede to India and the people rallied behind Sheikh Abdullah who took charge of the administration.

India raised the issue of Pakistani aggression in the United Nations but the West frustrated its hope of justice by equating the aggressor and the victim. Sheikh Abdullah went to the UN to defend accession to India. Pakistan produced PN Bazaz, leader of the Pandits organisation, to endorse its view that a Muslim majority state should go to it.

Sheikh Abdullah’s arrest and removal in 1953 following reports that he was seeking independence for the state with US support pitted his followers against India. They kept the plebiscite demand alive until Indira Gandhi reinstated him as Chief Minister in 1975.

A 1965 Pakistani bid to engineer an uprising using infiltrators failed due to lack of local support. Under the Shimla Pact, signed after the 1971 war which had resulted in Bangladesh’s emergence as an independent nation, India and Pakistan undertook to resolve all outstanding issues, including Kashmir, through bilateral talks.

The 1990s witnessed a rash of terrorism directed from across the border and calls for “azaadi” resounded in the valley. Prime Minister AB Vajpayee began a healing process which continued for a while under Manmohan Singh before things went out of control again.

India has deployed a large number of troops in the state and the army has invited charges of excesses. However, in this month’s events the central and state police forces appear to have played a major role.

Wani belonged to the fourth generation of post-Independence youth. According to veteran journalist Prem Shankar Jha, who is the author of two books on Kashmir’s recent history, his killing was a self-defeating exercise. He believes Wani could have been weaned away from the path of violence and used to communicate with the angry youth.

Communal elements on both sides of the India-Pakistan border tend to view J and K as a piece of real estate. Enlightened administrations must recognise that the problem is one involving hapless victims of history. In the final analysis a lasting solution can arise only through a political process, not through clash of arms. -- Gulf Today, Sharjah, July 19, 2016.

12 July, 2016

Era of army impunity ends

BRP Bhaskar
Gulf Today

The immunity from prosecution which security personnel deployed in insurgency-hit areas have enjoyed under the Armed Forces Special Powers Act (AFSPA) may become a thing of the past with the Supreme Court striking a decisive blow for freedom and accountability.

AFSPA, which is in force in parts of Jammu and Kashmir and the predominantly tribal states of the northeast, stipulates that there can be no legal proceedings against personnel acting under it. There has been a plethora of allegations of human rights violations by security forces and these have led to violent protests on several states.

In an 85-page judgment, delivered last Friday, a Supreme Court bench said every death caused by the armed forces should be thoroughly enquired into. “It does not matter whether the victim was a common person or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both,” it declared.

Rejecting the government’s claim that denial of immunity would demoralise security personnel, the court said there was no concept of absolute immunity for an army person who committed a crime.

Every person who violated prohibitory orders in a disturbed area was not an enemy, it pointed out. Even if the person was an enemy there should be an enquiry to ascertain if excessive or retaliatory force had been used. It also drew a distinction between use of force in an operation and in other situations.

It entrusted the National Human Rights Commission with the responsibility of ordering enquiry into allegations against the security forces, and named the criminal investigation department of the police as the agency to conduct the enquiry.

AFSPA’s roots go back to the colonial era. The different versions of the law in force in various states are all based on the ordinance the British promulgated in 1942 to deal with the Quit India agitation which the Congress party launched even as the Indian National Army, formed by Subhas Chandra Bose to fight alongside Japan, was moving towards the eastern border from Singapore.

The ordinance was allowed to lapse after World War II. A few years after the country gained freedom it was resurrected to grant immunity to army and paramilitary personnel called out to deal with Naga insurgency in the eastern state of Assam. It is now in force, under the name AFSPA, in Nagaland, Manipur and Arunachal Pradesh in the northeast and in J and K.

Ordinarily, AFSPA is applicable only in areas notified as “disturbed”. Most versions of the relevant law limit the “disturbed area” notification’s validity to six months. However, some areas have been kept under AFSPA continuously for half a century by repeatedly reissuing the notification.

J and K invoked AFSPA following a spurt in insurgency in 1992. The state’s Disturbed Areas Act lapsed in 1998 but AFSPA continues to this day. The National Conference government headed by Omar Abdullah wanted AFSPA to be withdrawn but the Centre did not oblige.

The People’s Democratic Party which heads the state government now also favours withdrawal of AFSPA, but the Bharatiya Janata Party, which heads the Central government and is PDP’s junior partner in the ruling coalition in the state, is a vocal supporter of the law.

The day the Supreme Court verdict on AFSPA came the security agencies announced the killing of 22-year-old Burhan Wani, said to be a home-grown Hizbul Mujahideen commander, and two associates in an encounter. At least 20 persons were killed and 200 injured as security forces fired on youths protesting against his killing.

The worst part of AFSPA is the security forces’ reluctance to part with it and the government’s readiness to honour their wishes. People in many states have been seeking the withdrawal of AFSPA for decades. Irom Sharmila, a young woman poet of Manipur, who began an indefinite fast in November 2000 demanding repeal of AFPSA and is kept alive through nasal feeding in a hospital, has become a global icon of the human rights movement.

The state of Punjab and the Union Territory of Chandigarh came under AFSPA in 1983 in the wake of the secessionist Khalistan movement. Under Congress and Akali Dal governments Punjab retained it until 1997. Chandigarh held on to it until the Punjab and Haryana High Court struck it down in 2012. Tripura’s Communist Party of India (Marxist) government lived with AFSPA for 14 years.

The apex court verdict has formally ended the era of army impunity. But more struggles in legal and other forums may be needed to make it a reality.--Gulf Today, July 12, 2016.

09 July, 2016

Menace of lawless lawyers

BRP Bhaskar
Gulf Today

Lawbreakers in advocate’s robes trying to overawe the judiciary, lower court judges resorting to trade union tactics, politicians looking on passively if not actually encouraging recalcitrant elements, and higher courts unable or unwilling to discipline the unruly – these are sure signs of evolving threats to Rule of the Law.

Such elements have surfaced in different states from time to time. In the state of Telangana, which was carved out of sprawling Andhra Pradesh two years ago following a prolonged agitation, they have all manifested themselves at the same time.

The law providing for bifurcation of Andhra Pradesh stipulated that the governments of Telangana and the residuary Andhra Pradesh will both function from Hyderabad, which is in the former’s territory, until the latter built a separate capital and that the undivided Andhra Pradesh High Court based in Hyderabad would serve both the states until Telangana set up a separate high court.

The separation turned messy as the two states started squabbling over division of water and power. A new point of friction developed when the AP High Court allocated members of the lower judiciary to the two states, leading to protests by judges and lawyers in Telangana alleging the state got a raw deal. Their agitation paralysed the lower courts, causing immense hardship to litigants.

At least 130 judges allotted to Telangana are said to belong to the residuary Andhra Pradesh state. About 100 judges attended a meeting to protest against their appointment. The High Court suspended 10 agitating judges. The members of the Telangana Judicial Officers Association then threatened to resign en masse.

Telangana Chief Minister K Chandrasekhara Rao joined the fray by dashing off a letter to the Centre demanding immediate setting up of a separate high court for the state. Union Law Minister Sadananda Gowda’s thoughtless remark comparing Rao with Delhi Chief Minister Arvind Kejriwal, who is involved in a running battle with the Centre, embittered public opinion.

Agitating lawyers taking the law into their own hands is by no means a rare phenomenon in India today.

Last October, in Tamil Nadu, a large group of lawyers held rallies on the premises of the Madras High Court in Chennai, barged into courtrooms shouting slogans and staged a sit-in outside Chief Justice Sanjay Kishan Kaul’s court while he was presiding over the proceedings. They were demanding, among other things, withdrawal of contempt proceedings against two Madurai-based leaders of the bar association. The Madurai bench of the high court had witnessed unruly scenes earlier.

According to a media report, some judges and lawyers hold that recurrence of such incidents is the result of a steady intrusion of criminal elements into the legal profession. Lawyers and policemen have clashed in the vicinity of Chennai courts on several occasions.

Tamil Nadu Bar Council Vice-Chairman PS Amalraj estimates that only 15 per cent of the state’s 80,000 advocates are involved in disruptive activities. Many of them are not practising lawyers, he says.

In an attempt to ensure purity of the justice delivery system, Madras High Court judge N Kirubakaran recently directed the Bar Council of India not to enrol as lawyers persons involved in criminal cases.

Similar incidents have been reported from other states like Uttar Pradesh too. However, the criminal records of lawyers in the states pale into insignificance when compared to pro-BJP lawyers in the national capital. Early this year, they physically assaulted Jawaharlal Nehru University Union president Kanhaiya Kumar, whom the police had charged with sedition on a dubious complaint by the Akhil Bharatiya Vidyarthi Parishad, a pro-BJP student organisation, on two occasions when he was produced in the courts.

They also pounced upon JNU professors who came to express solidarity with the students, media personnel who were there to cover the court proceedings and a team of senior lawyers who were deputed by the Supreme Court to watch the proceedings and report it.

The Delhi police, which is directly under the BJP-ruled Centre, remained mute spectators when the lawyers indulged in hooliganism. Rejecting media reports which referred to the lawless lawyers as goons, their spokesman claimed they were patriots!

It was easy to identify the men who assaulted Kanhaiya Kumar on the court premises as video recordings of the attack by lawyers were available. Yet, neither the Delhi police nor the Bar Council of India pursued the matter expeditiously. As a result, the culprits remain unpunished.

Scandalised by the developments which took place under its very nose, as it were, the Supreme Court warned of strong action. However, there has been no action so far.--Gulf Today, July 5, 2016.