Cordon and search operation (CASO) a series of such operations in Kashmir have touched alarming proportions. There are frequent accounts of human rights (HR) violations in localities where CASO is conducted. CASO forms a part of what is labeled, ‘Operation All Out’. Ironically, operation all out is virtually taken to be what it means. It has become a no holds barred campaign. No distinction is made between what the state would like to call combatants and non-combatants. Militants, as per the state narrative might fall under the category of combatants; however observance of HR would demand that non-combatants might be spared the agony they face in one CASO after another. The forces engaged to combat militancy have the license to go to any extent. They are not accountable, as they are AFSPA protected. ‘Armed Forces Special Powers Act (AFSPA)’ provides the impunity to forces to act, as they may, without the fear of any reprisal. Accountability is sacrificed at the altar of expediency.
The right of nation states to account for extraordinary situations vis-à-vis maintenance of law and order is recognized by international covenant on civil and political rights [ICCPR] albeit with constraints. The constraints imply that regardless of seriousness of the situation, the state needs to respect human rights. The guidelines are provided by the norms of ICCPR adopted by the General Assembly of the United Nations on 19 December 1966. Part (II) Article (4) of the ICCPR makes provision for nation states to take extraordinary measures. However, Article (4) (1) notes, ”In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” It is clear that there is no carte blanche for states to act, as they may, constraints are clearly defined as the obligations are studied further.
Article (4) (2) states, no derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision. These articles cover various aspects of human rights. Part (III) article (6) of the covenant notes, ”every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Though security forces claim to be guided by standard operating procedures, while conducting CASO, and in combatting militancy, much collateral damage claiming civilian lives has been noted. It continues, and much advertised official investigations, hardly if ever pinned the blame on security forces. AFSPA protected security personnel continue to operate with impunity. Given the disappearances in thousands and scores of unmarked graves in Kashmir over three decades of proclaimed fight against militancy, it is highly doubtful whether the right to life, as noted in article (6) of the covenant is respected at all. Besides, article (21) of the constitution of India provides that, ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.”
It remains questionable whether the right to life or personal liberty is respected in J&K state, as per the established constitution norms. It could be a matter of debate, whether AFSPA is consistent with article 21 of the constitution? Or, does the CASO conducted widely in Kashmir respect personal liberty enshrined in article 21 of the constitution? In 1991, United Nations Human Rights Committee [UNHRC] questioned the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of ICCPR. The rider in article 21 ”except according to procedure established by law” cannot be taken as blanket approval for the armed forces to act, as they may under AFSPA. The rider has to respect not only the letter but the spirit of ”procedure established by law”. Moreover, the procedure established by law entails a judicial process, which is largely missing in AFSPA, as J&K state has experienced over more or less three decades. In 2009, Nevatenam Pillay, South African jurist, who served as the United Nations High Commissioner for Human Rights from 2008 to 2014, called AFSPA, ”Colonial”. AFSPA in fact has a colonial legacy. Named ‘Armed Forces Special Powers Ordinance’ it was promulgated by the British on 15 August 1942 to suppress the ‘Quit India Movement’. It should have had no place in free India, proclaimed to be democratic. However starting from some northeastern states in 1958 to J&K State in early nineties, the law with a colonial legacy has been regularly employed.
Part (III) article (7) of the international covenant of civil and political rights notes, ”No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” What is noted speaks for itself. It could be asked whether in case of ones imprisoned in J&K state or the vast numbers that face CASO, what is noted is at all observed? International covenant, as per article (4) (3) implies that, ”Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.” What is noted put the onus on nation states to abide by the norms, observance however remains largely questionable?
Yaar Zinda, Sohbat Baqi [Reunion is subordinate to survival]
iqbal.javid46@gmail.com