Prime Minister Narendra Modi’s appeal for peace in curfew-bound Kashmir must be backed with maximum restraint by security forces in central government’s earnestness for bringing back normalcy in the Valley. Authorities on ground zero need to ensure that use of force must go conjointly with a healing touch as the turmoil has claimed 30 lives in the past few days. The upsurge in violence comes in the aftermath of the death of Hizbul Mujahideen commander Burhan Wani, when protesters clashed with security forces in several parts of Kashmir.

NDA has taken the right approach by reaching out to opposition leaders. Home minister Rajnath Singh spoke to Congress president Sonia Gandhi and former J&K chief minister Omar Abdullah over the phone to apprise them of the situation. The state government too must be complimented for shedding political baggage and asking Hurriyat leaders to join ranks in finding a middle path. Chief minister Mehbooba Mufti has been late in asking her ministers and legislators to move out of Srinagar and visit the families of those who lost their lives or were injured. She must provide a healing touch and Omar Abdullah must cooperate instead of exploiting the occasion to score political brownie points off PDP.

Governments must evolve a differentiated strategy for young stone pelters and hardened terrorists in the Valley, ensuring that proportionate rather than excessive force is used. Feelings of persecution are high in a state where over two-thirds of the population is below 31 years of age and nearly half are unemployed. In addition, militants have scored an important psychological victory by closing down cinema halls. The lack of public entertainment avenues has been made up for by social media where extremist narratives flourish and graphic Islamic State propaganda is available.

This explains why the protests seem to be a largely spontaneous, leaderless uprising. It does present a problem of who to talk to in order to assuage emotions in the Valley. But the Modi government must nevertheless reach out to whoever is willing to talk to it. If that means talking to Hurriyat leaders, so be it. Whatever political differences might be, it devolves on everybody to call for calm all round and settle issues through dialogue. Exploiting the flammable situation in the Valley to settle scores with political enemies will only result in further violence.

Date: 13-07-16

Try democracy in Kashmir;

policy should not conflate fundamentalism with the struggle for azadi

Kashmir is convulsed with rage. Outrage over police handling of protests, which has resulted in more than two dozen deaths and injured and maimed many more, sustains the rage.

Pakistan has piously condemned human rights violations. ‘Nationalist’ trolls on Indian social media have called the slain militant Burhan Wani and those protesting against his killing pigs. Some have called for largescale culling of pigs. The Centre has rushed yet more security forces and appealed for calm.

What Kashmir does not get is redemptive politics.

Is any politics possible, when Pakistan-based terror outfits train Kashmiri youth to attack Indian securitymen? Is there any substitute for bullets, when it comes to answering bullets? The problem with this argument for spiralling ever deeper down into a vortex of violence is that it loses sight of the goal in Kashmir.

Not Just Law & Order

For democratic India, the goal is winning back the trust of the alienated people of Kashmir, whose beautiful land has been converted into an occupied territory where those without links to the powers that be are disempowered, unfree and insecure.

Being won over is not the goal for Kashmiris. They seethe at their loss of freedom and excesses by security forces, which include rape and the murder of innocents that are passed off as killings of militants that win their killers glory and promotions (remember the Ketchup Colonel?), loot of valuable timber from the state’s forests and takeover of coveted urban spaces.

Their goal is azadi. What that means is different for different people. For some, it is merging with Pakistan to obtain a world of strict Sharia, well rid of fads such as rights and civil liberties. For others, it is realisation of Kashmiriyat, free from external dominion. For yet others, it is a reordering of power relations that leaves New Delhi a source of sustenance but removes it as an oppressive presence. For all of them, it means liberation from the suffocating presence of security forces in their daily lives.

Sustaining the separatist militancy is the goal for Pakistan, for which a Kashmir that is at peace with itself as part of a prospering India would be tantamount to living proof of the fallacy of Pakistan’s founding vision, the notion that the Muslims of South Asia needed a land of their own, separate from Hindu-majority India, for their safety and dignity.

Sustaining the militancy is the goal, unfortunately, for much of the establishment in Kashmir, that combination of security forces, political leaders, administration and separatists, all of whom derive authority, respect and wealth from the money New Delhi pours into its effort to quell the militancy.

For those who see militantly reorganised and unified Hinduism as the basis of Indian nationalism, rather than inclusive democracy as envisaged in the Constitution, the goal in Kashmir is to crush all aspirations for local autonomy with sledgehammer blows of unsparing Hindu dominance over this Muslim-majority state. That explains the Sangh Parivar’s hostility to Article 370.

Where India’s overall interests and the interests of the people of Kashmir converge is in democracy. Unless New Delhi’s Kashmir policy is rooted firmly in democracy, it is bound to fail, and dangerously.

Engage Politically

What would form some tangible elements of a Kashmir policy grounded in democracy? These would range from humane, non-lethal methods of crowd control to political engagement of Kashmiri aspirations for azadi while de-legitmising the Islamic fundamentalists who are increasingly succeeding in hijacking the resistance to security forces.

Fundamentalist, radical Islam, as represented by the Jamaat-e-Islami or the Islamic State, are enemies of democracy. They call for uncompromising opposition, not accommodation. It would be wrong to imagine that ordinary Kashmiris, with a long tradition of syncretic Islam and some of India’s most evolved social development indicators, are thirsting to get under the yoke of medieval custom canonised as law. Ordinary Kashmiris rally behind some Islamic fundamentalists because these latter also champion their nationalist political aspirations.

It would be a serious mistake for policy to aid this conflation of religious radicalism with political aspirations. Democracy separates radical Islam from legitimate politics. New Delhi’s policy must seek to materialise this divide, not erase it through wholesale repression.

Political engagement cannot be real unless it leads to withdrawal of security forces to the border, leaving the police and local consensus to maintain law and order. Scrapping the wholly undemocratic Armed Forces Special Powers Act would be part of democratic engagement.

Democracy does not admit geographic filtering. New Delhi cannot practise majoritarian politics in the rest of India—such as over beef or Hindu exodus from poll-bound Uttar Pradesh regions—while it seeks democracy in Kashmir.

The quest for democracy unifies the politics of Kashmir with that of India as a whole.

Date: 13-07-16

Don’t let religious radicals hijack protest;

political engagement the key in Kashmir

Kashmir is on the boil, following the protests after the killing of militant Burhan Wani and violent police action to disperse protesters who also attacked security forces. The Centre has rushed more security forces to Kashmir. But the anger in Kashmir is not just a law and order problem. Treating it as one only deepens the damage. It is important to engage Kashmiri disaffection politically. And that is crucial, because of the ongoing tendency for protest in the state against the security forces to rally behind the banner of Islamic radicalism. Given the proven keenness of Pakistan’s security establishment to foster terror based on Islamic radicalism and the new tendency for self-radicalisation of aggrieved young people into fighters for the Islamic State, policy cannot afford to help political protest merge with and feed religious fundamentalism.

Unsurprisingly, the Islamic State’s or the Jamaat-e-Islami brand of radical Islam stands at odds with democracy. Medieval societal norms and forms of punishment are integral to the ideology of Islamic fundamentalists and these are abhorrent to modern democracy. If democracy becomes the cornerstone of dealing with widespread alienation in Kashmir, it should be possible to both engage the legitimate political aspirations that drive protesters onto the streets while also delegitimising the religious fundamentalists who also champion the Kashmiris’ political aspirations. But democratic politics cannot be selectively adopted in one part of India while it is sacrificed at the altar of political mobilisation in other parts of the country, particularly in poll-bound states.

As part of consistent democratic political engagement, New Delhi should redeploy security forces to the border areas, and leave policing to the local police force. It should withdraw the hated Armed Forces Special Powers Act as a token of its earnestness. Simultaneously, the government must devise more humane ways of crowd control. Stink bombs and tear gas should replace bullets and pellets.

Date: 13-07-16

Supreme Court has shone much-needed light on the dark underbelly of the operation of AFSPA

The recent order of the Supreme Court on the applicability of the Armed Forces’ Special Powers Act (AFSPA) and the immunity it confers to the actions of military personnel is a landmark in the rights discourse in the country

Kunal AmbastaThe recent order of the Supreme Court on the applicability of the Armed Forces’ Special Powers Act (AFSPA) and the immunity it confers to the actions of military personnel is a landmark in the rights discourse in the country, where one may say that the court adopts an approach consistent with constitutional guarantees of life and liberty and dismantles the incessant and unreflective argument based on extreme notions of security and order. The order, which is a precursor to a final finding on the deaths of 1,528 persons in the state of Manipur, gives hope that the court has become aware, and has taken seriously, the gross human rights violations that have occurred under the mantle of the AFSPA. Indeed, several parts of the order give rise to such an understanding.

First, it is extremely significant that the court does not agree with the argument that a law and order situation, or sustained disturbance in any area, gives rise to a situation of “war”. It categorically states that any military intervention under the proclamation that a particular area is “disturbed” must be to supplement and help restore civil authority, and not to supplant the same completely by military administration. Within the territory of the country, a constitutional government and its authority must always be the norm, and any deviation from the same cannot be unlimited, either in scope or time. It is especially noticed by the court that Manipur, with the exception of the Imphal Municipal Area, has been constantly notified as a disturbed area since 1958. This fact signifies best that military deployment under the guise of the Disturbed Areas Act and immunity under the AFSPA often become so intertwined with notions of order that they become permanent features of governance themselves, and not the means to an end.

Second, for perhaps the first time, the Supreme Court looks into the inquiries conducted, or lack thereof, in specific cases of deaths caused by the armed forces or the state police under the AFSPA. Of the six cases that are looked into, it is clear that none of those were killed in the purported manner indicated by the security forces. In all cases, it was found that the encounters were not genuine and the use of force had been excessive. Indeed, this is the main crux of the argument against the AFSPA, that it encourages a disregard for legal processes such as arrest and detention in favour of the use of brute force and extra judicial executions. Here, the court finds that the preliminary evidence points strongly in the direction that activists have been arguing for decades, namely that the AFSPA is often used as a tool for unneeded and excessive force and violence. Added to the complication was the fact that the inquiries that were conducted into the deaths by the army itself, were found to be unreliable. The court states that there is no evidence to even believe that the cases reached the human rights division of the army or the ministry of defence.

Third, the Supreme Court in the present case has reiterated that there is a difference in the manner in which a person who violates an order in force in a disturbed area should be treated as compared to an enemy combatant belonging to a hostile country. The fact that an Indian citizen, in a disturbed area, is violating a prohibitory order, does not give rise to an automatic right for the security forces to treat him with force or to assume that he constitutes an enemy in that situation. The court looks at the methods of practice prescribed by the army itself and states that the use of force and especially excessive and retaliatory force on citizens is unjustified.

Finally, the court also holds that in such cases, where the use of force is excessive or the encounter itself not genuine, there is nothing which precludes a criminal investigation and inquiry under ordinary criminal law. Both the Army Act, and the Code of Criminal Procedure (CrPC), allow for an inquiry to be conducted before a judicial magistrate for crimes committed by the personnel of the force while on duty. The general nature of the CrPC is that it applies to all crimes under the Indian Penal Code unless otherwise excluded. In the present case, it is Section 6 of the AFSPA which precludes any prosecution, suit or legal proceeding against personnel of the security forces. The court holds that if the deaths of civilians are unjustified, there is no question of blanket immunity as under Section 6 and that there cannot be impunity where loss of human life is concerned. The scheme, then, seems to be that in case of killings carried out in disturbed areas by the security forces, an inquiry must be conducted into all cases to determine whether the killing was justified or not. If it is held not to be, then the personnel involved do not enjoy immunity from criminal prosecution.

The order, which will be one in a series of orders to come, as more cases being investigated reach their conclusions, has shone a much needed light on the dark underbelly of the operation of the AFSPA in several parts of the country and the effects it has had on governance and civil liberties. It is a welcome step in extending the rule of law and fundamental rights to an area where there has been much need for it for decades.

(This article first appeared in the print edition under the headline ‘A law unto itself’.)

Date: 13-07-16

Raja-Mandala: Drawing a line in the sea

China’s rejection of international arbitration raises questions. Delhi’s reaction must focus on need to de-escalate conflict in South China Sea.

Written by C. Raja Mohan

Tuesday’s ruling on the South China Sea disputes by the Permanent Court of Arbitration (PCA) at The Hague is bound to mark a definitive moment in the evolution of international maritime law and Asia’s geopolitical order. It will also highlight India’s own stakes in promoting peace and stability in the contested waters of the South China Sea.

More than three years ago, the Philippines, which was locked in an escalating territorial dispute with China over the Scarborough Shoal in the South China Sea, decided to go court. China refused to participate in the proceedings at The Hague and called them a “farce”. Beijing has declared it will not accept the ruling from the PCA.

In anticipation of the award this week, China has launched naval exercises in the South China Sea. It has embarked on a massive political campaign to challenge the legitimacy of the arbitration and defend its expansive claims over the South China Sea.

China’s so-called nine-dashed line in the South China Sea constitutes a claim for nearly 90 per cent of its waters. Its claims clash with those of its neighbours including Vietnam, the Philippines and Malaysia.

Amidst the widespread expectation that the PCA award is likely to go largely against China on a range of legal issues involved, Beijing has warned other powers against meddling in South China Sea affairs. It has pressed many countries, big and small, to express public support for its position on South China Sea.

Maritime disputes are not new in East Asia; they are indeed a legacy from the ambiguous territorial settlements that followed the Second World War. The growing regional economic integration and the normalisation of China’s relations with most Asian countries after the Sino-US rapprochement in the 1970s seemed to create a framework for pragmatic management of disputes. A number of reasons, however, have turned the dormant disputes into dangerous flash points.

For one, the resources of these waters — from fisheries to minerals and hydrocarbons — have acquired greater economic significance. For another, the growing prosperity in Asia has brought forth resurgent nationalism that is willing to aggressively pursue territorial claims rather than find compromises. The shifting balance of military power between China and the US, and the expanding naval capabilities across Asia have added to this turbulence.

In the era after the Second World War, most Asian conflicts expressed themselves as land wars — in Korea, in Vietnam, in the subcontinent and on China’s borders with India, Russia and Vietnam. The locus of inter-state conflict has now shifted to the sea and is visible in the intensifying maritime tensions between China and its East Asian neighbours, especially Japan, Vietnam and the Philippines.

These maritime disputes threaten regional peace at precisely the moment when the seas have become lifelines for Asian well-being and prosperity.

That South China Sea is one of the busiest maritime thoroughfares in the world underlines the depth of Asia’s economic globalisation.

China’s rejection of the PCA arbitration raises fundamental questions about the future of maritime rule of law in the South China Sea. Some of the core tenets of the law of the sea — for example, the idea that “oceans belong to every one” — emerged in this part of the world amidst the need to regulate the rivalry in the East between the European powers four centuries ago.

That the waters of the South China Sea might be enclosed today by a rising China has sent a chill down the spine of Asia. The hope that regional institutions will help dampen the territorial conflict between China and its neighbours has been dashed. The Association of South East Asian Nations, for example, has become increasingly divided between those who have a direct territorial dispute with China and those who don’t.

The contestation has inevitably drawn in the US. For Washington it is a question of the credibility of its alliances with the Asian neighbours of China and its traditional role in defending the maritime commons. The US Navy has begun to conduct freedom of navigation operations in the South China Sea in the teeth of opposition from China.

Washington has urged Beijing to show respect for international law and abide by the PCA ruling. The US has also pointed to the example of India, which accepted two years ago the award from the PCA in the maritime territorial dispute filed by Bangladesh.

Whether Delhi wants it or not, its reaction to The Hague ruling will be closely watched. Some Chinese analysts worry that India might take a hard line on the South China Sea as a tit for tat response to Beijing’s opposition that stalled India’s quest for membership of the Nuclear Suppliers Group last month. Many in Delhi would want India to speak up; others would say India has no dog in this fight.

Date: 13-07-16

Calling to account

Supreme Court makes it clear: AFSPA does not provide blanket immunity to army personnel.

The Supreme Court ruling on the petition filed by the Extra Judicial Execution Victims Families Association, a representative platform of people in Manipur whose kin have allegedly been summarily killed by security forces, is a strong critique of the manner of deployment of the Armed Forces Special Powers’ Act (AFSPA). The petition had alleged that there have been over 1,500 extra-judicial killings in the state and pleaded for the court’s intervention to deliver justice.

The state and its agencies, under the cover of AFSPA, had sought immunity from legal scrutiny. The SC order has refused to be imprisoned by the state’s security-centric framework and the resultant curtailing of the citizen’s fundamental rights.

The validity of the AFSPA, first introduced in 1958, has periodically come under scrutiny. A constitutional bench had upheld the act in the Naga People’s Movement of Human Rights , the Justice B.P. Jeevan Reddy committee advised the government to repeal it. Last week’s order does well to outline three crucial principles: One, the “order situation in Manipur is, at best, an internal disturbance. There is no threat to the security of the country or a part thereof either by war or an external aggression or an armed rebellion”; two, “for tackling the internal disturbance, the armed forces of the Union can be deployed in aid of the civil power. The armed forces do not supplant the civil administration but only supplement it”; three, “the deployment of the armed forces is intended to restore normalcy and it would be extremely odd if normalcy were not restored within some reasonable period, certainly not an indefinite period or an indeterminate period”. The court has refused to accept the state’s plea that the extra-judicial killings, which took place in “a war-like situation”, need not be investigated. The pointed reference to “restoring normalcy within some reasonable period” has particular resonance in Manipur, a state where the AFSPA has been in force for nearly six decades.

The AFSPA provides the framework for the armed forces but the law clearly lays down the operational procedure which is more often violated than followed. The court has made it clear that the state is bound by the direction of the Constitution bench that “every death caused by the armed forces” should be thoroughly inquired into if there is a complaint or allegation of abuse or misuse of power. In so doing, it disabuses the state of the notion that the AFSPA provides a blanket immunity to army personnel in anti-insurgency operations. To argue that the absence of such immunity could demoralise the forces, the court says, “unsettling and demoralising, particularly in a constitutional democracy like oursh. Commendably, the court has laid the ground for a framework of accountability that the state needs to adopt in its responses to insurgency.

Date: 13-07-16

आतंक पर लगाम!

कश्मीर घाटी में उत्तर से लेकर दक्षिण तक अलगाववाद का नया तूफान देखने को मिल रहा है, जो एक बार फिर हालात को सही ढंग से पढऩे में केंद्र और राज्य सरकारों की नाकामी को जाहिर करता है कि वे कई वर्षों से लगातार बढ़ते संकट का समाधान नहीं तलाश पाईं। हालांकि इस नाकामी की तमाम वजह हैं और इसे केवल सुरक्षा बलों, स्थानीय प्रशासन, खुफिया एजेंसियों और राष्ट्रीय जनतांत्रिक गठबंधन की भारी अक्षमता तक ही सीमित नहीं किया जा सकता। वे अलगाववाद को लेकर स्थानीय समर्थन और उसके कारणों को सही ढंग से नहीं भांप पाए। पिछले आधे दशक के दौरान कश्मीर के दुखद रूप से विभाजित समाज में बेहद उन्मादी धार्मिक तबके ने कट्टïरपंथ की जड़ें और गहरी की हैं, जिसका अक्सर निशाने पर लिए जाने वाले संदिग्ध पाकिस्तान से कम और इस्लाम की कट्टïरपंथी विचारधारा वहाबी आंदोलन को बढ़ावा देने वालों से ज्यादा ताल्लुक है, जो मोटी वित्तीय इमदाद के चलते खूब फल-फूल रही है।

भारत की शिया बहुल ईरान के साथ बढ़ती गलबहियां और हिंदू बहुसंख्यकवाद के उभार के कारण दक्षिण के अलावा पूर्वी कश्मीर में भी ये भावनाएं जोर पकड़ रही हैं और ये जम्मू कश्मीर में कायम रही इस्लाम की आकर्षक सूफी परंपराओं को कमजोर कर रही हैं, जिसे यहां कश्मीरियत का नाम दिया जाता है, जिसका आधार धर्मनिरपेक्ष है। कल्याणकारी संस्था के रूप में जमीयत अल ए हदीत का 1958 में जन्म हुआ, जो इनमें सबसे सक्रिय संस्थाओं में एक रही लेकिन यहां अनगिनत संस्थाएं है जो पैसों के दम पर मजबूत हो रही हैं और अमेरिकी खुफिया एजेंसियों के मुताबिक इन्हें यह धन मुख्य रूप से सऊदी अरब से मिलता है, जिसे सलाफी इस्लामी विचारधारा का वैश्विक संरक्षक माना जाता है। शरिया कानूनों के प्रभाव और उन्हें सख्ती से लागू करने का उनका संदेश अलग-थलग पड़े कश्मीरी युवाओं को अपरिहार्य रूप से रास आता है, जो सुरक्षा बलों की आदतन बर्बरता के शिकार बन गए हैं। यह किसी से छिपा नहीं रहा है कि मौन आधिकारिक सहमति के साथ राज्य में मौजूद तमाम भारतीय सुरक्षा एजेंसियां घाटी में औचक होने वाली गिरफ्तारियों, अपहरणों, उत्पीडऩ और कश्मीरी महिलाओं के साथ बलात्कार को अंजाम देती आई हैं। हालांकि कश्मीरी युवाओं के प्रति सुरक्षा एजेंसियों का यह सख्त रवैया तथाकथित संदिग्ध धार्मिक और कल्याणकारी संस्थाओं तक ही सीमित रहे, जिनका प्रभाव अब समूची कश्मीर घाटी में फैल रहा है।

वास्तव में इन संस्थानों का खुलेआम फलना फूलना और युवाओं पर उनका स्पष्टï प्रभाव राष्ट्रीय जनतांत्रिक गठबंधन सरकार के सत्ता में आने के बाद एनजीओ पर उसकी धरपकड़ वाली रणनीति के उलट ही नजर आता है। जहां फोर्ड फाउंडेशन और ग्रीनपीस जैसी कुछ विदेशी संस्थाओं को ‘देश की आर्थिक प्रगति’ में अवरोध अटकाने के लिए प्रतिबंधित किया जा रहा है और उसके लिए विदेशी सहायता कानूनों में बदलाव भी किया गया, उसके विपरीत जमात और उसके जैसे तमाम संगठन तेजी से बढ़ते जा रहे हैं। वहाबी इस्लाम में पेट्रो डॉलर के दम पर समूचे दक्षिण एशिया में चलाए जा रहे इस अभियान में केरल, आंध्र प्रदेश और उत्तर प्रदेश को भी शामिल किया जा रहा है। अधिकारी खुलेआम स्वीकार करते हैं कि इनमें से कोई भी संगठन उन्हें मिलने वाली समस्त विदेशी मदद का ब्योरा पेश नहीं करता। इन एनजीओ पर सख्ती क्यों नहीं की जा रही? यह भी संभव है कि भारत के कच्चे तेल आयात में सऊदी अरब के वर्चस्व को देखते हुए इस पर खामोशी अख्तियार की जा रही हो। जिंसों में मंदी के इस दौर में भारत पश्चिम एशिया में तेल बेचने के लिए बेकरार देशों तक पहुंच बनाकर इस वर्चस्व को आसानी से संतुलित कर सकता है। एक संकीर्ण भू-आर्थिक चिंता के चलते देश को एक गंभीर राष्ट्रीय आपदा की ओर धकेलने को किसी भी सूरत में अच्छी कूटनीति नहीं कहा जा सकता

Date: 13-07-16

नाजुक मोड़ की तरफ फिर बढ़ता कश्मीर

आदिति फडणीस

कश्मीर घाटी में मारे गए आतंकवादियों का अंतिम संस्कार स्थानीय लोगों के गुस्से और अलगाव के अहसास के सार्वजनिक इजहार का जरिया बनता जा रहा है। जहां केंद्रीय गृह मंत्रालय के आधिकारिक आंकड़ों के मुताबिक घाटी में सक्रिय आतंकवादियों की संख्या 1990 के दशक के 3,500 से घटकर फिलहाल 200 से भी कम रह गई है, वहीं घाटी में तैनात सेना और अद्र्धसैनिक बल हाल के समय में आतंकवाद को स्थानीय स्तर पर मिल रहे समर्थन में अप्रत्याशित तेजी आने की बात कह रहे हैं।