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Human Rights Discourse in South Asia

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The South Asia has been metamorphosing, transforming and transiting in desire and discourse, grace and guidance, purpose and practicality, pace and propensity, terrorism and transcendentalism, unity and ubiquity, and its regimental ruthlessness is mawkish with modernity, primordial with present and furtive with future that is devitalized to the proliferation of prognostications.

The propensity of the planet earth transcended its limits of growth, wealth of nations and industrialization of civility in an unprecedented fashion marked with producing rich out of rich, poor out of poor since the baseline of parochial peace inaugurated on October 24, 1945 as United Nations Organization whereunder human nature has become most conspicuous, covetous and cataclysmic in the present age needed by the ever-growing exemplary shift in its dialectics, dimensions, and delineation in terms of understanding, interpretation, and resolutions of human care and crises in its existentialism.

Idea of Human Rights

The idea of human right has had a long and diverse history that has given multiple meanings, hues and tones dependent on the context, condition and the objective of those conceptualizing this idea but, unfortunately, this idea has been predominantly understood in terms of intrinsic and extrinsic political priorities since time immemorial by the national and international jurisdictions at the level of nation-states and by the individuals, institutions and groups at the communitarian level. But to fit human right into any definition has not been met with intellectual and juridical consensus since the inception of the critters and creatures of reason who coddled human rights in a fashion acceptable to all but in vain. The concept of human rights, which was developed during the Enlightenment, re-emerged following the II-World War, and since then has repeatedly been utilized in the international and local realms. The hundreds of dedicated people around the globe have been working incessantly over the past 70 years to frame human rights protocols, covenants, and treaties, and in the process have produced an inspiring discourse.

Therefore, I have also attempted to clinch an understanding of human rights in the expositions henceforth that the human rights are natural rights whereto every man is the heir apparent without being deprived except according to the procedure, principles, and pursuits duly codified in law. Human rights are the perennial pursuits provided and protected by the state for the overall development of its citizens devoid of denial, deprivation and demonization owing to the grounds contrary to natural justice, the rule of law and good conscience. Human rights are the rights of human beings because of their status as human beings for sustenance and survival with human dignity wedded to state protection and societal sanctions deviant to geo-politico-cultural dichotomies. Human rights are the classical and contemporary civil liberties preserved, promoted and protected by the oriental and occidental societies alike within the confines of the law. Human rights are the human spirits emanating from a confluence of equality, fraternity, and liberty founded upon pluralism, secularism, and universalism guaranteed by the state and its laws. Human rights are pre-political and pre-social conditions blessed by nature upon human beings by virtue of their being human beings protected under the principles of natural law. Human rights are peremptory norms wherefrom no derogation or deviation or otherwise is contemplated, conceptualized and camouflaged contrary to dignity, decency and development of human personality under a just order founded upon democracy of judicial remedies, the majesty of the rule of law and supremacy of humanity. Human rights are conditions of peace, security and development of state and its citizens alike alien to avarice, corruption, deprivation, exploitation, fear, genocide, hate, inequality, jingoism, nepotism, oppression, persecution, repression, subjugation, totalitarianism, vengeance and xenophobia, etc.

What is South Asia

South Asia is the home to 22 percent of the world population and also a home of 43 percent poor people of the world. Despite the promising microeconomic growth, South Asia is the most impoverished region looked from human development indicators, such as health and education. The South Asian region inhabits 47 percent of the world’s illiterate population aged 15 years and above (up to 59 years). Over 71 percent of the South Asians live in rural areas mostly unemployed. Estimated 437 million people live below 1.25 US dollar a day and 237 million live at risk of dying before the age of 40 years. 867 million have no access to basic sanitation and more than 300 million undernourished. Therefore, South Asian discourse on human rights must take care of these people. The human rights discourse has transformed international and humanitarian laws, has helped reshape the relations between international organizations, governments and citizens and has become an active political and legal tool used by the politicians, non-governmental organizations (NGOs) and social movements to advance their objectives. The human rights discourse is not some panacea for all social ills, and at times it can produce unanticipated detrimental results. The rights language can be and has been co-opted by people who promote oppressive policies. The leaders often cynically invoke rights discourse to enhance the realpolitik concerns and not because they care about the rights of individuals living in other countries or even the rights of their citizens. The once decreed as a norm or as a preferred goal, groups, and individuals can utilize this discourse to demand the enforcement and implementation of more ethical policies while marshaling internal forces and external support.

Human Rights Implementation

The implementation of human rights is in crisis worldwide. The annual reports of Amnesty International, Human Rights Watch and other human rights organizations continue to reveal widespread gross violations of human rights in numerous countries the world over and South Asia region is not an exception. Democracy is non-existent or a sham in many countries in our part of the world. National resources are squandered by despotic rulers instead of being used to satisfy the basic economic and social needs of their people. Corruption is rife. The judiciary lacks the strength, the means, or the will to protect human rights in many places. The national human rights institutions are non-existent or non-performing in some cases in South Asia and elsewhere. In South Asia, many countries ratify human rights treaties without making the slightest attempt to give effect to them. The self-righteous representatives gather in the halls of the United Nations and use their majorities to insist that countries are grossly violating human rights be treated with kid gloves through dialogue and cooperation, instead of through forthright condemnation of atrocities. The UN Human Rights Council does little for the actual protection of human rights, and its Universal Periodic Reporting Process, for the time being, lacks teeth. The situation is dire.

The issue of human rights is frequently discussed in international and regional discourse, among the world leaders, and in the international media. There are international conferences and speeches on human rights, from Presidents, Prime Ministers and Popes alike about the importance of tolerance and respect for human rights, and media outlets broadcasting one program after another on the human miseries like poverty, ill-health and poor living conditions around the world. But what exactly is meant by human rights remains controversial and ambiguous, it is increasingly clear that there is some universal concept of human rights. In societies where citizens are free to participate in the political process and express opposition to their government, where they do not simply disappear in the blink of an eye and are free from starvation and poverty, human rights may never be a chief consideration or concern. But this only describes the condition of a minority of the global population.

Global Grimes and Crimes

Thus, identification and acceptance of human rights as an international issue by the world community has led to the establishment of a vast system of laws, treaties, and international organizations. Most states today recognize some limits to their sovereignty and, at least ostensibly, acquiesce to agreements and covenants designed to protect those rights. Before World War II, such a concept would have been deemed untenable, as state sovereignty remained the norm of international relations. The states were the final arbiter in the treatment of their citizens, and other countries should refrain from intervening in their affairs. The Holocaust and atrocities associated with the Nazi regime catalyzed the human rights movement, propelling the issue into the international arena. While South Asian discourse on the importance of human rights has incessantly swelled since the end of World War II, many states continue to violate a broad range of human rights. In fact, some of the worst human rights violations have occurred in modern times: the atrocities committed and perpetrated by the Khmer Rouge in Cambodia, the ethnic cleansing in the former Yugoslavia, the slaughter in Rwanda, the genocide in the Darfur region of United Sudan, persecution of Minorities in South Asia. The food insecurity, lack of clean water, and lack of primary health care continue to be everyday realities in many parts of the world including South Asia. Whereas slavery is on the rise today: in Eastern Europe and South Asia women trafficking as sex slaves; in the DRC (Democratic Republic of Congo), children are being forced to fight in wars; and in most of the SAARC region particularly in India and Nepal, children are being compelled to work as child labour or in sweat-shops for subsistence wages instead of attending school. For many people, the lack of human rights is a daily reality, and this suggests that while citizens in parts of the South Asia have been experiencing greater respect for human rights, the majority have yet to realize and enjoy the full spectrum of human rights. The disjuncture between the South Asian discourse in human rights and the attainment of human rights is one of the pivotal paradoxes of the human life.

Sustainable Democracy

Therefore, the quest for sustainability of democratic values and institutions is unceasing in South Asia and all members of SAARC have constitutionally endorsed the liberal democracy, the rule of law and human rights. All the SAARC members have written constitutions based on the constitutionalism of human rights and fundamental freedoms. The principle of independence of the judiciary and its activist role to ensure implementation of pro-people and pro-democratic policies is manifestly higher in South Asia. The most top courts in the region have played crucial roles in shaping the people’s human rights. The recognition of the Justiciability of the economic, social and cultural rights in India, Nepal, and Bangladesh is spectacular. The grammar of modern South Asia determines the structure and limits of essential components of contemporary human rights discourse. The idea of South Asia constitutes an important part of our human rights discourse and imagination that determines what questions we ask about our law, polities and policy as well as the range of possible answers to these issues.

The idea of Human Rights Discourse in South Asia comprises of a synthesis of rules and principles about the suitable use of concepts like people, self-government, citizen, rights, equality, autonomy, nation and popular sovereignty. That quest about the normative relationship between nation-states and the cultural diversity as the criteria that should be employed to determine the legitimacy of the State, the individuals that can be regarded partners of the polity, the distinctions and limits between the private and the public spheres, and the dichotomies between autonomous and heteronomous political communities makes sense to us because they emerge from the rules and principles of human rights discourse. Different traditions of interpretation in human rights discourse in South Asia—constitutionalism, liberalism, communitarianism, and nationalism, among others–compete to control the way these concepts are understood and put into practice. However, it was difficult to deny that South Asian constitutionalism and western legal traditions in human rights have exerted a strong influence on most of the South Asian legal systems.

South Asian Legal Systems

Hence, this influence has been constrained or structured by many factors, with particular influences explaining the actual impact of eastern legal traditions on the various Asian legal systems.  Each particular South Asian legal system remains unique in many ways, the result being a mixture or a “blend” of these numerous factors. However, it is worth attempting to classify the major South Asian legal systems in the light of these many different influences. That history, religion, culture and political regime constitute the major criteria that can be used to differentiate the various South Asian legal systems and better measure the influence exerted on them by South Asian constitutionalism and Western traditions of human rights. Though every South Asian state has consistently espoused the constitutional values and principles of human rights and no government, no matter how authoritarian, claims to be anything other than a constitutional government. But, of late, vibrant constitutional democracies have taken hold in the South Asian soil. However, scant attention has been placed upon the ways that human rights have been brought into being and developed into distinctive forms in South Asia. By studying the South Asian jurisdictions together, some standard features communicated by the constitutional advancements in them, which include contributory democratic state-building, textual and institutional continuity, reactive judicial review and a wide range of human rights in tune with social and political progress, have emerged.

Human Rights Desiderata

However, there are desiderata like what is a right in South Asia? What are human rights in South Asia? Why do we have them or should we have them? Who is counted as a human and on what grounds? Is Dignity the Foundation of Human Rights? Are human rights truly universal, global or regional in South Asia? Does the disagreement about the meaning of human rights undermine it as a political project in South Asia? What kinds of human rights problems do the South Asia and the world face today? What role do South Asian judicial institutions play in addressing the human rights issues? Do the South Asian governments care about human rights? How did a South Asian discourse on human rights come to shape the regional consciousness imperatives in post-1985? What do human rights treaties require South Asian states to do? Why do countries sign up to human rights treaties? Do they ever respect human rights obligations and commitments? How do citizens and NGO’s exert pressure on states? Is human rights politics just ‘Selectivism’ in South Asia? Why does the US promote human rights and refuse to sign on to major human rights treaties? Are human rights just window-dressing for national interests in South Asia? What is the political economy of human rights discourse in South Asia? To attend and appreciate the contours of human rights discourse in South Asia and obligations and options available to the region with South Asian values, approaches to human rights, human rights of minorities in South Asia, place of gender in South Asia and how to go about exploring the feasibility of South Asian Charter of Human Rights

Deviant to the causes whatsoever of human displacement regarding normativity, performativity, and empiricism, there are many nemeses, but two are important and coterminous in their cascading impact, i.e., human displacement and consumerism. The biggest agony in life is a situation of being displaced from his/her country of the homeland in a fashion that is fallible, fallacious and fatal? To uproot anybody from his land of habitual residence amounts to deny and deprive him of his/her right to perpetual live, right to immemorial neighbourhood, right to historical culture, right to classic climate, right to perennial socialization, right to geopolitical predilections, right to socio-economic development, right to be consulted in economic modules, right to take part in community development, right to good governance, right to rule of law, and right to leave and return. Thus, these are not only rights but go beyond the systems of rights known as basic bonds, fundamental freedoms, inalienable entitlements, natural claims, and rudimental human rights. Whereas consumerism has become a catalyst likey to be employed as the last resort of elitism and propelling the priorities of political, social and cultural dispensations in every geo-strategic entity. Consumerism has been cribbed, crabbed and cabined in an envelope of gory globalization wherefrom no escape is possible for the men ordinaire and it is taking its toll to the hilt in a knowledge society which, unfortunately, does not have any knowledge about the society wedded with consumerism. Consumerism of contemporary class has smothered the colossal canvas of human bonds wherefrom oozes emotions, care, concerns and camaraderie well-founded upon the human spirit of co-existence, respect for diversity and civilizational dialogue.

South Asia Ahead

Therefore, the denuded downslide and pejorative permutations in the societal structures across the South Asia are nothing but offshoots of consumerism casting poverty, ecological degradation, environmental hazards, lopsided development, tectonic technologies, hexicological imbalances, deconstruction of a priori norms of normative sciences in research and development, etc. Thus, vicious vicissitudes of global change have presented a scene of development that is murky, mawkish and maneuvered by the political powers that are around the chess board of common heritage of gene-kind in and around national and supranational jurisdictions whereat humanity is at war within the humanity. Consequently, there is an supercilious ambience of peace, progress and prosperity that is exclusive, elite and alienated with a tinge of aggression, arrogance and attitude of above the board while not learning the lessons from economic melt-downs and fiscal drubbings in USA and Eurozone and elsewhere which has made the humanity to move, move and move in addition to the humanitarian crises and climate-induced displacement.

In this conspectus, I envision a concept of South Asian Government (SAG) or Regional Government well-founded upon a duly agreed South Asian Constitution (SAC) wedded with the Constitutionalization of South Asian Constitutionalism, South Asian Rule of Law (SAROL), Borderless South Asian Sovereignty (SAS), South Asian Common Natural Resources (SACONAR), South Asian Ethno-Cultural Synthesization (SAECS), South Asian Accountability Regime (SAAR), and South Asian Constitutional Law (SACOL) based on the regional institutionalization of equitable demography, federalization of humanity, bicameralization of governance, Parliamentarization of Regional Accountability as Parliament of Gene kind consisting of House of Nations (Upper House) and House of People (Lower House) whereunder South Asian Nations have been contemplated as units.

These features developed in the South Asian discourse on human rights do not merely mirror western standard nor are under the shadow of South Asian Values or merely in tandem with transitional understandings of rights jurisprudence. The full blossom of South Asian discourse on human rights will shed a new light and move from periphery to the center of regional engagement. The South Asian nations have had some difficulty in maintaining their independence of constitutional human rights and fundamental freedoms. The human rights discourse in South Asia has swept the world by the end of the last twentieth century. More than two-thirds of global populations observe to a certain extent human rights protection and the rule of law. The human rights discourse in South Asia has moved beyond traditional nation-state borders and developed into regional constitutionalism on rights. The efforts at making South Asian discourse in Human Rights the evolutionary process by which traditional South Asian states have moved closer to one another in a human rights sense illustrates this trend well. At the same time, North American countries including Canada, the United States, and Mexico have gradually been becoming a human rights block by sharing common regulatory powers in a constitutional sense.

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

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South Asia

The pendulum gradually swings towards international engagement with the Taliban

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Food and blankets are handed out to people in need in Kabul, the capital of Afghanistan, by © WFP/Arete

The Taliban and Pakistan, both viewed warily by the West and others in the international community, appear to be benefitting from mounting concerns about the humanitarian and security situation in Afghanistan.

The European Union, in a move that could put the United States in an awkward position, is close to reopening its mission in the Afghan capital and offering member states to use it as an operational base for their own diplomats.

The move would enhance European engagement of the Taliban but stop short of diplomatically recognizing the group as Afghanistan’s new rulers. The Taliban government has yet to win recognition from anyone in the international community.

The EU, its member states, and the United States had moved their diplomatic missions to the Qatari capital of Doha in August as they evacuated Kabul in the wake of the Taliban takeover of the city.

European officials said a reopening of the EU mission was necessary to manage a €1 billion emergency humanitarian aid package.

The United Nations’ World Food Program (WFP) and its Food and Agriculture Organization (FAO) said this week that some 19 million Afghans, or 45 per cent of the population, were experiencing “high levels of food insecurity.” That number is expected to jump to 22.8 million between November and March unless immediate action is taken, according to a report that was just released by the two agencies.

Senior United Nations officials, including Secretary-General Antonio Guterres, said earlier that one million children were at risk of starvation and death. They said Afghanistan’s poverty rate had soared and basic public services were on the verge of collapse. The crisis was worsened by the fact that hundreds of thousands of people had been made homeless as a result of recent fighting in the country.

A reopening of the EU mission in Kabul would effectively align Europe with US allies Qatar and Turkey, Pakistan, a troublesome friend, and America’s rivals, China and Russia that all favour some degree of engagement with the Taliban and in most cases a lifting of US sanctions that have blocked the group’s access to government deposits and assets abroad.

Chinese Foreign Minister, in his first meeting with the Taliban since the US withdrawal on Tuesday in Doha, called for the lifting of the sanctions, and pledged to help the group to “rebuild the country.” China has repeatedly said it was willing to work with the Taliban but has so far refrained from taking concrete steps in that direction.

The reopening of the EU mission serves the Taliban’s purpose not only as a breach in the group’s difficulty in garnering international acceptance but also because it would extend doubts about the United States’ ‘over the horizon’ counterterrorism strategy to the humanitarian and diplomatic realm.

The withdrawal from Afghanistan deprived the United States and its NATO allies of many of their on-the-ground intelligence and information-collection assets. It also means that US drones and aircraft when operating counterterrorism missions will have to fly long distances from ‘over the horizon’ facilities such as a US airbase in Qatar or naval vessels in Indo-Pacific waters.

One beneficiary of cracks in the international barrier erected around the Taliban may be Pakistan that has long been criticised for its alleged support of the Taliban.

Pakistan is like to earn brownie points for reportedly giving the Taliban intelligence and technical support in its fight against the Islamic State’s South Asian affiliate, Islamic State-Khorasan. Much of the international community is concerned about the Islamic State but has been unwilling to engage with the Taliban to counter the jihadist group.

The Islamic State has since August launched scores of attacks on Taliban targets although its three most devastating bombings struck Kabul airport in August during the US evacuation and more recently two Shiite mosques in Kunduz and Kandahar. In doing so, the Islamic State has raised doubts about the ability of the Taliban to stabilise Afghanistan.

Pakistan would likely use a successful Taliban offensive against the jihadist group to push the need for others to also engage with the Taliban.

Pakistan and some other proponents of engagement partly pin their hopes for Taliban moderation on the fact that the group is increasingly populated by a generation that came of age during the US-led occupation but has yet to make its mark.

“Routinely portrayed as archaic and extreme by critics and opponents, the new generation of Taliban are in fact a product of their times: more open to the prospect of gradual social change than their forebears yet politically more militant; English-speaking but mistrustful of the West; well-read yet wary of free expression; keen to help their country move forward but defined by its past,” said Afghan journalist Fazelminallah Qazizai.

Mr. Qazizai could well be correct. If he is, the Taliban have so far been unwilling to communicate unequivocally what their 2.0 means. Pledges on women’s rights, including secondary and tertiary education, have yet to be fulfilled.

The Taliban botched an opportunity to inspire confidence when the leader of the notorious Haqqani network, acting Afghan interior minister Sirajuddin Haqqani, recently convened family members of Taliban suicide bombers to celebrate the actions of their loved ones.

Rather than apologising to the victims, Mr. Haqqani, who has a US$10 million bounty on his head because of his close ties to Al-Qaeda, told the gathering in Kabul’s Intercontinental Hotel that was twice targeted by the group that the bombers’ “sacrifices are for religion, for the country and for Islam.” He said the Taliban would not have been able to fight the United States without the support of suicide bombers.

Mr. Haqqani may well have been catering to the Taliban’s rank and file in a bid to prevent those who may object to gradual social change from defecting to the Islamic State.

If so, Mr. Haqqani was also communicating that the Taliban may for now be in a Catch-22 as they walk a fine line between maintaining some semblance of unity within their ranks and garnering the minimal international confidence needed to address Afghanistan’s huge humanitarian and security problems.

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The Khalistan nightmare

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 After several postponements, the “Punjab Referendum Commission has announced to hold the “Punjab Independence Referendum on October 31, 2021.  The Commission has been appointed by the US-based Khalistani separatist group Sikhs for Justice. The Commission” consists of “non-aligned direct democracy experts” who are to organise and hold a referendum on whether Punjab should be independent. The referendum will start in London on October 31 and then take place in other countries, including the US, Canada, Australia, and the region of Punjab, the commission stated.

Commission’ chairman M Dane Waters, based at the University of Southern California clarified that the commission’s role is to “help the SFJ conduct a referendum that is as consistent with international norms as possible”.  He added, ‘Although a non-governmental and non-binding referendum, the result will be used as the basis for the Sikh community to request an official binding vote from the United Nations on establishing the Indian governed region of Punjab as an independent homeland for the indigenous people of whom Sikhs are the single largest group’. India is irked y the date of referendum,  October 31, as on this date anti-Sikh riots, following Indira Gandhi’s assassination by his body guards, erupted, leaving 3000 to 17000 Sikhs dead.

India fought tooth and nail to forestall the intended referendum. It sent a dossier to the British government blaming Pakistan and Paramjit Singh Pamma, “an ordinary criminal”, for sponsoring the event. The UK rejected the request.

SFJ has promised help and assistance for those seeking visas to come to London to attend the rally. The organisation has booked rooms in a hotel in South all for participants travelling from outside the UK. From Britain’s Green Party, which has a lone MP in Westminster, Caroline Lucas and George Galloway, a former MP and former broadcaster respectively, have registered their support for the rally. Lucas said, `Sikh people have a right to determine for themselves whether they want to establish an independent Punjabi state’.

Why India fears the non-binding referendum?

Indian High Commission has planned a counter demonstration at the same venue few hours before the ‘Referendum 2020’ rally. India is worried that the referendum would open wounds of 1984 anti-Sikh riots.

The riots resulted in genocide of thousands of Sikhs. Not only the Congress Party leaders like Sajan Kumar and Jagadish Tytler but also police colluded with the killers. India’s then foreign minister and later prime minister Manmohan Singh said , ‘If then home minister Narisamha Rao had paid to IK Gujarat’s suggestion to call in the army, the 1984 Sikh riots could have been avoided’.(1984 Sikh riots could have been avoided if Narrasimha Rao had listened to IK Gujaral: Manmohan Singh, India Today December 5, 2019).

Desire for autonomy

Guru Gobind Singh asked Sikhs to adopt Khalsa way of life. At the gathering of 1699, Guru Gobind Singh founded the Khalsa Vani – “Waheguru ji ka Khalsa, Waheguru ji ki fateh“. He named all his followers with the title Singh, meaning lion. He also founded the principles of Khalsa or the Five ‘K’s, kara, kirpan, kachha, kais, and kanga (a wrist bracelet, underwear, long hair and a comb). The five K’s have spiritual connotation.

Sikhs have a long history of fighting repression. In 1973, Akali Dal put forward the Anandpur Sahib Resolution to demand more autonomy to Punjab. It demanded that power be generally devolved from the Central to state governments. The Congress government considered the resolution a secessionist document and rejected it.

 Jarnail Singh Bhindranwale, a prominent Sikh leader of Damdami Taksal, then joined the Akali Dal to launch the Dharam Yudh Morcha in 1982 to implement the Anandpur Sahib resolution. Bhindranwale had risen to prominence in the Sikh political circle with his policy of getting the Anandpur Resolution passed. Others demanded an autonomous state in India, based on the Anandpur Sahib Resolution.

India used iron fist tactics to gag the demand. The high-handed police treated the protesters (Dharam Yudh Morcha) as ordinary criminals. The Sikh youth retaliated by starting an insurgency. By 1983, the situation in Punjab was volatile.

Operation Blue Star

It was launched (1 June) “to remove him and the armed militants from the Golden Temple complex. On 6 June Bhindranwale died in the operation. The operation carried out in the temple caused outrage among the Sikhs and increased the support for Khalistan Movement.

Indian prime minister Indira Gandhi killed

Four months after the operation, on 31 October 1984, Indira Gandhi was assassinated by her two Sikh bodyguards, Satwant Singh and Beant Singh. Public outcry over Gandhi’s death led to the killings of Sikhs in the ensuing 1984 anti-Sikh riots.

Convictions

Very few people were punished. In Delhi, 442 rioters were convicted. Forty-nine were sentenced to the life imprisonment, and another three to more than 10 years’ imprisonment. Six Delhi police officers were sanctioned for negligence during the riots. That month, the Karkardooma district court in Delhi convicted five people – Balwan Khokkar (former councillor), Mahender Yadav (former MLA), Kishan Khokkar, Girdhari Lal and Captain Bhagmal – for inciting a mob against Sikhs in Delhi Cantonment. The court acquitted Congress leader Sajjan Kumar. But, upom revision, he was sentenced to life imprisonment.  In the first ever case of capital punishment in the 1984 anti-Sikh riots case death sentence was awarded to Yashpal Singh convicted for murdering two persons, 24-year-old Hardev Singh and 26-year-old Avtar Singh, in Mahipal Pur area of Delhi on 1 November 1984. Additional Sessions Judge Ajay Pandey pronounced the Judgement on 20 November 34 years after the crime was committed.

Investigations

Ten commissions or committees were formed to investigate the riots. But, most of the accused were acquitted or never formally charged. The commissions or committees include Marwah Commission, Misra Commission, Kapur Mittal Committee, Jain Banerjee Committee, Potti Rosha Committee, Jain Aggarwal Committee, Ahuja Committee, Dhillon Committee,

Narula Committee, and The Nanavati Commission, The most recent, headed by Justice G. T. Nanavati, submitted its 185-page report to Home Minister Shivraj Patil on 9 February 2005; the report was tabled in Parliament on 8 August of that year.

The Marwah Commission was appointed in November 1984. As Marwah was completing his inquiry in mid-1985, he was abruptly directed by the Home Ministry not to proceed further. The Marwah Commission records were appropriated by the government, and most (except for Marwah’s handwritten notes) were later given to the Misra Commission.

The Misra Commission was appointed in May 1985; Justice Rangnath Misra submitted his report in August 1986, and the report was made public in February 1987. In his report, he said that it was not part of his terms of reference to identify any individual and recommended the formation of three committees.

 While the commission noted that there had been “widespread lapses” on the part of the police, it concluded that “the allegations before the commission about the conduct of the police are more of indifference and negligence during the riots than of any wrongful overt act.”

The Kapur Mittal Committee was appointed in February 1987 at the recommendation of the Misra Commission to enquire into the role of the police; the Marwah Commission had almost completed a police inquiry in 1985 when the government asked that committee not to continue. Although the committee recommended the dismissal of 30 of the 72 officers, none have been punished.

The Potti Rosha Committee was appointed in March 1990 by the V. P. Singh government as a successor to the Jain Banerjee Committee. In August 1990, the committee issued recommendations for filing cases based on affidavits submitted by victims of the violence; there was one against Sajjan Kumar.

The Jain Aggarwal Committee was appointed in December 1990 as a successor to the Potti Rosha Committee. The committee recommended the registration of cases against H. K. L. Bhagat, Sajjan Kumar, Dharamdas Shastri and Jagdish Tytler.

The Ahuja Committee was the third committee recommended by the Misra Commission to determine the total number of deaths in Delhi. According to the committee, which submitted its report in August 1987, 2,733 Sikhs were killed in the city.

The Dhillon Committee, headed by Gurdial Singh Dhillon, was appointed in 1985 to recommend measures for the rehabilitation of victims. Although the committee recommended ordering the (nationalised) insurance companies to pay the claims, the government did not accept its recommendation and the claims were not paid.

The Narula Committee was appointed in December 1993 by the Madan Lal Khurana-led BJP government in Delhi. One recommendation of the committee was to convince the central government to impose sanctions.

Khurana took up the matter with the central government, which in the middle of 1994, the Central Government decided that the matter did not fall within its purview and sent the case to the lieutenant governor of Delhi. It took two years for the P. V. Narasimha Rao government to decide that it did not fall within its purview.

The Narasimha Rao Government further delayed the case. The committee submitted its report in January 1994, recommending the registration of cases against H. K. L. Bhagat and Sajjan Kumar. Despite the central-government delay, the CBI filed the charge sheet in December 1994.

The Nanavati Commission was established in 2000 after some dissatisfaction was expressed with previous reports. The commission reported that recorded accounts from victims and witnesses “indicate that local Congress leaders and workers had either incited or helped the mobs in attacking the Sikhs”. Its report also found evidence against Jagdish Tytler “to the effect that very probably he had a hand in organising attacks on Sikhs”.It also recommended that Sajjan Kumar’s involvement in the rioting required a closer look. The commission’s report also cleared Rajiv Gandhi and other high ranking Congress (I) party members of any involvement in organising riots against Sikhs.

Role of Jagdish Tytler

In March 2009, the CBI cleared Tytler amidst protests from Sikhs and the opposition parties.

Concluding remark

At present the Sikhs are distraught by farmers’ prolonged protest and pettifoggery among political leaders. Former Punjab chief minister Amarinder Singh’ rivals remind  him that Pakistani journalist Aroosa Alam, his sweetheart, is a Pakistani agent. Still, the referendum may gain momentum in future.

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South Asia

Did India invade Kashmir?

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Friday prayers in Srinagar, Jammu and Kashmir. © John Isaac

Pakistan has decided to observe 27th October as Black Day. This was the day when, according to India’s version, it invaded the disputed Jammu and Kashmir State.  India says that Pakistan had earlier entered a lashkar (irregular forces) into Kashmir on 22nd October. But, it is eerie that India never approached the International Court of Justice, as pointed out by Josef Korbel  (the author of the Danger in Kashmir), or the  United Nations (under Chapter VII of the UN Charter) to get Pakistan declared an aggressor. It approached the UN under Chapter VI of the UN charter (mediation). India’s invasion of Kashmir is based on myths .

Myths

India claims that ‘Maharaja Hari Singh signed the treaty of accession with the Indian Dominion on October 26, 1947’. As such, India was justified in marching invading Srinagar. . As for the ‘accession instrument’ argument, curious readers may refer to Alastair Lamb’s ‘Incomplete Partition, Kashmir – A disputed legacy 1846-1990’, and ‘Birth of a Tragedy’.

On the question of who the ‘aggressor’ was, the factual position is that India marched its troops into Kashmir without Maharajah’s permission – a blatant act of aggression (Alastair Lamb, ‘Incomplete Partition , Chapter VI: The Accession Crisis. Lamb concludes: ‘According to Wolpert, VP Menon returned to Delhi from Srinagar on the morning of October 26 with no signed Instrument of Accession. Only after the Indian troops had started landing at Srinagar airfield on the morning of October 27 did VP Menon and MC Mahajan set out from Delhi from Jammu. The Instrument of Accession, according to Wolpert, was only signed by Maharaja Sir Hari Singh [if signed at all] after Indian troops had assumed control of the Jammu and Kashmir State’s summer capital, Srinagar.

Lamb regards the so-called Instrument of Accession, ‘signed’ by the maharajah of Kashmir on October 26, 1947, as fraudulent. He argues that the maharajah was travelling by road to Jammu (a distance of over 350 km). How could he sign the instrument while being on the run for the safety of his life? There is no evidence of any contact between him and the Indian emissaries on October 26, 1947. Lamb points out Indian troops had already arrived at and secured Srinagar airfield during the middle of October 1947. On October 26, 1947, a further airlift of thousands of Indian troops to Kashmir took place.

The UN outlawed the ‘accession’; the accession resolution, passed by the occupied Kashmir’s ‘constituent assembly’ is void. Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the puppet assembly, the Security Council passed two resolutions, Security Council’s Resolution No 9 of March 30, 1951, and confirmatory Resolution No 122 of March 24, 1957, to forestall the ‘foreseeable accession’. It is eerie to note that the ‘Instrument of Accession’ is not registered with the United Nations. India took the Kashmir issue to the UN in 1948 under article 35 of Chapter VI which outlines the means for a peaceful settlement of disputes on Jammu and Kashmir State, not under Chapter VII dubbing Pakistan as ‘aggressor’. India knew at heart that she herself was an aggressor.

In his books, based on Nehru’s declassified papers, speeches and correspondence, Avtar Singh Bhasin debunked Nehru’s perfidious failure to hold a plebiscite. In Chapter 5 titled Kashmir, India’s Constitution and Nehru’s Vacillation (pages 51-64) of his book India and Pakistan: Neighbours at Odd he makes a startling revelation. Nehru discarded Maharajah’s and Kashmir assembly’s ‘accession’; in a letter dated October 31, 1947, addressed to the disputed state’s prime minister, he shrugged off ‘accession’. He said in the letter, ‘after consideration of the problem, we are inclined to think that it [plebiscite] should be held under United Nations’ auspices’ (p. 28 ibid..). He reiterated in New Delhi on November 3, 1951, that ‘we have made it perfectly clear before the Security Council that the Kashmir Constituent Assembly does not [insofar] as we are concerned come in the way of a decision by the Security Council, or the United Nations’(SWJ: Volume 4: page 292, Bhasin p.228). Again, at a press conference on June 11, 1951, he was asked if the proposed the constituent assembly of Kashmir ‘decides in favourof acceding to Pakistan, what will be the position?’ he reiterated, ‘We have made it perfectly clear that the Constituent Assembly of Kashmir was not meant to decide finally any such question, and it is not in the way of any decision which may ultimately flow from the Security Council proceedings’. He re-emphasised his view once again at a press conference in New Delhi on November 3, 1951. He said ‘we have made it perfectly clear before the Security Council that the Kashmir Constituent Assembly does not [insofar as] we are concerned come in the way of a decision by the Security Council or the United Nations’. Bhasin points out, ‘at a press conference on July 24, 1952, when asked what the necessity of plebiscite was now that he had got [accession by] the Constituent Assembly, he replied “Maybe theoretically you may be right. But we have given them assurance and we stand by it. Bhasin points out Nehru made a ‘tactical error’, one ‘of committing himself to the UN’.Accession documents are un-registered with the UN.

Concluding remarks

India’s prime minister Modi cartographically annexed the disputed state, spurning the UN resolutions and the Simla Accord. Let India know that a state that flouts international treaties is a rogue state: pacta sunt servanda, treaties are to be observed and are binding on parties. Mushtaqur Rehman elaborated why Kashmir is the most dangerous place in the world (Divided Kashmir: Old Problems, New Opportunities for India, Pakistan and the Kashmiri People, 1996, pp. 162-163).No talks, no mediation. That is an open invitation to war, perhaps a nuclear Armageddon.

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