Sovereign states are expected to act as guardians of their citizen’s security, but what happens if states behave as criminals towards their own people, treating sovereignty as a license to kill? Should tyrannical states be recognized as legitimate members of international society and accorded the protection afforded by the non-intervention principle? Non-Intervention is commonly understood as the norm in international society since Peace of Westphalia 1648 , but should military intervention be permissible when governments massively violate the human rights of their own citizens, are unable to prevent such violations, or if states have collapsed into civil war and anarchy? The answer is Responsibility to Protect.
The Responsibility to Protect (R2P) is a concept that has emerged recently in international law in response to humanitarian crises the world is facing in post-cold war era. First proposed by a commission convened by Canada in 2001, it was then approved in the United Nation’s 2005 World Summit Outcome, and through UN Security Council and General Assembly resolutions. It is the doctrine of United Nations according to which UN has assured responsibility to ensure peace throughout the world under Int. humanitarian and Human rights law.R2P is invoked when there is a threat of genocide, war crimes, ethnic cleansing and crimes against humanity. It confers a responsibility on the international community to prevent mass atrocities. R2P is fulfilled by first warning a state that displays unwillingness to prevent such crimes or an apathy in dealing with them, and can result in a military intervention if deemed necessary over.
In the context of R2P, the biggest concern in South Asia since 1947 is the Kashmir issue. The valley of Jammu and Kashmir is prevailing under the shadow of anarchy, where there is chaos, insecurity, disorder and uncertainty. It is an internationally recognized disputed territory between India and Pakistan, distributed into two parts each is controlled by one state.It is also the bone of contention between India and Pakistan since inception. Yet, both states fought three full fledge wars, numerous low intensity conflicts and continue border skirmishes. In this matter, the UN has adopted UN Security Council Resolution 47 on 21 April 1948, to resolve the issue of Kashmir. According to the resolution, a plebiscite should be conducted in the region and let the people of Kashmir decided rather they want to join Pakistan or India. According to International Law Kashmir is neither part of India nor Pakistan. But both states have firm national interests in this valley. The recent constitutional changes in India on August 5th of 2019 has worsen the situation and triggered the Kashmir dispute on the edge of complex emergencies which itself requires humanitarian assistance. The Indian Prime Minister Narendra Modi revoked Kashmir’s special status and its constitutional article 370, which provides a special status to Kashmir with a certain amount of autonomy. In simple words India seized the Kashmir diplomatically and politically with the power of soft politics.In his address to the 74th UNGA, Malaysian PM Mohamad Mahathir said: “Now, despite the UN resolution on Jammu and Kashmir, the country has been invaded and occupied.”India did this by deploying around 700,000 army personals in Kashmir over the population of 8 million. After 5 months of curfew since August, India recently changed the status of the valley of Jammu and Kashmir into two different federally administrated unions. The decision was made when most of the political leaders of the valley are under house-arrests and valley is under the siege.
The international community in general and UN in specific has to take certain measure as India is culprit of three misconducts in the valley. First, it decided the remove the special status of Kashmir (unilaterally) that is recognized as disputed territory internationally and this act is also against the UN resolution for Kashmir. Second, this act of India is against the will of the people of Kashmir, as it has been done forcefully and decision is being imposed on the people of Kashmir. The third and most important offense is India carrying out crimes against humanity in the valley. Starting from political repression and suppression of freedom of expression to the killings, sexual abuse and force disappearance, all these actions can be categorized as crimes against humanity. These crimes against humanity have been highlighted by many news agencies such as Al-Jazeera, BBC world, Pakistan Today, Etc.In the words of India’s secular humanist Arundhati Roy: ‘India’s moral position on Kashmir has never, ever been a moral position. It is a kind of moral corrosion that has corroded all of us. And now, now the world is looking at it’. The Indian notion of maintaining Kashmir’s territorial status quo –is eliminating the chances of freedom, protection of basic human rights and Kashmiri’s right to self-determination guaranteed under the UN’s Charter.
According to ex-Pakistani permanent ambassador to UN, Dr Maleha Lodhi,‘’How can this body command the respect it deserves if its own laws are broken?” UN member nations need some self-examination as to why the Security Council is “reluctant” to refer legal disputes to the International Court of Justice. And if we have no credible answers to these questions except the imperatives of realpolitik, “the world at large will view the United Nations as little more than a political tool in the hand of the powerful few”, if it remains silent on the issue of Jammu and Kashmir despite the promises made to the people of Kashmir through numerous resolutions of this body. This impression would hardly inspire “trust,” Pakistan Representative to the UN Dr Maleha Lodhi rightly argued. Hence, the UN doctrine R2P demands international attention and rapid response in Kashmir.
However, the doctrine of R2P is complex in its own principles, application and it is wrapped in power politics. R2P comes under the umbrella of soft law. The identification of R2P in international law may minimize its role and value. Soft law non-binding and represent the wish of the international community with a view to further development in the specific law. The UN still faces challenges regarding the uniformity of its laws in terms of dispute settlement, exclusively in the Kashmir case. It is the issue of ‘’Sovereignty v/s Hypocrisy’’. Sovereignty v/s Hypocrisy under the notion of R2P can be associated with two types of sovereignty, the territorial sovereignty of weak states and the decision making sovereignty of powerful state. India will never allow international community to intervene in its matter especially when it claims Kashmir as a bilateral issue between its bordering Pakistan. It is quite noticeable that the world powers feel awkward and unequipped to intervene in Kashmir conflict because the country involved is too powerful and does not listen to morals and ethics when every state has interest attach with it. R2P is embedded in the tools of national interests, it can apply to Libya or Syria but not In Kashmir due to the great power politics and the competition of hegemony.
India v/s Kashmir is a case of a large country bullying a small nation into submission in violation of not only their right to sovereignty but international agreements and two dozen UN resolutions giving them the right to determine their own political fate. The purpose of so many troops stationed in this small country is no other than obvious oppression. The Indian stance of being a secular state has been shattered due to forceful insertion of Jammu and Kashmir as Gandhi also said “Kashmir is real test of secularism in India”. Their presence makes Kashmir the largest army concentration anywhere in the world, which is itself a major threat to international peace and security.
On the other side of this coin, we have Pakistan, which also controls one third of Kashmir. The two countries have traded spikes and bullets over possession of this land for over six decades. Nawaz Sharif articulated his country’s policy on September 26, 2014 during his speech at the United Nations: “The core issue of Jammu and Kashmir has to be resolved. This is the responsibility of the international community. We cannot draw a veil on the issue of Kashmir until it is addressed in accordance with the wishes of the people of Jammu and Kashmir”. The words of prime Minister were centered towards the responsibility of International society of states which highlighted the urgency of humanitarian assistance. During 74th session of UNGA, PM Imran Khan delivered historic speech to world leaders and showed the real face of India’s atrocities and violence in Indian occupied Kashmir. Pakistan’s stance is morally and primarily directed towards the freedom of Kashmir based on peace rather than war. Military confrontation by Pakistan is always the reaction of Indian drama in Kashmir. Today Both states hold Lethal nuclear weapons and International community believe that Kashmir will be first place on earth to see nuclear war. In future if situation escalate it will no longer be the issue of humanitarian assistance or intervention but global nuclear security issue. India wants to acquire whole territory of Kashmir, but this military acquisition will not be ignored by consciousness of world political society of states.
Moreover, Ban-Ki-Moon, the secretary general of the United Nations, brings the situation in Kashmir to the attention of the Security Council under the provision of Article 99 of the United Nations Charter.Article 99 authorizes the secretary general to ‘bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’. Kashmir is no longer the bilateral issue, mass violence and insecurity among the Kashmiris is giving birth to the new version of Hobbesian Anarchy in the occupied territory of Kashmir which will ultimately effect global peace, stability and security.
Although, R2P is not binding and carries a normative status, the significance of norms and precedence and customary law cannot be ignored in the continuously changing international system, where human rights regime has become central to state affairs. India is the sole perpetrator of mass killing in Kashmir and the world know this, Sooner or latter this political tussle will bow down towards humanity and abusive conditions of Kashmir will come to an end or simply it will be another failure of United Nations Security Council.
Protection from violence and mass suffering is the core principle of United Nations. It is acting as custodians and guardians of states as well as individuals on every corner of this world. But Why it is silent of Kashmir issue? How long will it take for Kashmiris to attain independence? Is there even a final solution for Kashmir? Was Kashmir, like Palestine, a blunder of British colonizers? Has India backed down on its promises on Kashmir? Is Kashmir the integral part of India? Will there ever be a fair democratic election? Will Kashmiris ever practice the right to self-determination?
In short, will Kashmir ever exist?
 John Baylis, The Globalization of world Politics. 2009, P.387
 Complex emergencies , David Keen,2013.p54
 Hoffman Brown, The rule of Sovereignty.2011, p.23
 Dan Cruise, The Indian politics in disputed Kashnmir.2019, p.3
 UNGA 2019 Session.
 Self Determination in Kashmir,2009.p.113
 Fareed Zakaria, Hard talks, CNN.2015
 Patricia Owens,The Hard Politics of Military.2012.p231
 Kashmir and nuclear rivalry by Eric Bolwdin. P.22,
 Anarchy and crisis In Kashmir Amit Roi.2008,p.267
The Taliban-Afghanistan Dilemmas
The Blitzkrieg winning back of Afghanistan by the Taliban with the concomitant US pullout established Taliban 2.0 in Kabul. But this has created a number of dilemmas for the stakeholding states. The latter include Afghanistan’s immediate neighbours, viz. Iran in the west, Turkmenistan, Uzbekistan and Tajikistan in the north, China in the northeast and Pakistan to the east. Russia is also affected since it considers former Central Asian Soviet republics like Tajikistan and Uzbekistan as its backyard and since Moscow has its own share of extremist-secessionist problems in Chechnya. It is also worried about Islamic fundamentalism spreading to its Muslim population concentrated around its major cities and the Caucasus.
The dilemmas are as follows:
I. If the US-led withholding of economic aid and international recognition continues in essence, then conditions– as it is they are bad enough in Afghanistan—will further deteriorate. This will lead to greater hunger, unemployment and all-round economic deprivation of the masses. Such dystopia will generate more refugees in droves as well as terrorists who will spill out to seek greener pastures beyond the country’s borders.
Such condition will in turn mean a life-threatening headache for not only Afghanistan’s immediate neighbours like Iran, Turkmenistan, Uzbekistan, Tajikistan, China and Pakistan but also for more distant lands. The liberal democracies of Europe. Germany, France, Italy, the UK and others have already had their share of refugees—and terrorists—when waves from an unsettled Syria hit them way back in 2015. Chancellor Angela Merkel even decided to act magnanimously and opened Germany’s doors to a million fleeing the civil war in Syria. Such acceptance of refugees from Asia and Africa in Europe, however, boosted right-wing parties like the Alternative for Germany (AfD) and other movements throughout that continent. As a result the easy cross-border movements within the European Union came to be partly restricted in order to keep unwanted refugees out. Calls went out for hardening the external borders of the EU against more refugee invasion. The EU also made arrangements with Turkey to absorb and manage the refugee onrush in exchange for fat amounts of the Euro.
The prospects of a second such wave of refugees desperate not only to escape the clutches of the medieval Taliban but to find a promising future and remarkably better living conditions in the advanced lands of Europe are giving nightmares to the governments of the latter countries.
There seems to be a growing consensus among many in the international community that not only purely humanitarian but also larger economic aid to the Taliban-run Afghanistan should be extended—and without delay, if only to keep a lid on refugees—and terrorists—spilling across the borders. Islamabad apparently scored a remarkable ‘victory’ over New Delhi when its protégé Taliban replaced the pro-Indian Ghani government. Nevertheless, it is worried about the spillover into its territory across the Durand Line to its west. Pakistan, hence, leads this school of thought most vociferously[i]. It fenced its border with Afghanistan to a significant extent in anticipation of more refugees pouring in. It has been joined in the chorus by Russia, the EU, China, and others. China, for instance, has emphasized the need for releasing funds to Afghanistan at its talks with the G-20 on 23 September.[ii] However, no such stipulation is seen in the Shanghai Cooperation Organization (SCO) declaration released at the Tajik capital Dushanbe on 17 September, though the document mentions explicitly the need for an “inclusive” government that includes the left-out minorities. India’s presence at the meet may have prevented the inclusion of a funds-release clause.
II. But even if the US unfreezes the $9.25 billion Afghan assets under its control, and allows the IMF and the World Bank to make available other funds and assets to the funds-starved Taliban’s Kabul, a major problem will still linger. This is the question of ‘inclusive’ government, which the Taliban had promised among other things in its February 2020 agreement with the USA at Doha. The composition of the current Taliban government shows the mighty influence of the hardliners within the Taliban, elements like the Haqqani network and the secretive hardcore Kandahar Shura—as opposed to the seemingly more moderate Pakistan-based Quetta Shura. The Prime Minister of Taliban 2.0, Mullah Mohammad Hassan Akhund, is on a UN-designated blacklist; its Interior Minister, Sirajuddin Haqqani, is on the top of the FBI’s most-wanted list with a multi-million dollars reward hanging over his head.
Although the Taliban did not officially take a formal position, a member of the new government in Kabul has also defied calls from Pakistani Prime Minister Imran Khan and from other quarters for forming a more ‘inclusive’ government. That would mean more Tajiks, Uzbeks, Hazaras and women holding important positions in the government, a phenomenon markedly absent in the current governmental setup dominated by male Pashtuns. The Taliban member shot back that the current government was as much ‘inclusive’ as it was possible to make and that the Taliban did not care for others to dictate to it what kind of government would suit Afghanistan.
If Taliban 2.0 remains essentially as it is today, with the minorities ignored, this would still create unrest and insurgency in the country. A civil war in the not too distant a future cannot be ruled out. This is the reason that even Pakistan, which certainly would not like to see its protégé Taliban’s power diluted, keeps harping on the ‘inclusive’ clause along with Russia and others.
A civil war will not be confined within the boundaries of Afghanistan but will attract intervention by neighbouring states and other more distant stakeholders like the USA. Tajikistan will continue to back the Tajiks living astride its southern border with Afghanistan. Uzbekistan will do the same with the Afghan Uzbeks. Shia Iran will stand up for the Shia Hazaras while the Western world will, in general, wish to see ‘human rights’ and especially ‘women’s rights’ given full leeway. The Chinese seemed to have cut a deal. They would extend economic aid to Kabul in exchange for assurances that no terrorism or separatism would go out of Afghan territory.
But Taliban 2.0, despite its smooth assurances at Doha and elsewhere, shows no signs of stretching significantly from its understanding of the Sharia law, which it said it wished to uphold as a framework within which all these rights would be respected. There are reports that the US is in talks with Russia seeking a base on Russian territory or again in Tajikistan for its future ‘over-the-horizon’ operations in Afghanistan, starting with monitoring purposes.
In sum, while option I, outlined above, promises an immediate disaster for South Asia and even beyond, option II holds out only marginally better prospects. It still has the Damocles’ sword of the probability of a civil war hanging over the head. The ideal solution would be to widen the Taliban 2.0 government to include the deprived minorities with an eye on keeping an effective lid on social instability. But the prospects for such a solution seem far-fetched, given the apparent domination of the hardliners in Taliban 2.0 and the long-standing animosity between the northern non-Pashtun Afghans and the Pashtun Taliban.. Also, the attacks by other extremist groups like the Islamic State-Khorasan (IS-K), al Qaeda, and the Pakistani Taliban (TTP) and so on will unlikely cease, even if option II is fully implemented. These extra-Taliban extremist groups will only encourage the radical elements within the Taliban to opt for more aggressive actions, both within and outside Afghanistan’s borders.
The future in and around Afghanistan looks grim indeed.
[i] Incidentally, the Pashtuns living on both sides of the British-drawn Durand Line of 1893 do not recognise it, and that includes the Taliban)
[ii] Reid Standish report, gandhara.org of rfe/rl.org, 27 September 2021, accessed 14 October 2021, 09.07 Indian Standard Time (IST)… All times henceforth are in IST.
How India utilised the AFSPA to suppress freedom movements?
The freedom movements in the volatile north-eastern state of India predate the Partition. The Englishman realised importance of the North East as it could provide a corridor to the Japanese in World War II. India applied the Armed forces Special Powers Act first to the north eastern states of Assam and Manipur, a cauldron of unrest. The act was amended in 1972 to extend to all the seven states in the north eastern region of India. The states affected by the draconian law included Assam. Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland, also known as the seven sisters. The forces brutally applied the AFSPA to the states. It ignored outcry by people against has mounting incidents of arbitrary detention, torture, rape and looting. Indian government continued to extend the initial period for imposition of the law ad infinitum sometimes with ex post facto notifications. Its pleas were without AFSPA all the north eastern states will secede from India.
A large part of the original region that constitutes the seven states of the republic of India had strong political, economic and socio-cultural links with South East Asia. The great Hindu and Muslim empires that reigned over the Indian subcontinent never extended east of the Brahmaputra River. The British colonists were the first to repress freedom movements. . In the early nineteenth century they moved in to check Burmese expansion into today’s Manipur and Assam. The British, with the help of the then Manipur king, Gambhir Singh, crushed the Burmese imperialist dream and the treaty of Yandabo was signed in 1828. Under this treaty Assam became a part of British India and the British continued to influence the political affairs of the region.
The resentment against the Englishman led to the bloody Anglo-Manipuri Conflict of 1891. The British were subdued by the fighting spirit of the local people. So, they preferred not to administer directly but only through the King.
During the Second World War, the Japanese tried to enter the Indian sub continent through this narrow corridor. But back home when Hiroshima and Nagasaki were A-bombed they retreated from the Imphal and Kohima fronts.
A buffer zone
Before leaving India, the British pondered over many proposals for post-Partition of India. The local people were however never consulted. Finally the British divided the region such that some parts went to Pakistan but the lion’s share to India.
Over the years local democratic movements erupted as the people aspired to a new social and political order. One important example is a strong popular democratic movement against feudalism and colonialism in Manipur, led by Hijam Irabot Singh.
The treacherous annexation of Manipur
The post-Partition India reconstituted the kingdom of Manipur as a constitutional monarchy by passing the Manipur Constitution Act 1947. Elections were held under the new constitution. A legislative assembly was formed. In 1949 V.P Menon, a seminar representative of Government of India, invited the king to a meeting on the pretext of discussing the deteriorating law and order situation in the state in Shillong. Upon his arrival, the king was forced to sign under duress. The agreement was never ratified in the Manipur legislative Assembly. Rather, the Assembly was dissolved and Manipur was kept under the charge of a Chief Commissioner. There were strong protests but using violent and brutal repression the Government of India suppressed the democratic movement in Manipur and has continued applying the same methods ever since.
Colonisation of Nagaland
The inhabitants of the Naga Hills, sprawling across Indo-Burmese border, formed Naga National Council (NNC) aspiring for a common homeland and self governance. During 1929, the NNC petitioned the Simon Commission for independence. The Commission was examining the feasibility of future of self governance of India.
The Naga leaders forcefully articulated the demand of self governance once the British pulled out of India. Gandhi publicly announced that Nagas had every right to be independent. Under the Hydari Agreement signed between NNC and British administration, Nagaland was granted protected status for ten years, after which the Nagas would decide whether they should stay in the Indian union or not. However, shortly after the British withdrew, the new Indian rulers colonized Nagaland and claimed it to be Indian Territory.
The Naga National Council proclaimed Nagaland’s independence in retaliation, and the Indian authorities arrested the Naga leaders. The AFSPA was used to violently suppress the democratic aspirations of the people of North East. In 1975, some Naga leaders held talks with the Government of India which resulted in the Shillong Agreement. Democratic forces of Nagaland smelt a rat in this deceptive agreement and rallied the people for national liberation of Nagas. One of the organizations which articulated the democratic demand of Naga people is National Socialist Council of Nagaland (NSCN).
Mizo National front was a phenomenal product of a famine. In the Lushai Hills of Assam in the early sixties a famine broke out. A relief team requested for help from the Government of India. But there was little help. The relief team organised themselves into the Mizo National front (MNF) to liberate themselves from the neo-colonial occupation of India. Against the democratic aspirations of the people Indian army moved in. The rebellion was so strong, that the Indian air force had to bomb the villagers. The armed forces compelled people to leave their homes. This devastated the structure of Mizo society. In 1986, the Mizo Accord was signed between MNF and Government of India. This accord was as deceptive as the Shillong Accord made with the Nagas earlier. To promote dominance by high caste Hindus, India clubbed poor non-feudal ethnic groups with Adivasis, cheating them in the name of scheduled tribes and in the process forcing them to be marginalized and stigmatized by the upper caste ruling elites of India.
Gradually it became the neocolonial hinterland for exploitation by the Indian state, where local industries were made worthless and now the people are entirely dependent on goods and businesses owned predominantly by those from the Indo-Gangetic plains. The new Indian unscrupulous businesses pull the economic strings of this region.
In Tripura the indigenous population has been reduced to a mere 25% of the total population of the state because of large scale immigration from the North east and Bangladesh.
A series of repressive laws were passed by the Government of India in order to deal with this rising National liberation aspiration of the people of North east. In 1953 the Assam maintenance of Public Order (Autonomous District) Regulation Act was passed. It was applicable to the then Naga Hills and Tuensang districts. It empowered the Governor to impose collective fines, prohibit public meetings, and detain anybody without a warrant. Indian atrocities from 1980 onwards include: the massacres of civilians at Heirangoi thong (Manipur) in 1984, at RIMS Manipur in 1995, at Malom (Manipur) in 2000; the horror of army torture and violence on civilians during operation Blue bird (Manipur) in 1987 and operation Rhino (Assam) in 1991. Indiscriminate firing on civilians by armed forces personnel when their own vehicle burst in the town of Kohina (Nagaland) in March 1995, the shelling and destruction of the town of Makokchung (Nagaland) in 1994, the enforced disappearances of Loken and Lokendro (Manipur) in 1996, and the rape of Miss N Sanjita (who subsequently committed suicide) (Manipur) in 2003.
After the Partition, India emerged as the new-colonial power. The North East still yeans for freedom.
The myth of “shared values”
The Indian prime minister’s visit to the USA underlines a paradigm shift in the United States’ policy: a shift from Europe to Asia. The shift is dictated by India’s constant pressure on the US to do its part of the quid pro quo for India’s joining the Quad, a conglomerate to corner China. Like the USA, India also is embarrassed at the fall of Kabul. India wants that the Taliban would shut their eyes to the reign of terror in the occupied Kashmir. In its disappointment, the USA, like a rueful baby, is doing everything on India’s bidding to further isolate Pakistan.
Still the portents are that not everything is hunky-dory with Indo-US relations. The US wants India to cancel its deal to purchase the S-400 air defence system from Russia. The US has given India a muffled message that unless the deal is cancelled India may face sanctions. India is hopeful of getting a waiver.After all, India became a member of the nuclear club without signing the Non-Proliferation Treaty. India has been a recipient of the US favours in the past also. In July 2003 India turned down the US request to provide 17,000 troops to shore up America’s war in Iraq. Then, India under prime minister Manmohan Singh also refused to support any US attempts to isolate or topple the Iran government. Manmohan wished Russian diplomacy on Iran’s nuclear programme would succeed.The US companies have invested $ 200 billion in China. Yet, she is perceived as the number one competitor to the US. The reason is that China may surpass the US in terms of Gross Domestic Product growth in the near future.
To Modi’s chagrin, the US president Joe Biden and vice-president Kamala Harris underscored the importance of democratic values in their meetings. Biden quoted Mahatma Gandhi’s message of tolerance to allude to prevailing intolerance of BJP’s government, an avatar of the Rashtriya Swayamsevak Sangh. Harris stressed the need for democratic countries to “defend democratic principles and institutions. Her remarks amounted to a diplomatic nudge to the Indian leadership amid concerns about “democratic backsliding” in India (Freedom house and the Economist downgraded India).
Before Biden and Modi joined their delegations for bilateral talks, the US President had made opening remarks: “Our partnership is more than just what we do. It’s about who we are…. It’s rooted in our shared responsibility to uphold democratic values, our joint commitment to diversity, and it’s about family ties, including four million Indian Americans who make the United States stronger every single day.”
Harris said at a joint media appearance with Modi before their first in-person meeting at the White House: “As democracies around the world are under threat, it is imperative that we defend democratic principles and institutions within our respective countries and around the world, and that we maintain what we must do to strengthen democracies at home.
She had earlier openly differed on Twitter with Jaishanker when he refused to attend a meeting with the House foreign affairs committee because the US legislators had rejected his request to exclude Indian-American Congresswoman Pramila Jayapal, who had been critical of the Modi government’s Kashmir policy.
“It’s wrong for any foreign government to tell Congress what members are allowed in meetings on Capitol Hill,” Harris had tweeted in December 2019.
As for “tolerance”, the US invasions of Iraq, Syria, Libya and Afghanistan leave no doubt about how much the US believes in what it professes.
India’s democratic “tolerance”
Since British raj days, India’s north east had been a simmering cauldron of freedom movements. British colonists held sway over the North East at gun point. In footsteps of the British colonists India suppressed freedom movements in the volatile North East through a slew of draconian laws. The most atrocious law applied to the region was the Armed Forces Special Powers Act 1958. It was later extended to the disputed Jammu and Kashmir state also.
The AFSPA violates the fundamental constitutional rights of right to life, liberty, freedom of speech and expression, peaceful assembly, free movement, practice of any profession, and protection against arbitrary arrest and freedom of religion, as enshrined in Articles 21, 14, 19, 22 and 25 of the Indian Constitution. AFSPA has been used in these regions to inflict thousands of deaths, custodial deaths and rape, torture, encirclement of the civilian population, combing operations, looting of private citizen’s property etc. Thousands of youth have simply disappeared.
Onus of proof on the accused
The AFSPA holds an accused guilty until proven innocent. This law violates legal maxim Ei incumbit probatio qui dicit, non qui negat (“innocent until proven guilty”).
A governor of an Indian state could through a notification declare a state to be “disturbed” without consulting the state legislature. The law gives armed forces immunity from any accountability. The law is not “in aid of civil authority” but “in place of civil authority”.
Powers of officers
Section 4 gives the following special powers to any commissioned officer, warrant officer or non commissioned officer of the armed forces in a disturbed area: (a) If in his opinion, it is necessary for maintenance for public order to fire even to the extent of causing death or otherwise use force against a person who is acting in contravention of an order prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapon. (b) If in his opinion, it is necessary to destroy any arms dump or fortified position, any shelter from which armed attacks are made or are likely to be made, and any structure used as training camp for armed volunteers or as a hideout for armed volunteers or as a hideout for armed gangs or absconders. (c) Arrest without warrant any person who has committed a cognizable offence and to use whatever force is necessary to affect the arrest. (d) To enter and search without warrant any premises to make an arrest or to recover any person wrongfully confined or to recover any arms, ammunition, explosive substance or suspected stolen property.
Section 2 (c) of the Act also clearly shows the close affinity between AFSPA and those laws governing the military such as the Army Act (1950). It reads, ‘All other words and expressions used herein but not defined in the Air Force Act 1950, or the Army Act 1950, shall have the meaning respectively assigned to them in those Acts’.
A war against own people
The act applies toacts that are ‘likely to be made’ or ‘about to be committed’. This presumption is characteristic of war zones. In a war situation, any officer whether he is a commissioned, junior commissioned or non-commissioned officer-leading his men in the field is the judge as well as part of the body that executes his judgments.
The AFSPA grants armed forces personnel the power to shoot to arrest, search, seize and even shoot to kill. Thus it violates the Right to Life enshrined in Article 21 of the Constitution of India which guarantees the right to life to all people. The AFSPA also violates the International Covenant on Civil and Political Rights (ICCPR). India signed the ICCPR in 1978, taking on the responsibility of securing the rights guaranteed by the Covenant to all its citizens. In particular, the Act is in contravention of Article 6 of the ICCPR guaranteeing the right to life.
India is often called “the world’s largest democracy” by the West. Western notion of democracy (Westminster model) is that it is government of the people (masses, not classes), for the people and by the people. In truth, Indian democracy is in name only, not in substance. The “shared values” are a ruse.
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