Category Archives: South Asia Bulletin

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

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


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


Hindutva terror and Indian double standard


India owes answers to the world for Samjhauta blasts : Gurpreet Singh

( Photo Courtesy : Indian Express)

Guest Post by Gurpreet Singh

India which has always claimed to be a victim of terrorism for all these years owe answers for one of the worst terrorist incident that is hardly discussed by the anti terror activists across the world either due to silence over Hindutva violence or Islamophobia that continues to grow in the post 9/11 environment.

Ten years have passed as the families of the victims of Samjhauta blasts continue to wait for justice.

On February 18, 2007 explosions aboard Samjhauta rail express that connects India and Pakistan left 68 people dead and about 50 injured. At least 42 of the victims were Pakistani citizens most of them returning to their home country after visiting relatives in India. The rail service was started to connect the families divided by partition of India and Pakistan in 1947 and promote people to people contact between the neighbouring nations that have gone to two major wars in 1965 and 1971.

The Indian government had initially blamed Pakistan- based Islamic extremists for the incident. In fact, several Muslims were rounded up for investigation. The Indian establishment had claimed back then that this was done to undermine the relationship between the two countries by the radical Islamic elements in Pakistan. Not surprisingly, the media too accepted the narrative and the incident was taken as another instance of terrorism aided and abetted by a hostile neighbour from across the border. It seemed that everyone in India was convinced that it was a handiwork of the Jihadists killing their own Muslim brethren.

True. There is no dearth of such elements in Pakistan, but India too is home to Hindu radicals who do not want Indo-Pak relations to improve either. They too have been protesting in the streets against any peace initiative and efforts to strengthen economic and cultural ties between the two countries. But mainly because of the prejudices against Muslims and Pakistanis within the Indian intelligence and security agencies this scenario was completely overlooked or may be deliberately glossed over to give legitimacy to Hindu extremists. This is despite the fact that majority of victims were Pakistanis.

Thanks to the honest investigation by some thoroughly professional police officers, the network of Hindutva terrorists involved in the crime was unearthed. Several suspects were eventually rounded up as it was revealed that they wanted to turn India into a Hindu theocracy through armed uprising and creating fear in the minds of the Muslim minority. One of them Swami Aseemanand had confessed to his involvement not only in Samjhauta case, but other explosions as well. All these bombings were aimed at Muslim communities and their places of worship in different parts of India. He and his associates claimed that they were doing this to retaliate against the bombings of Hindu temples and communities by the Jihadi terrorists.

Interestingly, these startling revelations came when India was being ruled by the secularist Congress government that also wanted to isolate Pakistan internationally for supporting subversive activities on its soil. Since the existence of Hindutva terrorists weakened its case, the investigators were forced to look into other possibilities and rather go slow. Nevertheless, it was difficult to conceal the truth.

Unfortunately, things started moving into wrong direction ever since right wing Hindu nationalist Bhartiya Janata Party (BJP) came to power in 2014 under Narendra Modi. There were apprehensions that the prosecution and the courts might be pressurised to dilute the cases against these people. The first indication came when a former prosecutor Rohini Salian spilled the beans in 2015. She revealed that she was asked by the National Investigation Agency (NIA) that is handling these investigations to go slow against the Hindutva extremists. After all, BJP strongly believes in Hindutva – an ideology that sees India as a Hindu nation. There is every reason to believe that they have been patronising such elements for political considerations and shared ideology.

Modi – who was previously the Chief Minister of Gujarat is widely blamed for the 2002 anti Muslim massacre, though he was never charged. It is pertinent to mention that Modi had publicly condemned the arrests of Hindu activists in connection with the bomb blasts. So much so, he was pictured alongside Aseemanand at a public event. Aseemanand has once been active in Gujarat where he targeted Christian missionaries.

Another glaring instance of NIA’s lack of will to deal with Hindutva terrorists is the absence of the names of Hindu extremist outfits from its list of banned terror groups. Barring the Sikh, Muslim, Maoist extremist groups and those representing other sub nationalities, there is no mention of any Hindu nationalist group, including those involved in Samjhauta blasts on the list on its website. And if the latest development in one of the cases against Aseemanand is any sign, the current government certainly lacks will to punish them.

Only recently Aseemanand was acquitted in the Ajmer blast case. The October 2007 bombing had occurred near the famous Muslim shrine in Ajmer, Rajasthan that left three people dead and 15 injured. This was one of the many acts committed by Hindutva supporters to terrorise Muslims. Like in Samjhauta case that too was initially blamed on Pakistan -based Jihadi groups.

Reacting to his acquittal, Pakistan expressed its displeasure and asked India to bring perpetrators of the Samjhauta blasts to justice. In response to this, the Indian government accused Pakistan of interfering in its internal affairs.

One may argue that Indian judiciary can solely take care of such cases, but Pakistan is within its right to ask for the answers for an incident that left its citizens dead. If India is really worried about its image, it should rather set its house in order and deal with the Hindutva terror with a similar zeal that is shown while dealing with other terror groups. The least the Indian government can do to silence Pakistan or its domestic critics is punishing those guilty of Samjhauta blasts instead of giving them back door amnesty. This whole approach only reflects selective justice of the Indian state that lacks courage to stand up against majoritarian democracy and that’s the reason why Hindutva extremists have continued to grow over the years.

Instead of cursing Pakistan all the time and blaming it for terrorism within India, the Indian government should look hard at itself in the mirror. Even if one believes that terrorism is being fully supported from across the border, which is not deniable, India must take blame for providing reasons for compelling its citizens to become recruits for Jihadi movement. Particularly, the BJP and its cohorts are to be blamed for pushing the Muslims to the wall and forcing them to take to militant paths. They led a movement which led to demolition of an ancient Muslim mosque in 1992 and have been repeatedly harassing Muslims for eating meat and if nothing accusing them again and again of being Pakistani agents and unpatriotic. In a way, they themselves have been feeding the demon called Jihadi terrorism. The recent appointment of Yogi Adityanath – who is known for his anti-Muslim rhetoric as the Chief Minister of Uttar Pradesh following spectacular victory of the BJP in the assembly elections leaves no doubt that India is heading towards becoming a Hindu state. It is only a matter of time when the Indian constitution is amended to replace Hindutva with secularism as one of its preamble. All this suggests that Hindutva terror that resulted into tragedies like Samjhauta episode is not going to die soon and will continue to gain more acceptance under the Modi administration.

The argument that Pakistan is interfering into the internal matters of India is weak and speaks volume about the double standards of a government which had not very long ago showed its concern over the increased hate attacks on Indian immigrants in US. For the record, India has time and again raised eyebrows over the softness shown by Pakistani judiciary and the government toward Jihadi extremists involved in terrorist incidents within the Indian territories. Maybe India needs to be reminded that those who live in glass houses should never throw stones on others.