CLA of Kamal’s statement
NC Spokesman's stand can be backed by the facts on the ground
VIEWPOINT BY DR ABDUL MAJID SIRAJ
Critical Legal Analysis (CLA) is a discipline that breaks down an event into synthetic as well as analytic genesis. Dr Mustafa Kamal, the youngest son of Sheik Muhammad Abdullah and chief spokesman of the National Conference the ruling political party of J&K, has made statements that caused a stir in the State, in India and also in international circles. He reiterates that the Indian army has been responsible for grievous human rights violation for which they are unrepentant , seem to have a covert and complicit affirmation from the top executive. The victims and the civilian population are left unrequited. The State Human Rights Commission and working groups appointed by India to assess grievances and suggest solutions have proved unsuccessful. The most strident of all his protest remark has been the allegation that the army stage manage encounters and bomb blast incidents to justify their deployment and to reinforce their objections against scrapping the AFPSA.
He also maintains that IOA that binds relationship of J&K with India is temporary, tenuous and was drafted as a provisional agreement as a first step prelude to a plebiscite. He also accuses successive governments in the centre to fall short in compliance of the commitments they pledged from to time and renege on promises of a peaceful resolution. In the face of tough opposition not only from rival mainstream political parties but also from his own party Kamal stood solid behind his views. His older brother Dr Farooq went to the extreme, blaming his father for bringing his baby brother into the world. Kamal unmoved by these spiritual exposé also maintained that his father was not a party to Indira accord (Delhi Accord 1975) . As a consequence of these catalogue of irregularities Kamal maintains that AFSPA legal arm militarism must be withdrawn as a start of demilitarization. Kamal has been under pressure from pro-Indian parties and the Indian army to withdraw his statements.
In chronological order a CLA dissection of Kamals’ crusade brings the question of Human Rights violations to the fore. The skepticism common public perception emanates from the fact that administration in power have been bystanders of human rights abuses perpetrated against the people they rule. In law such a regime is ultra vires and have to abdicate power. A robust case against the army was made by Kamal quoting Kunan Pushpora case where an 80 year old woman was raped and Chittisingpora massacre followed by fake encounter in which more innocent people were killed in cold blood. Art. 6 (1) of ICCPR (1966) secures right to life and there is implicit support in Kamals’ campaign but public are agog with disappointment how a law abiding administration can turn a blind eye to blatant crimes against humanity perpetrated repeatedly and rule in comfort.
Indira Sheikh Accord ( 1975 ) was never signed by his father asserts Kamal but on record is the document of 12 Feb. 1975 which states J&K continues to be a constituent unit of the union of India shall be governed by A-370. Apart from legislating on welfare, culture, social security and Muslim Personnel law, the Union Parliament will have the power to make laws to the prevention of activities towards disclaiming, questioning, or disrupting the sovereignty or secession of a part of the territory from the Union. 262 laws were imported since. There is tenuous remnants of autonomy remaining and the essential ingredient of this Accord was to entrench a merger. All the emphasis about illegality of the Accord because the Sheikh did not sign as purported by Kamal leaves the State of J&K in the lap of Accession Deed (1947) that itself has been challenged and has not stood to CLA scrutiny. It is a shocking eye-opener for the people that there is no legitimate treaty of political association that is binding on them and yet there are democratic regimes that claim credence in law.
Kamal has fervently campaigned for revoking Armed Forces Special Powers Act AFSPA Jammu & Kashmir 1990) . He has a mixture of support from those who favour like Mr. Chidambaram , the Home Minister and the Civil Society in India and Kashmir and those who oppose it as understandably from the Army , the BJP and surprisingly the Congress party. It is not the actual law that makes any impact on politics of Kashmir or the fear of escalating militancy for the army because army functions with impunity under their own (Section 5 Armed Forces Act) rules in which they can resort to force to the extent of using live fire. It is the blanket license to kill that forces can use for injudicious objectives that AFSPA offers that has been the bone of concern. It over-rides A 6 ‘ Right to Life; A-19 Right to Information Act and most importantly they can pick up people and against Indian Constitution A-21 disappear them. They torture them, kill them and dispose the body without informing the relatives about the whereabouts of their loved ones.
Section 6 of AFSPA states that seized property or persons must be made over to police explaining circumstances of seizure. The only property ever handed to police have been dead bodies. The Supreme Court of India upheld legislation in Naga People Movement who filed a writ (1980-82) . AFSPA was challenged on the grounds of violating fundamental right to life, liberty equality, freedoms of expression, movement. Para 53, S No. 3 (d) obliges army to handover the detainees within 24 hours. The discovery of unmarked graves is a living proof that people were killed in great numbers and disposed off. Kamals’ campaign has a legal background and underpinned by massive evidence of violations.
Revocation of AFSPA has an important repercussion for all those agencies dedicated to the idea of keeping Jammu & Kashmir intensely militarized. As expressed by Prashat Bhushan Supreme Court Lawyer and member of Team Anna once AFSPA goes it becomes a precursor to complete demilitarization. Kamals views have been endorsed all his party that the ultimate goal to achieve must be complete exit of all armed forces and security concerns left with the local police to deal with. Dr. Mustafa Kamals' pronouncement has further endorsed the views expressed by members of India’s civil society that army was called at the time of parliament attack, why does it have to be resident in Jammu & Kashmir. The CLA of Kamals’ crusade has arguments to validate the bona fide on legal and logical basis. There is also a strong moral dimension that cannot be ignored. Any struggle to protect human lives, their dignity and security of future has the support of international and customary laws.
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Lastupdate on : Wed, 9 Nov 2011 21:30:00 Makkah time
Lastupdate on : Wed, 9 Nov 2011 18:30:00 GMT
Lastupdate on : Thu, 10 Nov 2011 00:00:00 IST
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