Mujahid-e-Millat

(The daily rising kashmirPosted in OpinionPublished at: Wed, 04 May 2011 23:01:38 IST)

Dalal came to be known as Mujahid-e-Millat and became very popular across Kashmir. He became Mirwaiz Yusuf Shah’s political advisor. His capabilities were put to test when Mirwaiz migrated from the Valley

Zahir-ud-Din
The founder of Pakistan, Quaid-e-Azam, Muhammad Ali Jinnah visited Kashmir in 1944. He spent quite some time in Srinagar. His motorcade was attacked by National Conference workers led by Maqbool Sherwani near Uri. The Muslim Conference workers took serious note of the incident and vowed to teach National Conference a lesson.

Two years later, Jawaharlal Nehru visited Srinagar. Sher-e-Kashmir took him in a boat rally to the interiors of the city. Nehru was greeted with worn out shoes, stones and garbage. They also chanted slogans against Sheikh Abdullah, Nehru and other leaders. Angered the National Conference workers led by Bakhshi Ghulam Muhammad stormed the area around Musa Ghat near Maharaj Gunj. A person identified as Salam Darzi got killed. The police registered a case and arrested Abdul Salam Dalal. This incident speaks volumes about his popularity. He was awarded five years rigorous imprisonment. However, he preferred an appeal and was acquitted by the High Court. When he came out of prison, people had conferred the title of Mujahid-e-Millat on him.
Nobody, not even his family members, know his exact date of birth. He died at a tender age of 36 years on May 13, 1951. His year of birth, therefore, was 1915. He was to a well off family of Rozbal Khanyar. He did his matriculation from Islamia High School, Rajouri Kadal and then joined FSC (Medical stream) in SP College, Srinagar.”
Dalal was a born-revolutionary. He organized protest rallies and processions against the autocratic Dogra rule and was imprisoned several times. Dalal and his associates were also taken into custody for launching a movement against ban on cow slaughter. The detention lasted eleven months. Although the detention had an adverse affect on Dalal’s studies, he got an opportunity to understand life and the freedom movement in a wider perspective. He, however, could not complete his graduation.
Dalal shot into prominence in 1937 when some Pandits resorted to blasphemy. He addressed the people several times. The authorities took him into custody and he was awarded 10 months imprisonment. His father Ahadullah Joo Dalal persuaded him to join his ancestral business. He established the business (Pashmina, Zari works etc) at Maharaj Gunj near the tomb of Budshah (Sultan Zain ul Abideen). The flourishing business did not deter Dalal from participating actively in the movement. The valiant soldier was detained several times. He was also fined.
Meanwhile, a prominent revolutionary, Ashiq Husain, launched Jammu Kashmir Muslim League on May 9, 1939. Dalal was nominated its Joint Secretary. He rose to the position of General Secretary and gave some sleepless nights to the authorities. Being a very good orator, he was chosen by the leadership to attend conferences where he put forth his views effectively. He also became a member of Anjuman-e-Nusratul Islam and founded ‘night schools’ to educate working artisans. He provided the much needed funds for this venture and made latest publications available in these schools.
Dalal came to be known as Mujahid-e-Millat and became very popular across Kashmir. He became Mirwaiz Yusuf Shah’s political advisor. His capabilities were put to test when Mirwaiz Yusuf Shah migrated from the Valley. Other leaders were also externed by Sher-e-Kashmir. He ran the show effectively for quite some time under the banner of Muslim Conference. Salam spent most of his time in jails or in hiding. He married the daughter of Sheikh Ghulam Qadir of Drugjan, Dalgate. His wife was also a prominent freedom fighter and actively participated in the freedom struggle.
One day when he was hiding in the house of Ghulam Muhammad Vakil of Aali Kadal, Srinagar, police raided the house. Vakil felt scared but Dalal consoled him by saying, “Do not worry. Allah is with us.” Dalal jumped out of the window and is believed to have sustained internal injuries in his stomach and intestines as a result of the fall. Dalal never recovered after that fall. Sodabicarb was administered to him in large quantities which affect his health adversely.
The ailment was diagnosed as ‘severe Peptic Ulcer’. He was admitted in SMHS hospital where he breathed his last on May 13, 1951. At the time of death, he was only 36. He was laid to rest at his ancestral graveyard in Rozabal. (As narrated by Professor Ghulam Mohi-ud-din Shah of Hathi Khan, Kathidarwaza). The learned professor who worked with Dalal breathed his last recently.
The Muslim Conference got weakened in 1947 when the leadership was exiled to Pakistan. During those eventful days, some leaders from Jammu accused Dalal of having a truck with the authorities. But Professor Shah strongly denied the allegations. “Dalal spent several years in prison or in hiding. If he had a truck with the authorities, they should not have taken him into custody repeatedly”, he said.
Some people believe that Dalal was poisoned by his political rivals. However, his son Abdul Rouf and Professor Shah reject this version as ‘ridiculous’. Some admirers of Salam Dalal say Chowdhury Ghulam Abbas came to Srinagar on a “secret mission” in 1958. After meeting Sheikh Muhammad Abdullah, he was taken to Rozabal graveyard (on his request) to offer Fatehah to Mujahid-e-Millat. However, Professor Shah rejects this version as well. “Chowdhury Abbas never visited Kashmir after his exile”, he made clear.
Dalal’s widow had no one to fall back upon. However, Begum Zaffar Ali, the mother of noted academician, Aga Ashraf Ali, got him appointed as a government teacher. His younger son expired when he had yet to complete the first year of his life. His elder son is a practicing lawyer in the Jammu Kashmir High Court.
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Study history objectively

Study history objectively
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Emotions aside, we must be quite objective while making a judgment about the personalities of the past. Yes, Iqbal is a phenomenon, but certainly not the founder of a freedom struggle in Kashmir, Dr. A. Wahid responds to an article by Tabassum Kashmiri.

This refers to the article, "Of Iqbal, Sheikh Abdullah, and Kashmir" by Tabassum Kashmiri (GK Feb 26, 2010). The author has projected some brilliant historical facts and the article is beyond doubt a treasure of information. Some people have started calling Allama Iqbal as founder of Kashmiri freedom struggle. These fans of Allama try to keep history subservient to emotions. This is mere fanaticism. Iqbal is no doubt one of the greatest personalities of the world held in highest esteem by the people of the subcontinent. But had Dr. Iqbal been alive, he would never have accepted being labeled as founder of Kashmir freedom struggle.

The foundation of the Kashmir freedom struggle has been laid by Kashmiris themselves. Prior to the historical uprising of 1931 many Kashmiris (Sons of the soil) fought against indiscrimination with all sincerety and struggled hard to secure rights based on justice. They worked against all odds but have unfortunately remained unsung. Time will definitely come when their contribution will be accorded recognition, their names will shine like stars and they will be given due place in history. Our institutions, roads, parks, and factories will be bear their names. Then the real foundation of Kashmir moment was laid on July 13, 1931 when Kashmiris braved the bullets of the Dogra ruler Maharaja Hari Singh.

"Bina kardand khush rasme ba khak-o-khoon galteedan
Khuda rehmat kunand een ashqani paak teenat ra"

This day was the turning point in the history of Kashmir. The blood of the martyrs shook the whole sub-continent and Kashmir committee with Mirza Bashir-u-din Mahmood as its president gave a call for "Kashmir Day" on August 14, 1931. The day was observed all over the subcontinent. We created so many sympathizers and Allama Iqbal was one of them. But we cannot label sympathysers as founders.

The struggle, as I said was founded only by the people of Jammu and Kashmir. Late Sheikh Mohammad Abdullah, Mirwaiz Maulana Yousuf Shah, Choudhry Ghulam Abbas, Choudary Hamidullah Khan, Ghulam Ahmad Aashaii, Ghulam Nabi Gilkar, Molvi Abdullah Vakil, Saad-ud-din Shawl, Syed Hussain Jalali and others were in the forefront to lead the struggle. They were later joined by stallwarts like Maulana Masoodi, Bakshi Ghulam Mohammad, Mohi-din Karra, Mirza Mohammad Afzal beigh, Mufti Zia-u-din Ponchi, Abdul Salam Dalal, Sadir-u-din Mujahid, Raja Akbar khan, Ghulam Mohidin Rahbar, Mohidin Zohra, and hundreds of others. How did they behave later and what did they achieve is history.

Having said all this I agree with Tabassum Kashmiri that Mirza Bashir-u-din Mehmood was the forerunner among the sympathizers of Kashmir. There is no denying of the fact that Mirza Mahmood was the founder president of "Kashmir Committee" and his name was proposed by none else than Allama Iqbal keeping in view the enormous influence of Mirza Mahmood. Famous writer Shabnam Qayoom too has documented and mentioned this fact in his book, "Kashmir ka siyasi Inqilab" while describing the genesis of Kashmir Committee. Those who had suggested Tabassum kashmiri to study Atashi-Chinaar to know Dr. Iqbal's role in Kashmir struggle are advised to re-read the book and get the answer themselves. Tabassum Kashmiri has also given them the same advice. In fact he rightly wants to show them the mirror back.
(source greater kashmir 28 feb 2010)

THE ARMED FORCES SPECIAL POWERS ACT J&K VOILATE HUMAN RIGTHS IN MODERN TIMES: A COMMENT

THE ARMED FORCES SPECIAL POWERS ACT AND
THE QUESTION OF HUMAN RIGHTS

A paper by Sheikh Abdul Rouf Dalal (Advocate)

Convenor Mujahid-i-Milat Foundation.

INTRODUCTION
THE ARMED FORCES (JAMMU AND KASHMIR) SPECIAL POWERS ACT, 1990 (hereinafter referred to as the AFSPA) has been a contentious one since its very inception. Its application and justification in the Indian held Jammu and Kashmir has put it under the scanner time and again bringing with it the debate on human rights, their nature and the question of violation of such rights1.
The aim here is to highlight the issue surrounding the discourse on Human Rights, in the modern context, which is exceedingly nuanced and complex. The AFSPA an ongoing issue serves to characterize in stark hues the very nature of this discourse. It shows that the nature of the discourse is a ‘cross-talking’ of human rights, a lack of synthesis on what human rights are and how such conceptions differ in differing paradigms and the dominant paradigm in today’s context is the perspective of the state. This facet is brought to clearer focus by applying Emanuel Wallerstein’s Core-Periphery theory to the problem of AFSPA and thereby shows how the state is at the very centre of the human rights dynamism.
This argument is juxtaposed in the context of the idea of collective rights and minority rights as human rights as naturally the claim of moral stance and repugnancy of the AFSPA are made by the ethnic minority as a collective. It is this fascinating aspect of their claim of human rights violation in the larger landscape of issues of universality of human rights and who orders the discourse today that makes intriguing reading, bringing into sharp focus a concept of human rights that I call ‘personal’ as opposed to a universal notion of human rights and thereby suggesting a need to rethink what human rights actually is. I do not make a claim as to how to find the minimum standard of human rights but rather the objective is to trace and an attempt to highlight a new understanding of the nature of human rights discourse and show that how the problem of its qualities, or lack thereof, of universality and commonality can be traced to an individual paradigm that is often unique to each
individual situation.
In the first part of this paper I look to argue that the very definition of human rights is a volatile one. This acts as a cornerstone for my hypothesis that what we actually see in the discourse of AFSPA is a cross-talking of Human Rights. In the second part of the paper, I look t to present specific issues and the problems that they raise. Herein I look to examine the nature of the legal articulation as well as the obligation towards human right norms that may exist. In the third part, I look to apply the theoretical analytical framework of the core-periphery approach to try and examine the true nature of the existing human rights discourse on the AFSPA and the reasons for their current manifestations. Using these arguments build, I advance in my conclusion that what we notice in the Human Rights discourse in the context of the AFSPA is actually a cross-talking of rights.

The Gazette of India
EXTRAORDINARY
PART II-Section 1
PUBLISHED BY AUTHORITY
NEW DELHI, TUESDAY, SEPTEMBER 11, 1990/ BHADRA 2O, 1912
MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the 11th September, 1990/Bhadra 20, 1912 (Saka)
The following Act of Parliament received the assent of the President on the 10th September 1990, and is hereby published for general information:
THE ARMED FORCES (JAMMU AND KASHMIR)SPECIAL POWERS ACT, 1990
No. 21 OF 1990
[10th September, 1990.]
An Act to enable certain special powers to be conferred upon members of the armed forces in the disturbed areas in the State of Jammu and Kashmir.
BE it enacted by Parliament in the Forty-first Year of the Republic of
India as follows:
1. Short title, extent and commencement.
(1) This Act may be called the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990.
(2) It extends to the whole of the State of Jammu and Kashmir.
(3) It shall be deemed to have come into force on the 5th day of July,1990.
2. Definitions. In this Act, unless the context otherwise requires,-
(a) "Armed forces" means the military forces and the air forces operating as land forces and includes any other armed forces of the Union so operating
(b) "Disturbed area" means an area which is for the time being declared by notification under section 3 to be a disturbed area;
(c) all other words and expressions 'used herein, but not defined and defined in the Air Force Act, 19501, or the Army Act, 19502, shall have the meanings respectively assigned to them in those Acts.
3. Power to declare areas to be disturbed areas. If, in relation to the State of Jammu and Kashmir, the Governor of that State or the Central Government, is of opinion that the whole or any part of the State is in such a disturbed and dangerous condition that the use of armed forces in aid of the civil power is necessary to prevent—
(a) activities involving terrorist acts directed towards overawing the Government as by law established or striking terror in the people or any section of the people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people;
(b) Activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India front the Union or causing insult to the Indian
National Flag, the Indian National Anthem and the Constitution of India, the Governor of the State or the Central Government, may, by notification in the Official Gazette, declare the whole or any part of the State to be a disturbed area.
Explanation.- In this section, "terrorist act" has the same meaning as in Explanation to article 248 of the Constitution of India as applicable to the State of Jammu and Kashmir.
4. Special powers of the armed forces. Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,-
(a} if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances;
(b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offence;
(c) arrest, without warrant, any persons who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;
(d) enter and search, without warrant, any premises to make any such arrest as aforesaid or to recover any person believed to be wrongful restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawful kept in such premises, and mayfor that purpose use such force as may be necessary, and seize any such property, arms, ammunition or explosive substances;
(e) stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is a proclaimed offender, or any persons who has committed a non-cognizable offence, or against whom a reasonable suspicion exists that he has committed or is about to commit a non-cognizable offence, or any person who is carrying any arms, ammunition or explosive substance believed to be unlawfully held by him, and may, for that purpose, use such force as may be necessary to effect such stoppage, search or seizure, as the case may be.
5. Power of search to include powers to break open locks, etc.
Every person making a search under this Act shall have the power to break open the lock of any door, almirah, safe, box, cupboard, drawer, package or other thing, if the key thereof is withheld.
6. Arrested persons and seized property to be made over to the police.
Any person arrested and taken into custody under this Act and every property, arms, ammunition or explosive substance or any vehicle or vessel seized under this Act, shall be made over to the officer-Incharge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest, or as the case may be, occasioning the seizure of such property, arms, ammunition or explosive substance or any vehicle or vessel, as the case may be.
7. Protection of persons acting in good faith under this Act.
No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.
8. Repeal and saving.
(1) The Armed Forces (Jammu and Kashmir) Special Powers Ordinance, 19903, is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act.


V.S. RAMA DEVI,
Secy. to the Govt. of India
-----
CORRIGENDA
In the Constitution (Sixty-sixth Amendment) Act, 1990 as published in the Gazette of India, Extraordinary, Part II, Section 1, dated the 7th June, 1990 (Issue No.32),-
At page 1, in second line from the bottom, for “Regulation, 1963
(Andhra Pradesh Regulation 2 of” read “Regulation, 1970 (Andhra Pradesh Regulation 1 of”.
At page 2, in line 7, for “(Bihar Act 8 of 1985)” reads “(Bihar Act 8 of 1885)”.
1 45 of 1950
2 46 of 1990
3 3 of 1990
EXTRAORDINARY
























THE JAMMU & KASHMIR GOVERNMENT GAZETTE
Vol. 103] Srinagar, Fri., the 6th July, 90/15th Asa., 1912. [No.14-1
PART I-B
Jammu and Kashmir Government – Notifications.
…….
GOVERNMENT OF JAMMU AND KASHMIR,
CIVIL SECRETARIAT – HOME DEPARTMENT.
SRO NO. SW 4 Dated 6-7, 1990
In exercise of the powers conferred under section 3 of the Armed Forces (Jammu and Kashmir) Special Powers Ordinance, 1990, the Governor of Jammu and Kashmir hereby notifies the areas given in the Schedule to this notification as Disturbed Areas.
(Sd.)……….…………………….
Additional Chief Secretary (Home),
Jammu and Kashmir Government.
…….
SCHEDULE
1. Areas falling within 20 Kms. of the Line of Control in the Districts of Rajouri and Poonch.
2. Districts of Anangtnag, Baramulla, Badgam, Kupwara, Pulwama and Srinagar.
(Sd.)……….…………………….
Additional Chief Secretary (Home),
Jammu and Kashmir Government.

Government of Jammu and Kashmir
Civil Secretariat Home Department
NOTIFICATION
SRINAGAR, THE 10TH AUSUGT, 2001
SRO 351: Whereas the Governor is of the opinion that the State is in such a disturbed condition that the use of Armed Forces in the aid of civil power is necessary to prevent the activities involving terrorists acts directed towards striking terror in the people;
Now, therefore, in exercise of the powers conferred by section 3 of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, the Governor hereby declares the districts of Jammu, Kathu, Udhampur, Poonch, Rajouri and Doda to be disturbed areas in addition to districts, Srinagar, Budgam, Anantnag, Pulwama, Baramulla and Kupwara which stand already so declared.
By order of the Governor
Principal Secretary to Government
Home Department
NO:Home-219/97-ISA dated 10.8.2001.
Copy for information to:-
1. Chief Secretary, J&K, Srinagar.
2. Secretary, Ministry of Home Affairs, Govt. of India, New Delhi.
3. Secretary, Ministry of Defence, Govt. of India, New Delhi.
4. Joint Secretary (K-I), MHA (Deptt. of J&K Affairs), New Delhi.
5. Principal Secretary to HE the Governor.
6. Principal Secretary to Hon’ble Chief Minister.
7. Commr/Secretary, Law.
8. Director General Police, Srinagar.
9. Director General, BSF, New Delhi.
10. Director General, ITBP, New Delhi.
11. Director General, CRPF, New Delhi.
12. GOC, XVI Corps C/o 56 APO
13. GOC, XV Corps C/o 56 APO
14. GOC, XIV Corps C/o 56 APO
15. Divisional Commissioner, Jammu.
16. Director Information, J&K, Srinagar.
17. All District Magistrates of Jammu Division.
18. All District Superintendents of Police, Jammu Division.
19. Pvt. Secretary to Hon’ble MOS(Home)









THE VOLATILE NATURE OF HUMAN RIGHTS: QUESTIONABLE FOUNDATIONS?
When we speak of human rights the first thing that characterises all debate and literature is the tenuous nature of the very concept itself. It is argued that this tenuous nature is born out of an inherent tendency of actors in a framework to cross-talk from differing perspectives, with different ends in mind. This incompatible viewpoint that exists on what human rights are is entrenched in the identity that the actor possesses.
A review of literature on the nature of what human rights are suffices to show the very volatility of the concept. It is commonly accepted that there exists this notional entity called human rights but proscribing boundaries to it seems to be a fool’s task. Let us as the starting point take the fundamentals of human rights and dignity as is embellished in the United Nations Charter.2 This construct has been further sharpened in its meaning by the later conventions that have come in to affect viz. the ICESCR and the IICPR. In their struggle for independence, the common battle cries of nascent states have been the aspiration of freedom from the chains of oppression. Oppression has always taken the form of denial of human rights. These emerging states have in their early existence stressed on the need to protect the human rights and have looked to champion their cause. This posits interesting connotations in the context of this paper – considering that it is the objective of the state to protect the human rights of its people but what happens when it is the question of the power and continued dominance and legitimacy of the state versus the space needed for human rights to prosper especially amongst the marginalized sections? In such a situation, what are the human rights that are in question? Are human rights a necessary subset and gift of obligation to the state?3 Would such human rights be actively denied because of the denial of subordination or obligation to the state? Even if states argue that they are not in the active act of denial of human rights when the subject-actor concerned does not obligate itself to the state actor there exists in such a situation an undeniable cross-talking of objectives that would be going on. On one side, the state wanting the subject-actor to obligate itself to the state machinery while on the other side there is an active struggle any attempts to obligate it –creating a conflict of aims which results often in infringement into the personal and collective rights of the weaker actor which is usually the subject-actor.
While someone like Stamatopolou argues that there is coming into existence a universal notion of human rights4 with human rights becoming a material part of the realm of international law.5 To quote the author – “Today the fate of human beings is no longer the prerogative of absolute state power, but the shared moral, legal, and political responsibility of the whole international community.”6
___________________________________
2 Rupert Emerson, “The Fate of Human Rights in the Third World”, 27(02) World Politics
201 (1975).
3 Michael Couzens, “Reflections on the Study of Violence”, 5(4) Law and Society Review,
583.

4 Elsa Stamatopolou, “Indigenous Peoples and United Nations – Human Rights as a
developing Dynamic”, 16(01) Human Rights Quarterly 58 (1994) at 62.
5 Id. The author points out that there are more than sixty international treaties and
conventions dealing with human rights issues, thus showing the evolution of human
rights into a concrete force.
6 Elsa Stamatopolou, “Indigenous Peoples and United Nations – Human Rights as a
developing Dynamic”, 16(01) Human Rights Quarterly 58 (1994) at 62.


While plausible, this is perhaps the constant error made by analysts of human rights as a discourse especially in the context of marginalized sections and the state. Firstly, the cementing of human rights in international law does not necessarily obligate nation states.
Nation-states still exercise flexibility in applying international norms. The nation state is the dominant powerhouse within its boundaries and not even international opinion can reverse the order unless the nation state so desires. Secondly, while there may be a universal notion of human rights7 in terms of the fact that there is agreement that there exists something called human rights, what it exactly is seems obfuscated. Thirdly, the plethora of treaties and conventions seems to detract from any sort of uniformity8 being possible on what the human rights standards are.
Fourthly, these factors of lack of uniformity, obligatory quality and understanding of what human rights calls into stark question as to the nature of moral force, responsibility or legal obligation those external actors may be able to exert on a nation-state. Thus, the volatile nature of human rights serves as a shield to the actual reality of human rights and its operation in the ground level. It is precisely this volatility that leads to what seem to be allegations of human rights excesses and denial of those. This type of cross-talking of human rights can be especially observed in the context of the AFSPA and the actors involved in it – the nation-state and the subject-actor.

______________________
7 See Daniel A.Bell, “Which Rights Are Universal?”, 27(06) Political Theory 849 (1999).
8 See Louis Henkin, “The Universality of the Concept of Human Rights”, 50(06) Annals of the American Academy of Political and Social Science 10 (1989).
























AFSPA & THE HUMAN RIGHTS OBLIGATION: WHATOBLIGATION?
______________________________________________________________
The Act, Implementation and Implications
The AFSPA was enacted in 1958 with the objective of suppressing the brazen naga insurgency and rebellion. The Act was meant to be valid for a period of one year only. The reason behind this was that the Act was known to be a tough measure and if it could not cure the problem facing it in that span of time, continued use would in all likelihood lead to excesses. In 1990, owing to the breakout of militancy in the State, President’s Rule was imposed in the State of Jammu & Kashmir under Article 356 of the Constitution of India. Subsequently, the Parliament passed a law namely the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 whereby the Armed Forces were conferred upon special powers to deal with the obtaining situation. Similarly the Act was meant to be valid for a period of one year only in the state of J&K, but it is still in force having the same implications.
The Armed Forces (Jammu and Kashmir) Special Powers Ordinance, 1990 was made applicable in the state of J&K vide SRO NO. SW 4 Dated 6-7, 1990 and later was replaced by THE ARMED FORCES (JAMMU AND KASHMIR) SPECIAL POWERS ACT, 1990Act No. 21 OF 1990.Under the said Act, the Armed Forces enjoyed ‘special powers’ only in such areas which were declared as ‘disturbed’. The Government of J&K accordingly declared the districts of Srinagar, Budgam, Anantnag, Pulwama, Baramulla, Kupwara, Jammu, Kathua, Udhampur, Poonch, Rajouri and Doda as ‘disturbed’ vide Notification SRO No. SW 4 dated 6th July, 1990 and Notification SRO 351 dated 10th August, 2001.
That the AFSPA has failed in its objective is a stark reality. The tension has only further escalated with the militant groups and State subjects on one side and the Indian security forces including the army on the other. The harsh nature of the act has led to a series of human rights violations being perpetrated by the Indian security forces which have seen the local populace become all the more hostile to them. The demand for separation and right to self determination from the regime of what we have experienced to be an apathetic and vengeful state has only grown since the inception of the act. Clearly then there are two things prima facie wrong. First, it is the fact that the act in its application seems to have long been run to the ground and secondly, the nature of questions that have evolved out of its application do not seem to meet a common consensus.
Section 4 posits a major problem in that it allows the state machinery to deprive any citizen of their live if they are suspected to be carrying anything that can be used as a weapon. The language is ambiguous and leads to long shadows for violators to hide in. Furthermore the sole qualification is that the armed force officer only has to give “such due warning as he may consider necessary.”When force of such kind is authorized, it must be within prescribed limits. These limits do not exist in this case and a strong case for arbitrariness may be made out.
The Act in its provision has created further resentment and a sense of injustice in that it provides for legal immunity to members of the armed forces forcing the notion that the guilty may often go scot-free and appearing to give a blank chit to engage in excesses.
The reasons for the ‘alleged’ human rights abuses perpetrated by the armed forces under this act can be traced to the wide powers that the act vest in the armed forces to arrest people without warrants, and to shoot to kill in order to maintain public order. What can be enumerated here is that the situation at the time of enactment was not one where the public order in terms of the people of the territory was under danger rather the state’s ability to remain in control and legitimate that was in danger by the attempts of denial of the existing state structure by these groups. Let us take an example of the implementation of this draconian law. (See Section 4 &5 of AFSPA)
___________________________
Legal Articulation: One of Blind Defiance?
__________________________________________________________________
In Naga Peoples Movement for Human Rights vs Union of India, the supreme court held that the act was valid given the context in which it was enacted and where it was implemented, it was a reasonable and justified means even though it may appear to be harsh on the face of it, it was a necessity. The legal machinery is but an extension of the state – the state in disguise. The reliance on the competency of the Parliament dealing with matters of public Order under Entry I of List II has already been disputed in this paper. Another contention upheld by the Court is that the deployment of the Security forces or Army is mean to supplement and not replace the existing state machinery. The larger issue here is that the Security forces /army does not seem to be doing any ‘supplementing’; rather its excesses has propagated further violence and oppression upon the subjugated people of this state. Rather than trying to achieve public order it is actively contributing to public enragement.
It is scarcely conceivable that the Court would take an active step to undermine the position of the very structure that legitimises the existence of the Court. Indeed, it would seem that the Court would rather not enter into the domain of public policy. Visualizing as the preserve of the state as in a liberal framework means that real issue of human rights has been neglected by the Courts following such an approach. This is especially pertinent given the Court’s shyness to discuss in any depth Article 21 in relation to AFSPA. This also serves to highlight that it is the state which has appropriated the means of human rights discourse today.
Act remains in force in J&K without ‘mandatory’ review
As discussed above AFSPA was enacted with a aim that maintenance of public order is made possible but the state of J&K has its own constitution which clearly makes out in Section 5 of the Constitution of J&K that on what subjects the central enactments can be applicable to this state. But in this case AFSPA is a central Act and on the issues Public order the legislature of J&K is only empowered to legislate.
Armed Forces Special Powers Act (AFSPA) is applicable to disturbed areas only?
The state of Jammu and Kashmir is ‘not disturbed’.
By virtue of sub-section (4) of section 1 of the J&K Disturbed Areas Act, 1997, this law was to remain in force for a period of one year from the date of its commencement. This Act lapsed on the expiry of one year on 8th October, 1998 and is no longer on the Statute Book of the State.
Interestingly, since the state government is empowered under the Armed Forces (Special Powers) Act to issue notifications for declaring any area as ‘disturbed’, the state government is also empowered in terms of section 21 of General Clauses Act to amend, vary or rescind the said notifications.
Legal experts say if the notifications issued by the state under the Act are revoked the Central Act will ‘cease’ to be operational in the state.
Under Section 3 of the AFSPA armed forces are here in aid of the civil powers. This means that the state government has the competence to redeploy or restrict the activities of the armed forces.
Legally speaking, maintenance of law and order is the responsibility of the state government under the Indian Constitution. As originally enacted, the power to declare an area to be "disturbed" was conferred only upon the state government. In 1972 the AFSPA was amended to provide the same power concurrently to the central government. Law and order is exclusively a state subject. So it is up to the state government to declare any area as disturbed. Once an area is declared as disturbed only then can laws like AFSPA become applicable that too bearing the fact in mind that J&K has its own constitution.
__________________
SUPREME COURT OF INDIA
on
Armed Forces (Special Powers) Act, 1958
Writ petition (Crl) 550 of 1982 with Writ Petition (C) Nos.5328/80, 9229-30/82, Civil Appeals Nos. 721 to 724 of 1985,2173-76/1991,2551/81 and Writ Petition (C) Nos. 13644-45/84
Naga People's Movement of Human Rights, etc. – Petitioner vs.Union of India - Respondent
Before J.S. Verma, CJI and other four Judges 27 November, 1997
Operative Part of the Judgement (Relevant extracts)
74. In the light of the above discussion we arrive at the following conclusions:
(1) Parliament was competent to enact the Central Act in exercise of the legislative power conferred on it under Entry 2 of List I and Article 248 read with Entry 97 of List I. After the insertion of Entry 2A in List I by the Forty Second Amendment of the Constitution, the legislative power of Parliament to enact the Central Act flows from Entry 2A of List I.It is not a law in respect of maintenance of public order falling under Entry I and List II.
(2) The expression 'in aid of the civil power" in Entry 2A of List I and in Entry 1 of ListII implies that deployment of the armed forces of the Union shall be for the purpose of enabling the civil power in the State to deal with the situation affecting maintenance of public order which has necessitated the deployment of the armed forces in the State.
(3) The word 'aid" postulates the continued existence of the authority to be aided. This would mean that even after deployment of the armed forces the civil power will continue to function.
(4) The power to make a law providing for deployment of the armed forces of the Union in aid of the civil power of a State does not include within its ambit the power to enact a law which would enable the armed forces of the Union to supplant or act as a substitute for the civil power in the State. The armed forces of the Union would operate in the State concerned in cooperation with the civil administration so that the situation which has necessitated the deployment of armed forces is effectively dealt with and normalcy is restored.
(5) The Central Act does not displace the civil power of the State by the armed forces of the Union and it only provides for deployment of armed forces of the Union in aid of the civil power.
(6) The Central Act cannot be regarded as a colourable legislation or a fraud on the Constitution. It is not a measure intended to achieve the same result as contemplated by a Proclamation of Emergency under Article 352 or a proclamation under Article 356 of the Constitution.
(7) Section 3 of the Central act does not confer an arbitrary or unguided power to declare an area as a 'disturbed area". For declaring an area as a 'disturbed area" under Section 3 there must exist a grave situation of law and order on the basis of which the Governor/Administrator of the State/Union territory of the Central Government can from an opinion that the area is in such a disturbed or dangerous condition that the use of the armed forces in aid of civil power is necessary.
(8) A declaration under Section 3 has to be for a limited duration and there should be periodic review of the declaration before the expiry of six months.
(9) Although a declaration under Section 3 can be made by the Central Government suo motto without consulting the concerned State Government, but it is desirable that the State Government be consulted while making the declaration.
(10) The conferment of the power to make a declaration under Section 3 of the Central Act on the Governor of the State cannot be regarded as delegation of the power of the Central Government.
(11) The conferment of the power to make a declaration under Section 3 of the Central Act of the Government is not violative of the federal scheme as envisaged by the Constitution.
(12) The provision contained in Sections 130 and 131 Cr.P.C. cannot be treated as comparable and adequate to deal with the situation requiring the use of armed forces in aid of civil power as envisaged by the Central Act.
(13) The powers conferred under clauses (a) to (d) of Section 4 and Section 5 of the Central Act on the officers of the armed forces, including a Non-Commissioned Officer, are not arbitrary and unreasonable and are not violative of the provisions of Articles 14, 19 or 21 of the Constitution.
(14) While exercising the powers conferred under Section 4(a) of the Central Act, the officer in the armed forces shall use minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.
(15) A person arrested and taken into custody in exercise of the powers under Section 4(c) of the Central Act should be handed over to the officer in charge of the nearest police station with least possible delay so that he can be produced before nearest Magistrate within 24 hours of such arrest excluding the time taken for journey from the place of arrest to the court of magistrate.
(16) The property or the arms, ammunition etc., seized during the course of search conducted under Section 4(d) of the Central Act must be handed over to officer in charge of the nearest police station together with a report of the circumstances occasioning such search and seizure.
(17) The provision of Cr.P.C. governing search and seizure have to be followed during the course of search and seizure conducted in exercise of the power conferred under Section 4(d) of the Central Act.
(18) Section 6 of the Central Act in so far as it confers a discretion on the Central Government to grant or refuse sanction for instituting prosecution or suit or proceeding against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act does not suffer from the vice of arbitrariness. Since the order of the Central Government refusing or granting the sanction under Section 6 is subject to judicial review, the Central Government shall pass an order giving reasons.
(19) While exercising the power conferred under clauses (a) to (d) of Section 4 the officers of the armed forces shall strictly follow the instructions contained in the list of
'Do's and Don'ts" issued by the army authorities which are binding and any disregard to the said instructions would entail suitable action under the Army Act, 1950.
(20) The instructions contained in the list of 'Do's and Don'ts" shall be suitably amended so as to bring them in conformity with the guidelines contained in the decisions of this
Court and to incorporate the safeguards that are contained in clauses (a) to (d) of Section 4 and Section 5 of the Central Act as construed and also the direction contained in the order of this Court dated July 4, 1991 in Civil Appeal No. 2551 of 1991.
(21) A complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act shall be thoroughly inquired into and, if on enquiry it is found that the allegations are correct, the victim should be suitably compensated and the necessary sanction for institution of prosecution and/or suit or other proceeding should be grantedunder Section 6 of the Central Act.
Source: A.I.R. 1998 SUPREME COURT 463-464


Human Rights Obligations – What, When, Why? .
Human Rights have attained a significant position in the International discourse today. As such, in India remains a signatory to the ICCPR amongst others. Article 4 of the ICCPR provides for the framework within which emergency may be declared. What is required is that there must be a ‘public state of emergency’ and must threaten the very life of the state and the state must also proclaim such emergency situation. According to the United Nations Human Rights Committee measures so taken must be of an exceptional and temporary nature. Under our legal norms, this has to be reviewed every six months with the effect that Srinagar has been a disturbed area for the last twenty years and the number of separatist groups have grown in that period. There has also in addition been external pressure from other non-state actors on the nature of the AFSPA. The United Nations Human Rights Committee expressed its regret on the approach of the state to the ‘disturbed area situation’ in J&K and its continued usage of the AFSPA. On 23 March 2009, UN Commissioner for Human Rights Navanethem Pillay asked India to repeal the Armed Forces Special Powers Act. She termed the law as "dated and colonial-era law that breach contemporary international human rights standards."
Violence has increased in the past two decades since enforcement of the Act. The state has created a "Gallantry Awards" pool for the arms forces which are awarded for elimination of insurgencies and conduction of operations. The term 'encounters' is used by the security forces to describe confrontations where it is deemed appropriate, under the provisions of the act, to employ violence For any further evidence one need not look beyond the situation wherein a70 yr old beggar, was killed by 6 rashtriya rifles and no arrests have been made s far in this fake encounter . Men in uniform, instead of protecting people, continue to indulge in the serious human rights violations. Which why the Kashmir valley has always erupted with violent protests with slogans of self determination renting the air. Killing, abduction, torture, rape and fake encounters have been the routine affairs in J&K that the army and other security agencies have been found to be involved ever since the struggle for right to self determination revived in the valley 20 years ago. Time and again national and international agencies have accused security forces of human rights violations, including rape and extrajudicial killings. Under section 7of the Act, against the armed forces No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.
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Section 7 AFSPA: No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.


UNDERSTANDING THE NATURE OF THE PROBLEM: A CROSSTALKING DISCOURSE
From the preceding discussion we notice two things – firstly, there is no uniform conception of human rights although it is agreed that there is something called human rights and secondly, the AFSPA in its operation has posed questions of human rights. A deeper introspection will reveal a discord on the nature of human rights issue – at one hand the legal framework suffers from the excesses in its characterization and the exhibited reluctance of the Court; on the other is the obligation that may be owed to international –supra state- structures and the clear derogation from the calls made by such supra-state actors. This is further heightened when the issue of what rights are derogable in what situation is brought up. This is especially critical here as there exists differing conceptions of the nature of the problem here between the state and the subject actor. These defects are the hallmark of what I label as ‘cross-talking rights’. Cross-talking rights are relevant in the context of situations wherein there are conflicting claim of rights, their infringement and its justification. It is possible to trace the roots of ‘cross-talking rights’ to the status of the actors involved and their comparative position, the conceptions of themselves by the actors which is historically and sociologically rooted defined by issues of identity.
It is the examination of these issues which I propose as critical to our understanding the issue of AFSPA – why it remains so contentious, important and seemingly irreconcilable.

Who Controls the Discourse: Wallerstein’s Core-Periphery Model .
Wallerstein prescribes that actor’s in a political matrix may be divided into a core-periphery categorization. In this model there is a core –which is the domain of the dominant actor, the peripheral actor – the one which is marginalised, has no voice of its own and acted upon, and the semi-periphery which is self explanatory.
Ever since the process decolonization, with the creation of nation-states and the vesting in it powers and strength of sovereignty and authority within its boundaries, the state has been the dominant structure of social as well as political ordering. It is in this construct that we shall examine the nature of the state and subject-actor discourse on human rights in the context of AFSPA.

Firstly, it is the state which signs the treaties and conventions. It is thus, the state which chooses the rights it will offer its citizens. The state can limit the rights offered to the citizens and the circumstances under which as well. Citizens being the subject of the state are inherently obligated to the state. Therefore, the state is at the core of this discourse on rights and it orders the discourse. This can be seen in the form of the extended ‘disturbed areas’ tag conferred on J&K, the continued
imposition and violation of the rights of the people of J&K. While doing this, it does not seem to bow down to external pressure; rather it forces the creation of the identity of a ‘problem area’ which has become ‘problematized’ in the course of a cross-talking discourse.
Supra-state actors, on the other hand, are at best located in the semiperiphery area and as such are not able to appropriate the discourse. The maximum influence that they can exercise is in the form of moral obligation. While moral obligation may exert considerable influence on persons their influence on structures is doubtable as that would mean ascribing the quality of possessing morality to a structure. In this case, the state views the situation as one threatening the sovereignty and integrity of the state – an attack at the very core of the state – in which case the state conceives the confrontation as one of survival and continued legitimacy.
Another actor in this discourse is the indigenous people who seeks the basic right of self determination. While, the significance of individuals in international law and human rights has increased, it is a crystallised player. Even though the people of J&K they now have more of a voice than before. Thus, they reside at the semi-periphery region where they may articulate their reasons but those are seldom are acted upon as they lack the requisite force.
From the above, it follows that the state is the dominant actor, which is why the discourse is often geared in terms of the international obligation of human rights that the state possesses to the supra-state identity which is its closest rival. What this also entails is that though the indigenous/marginalised sections may try to articulate their contentions, it is often ignored by the state. As far as the state is concerned, the subject-actors does not possess any legitimacy in its demand of human rights which is placed at a lower pedestal than the sovereignty of the state theorising that sans the state, humans right as a concept itself is liable to dissipate. Thus, the institutional logic that may be seen here is that in order to protect human rights, the acts of the state in its current excesses is justified. The state perceives all rights as subordinate to the existence and sovereignty of the state; as long as it conceives itself to be under threat it is apt to do as it sees fit to protect itself.
See for an initial description of his idea: Immanuel Wallerstein, The Capitallist World Economy, (Cambridge: Cambridge University Press, 1979). See also Walter J. Goldfrank, “Paradigm Regained? The Rules of Wallerstein’s World System Method”, 6(02) Journal of World System Reserch 150 (2000). A brief synopsis of the theory is presented by Paul Halsall in Paul Halsall, “Modern History Sourcebook: Wallerstein on World System Theory”, available at http://www.fordham.edu/halsall/mod/wallerstein.html.
See Immanuel Wallerstein, “The World System after Cold War”, 30(01) Journal of Peace Research 1 (1993).
The dominant actor in this conception is the one who orders the nature of the discourse.
See Immanuel Wallerstein, “The World System after Cold War”, 30(01) Journal of Peace Research 1 (1993).
We will not descend into a debate on natural rights here. Rather the aim here is to show, whatever the natural rights be, it is the state which allows rights and as such it is the state which decides when to abrogate such rights. For a treatment on the validity of
Human rights as Natural rights see Jack Donnelly, “Human Rights as Natural Rights”, 4(03) Human Rights Quarterly 391 (1982).At least in a traditional conception. See Peter Singer, Democracy and Disobedience, (New York: OUP, 1974) at 50.
See Peter Singer, Democracy and Disobedience, (New York: OUP, 1974)
It is relevant to consider the fact that the components of the structure are liable to be affected by moral obligations therefore indirectly obligating the structure morally.
However, the situation here is different as is explained in the following paragraphs.
Dorothy Thomas using the principle of indivisibility argues that one of cornerstones of human rights is that the civil, political, economic, social, and cultural rights are linked by an umbilical that cannot be severed making them dependent on one another. This makes the state structure so essential to the existence of human rights. See Dorothy Q. Thomas, “We Are Not the World: U.S. Activism and Human Rights in the Twenty-First Century”, 25(04)Signs 1121 (2000).

To elaborate further, a lot of the demand for human rights is seen from the basis of the natural rights argument that certain rights are absolutely essential for humans and therefore they must have them. Contrast this with the social justice argument which traces human rights origin to the need to do social justice. Who does social justice?It is the state, and it is the very same state which determines the nature of the rights acceded to. See Jack Donelly, “Human Rights as Natural Rights”, 4(03) Human

HISTORY & THE SELF-DETERMINATION DEBATE
According to the United Nation Charter, it is the duty of every state to respect the right of self-determination36. The right of self-determination is what the peripheral actors and some, if not most, of the subject-actors claim. Potentially,many competing claims can exist and acceding to all would destroy any sort of international scene. Consequentially, there has to evolve a mechanism to answer
such claims. In the absence of this, it is the state which deals with such issues. The central of such issues is often issues concerning human rights. As has been highlighted previously, there is apt to be cross-talking in such a situation.
Self-determination as a right reflects the thrust on the importance given to the collective and the collective identity to decide for itself. According to commentators such as Campbell self determination is part of the human rights discourse and empowers it by allowing them to propagate their culture and participate in the fullness of liberal democracy economically, socially and politically.
Interestingly, Campbell further points out that the protection of this right is with the aim to shelter the subjects form oppression in the form of subjugation, exploitation and domination. The position of the Indian state with regard to self-determination has already been highlighted. While it may support “external cases”, “internal cases” remain just that – an internal matter over which reigns supreme. At the other end of the spectrum are the demands of the subject-actors. This can be traced to their cultural and historical lineage. The state of J&K was ruled by the then Maharaja of the state and a temporary instrument of accession was made with the Indian state at the time when the state was under external aggression. The state being a Muslim majority state, the people of the state were guaranteed the right of self determination after the aggression was over. Resolutions were passed by the UN general assembly recognizing the right of self determination as an in alienable right of the people of J&K, but the Indian state has always been repressive in its approach towards the people of J&K.
It follows clearly from the above discussion that there is a positive assertion made by the subject-actors with regard to the right that they are claiming while there is a negative assertion by the nation-state. In such a state of affairs, the discourse engaged in by each actor would be different. Within the core-periphery model, it is the state which is able to appropriate the power discourse and to order it. This is why we see that one side of the discourse is in the popular conscience while the other – the struggle for self-determination as a human right is not. The rejection of the nation-state of the validity of self determination for “internal actors” means that in the mainstream, the problem of human rights is not linked to the issue of self determination. Rather it is often viewed that the self-determination aspirations cause the human rights violations suffered by the subject-actors and it is the state which is engaging to quell these human rights violation. Thus, the non-uniformity & distinction in conception of the rights means that it is the core-actor’s take on the discourse that is pre-eminent. However, if we lift this thin veil, as has been attempted in this paper, we can observe a clear cross-talking of rights characterised by effective cross-talking by the state making ample use of its position as a core-actor.
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Rights Quarterly 391 (1982), who discusses Charles Beitz’s hypothesis that the aspiration of social justice is the root of human rights.
Robert McCorquodale, “Self-Determination: A Human Rights Approach”, 43(04) TheInternational and Comparative Law Quarterly 857 (1994).
An illustration of the Indian State’s attitude can be seen in that it expressed reservation to the term “all peoples” with regard to the implementation of the right of self determination in Article 1 of the International Human Rights Convention of 1966.
See Robert McCorquodale, “Self-Determination: A Human Rights Approach”,43(04) The International and Comparative Law Quarterly 857 (1994).
Federic L.Kirgis, Jr., “The Degrees of Self-Determination in the United Nations Era”,88(02) The American Journal of International Law 304 (1994).
David R. Penna & Patricia J. Campbell, 19(01) Thirdly World Quarterly 7 (1998).
Id. Also see David R. Penna & Patricia J. Campbell, 19(01) Thirdly World Quarterly 7(1998).
See Yoram Dinstein, “Collective Human Rights of Peoples and Minorities”, 25(01) The International and Comparative Law Quarterly 102 (1976).


CONCLUSION: OBFUSCATION AND CROSS-TALKING
The AFSPA is indeed a complex and contentious issue. While it leaves clear human rights violations in its wakes, these are often justified as necessary and are not viewed as a repressive regime but as the attitude of a nation state to what in perceive to be threats to its territorial integrity. What we can see is that the ‘human rights’ issue is placed at a lower pedestal as compared to issues of the state.
Indeed, the discourse on the AFSPA has tended to be centered on the provisions of the act or the army engaged in human rights violation and a constant assertion of the same. These sketches however are characterized by their refusal or oversight in examining the nature of such claims sans a purely legal articulation of the same. The law ultimately resides not in a vacuum. Its roots can be traced to definite causes.
In this paper these questions have been answered by applying them to the analytical framework of the core-periphery model which explains to us why it is not the same rights which are recognized and stressed upon by the various actors in the same human rights dialogue. These can easily be traced to the structural logic as well as the cultural-historical antecedents.
The model applied here explains also why the state has no “real obligation” in terms of human rights at an international level with specific regard to the AFSPA and the issue of self-determination which it characterises as an issue threatening its territorial sovereignty. This is because the state is at the core of the discourse while the supra-state actor is at the semi-periphery and is at best able to exert only a “moral obligation” that is not generally binding.
Is the Indian Government making effort to bring peace and development in Jammu and Kashmir (J&K) or continuing with a policy of repression, subjugation and inhuman torture by security forces? Is the government aiding and abetting causes for oppression of the people of the valley to continue via inflicting barbarous act like rape, fake encounters, custodial killings and preventive detention? Is the government not guilty of enraging the honour of the people and disrupting the peaceful environment of the valley and creating cause to show that there is problem in the state? Are the policy makers, leaders, demagogues, experts and activists who lauded the people for turning to democratic and peaceful ways through their active participation in the recent elections not guilty of keeping mum over the crime of security forces as well as maintaining indifferent attitude towards the plight of Kashmiri People.

Black Laws a punishment for no crime

Black Laws a punishment for no crime
Sheikh Yasir
The draconian laws such as Armed Forces Special Powers Act (AFSPA), Prevention of Terrorist Activities Act (POTA), Public Safety Act (PSA), Terrorist and Disruptive Activities Act (TADA) enforced in Indian occupied Kashmir have given full impunity to the occupying forces to kill Kashmiris and destroy their properties. Under the shield of these laws, Indian troops are accountable to none for killing, torturing or keeping in custody any Kashmiri civilian.
The political leaders are not even allowed to carry on their political activities ,when the draconian PSA is slapped every now and then on whoever is held in custody. Under this act, a person can be detained for a period of two years without producing him in a court of law. India in order to show seriousness needs to repeal the black laws, release all the political detainees and disclose the whereabouts of thousands of disappeared Kashmiris.
India has tried for many times to hoodwink the international community by making false shows of its seriousness. The so-called roundtable conferences are one of those tricks. APHC leaders have boycotted such conferences convened by Indian Prime Minister, Manmohan Singh on the valid ground that the agenda items of the conferences were related to the internal problems of the occupied territory and had nothing to do with the basic conflict. These leaders contend that they are ready to any talks but the exercise should be result-oriented to resolve the dispute once and for all.
While trying to embalm the bruises and lacerations inflicted on the soul and psyche of the people of Manipur, who were all fire against the draconian Armed Forces (Special Powers) Act, following rape and murder of a woman allegedly by the Indian forces, Prime Minister Dr Manmohan Singh had last year announced his government's decision to soon modify the act ostensibly as part of the steps to address the grievances of the people.
Dr Singh is reported to have told in a public rally at Imphal that by modifying existing provisions, or inserting new provisions in AFSPA, it would be made more humane, giving due regards to the protection of basic human and civil rights. It is here in place to mention that this incident had forced the government of India to set up a committee to review the law, which gives sweeping powers to its forces to trample over the human rights with impunity and without ever having any fear of an adverse notice before a judicial forum. For six years, Irom Sharmila the iron lady of Manipur has been protesting the indefensible Armed Forces Special Powers Act.
This act that is less draconian in letter has been even more draconian in spirit. Since it was imposed, by official admission alone, more than 20,000 people have been killed in Manipur. Rather than curbing insurgent groups, it has engendered a seething resentment across the land, and fostered fierce militancy.
When the Act came into force in 1980, there were only four insurgent groups in Manipur. Today there are 25 on the Government's own watch-list. While as in Kashmir, despite a clear recede in the number of militant outfits nothing on ground has changed with respect to the rights violations by the troopers. Showering bullets on the innocent people, forced by the circumstances at home, to move outside their home during night, is no more a new phenomenon. Hundreds of innocents of this ill-fated valley have so for fell to the senseless firing of troopers during nights, even after having necessary lighting arrangement along with them.
Day in and day out, human rights organizations, international or otherwise, have been expressing their grave concern over the rights abuses perpetrated by the troopers in the state but despite assurances galore and more particularly Prime minister Manmohan Singh's "zero tolerance" clamors the situation with respect to rights abuses has worsened to such a level that people have started to treat the scenario as a part of their routine life.
Taking of zero tolerance quite volubly and uttering words of sympathy time and again, is all the power pundits at the state as well as central level could do at best to play prank with the traumatized masses as none of them has ever witnessed the pain and trauma that an ordinary person of this area is put to undergo because of these black laws. Besides national as well as international level human rights organizations have also been fervently antagonizing imposition of these barbaric laws from the very beginning. Going by the reports, just in few previous weeks near about a dozen of people irrespective of age, sex and status have been killed by the troopers across valley with total impunity. Ironically, half a dozen innocents were relieved of their right to live all around the human rights day.
Incidentally, the human rights situation in Jammu and Kashmir, particularly during the past 19years, has been worse as compared to all other regions of India. Ghastly incidents could make any government worth its name hang its head in shame. But, there is no let up in the atrocities being heaped particularly on the innocent civilian population in the strife torn region in the name of anti-militancy operations. The move to humanize the draconian laws like the AFSPA or, may be the notorious Disturbed Areas Act, may, in all likelihood, prove of no avail what-so-ever. Primarily because these seek to immunize the armed forces against legal action in the event of any criminal act like illegal detention, abduction, rape, custodial torture or killing and the like the region has been witness to on a massive scale over the years.
Even the magisterial and judicial investigations the government ordered in countless cases have failed to bring the perpetrators to justice like in the infamous Pathribal killings. Obviously, there can be no human rights as long as the draconian laws remain in force. Instead of feigning to "humanize" the laws, the least the government should do is to repeal them out rightly; India needs to show its sincerity just by doing away with these barbaric laws that have been spelling sleepless nights and restless days to the common men in occupied Kashmir.

The Start of Gen 3rd struggle 2008

The New York Times
August 22, 2008
Kashmir Rumbles, Rattling Old Rivals
By SOMINI SENGUPTA

SRINAGAR, Kashmir — Born and reared during the bloodiest years of insurgency and counterinsurgency, inheritors of rage, a new generation of young Kashmiris poured into the streets by the tens of thousands over the past several weeks, with stones in their fists and an old slogan on their lips: “Azadi,” or freedom, from India.

Their protests in Indian-controlled Kashmir were part of an unexpected outburst of discontent set off by a dispute over a 99-acre piece of land, which has for more than two months been stoked by both separatist leaders in Muslim-majority Kashmir and Hindu nationalists elsewhere in India.

Overnight, the unrest has threatened to breathe new life into the old and treacherous dispute between India and Pakistan over Kashmir, which is claimed by both nations and lies at the heart of 60 years of bitterness between them, including two wars.

Disastrously for the Indian government, Kashmir has burst onto center stage at a time of growing turmoil in the region — with the resignation this week of Pakistan’s president, Pervez Musharraf, who had sought to temper his country’s backing for anti-Indian militancy here.

Even though the two countries have been engaged in four years of peace talks, India has grown nervous that the disarray in Pakistan has left it with no negotiating partner. From New Delhi’s perspective, that power vacuum has allowed anti-Indian elements in Pakistan’s intelligence services and the militant groups they employ to pursue their agenda with renewed vigor.

Relations between the countries have become newly embittered as Indian and Pakistani forces have engaged in skirmishes across the Line of Control that divides Kashmir between them for the first time in years.

Not least, India has blamed the Pakistani intelligence services for playing a hidden role in the bombing of the Indian Embassy in Afghanistan last month, a charge that Pakistan vehemently denies.

The latest unrest here has only added to the difficulties of renewed dialogue.

How long this agitation will continue depends on both India’s capacity to assuage Kashmiri separatist leaders, and their ability in turn to control the sudden eruption of rage among the young.

The largest, most intense demonstration in years took place on Monday, as tens of thousands of Kashmiris, mostly men, streamed into an open area in the city center to demand independence from India. They came in motorcycle cavalcades, and on the backs of trucks and buses.

A few waved Pakistani flags. Some shouted praise for Lashkar-e-Taiba, the banned Pakistan-based militant organization that India blames for a series of terrorist attacks in recent years. “India, your death will come,” they chanted. “Lashkar will come. Lashkar will come.”

By Tuesday, traffic had returned to the city, as the separatists called for a three-day suspension of the strike. Shops and cafes reopened. The pro-Pakistan graffiti had been covered up, as though it were again an ordinary day.

Another mass gathering, however, is planned for Friday at the martyrs’ cemetery, where two generations of those killed in the conflict are buried, with all the potential to become yet another flash point of conflict.

Again and again, Kashmiris from across the political spectrum said these scenes reminded them of the peak of the anti-Indian rebellion in the early 1990s, except at that time, separatist guerrillas, aided by Pakistan, openly roamed the streets with guns.

Nineteen years after that rebellion kicked off, the current demonstrations have pierced what seemed, perhaps deceptively to the Indian government, like a return of the ordinary here.

Earlier this year, tourists were flocking to Dal Lake in Kashmir. Buses were running twice monthly so that Kashmiris could visit their relatives across the de facto border in the Pakistan-controlled region of Kashmir. A bookshop opened for the first time in nearly two decades.

“Before the storm, there is always a calm,” a Kashmiri woman, Assabah Khan, 34, declared. “The uprising we see now is the latent anger against the Indian state that has erupted again.”

Narendra Nath Vohra, the governor of the Indian-controlled Kashmir state, compared life in Srinagar today to darkness at noon.

In the last few weeks, tourists all but disappeared. Schools and offices closed. The main city hospital was filled with Kashmiris shot and wounded by Indian security forces.

Mehmeet Syed, who only a few months ago could sing her heart out on stage with her five-piece rock band, remained caged in her home, as her city erupted in a series of fiery protests and strikes. On the road leading to the Syed family home, children guarded a homemade roadblock the other day, clutching stones.

On Monday, on the edges of an open field where tens of thousands had gathered to vent their anger at Indian rule, Abdul Gani Mir, 62, marveled at a young man who had scaled a chinar tree to plant a green Islamic flag.

Mr. Mir said being here filled him with hope. “We succumbed, but I don’t think this generation will,” he said, and then he chuckled. “I wish I were young.”

His niece was among 20 unarmed Kashmiri protesters killed by Indian security forces last week, as they set off on a march to Muzaffarabad, in Pakistan-controlled Kashmir.

Sheik Yasir Rouf, 27, said he had never before taken part in a demonstration so large, so intense. He was a child in the early 1990s, when the anti-Indian rebellion was at its peak. “This feeling was always there,” he said. “We are fighting for our one right to be free.”

“Sooner or later, this had to be,” insisted his friend, Shahid Rasool, also 27.

Mr. Rouf said he had spent 15 days in jail during his senior year in high school, accused of harboring militants. Mr. Rasool was picked up by security forces and interrogated all night; he was 16 years old.

The trouble in the valley began two months ago, quite unexpectedly, over 99 acres of state government land that, for decades, had been used by Hindu pilgrims on the route to a Himalayan shrine called Amarnath.

In May, the authorities in Indian-controlled Kashmir authorized the panel that runs the pilgrimage site to put up “prefabricated structures” for pilgrims. The order enraged Muslims.

With state elections scheduled for this year, some politicians and separatist leaders pounced on the decision and declared it a bid to re-engineer the demography of Kashmir. Hard-line Islamists compared it to the Israeli occupation of Muslim holy lands.

The government soon rescinded the order, but nothing, as Governor Vohra pointed out, actually changed — Hindu pilgrims still used the land, and they still came this year in record numbers.

Nevertheless, the retraction of the original order enraged people in the Hindu-majority plains of Jammu, which is part of the same state. They, too, began agitating by the tens of thousands. And they, too, were goaded by politicians and hard-line leaders.

All told over the past two months, the protests here in the Muslim-majority Kashmir Valley and counterprotests led by Hindu groups in the plains below, have left a death toll of nearly 40 in clashes with security forces.

The two sides remain at each other’s throats. Muslims in the valley allege that Indian troops have been quick to halt their protests, while letting Hindus in the plains carry on their agitation.

Hindu leaders in the plains were outraged that the government allowed anti-Indian separatists to march through the valley carrying Pakistani flags.

Many Indians regard the rebellious tableau in the valley as an unexpected affront. Kanwal Sibal, a retired diplomat, suggested in a livid column on Tuesday in Mail Today, an English-language newspaper, that unlike China with its Tibet policy, India has never sought to alter Kashmir’s Muslim-majority demography.

The latest fury, he suggested, “shows the failure, and perhaps the futility, of efforts to win the hearts and minds of the valley Kashmiris.”

Kashmiri public opinion is hardly uniformly anti-Indian, and the pro-Pakistan current is one among many. But distrust runs deep. Rumors travel and harden equally fast.

Muslims here complain that Indian security forces roam the streets, and they can recount at least one memory, usually more, of humiliation and fear.

“It is a volcano that has erupted,” Shad Salim Akhtar, 54, a doctor, said of the latest agitation.

That volcano kept Ms. Syed, the Kashmiri singer, at home. She had a video shoot scheduled for her new solo album; it has been postponed. Her father, Ahmad, a doctor was considering running in the elections this fall, but he is no longer sure.

Dr. Syed, 46, said he had just been getting used to the sense of the ordinary returning to his city. The guards at checkpoints were less aggressive than before. He did not worry much about his daughter’s concerts. “Three, four months ago, we thought, ‘It’s all over now, nothing to worry about,’ ” Dr. Syed said.

That is all over now, his daughter lamented. “Will that day come when we can move around freely?” she asked. “It is a dream.”

Amit Wanchoo, a Kashmiri Hindu and the leader of her band, Imersion, was also mostly staying home, leaving plenty of time to write new songs. One was dedicated to those killed last week.

“The sky is saying something, the air is saying something,” the lyrics went. “Where are my people, whom I met here?”

Yusuf Jameel contributed reporting.

Tribute to the Founder.

MUJAHID-I-MILLAT FOUNDATION.
Chandpora, Harwan Srinagar
Tribute
13th May 1951,Sheikh Abdus Salam Dalal (Mujahid-i-Milat) breathes his last.
Mujahid-I-Milat was the revolutionary leader who kept the momentum of freedom movement in Kashmir even after Mirwaiz Moulana Mohammad Yousuf Shah(RA) and other pro resistance leaders were forced to migrate to Azad Jammu &Kashmir under the banner of Muslim Conference. He was a renowned businessman, educationist and a political visionary. He was a brave voice and emerged as a legendary hero like Spartacus in roman empire. He would go from locality to locality and speak for the freedom of Jammu and Kashmir.
Mujahid-I-Milat was the one of the founders of Muslim conference which started the freedom struggle of the state from the autocratic rulers. He was the general secretary of Muslim conference and was political advisor of Mirwaiz Moulana Yousuf shah (RA).
Mujahid-I-Milat a born revolutionary,he organized protest rallies and processions against the autocratic rule of Dogras and was several times imprisoned. He was active since 1931 when he had only joined FSC. He was a good orator and founded the night schools to educate the working artisans and used to fund this venture himself and made latest publications available in these schools.

Mujahid-I-Milat was a strong pleader of independent Jammu and Kashmir and the right to self determination of the oppressed people of Jammu and Kashmir.
Your contributions towards the freedom struggle are leading the people Jammu and Kashmir in this time even after 59 years of your death as a torch light towards the path which was forseen by you and your companions. Your affection,noble charcter,positive and realistic approach ,patience courage will lead the people to the resolution of Jammu and Kashmir .
Today people of Jammu and Kashmir collectively remember the sacrifices of yours and pay homage , rich tributes and pray to almighty that your mission will be fulfilled and the dispute of Jammu and Kashmir be resolved according to the wishes and aspirations of people of Jammu and Kashmir.

Publicity secretary
Mujahid-i-Milat Foundation