The dining table erupted with a predictable debate. Aroused by the taste of the traditionally cooked meat, and, in the momentary infatuation to argue, I touched the subject of AFSPA. So did the other members on the dining table.
“Kashmir is an integral part of India! Azaadi? Azaadi from what?” Challenged my guests to the dinner. And I began with my invariable rants about self determination, International Law, Rights and Democracy. My defiance made me feel important. Protest was my fashion statement.
However, my sense of hospitality interrupted my narcissism. I changed the discussion to Bollywood. The Affluent realism of Yash Chopra saved the day. The food was sumptuous with a twist of fusion of modernity and traditional spices. The weather was pleasant and the atmosphere was perfect for a peg. We drank to the success of our little evening party.
That same day, in another corner of the country, Inquilab died. And, in another corner, Kraanti was suppressed, raped, and brutally killed. The central Government of the country flaunted the burgeoning Economic Growth and in a few months, the government also, presented the Union Budget allocations. With a hike of about 27%, the defense was distributed with an increased 77000 crore, as against an earlier estimate of 65300. The Armed forces Special powers Act continued with the strongest of powers and certain lesser important lives were just left to die.
I left every issue to crash into by soft little mattress on the spacious bed. I fell asleep in the darkness, as, Bob Dylan asked from my earphones “How many deaths, will it take to realize…too many people have died?”
The earliest passage of the Armed Forces Special powers Act was in the year 1958. In its initial years, until 1990, the Act was operational in the North Eastern States in India and finally, in the year 1990, the State of Jammu and Kashmir was also added to the ambit of this Act.
The basic implication of this particular Act is that, it provides arbitrary and ridiculously sweeping powers to the Indian Army to shoot civilians and to arrest them without warrant. The most bizarre part of this Act is the fact that it gives the Army a virtual immunity from being prosecuted and in case, it is intended to prosecute them special allowance is needed to be sought from the Central Government.
The nature and tendency of the Act of AFSPA, has been widely criticized for its monstrous and unimaginable extent of oppression of Human Rights, Democracy and countless accounts of torture and Rape. An unknown figure of disappeared civilians and brutally killed children remain to be told as we write the anthology of Indian Democracy.
The foundation of AFSPA was primarily on an ordinance passed during the Second World War to contain the increasing rebel for Independence. Ironically, for over fifty years, the Act remains to harass the very idea of Independence in the country. Under the circumstances, there is, perhaps, an immediate need to re look this Act.
Meaning of Democracy
The understanding of the concept of ‘Self Determination’ as perceived in Public International Law and the genesis of Democracy is necessary in to be able to comprehend the main issue of my argument. The AFSPA was thought of and introduced during the Second World War. It was the time, when, on one hand, the colonies struggled to retain their supremacy over their rivalries. Alongside, they also tried to desperately retain their colonies. Rebel within the colonies had already begun. Perhaps, a shift in the global dynamics and perception of war itself was changing. The common middle classes suffered and generations that were brought up, amidst warfare, began to despise hatred itself. There was a situation, when, the west, was desperately looking for messiahs and heroes, to give them Hope. Tagore stood as one of those symbols of sage like assurance of philosophical redemption. Cricket, Movies, Beatles, Bob Dylan, Democracy and the story of Freedom, rebuilt the war after the two great wars. The whole character skill of war fighting changed from hard and explicit power to organized soft power, as described by Joseph Nye.
Under the circumstances, internationally, the ‘Power of the People’ became much more relevant than before. Democracy, contained the dissent, rebel and it was possible stay composed and further speak the conscience and live in disagreement. There was necessarily no need to break away to turn violent when two different ideas did not match.
John Stuart Mill, in his perspective on ‘minority representation’, did not imply the minorities to be any particular community or group. Instead, a minority was the one who had an opinion, which was different from the majority. Obviously, such a model is to a certain extent found in the Indian Democracy as well. The party or parties that form our government represent the majority assent and the opposition stands as the voice of minority dissent. Therefore, both the sides play an extremely pertinent role in the working of a successful democracy. Therefore, from the circumstances under which the Act was passed, to the present times are very different. The nature of our political imagination has undergone a sea change.
Right To self Determination
The concept of Self Determination, probably, arose in International Law around the year 1776, during the American Independence. The basic idea was to give people the liberty to choose who governs them. The thought was that the consent of the people was the primary ingredient of any state. Therefore, the concept was the gradual transition process towards democracy that had only transpired later in the twentieth century.
Post the French Revolution, itself, the concept of sovereignty, Integrity, equality and Fraternity began to be emerging. Later, with the turn of events like the Unification of Germany, Bolshevik Revolution, ideas of Marxism, Stalinist philosophy and of course, the genocides of Jews in the World war, the philosophy of self determination consolidated.
The League of Nations has recognized and discussed Self Determination, more as a political concept than a Legal concept and therefore, had not stressed much on its binding force on the nations. The Article 22 of the League of Nations discussed a compromise between the Right to Self Determination and the Administrative powers.
After various other debates and genesis of Jurisprudence, the United Nations Charter in 1976, adopted the Right to Self Determination as a legal Right under the Charter for Human Rights declared in the year 1948. People, internationally, were now, legally empowered to pursue their economic, social and political development without any hindrance. The trend of suppression and coercion by colonies was demolished in principle and Law, globally.
From the nineteen points of Wilson in 1918, to the League of Nations, various disputes like the Auland Island, Atlantic charter, to the Charter of Human Rights, Self determination has a very rich jurisprudence.
Social Contract, State and Kashmir
The social contract theory is perhaps a theory as old as old as philosophy itself. From Plato, to Roseau, to various political philosophers, have constantly redefined the concept to give it a broader perspective. Basically, it is the simple agreement between the state and its people. The people choose their government and leaders and invest in them, more power, than all the people combined. The state is composed of the people but represented by a body in which, the people have willfully created with an imaginary power to give it authority and a higher pedestal for governance. This Leviathan, so created, promises to protect us, ensure our safety, our liberty and happiness. In return, we follow their laws, their rules and support them. Whenever, either side breaks this agreement, Legality comes to force or justice prevails.
The State of Kashmir, post Independence, was taken over, under certain, very different circumstances. When Raja Hari Singh, surrendered Kashmir to India, India made a promise of a future plebiscite to decide whether Kashmir would be an Independent state or remain as a part of India. Keeping in mind, the tenderness of the issue, Kashmir, though a part of the Union of India, was given a special status under the Indian constitution Article 370. India and Pakistan have fought several wars for Kashmir and the region continuous to be one of the most disputed areas of the world.
Pakistan, on the other hand, is watching as a hawk as it tries to take over Kashmir to avenge the division of East Pakistan into Bangladesh in which had was a primary support from India.
India had promised a plebiscite, only after the situation in Kashmir, had been peaceful. However, the situation, according to the Indian government, has not been under control, yet. The promise that was made in the United Nations could not be fulfilled to this day. The region continues to become increasingly unsafe as the civilians live like cattle caged on the borders without a proper identity. Human lives begin and end in the tyranny of India Occupied Kashmir and Pakistan Occupied Kashmir. An untold number of innocent civilians are detained, tortured and brutalized under AFSPA and no Army personnel is ever tried or brought to justice. Army shelling has killed hundreds of Youth and in the name of curbing militants and terrorism, commoners have been brutalized. Women and children are raped and Kashmir is yet to live without fear.
Cases like the Hanging of Afzal Guru that did have various arbitrary and legal loopholes have further alienated, Kashmir from India. The primary right of the family of the accused to present at his grave was denied by the state. Repeated requests to meet Mr. Guru by his Son and wife were denied. This is just one case of the defiant and aggressive manner in which India has dealt with Kashmir.
Any debate or discussion that criticizes the state acts in Kashmir has been denounced as Anti National and young students have been arrested and tortured along with their Professors. India, is still stuck in the age old colonial patriarchal technique of oppressive rule in Kashmir. However, such politics is obsolete now. Kashmir needs to be allowed to open up. India should be sensitized to the issues of the state and struggles there. The entire Kashmiri Pundit massacre was, again, a result of bad policy making. Instead, if Kashmiri civilians are allowed to speak, dissent and protest, the reality can be addressed.
Without real Democracy, even heaven is not worthy of living. As Economists across the globe agree, terrorism can be countered with trade opportunities, equality and Free Speech. We cannot ignore the wonderful market and tourism possibilities of Kashmir. Every Youth there is a prospective innovator for the world. How interesting would it actually be to hear all the perspectives as the debate becomes open and live on the All India Radio Network! Every corner of the country participates and stands by Kashmir. Pakistan is no alien country. Pakistan is also a part of us. Ages of distrust and misrule created by our colonialists, leaders and governments separated us in manner that is hilariously damaging to us-the common people. It is us; the youth and the generations of the future that need to reunite our roots in order to seek redemption for the horrific tragedies of partition. The Kashmir issue is only making us weak to the world. If Kashmir is not allowed to speak, we shall never hear their stories and police and army power can never suppress rebel and revolution. Another state would be formed, with more bloody battles. More hatred would breed. We all would be weakened further. If we are all the same, then why this brute force? If the nation is Parents Patrie, which parent hurt their children so much? Discuss, speak and perhaps, we would find similar stories to discuss. From Pakistan to India, we all love Biriyani, Bollywood Music, and Humanity. Kashmir, does not want Pakistan or India, Kashmir wants her own identity and we should learn to recognize that individuality. Free Speech can only bring freedom. Force in International politics is obsolete. Self Determination is a right and the acts of brutality in Kashmir is unconstitutional and AFSPA needs to be scrapped immediately with effective developmental measures, regular discourse and a serious and unbiased communication channel amidst the valley and the world. A democracy cannot be afraid of facing uncomfortable questions. Superficial force can only delay another bloodbath, it cannot stop it. If we want to over grow our bloody history, we should take the burden of our mistakes and promise to prepare the future with truth and integrity.
“Hindustan bhi mera hai aur Pakistan bhi mera hai
Lekin in donon mulkon mein Amrika dera hai”- Habib Jalib
By: Ujjaini Chatterji, Symbiosis Law School, Noida.