All posts by Chinmoy Banerjee

Ending impunity

1,528 alleged encounters

SC ruling rejecting immunity to armed forces in ‘war-like’ situations has profound implications

Written by Pradip Phanjoubam | Published:May 2, 2017 12:05 am

J&K attack, J&K attack on army, Hizbul Mujahideen, Hizbul attack on army, indian army attacked, indian express newsPhoto for representational purpose.The dismissal by a five-judge bench of the Supreme Court of an appeal by the Central government for recall of an earlier ruling by a smaller bench of the same court in the case of 1,528 alleged fake encounter killings in Manipur will go down as a landmark ruling. It has profound implications for the future of counter-insurgency strategies. If the government takes the judgment positively, it can be seen as anticipation of a special force fit for the purpose, armed and trained like the army, but attuned to doing civil duty and being answerable to the civil court of law.

The outline of such a force was quite distinctly visible in the dialectic between the government’s curative petition and the wording of its dismissal by the Supreme Court bench. Very briefly, the petition argued that the matter was urgent as the morale of the forces would drop if they were subject to investigation by the local police after every incident. The stress was on the need to give the army the freedom to use whatever means in its command to tackle what was described as “war-like” situations — and since threats of war were being tackled, the army’s actions should not be open to judicial review.

The judgment rejected the argument that “war-like” situations warrant a free hand to the army, noting that “democracy would be in danger” if the armed forces were permitted to kill citizens on the mere suspicion that they were enemies of the state. It was categorical that there would be “no absolute immunity” from legal prosecution for armed forces personnel on counter-insurgency duties if they are suspected to have caused deaths by the use of excessive and disproportionate force.

The intriguing phrase here is “war-like situation”, which is supposed to warrant the use of the military, which then deals with the situation as if in a war zone. The ambiguity of the term “war-like” speaks of a peculiar dilemma of the Indian state. On the one hand, the insurgency situations in Kashmir and the Northeast are being portrayed as akin to war, but because of the legal implications of calling them wars, the government refers to these problems as merely law and order issues, and therefore, a matter for domestic law to tackle.

The problem is, if this was war, it would imply a conflict of states, thereby giving the insurgents a status that all states would normally avoid. Moreover, if this was war, rules of war, such as the Geneva Conventions and the Hague Conventions, would be deemed applicable, again a prospect no state would concede to. From the government’s point of view, insurgency is therefore definitely not “war”, the noun, but “war-like”, the adjective. But would such semantic acrobatics warrant the use of unaccounted force, as in war? The Supreme Court has said no, urging, instead, all stakeholders “to find a lasting and peaceful solution to the festering problem.”

International combat laws did attempt to take care of this grey area created by “non-international armed conflicts” when the Geneva Conventions Protocol II was conceived of in 1977. The protocol is aimed at bringing violence by non-state forces under the purview of international humanitarian laws. Here, too, because of what are deemed compromises to national sovereignties, few states with internal conflicts have ratified it. India, too, though a signatory to the Geneva Conventions of 1949, refused to sign this additional protocol. The ambiguity as to whether insurgencies are “wars”, or merely law and order problems, remains. The use of the military in civil unrest situations, as is being done under the Armed Forces Special Powers Act (AFSPA), also remains controversial.

This ambiguity is what perhaps anticipates a new special counterinsurgency force, with combat capabilities of the military, but answerable to civil law for their action. In many ways, the Manipur police commandos, a unit responsible for a great number of the alleged 1,528 fake encounter killings, is one such entity. Although they are not covered by the AFSPA, they still came to be affected by the climate of impunity introduced by prolonged exposure to the AFSPA.

Before the July 2009 photo expose by Tehelka magazine on how a captured former insurgent, Chongkham Sanjit, was eliminated in broad daylight, reporters of local dailies in Imphal would vouch that there were practically daily body counts of suspects killed by the government forces, often police commandos. Some even have frightening anecdotal stories of how they may have saved some would-be encounter
victims.

In those days, commandos were wont to calling up newspaper offices to send someone to cover encounter sites where alleged insurgents had just been shot. On some occasions, some reporters were too punctual and reached the spot before the encounter happened, and the police had to be content with “capturing” the suspects. Those were also the days when gallantry awards for government forces in Manipur were the highest. After the Sanjit killing expose, and the judicial probe that followed, everything quietened down, suddenly. Practically no more encounters, much fewer gallantry awards, and surprisingly less insurgent activities too.

There is no doubt the police can be as brutal, or more brutal, than the military. But the difference is, the police is accountable to the same law as its victims, therefore, the victims do not feel completely powerless. The Sanjit case has demonstrated how much this one attribute can be a check on the impunity of the forces. A disciplined special police force to meet violent challenges to the state may therefore be the answer to easing the military out of counter-insurgency responsibilities.

The terrifying case of 1,528 alleged fake encounter deaths in Manipur is a consequence of allowing a lapse of this accountability. As Amartya Sen cautions in The Argumentative Indian, consequences can make victory pyrrhic and meaningless, and so, though Krishna convinced Arjuna as to why evil must be fought and eliminated, Arjuna’s fears of the consequences cannot be ignored.

The writer is editor, Imphal Free Press, and author of ‘The Northeast Question: Conflicts and Frontiers’
Copyright © 2017 The Indian Express [P] Ltd. All Rights Reserved

 

Passing of a pillar of progressive South Asian community

DR. HASSAN NAWAZ GARDEZI

(19 February 1933 – 20 April 2017)

Dr. Hassan Nawaz Gardezi, one of the founding members of the Committee of Progressive Pakistani-Canadians, passed on early this morning in Peterborough General Hospital. He truly had remained a lifelong and a tireless activist for justice, peace, secularism, and socialism, a huge inspiration to its members, friends, and associates. Death of a human being is always a sad affair. Somehow death of an individual always creates big craters in the lives of those who survive to see another day. But, when a person of such an intellectual and academic presence and stature, like Professor Gardezi, leaves from our midst the void left is simply impossible to bridge, the sorrow that follows exacts an enormous toll, the scars of the loss become indelible. Although his loss is impossible to even fathom, his contributions shall forever live to produce a universe of possibilities, a pathway to a just and a fair society.

Professor Gardezi had taught sociology to several cohorts in the reputable Canadian, American, and Pakistani universities. A large number of his students went on to become professors, journalists, writers, judges, lawyers, trade unionists. Many developed and maintained a lifelong relationship with him and his thoughtful spouse, Rosalie Gardezi. Whether in Pakistan or in Ontario or any place else that the Gardezis lived, their home was always a meeting place where intellectuals, activists, mandarins, and bohemians congregated. Lively discussions and debates were always welcomed. Hassan and Rosalie’s calming presence and amazing hospitality was a constant at these events.

After his retirement from being the head of the Department of Sociology at Algoma University at Sault Ste. Marie, Dr. Gardezi and Rosalie moved to Peterborough, Ontario. The choice of Peterborough was logical to them as their children were attending at the nearby universities. During his years of retirement, Hassan, maintained an exemplary life of an intellectual. Publishing regularly, attending and presenting papers at international conferences, engaging in activism for justice, peace, secularism, and socialism. He also wrote beautiful poems in his first language, Siraiki. He translated some classic Sufi tracts from the Siraiki language into the English language. His two-volume biography of Dada Amir Haider Khan, a leader of the Communist Party of India, presents a remarkable account of the emancipatory movements in the colonized South Asia and their nexus with the workers and peasant movements throughout the world.

As a visionary, Hassan always encouraged younger comrades and friends to organize. He indeed played a big part in organization of numerous organisations and associations struggling for just, fair, and peaceful society. Indeed, Hassan was instrumental in the organization of the CPPC. His vision is reflected in the mission of the CPPC. While we are still struggling to cope with the loss of this remarkable person, we continue to bask in the light of his vision, his compassionate and thoughtful fellowship and friendship, his unfathomable wisdom and generosity. Our hearts are with Rosalie and their beautiful children. May we all and may the Gardezis find peace.

End the tragedy of Kashmir

Yashwant Sinha-led group calls for corrective measures
Peerzada Ashiq SRINAGAR APRIL 21, 2017 15:44 IST

Delhi based citizens’ group expresses concern over the recurrence of violence, student protests.

As Kashmir remains on the edge, a Delhi-based concerned citizens’ group on Friday called for a political outreach, including dialogue, with the separatist leadership.

The group, headed by senior Bharatiya Janata Party (BJP) minister and former Union minister Yashwant Sinha, said in a joint statement: “Nobody in his right mind should want a repetition of the events of 2016 — not the government and certainly not the Kashmiri civilians.”

The statement was also signed by retired Justice A.P.Shah, former chairperson of the National Commission for Minorities Wajahat Habibullah, former diplomats Salman Haidar and Nirupama Rao, social reformer Aruna Roy, mediapersons Shekhar Gupta, Prem Shankar Jha and Bharat Bhushan, historians Ramchandra Guha and S. Irfan Habib, retired Air Vice Marshal Kapil Kak, author Badri Raina, and activists John Dayal and Sushobha Barve.

The group expressed concern over the “recurrence of violence, student protests and the video war on social media in Kashmir”. “Peace in disturbed areas has never been achieved through more violence or by retributive measures,” said the statement.

Referring to the voter turn-out of a meagre 7% in the Srinagar bye-poll, it added, “An erosion of faith in democratic processes may eventually threaten the legitimacy of the State itself. This process needs to be stemmed and corrective measures taken.”

Calling for dialogue, the group said, “India’s heart is large enough and its Constitution flexible enough to accommodate the aspirations of all its citizens, the people of Jammu and Kashmir included. For this, the government of J&K and the Central government need to show exemplary restraint in either deploying force or adopting ‘innovative’ measures.”

The group asked the Government of India, “To carefully fashion a strategy of outreach for the people of Kashmir. Such an outreach should include not only leaders of Kashmiri civil society, opinion makers, public intellectuals and other stakeholders in the State but also the separatist leadership as promised in the agenda of alliance between the BJP (Bharatiya Janata Party) and the PDP (Peoples Democratic Party).”

The group visited the restive Valley in the last week of October and met senior separatist leaders and civil society groups.

Copyright© 2017, The Hindu

Kashmir on the brink

From Indian Express April 16. 2017

Across the aisle: Kashmir is sliding into disaster

The writing on the wall is clear. The alienation of the people of the Kashmir Valley is nearly complete. We are on the brink of losing Kashmir.

Kashmir, Kashmir man army jeep, man tied to jeep, Kashmir violence, Kashmir clashes, stone pelting, Kashmir nationalism, nationalism, Valley violence, Express column, Indian ExpressThe people of the Kashmir Valley have alternated between hope and despair. J&K has seen good times and bad times, but the present time seems to be the worst of times. (Representational)I have written many times on the situation in Jammu & Kashmir with particular reference to the situation in the Kashmir Valley. There were six columns on this page between April and September 2016. The thrust of my argument was, thanks to the policies adopted by the PDP-BJP government in J&K and the Central government, we were losing Kashmir. Few, outside the Kashmir Valley, supported me; many criticised me; and a minister of the Central government came close to calling me anti-national!

I have not changed my views. Rather, recent events have strengthened my views and I intend to articulate them more forcefully. My argument can be summarised thus:

Article 370 is a compact

Jammu & Kashmir, then ruled by a king, acceded to India in 1947 under a ‘grand bargain’. Article 370 of the Constitution of India, adopted in 1950, embodied that grand bargain. Over the years, that Article has been honoured more in the breach than in the observance. The three regions of J&K have responded in different ways. The centre of the conflict is the Kashmir Valley that is home to seven million people. The people of the Valley, especially the youth, have reacted aggressively to the denial of the autonomy that was promised when J&K acceded to India. Among the people, a very small number wants the Valley to become part of Pakistan. A number of persons have turned militants and taken to violence but, at the worst of times, that number did not exceed a few hundred. The overwhelming majority, though, demands azadi.

India, rather the Indian establishment, has reacted predictably. Every government in J&K and every government at the Centre has responded to the challenge with more warnings, more troops and more laws. I have concluded that Kashmir is one subject on which the Prime Minister’s writ does not run. I believe Mr Atal Bihari Vajpayeegenuinely looked for a resolution, spoke of insaaniyat,but Operation Parakram was the legacy of his government. Dr Manmohan Singh had an acute sense of history, he accommodated new ideas like the Round Table conferences, amending the AFSPA and deploying interlocutors, but ultimately deferred to the ‘establishment’ view. Mr Narendra Modi surprised all by inviting Mr Nawaz Sharif to the swearing-in of the new government but soon enough he embraced the ‘establishment’ view.

The worst of times

The people of the Kashmir Valley have alternated between hope and despair. J&K has seen good times and bad times, but the present time seems to be the worst of times.

The slide to chaos began in July 2016 with the killing of Burhan Wani. That was only the immediate trigger, the seeds had been sown earlier. In 2014, after the election to the J&K legislative Assembly, two unlikely partners, the PDP and the BJP, formed a coalition government. That was, and remains, a grave provocation. The PDP is seen as a betrayer and the BJP is seen as the usurper. Pulled in opposite directions, the state government has remained passive and helpless while the armed forces have implemented a muscular policy to quell dissent and disturbance.

Since July 2016 and up to January 20, 2017, the violence in J&K claimed 75 lives. Besides, 12,000 people were injured, 1,000 lost vision in one eye due to pellet injuries and five were blinded (as per a report in this newspaper).

As I write this, the situation in J&K has worsened. There were two by-elections — in Srinagar and Anantnag constituencies. Srinagar constituency, spread over three districts, went to the polls on April 9. The voter turnout was 7.14 per cent, the lowest in 28 years. There was widespread stone-pelting. Eight people were killed in police firing. Re-polling in 38 booths took place on April 13, no voter turned up in 20 of those 38 booths, and the voting percentage in the re-poll was 2.02 per cent. Meanwhile, polling in Anantnag constituency was postponed to May 25. The non-vote is actually a vote of no confidence against the state government and the Central government.

The writing on the wall is clear. The alienation of the people of the Kashmir Valley is nearly complete. We are on the brink of losing Kashmir. We cannot retrieve the situation through a ‘muscular’ policy — tough talk by ministers, dire warnings from the Army Chief, deploying more troops or killing more protesters.

A last opportunity

At the risk of being labelled anti-national, let me list the first few steps that must be taken:

1. Ask the PDP-BJP government to resign and promulgate Governor’s Rule. Mr N N Vohra has done a great job as governor, but it is time for a new governor.

2. Announce that the Central government will begin a dialogue with all the stakeholders. Talks can begin with civil society groups and student leaders. Eventually, talks must be held with the separatists.

3. Appoint interlocutors to pave the way for talks.

4. Reduce the presence of the Army and paramilitary forces and hand over the responsibility of maintaining law and order in the Kashmir Valley to the J&K police.

5. Defend the border with Pakistan by all means, take deterrent action against infiltrators on the border, but put on hold ‘counter-terrorist operations’ in the Valley.

If the current medicine of tough talk and tougher action has not worked in J&K, why is it not opportune to try an alternative cure?

Website: pchidambaram.in @Pchidambaram_IN