HUMAN

Vol. 9No. 3

J&K

www.humanrightsjournal.com

Perspective

RIGHTS
May-June, 2011

Bimonthly Review of Jammu and Kashmir Affairs with Human Rights Perspective

Panchayat Elections in J&K: An Instrument of Popular Empowerment or Centralisation?

he Chief Minister, Omar Abdullah, has constituted a high power committee, headed by the Chief Secretary Madhav Lal for formulating a road map for the transfer of vital functions and finances to the panchayats, to which elections are being held from April 17. Why could this not be done before announcing the elections? And the road map prepared by the committee be publicly debated or at least discussed in the assembly, the session of which has just ended? Till it is released, we have to keep our fingers crossed. As it is, the present Panchyati Raj Act is merely an instrument of further centralisation of power, than a genuine measure of empowerment of the people. Here I raise some pertinent questions which the high powered committee should consider. Last time panchayat elections were held in 2001. There was hectic discussion between political parties, including the coalition partners in the State government, on the needs for some reforms in the Panchayati Raj before this announcement. The Congress party and the opposition parties of Jammu had demanded that the new panchayats should be formed after adoption by the State of 73rd amendment to the Indian Constitution which would have made panchayats a genuine instrument of decentralisation of power. It is not the 73rd amendment as such that is important. The State, after studying its working in other states of country, could have even adopted a better law than elsewhere if the objective was empowerment of the people.

The State assembly, however, did enact a law to constitute an Election Commission to conduct the election. But by that time code of conduct had been enforced which means the Commission would work from next elections. The coming election would be conducted by the Election department of the state government The fears about centralization of power through the cover of panchayati raj are further confirmed by some provisions of the State law. While the Central Law provides for direct election to all panchayati raj institutions, it is not so in the state. For instance, not a single member of the district board, under the J&K law shall be directly elected. Chairman shall be nominated by the government who is elected under the Central law. A provision has now been added for an elected ViceChairperson of the board. But the supreme power will continue to be exercised by the chairperson. Other members include chairman of the Block Development Councils, Town Area Committees and Municipal Council in the district, MLA's and MP's would be ex-officio members of the District Board. Though they are elected, it is well known that voters often choose different parties at local, State and national levels as the issues are different at these levels. Members of the Assembly and Parliament, in their capacity as members of the district boards, cannot therefore be said to represent the wishes of the people. In many States where MLA's and MP's are members of the district boards, they have no voting rights. But under the J&K law, they shall have these rights also.

At the block level also, unlike the Central law, the State Act does not provide for direct election of any member. It shall comprise sarpanches of halqa panchayats and chairman of the marketing society within the jurisdiction of the block. With the Block Development Officer, an ex-officio secretary, the block development council is also brought under the influence of the government. The government shall also have power to nominate two members to give representation each to women, scheduled caste or any other class. The Central Act provides for 33 per cent reservation for women and, according to the population ratio, for the Schedule Castes, but it does not, provide for any nomination at any level. The State law provides for nomination but not reservation. Further the term other class is so vague that it can be used by the State Government to nominate any person on the block council to represent it. The nominations can always ensure majority for the ruling party It is only at the halqa panchayat level where all members shall be directly elected. But even at this level, a government employee, i.e., the village level worker, shall be the member secretary who shall thus ensure government presence at the base of the panchayati raj system. Moreover, the government shall have the power to nominate two members on the halqa panchayat on the same pattern as it does on the block council. One more flaw in the State law with regard to the functions of the halqa panchayat is that its members have not
(Contd. on page 3)

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May-June, 2011 Balraj Puri

Self-defeating Measures to Resolve Regional Tensions

ssassination of a moderate Kashmiri leader and Ahl-e-Hadees president, Maulana Showkat Ahmad Shah, inside a Srinagar mosque on April 8 had sharply polarised the separatist politics of the Valley. Around the same time, the announcement of the government to issue a Dogra certificate to citizens of Jammu, united people of Kashmir against this proposal. Regional polarisation, thus, tended to undermine moderate hardliner polarisation in the Valley. To the extent issue of killing people for their political views had been highlighted, it would have been a gain for the whole State. Indeed, how does the Dogra certificate serve the interest of people of Jammu? It may be relevant for employment in the Dogra regiment of the Indian army, which recruits from Kangra, Chamba and other Dogri speaking areas of Himachal Pradesh. There is no demand for a special certificate from them. Nor have Dogras of Jammu been handicapped without it so far. What is more significant is that less than 45% of Jammu residents are listed as Dogri speaking in the census. Will not a Dogra certificate divide the people of Jammu, and reduce this population to a minority in the region? This is not the first time that special favours doled to Jammu have proved counter-productive. The Finance Minister Pranab Mukerjee, in his Budget speech, allocated Rs. 8000 crores a Special Development Assistance for J&K State. Responding to what he called recurring complaints of bias towards the Valley by Jammu and Ladakh, he set aside Rs. 100 crores for Ladakh and Rs. 150 crores for Jammu regions, much lower than the two Task Forces, constituted for infrastructure development in these regions had recommended. The recommended allocation for Ladakh was Rs. 416 crores and Rs. 497 crores for Jammu. The Finance Minister further said he was to begin with, "addressing certain concerns of the people of these regions. The Ladakhis and Jammu residents have long been complaining about the

continued central funding schemes in Kashmir." The Finance Minister also admitted that much of the money spent under Central schemes, like the PM's Reconstruction Plan of Rs. 28,000 crores, had been pumped into the Kashmir valley. If Finance Minister's presumption about neglect of Jammu and Ladakh is correct, is an allocation of Rs. 250 crores enough to compensate for the past neglect of these regions, and how does it take care of their "legitimate" share in Rs. 8000 crores allocated for the State as a Special Development Assistance in the budget year? While FM's has confirmed the grievances of Jammu and Ladakh, and raised their doubts about adequacy of remedial measures, voices have been raised in Kashmir protesting against discrimination involved in these proposals. The Kashmir Chamber of Commerce said that "while Jammu and Ladakh regions have been sanctioned funds, no such allocation has been made for the Kashmir region." The real grievance of Jammu and Ladakh is not lack of development but of alleged discrimination. How can even a rough estimate of it be made without a similar Task Force for Kashmir? An attempt to remove complaint of regional discrimination was made by the State government by appointing a Finance Commission to study this question. After four years of labour, it submitted its report which only aggravated regional tensions, for its members from Kashmir and other two regions, interpreted the official statistics in divergent way and submitted different reports. The leaders of the coalition government announce every day that it is committed to equitable development of all regions. But in the absence of any objective criteria, this is decided on subjective and political considerations, which results in complaints of discrimination, not only between regions, but also districts and assembly constituencies. In this context, the eight -point equitable and objective formula for allocation of funds to each region and district which I had

submitted to the state government as head of the Regional Autonomy Committee in 1998 becomes relevant. It included area, population, road-connectivity in proportion to area, share in state services, share in higher and technical education, infant mortality, female education and contribution to state exchequer. It could be further debated. Whatever form it is finally adopted, it could be computed to determine respective allocation for regions and districts in an objective manner. The priorities should be left to the elected authorities at all levels. Moreover, development is no substitute for satisfaction of political aspirations of the people. It has neither resolved Kashmir problem, nor would resolve regional tensions. Prime Minister, in his Jammu speech, rightly recognised that "there are genuine political, social and emotional grievances of the people of J&K." As far Jammu and Ladakh are concerned, their urge for empowerment is far more important than token special grants for development. The formula of regional autonomy that was part of the Delhi Agreement of 1952 between Nehru and Abdullah, and reiterated by Abdullah in 1975 before resuming power is still relevant. The most diverse state of the country, J&K, is all the more in need of a federal and decentralised set-up. At present, it is an extremely centralised and regimented state, where all power is concentrated in the hands of the Cabinet. Ad-hoc measures taken by the government to resolve regional tensions have thus far proved counter-productive. It was only after the work of the Task Force that a Congress minister from Jammu demanded separate Jammu state to end perpetual discrimination against the region. Another senior Congress leader demanded rotational Chief Minister. Alongside these developments, the Ladakh Hill Development Council (Leh) has discarded the State flag and emblem. In fact, the demand for separation of Ladakh from the State and making it a Union Territory is gaining momentum.

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J&K HUMAN RIGHTS Perspective

May-June, 2011

NHRC-IGNOU online training programme on Human Rights for Police Personnel

r. Justice K.G. Balakrishnan, Chairperson, National Human Rights Commission, NHRC, launched an online training programme on Human Rights for police personnel on the 1st February, 2011 in New Delhi. The tailor made programme aims to equip them with the knowledge of the Human Rights and how they can apply it while dealing with public. The programme has been developed by NHRC in collaboration with the Indira Gandhi National Open University, IGNOU. Justice Balakrishnan said that it is the duty of the Commission to sensitize officers and the people about the Human Rights. This kind of focused training module becomes all the more

important given the fact that various provisions of law and amendments therein sometime take long to reach the police officers down the hierarchy. He said that in a democratic country, police have major responsibilities in not only maintaining the law and order but also supporting the criminal justice system. Mr. P.C. Sharma, Member, NHRC said that senior police officers have a duty to orient their subordinates towards Human Rights. Crime detection, investigation and Human Rights go hand in hand. He said that senior officers will need to shed feudal approach in their functioning and supervise their subordinate officers and staff with a collaborative approach. Going by the number of complaints received in the Commission, sometimes it feels that power in the hands of he State government which it could use arbitrarily to influence the working of the panchayats. Panchayat adalat is another important feature of the new panchayati raj law of the State. For the modern system of justice is not only very expensive and time consuming, but is also virtually inaccessible to most of the rural and far-off areas. Panchayati adalats have been used in many states to supplement the formal judicial system by reviving and legitimizing the traditional system of justice. But by empowering the State government to nominate members of the panchayati adalat, and to remove its chairman or any member, the new law robs independence of the institution of justice at the grass roots level. It amounts to supplementing the judicial system and the traditional system of justice, both supposed to be independent of the executive, by a third sector of justice controlled by the State Government. Jammu and Kashmir Panchayati Raj Act does not accept the jurisdiction of the Union Election Commission "for superintendence, direction and control of the conduct of elections in the State" nor that of the Comptroller and Auditor General (CAG) of India "for the audit of the accounts of the panchayats" as the 73rd Amendment to the Constitution proposes to do for other States. The State is not only independent of

the police are growing insensitive. They need to change their attitude towards women, children, dalits and helpless people. Nevertheless, Mr. Sharma said that NHRC, while advocating for the promotion and protection of Human Rights of the people, also cares for the Human Rights concerns of the police personnel and their tough and demanding service conditions, and it has taken up the issue of reforms in their service conditions time and again with the concerned authorities. National Human Rights Commission Faridkot House, Copernicus Marg, New Delhi-110001

Panchayat Elections in...

(Contd. from page 1)

been made accountable to the people after they are elected. There is no provision for a gram sabha which could act as a sort of assembly for the panachyat and could meet once or twice a year to pass the budget and to exercise some control on the working of the panchayat, including the right to pass a vote of no confidence against the members and elect new members in their place. A pre-requisite of the success of the panchayati raj system is its financial viability and autonomy. The 73rd Amendment to the Constitution also provides for appointment of a Finance Commission by the State Governments to make recommendations for a) determination of the taxes, duties, tolls and fees which may be assigned to panchayats, b) distribution between the State and panchayats of the net proceeds of taxes, duties, etc; c) grant-in-aid to the panchayats by the States. J&K law neither fixes minimum amount of grant-in-aid by the State to the panchayats for providing nor autonomous machinery for objective allocation of funds. It has no assured source of income, either. The law, therefore, does not ensure financial viability and autonomy of the panchayats and leaves enough financial

the federal autonomous institutions like the Election Commission and CAG, it has also not made any Amendment in its own Constitution corresponding to the Amendment in the Indian Constitution. Such an Amendment would not have compromised autonomy of the State, but would have projected the interests of the panchayati institutions against bureaucratic encroachments by, say, making reelection of superseded panchayats constitutionally mandatory and reserving a list of subjects in the constitution for exclusive management by the panchayats. J&K State needs genuine panchayat raj, more than any other state. For it has much more diversities than others. In view of its multiethnic and multi-religious character, the panchayati raj is not only a means for devolution of power and participatory democracy but also is vital instrument of accommodating its wide diversities. Panchayati raj implies a federal continuum through which power devolves form Centre to State and then to District, Block and Villages. In the case of J&K, regional tier is an indispensable part of the federal continuum. Lack of trust in the people seems to be the only plausible explanation for the type of law the State has passed, which is more an instrument of regimentation and centralization than empowerment of the people. Balraj Puri
J&K HUMAN RIGHTS Perspective

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May-June, 2011

HUMAN RIGHTS UPDATE

Incidents of human rights violations given below are such specimen in which victims are innocent civilians, whosoever be responsible for the violations.

Army action illegal: Omar

AFSPA not applicable in Ladakh
Srinagar, June 4: Chief Minister Omar Abdullah on Saturday said searches of hotels by Army in Leh district earlier this week were "illegal" as Armed Forces Special Powers Act (AFSPA) was not applicable in the region. "If Army did conduct such an operation, it has done it completely illegally. There is absolutely no legal cover for them to do the sort of activity they did in Leh," Omar told reporters on the sidelines of a function here. Leh and Kargil, Omar said, were the only two districts in entire Jammu and Kashmir where the AFSPA was not in force. "In any other part of the state, they would have recourse to cover under AFSPA. That is exactly why we have been talking about the need to modify the Act and bring some areas out of its purview over the period of time," he said. The statement by Omar comes days after police registered a case against unidentified Army personnel for entering three hotels in Leh during intervening night of May 30/31 and "harassing" tourists, including foreigners. The tourist season is at its peak during summer beginning May-June in Leh and Kargil with the entire region witnessing rush of tourists from different states and abroad. The incident involving Army was reportedly a retaliatory action by a senior Army officer, who along with his son was asked to go through routine frisking at the Leh Airport a few days ago. The officer had reportedly entered into an altercation with the police authorities at the Airport. "Specific intelligence inputs over the last few days indicated that there were militant designs to disrupt the highly successful tourism season in Leh by targeting the hotels and Leh Airport. Since then, preventive actions including heightened security measures to preempt the terrorist motives are in place" Defence spokesman Lt. Colonel J S Brar had said. However, police denied having any intelligence about militants planning to strike in Leh as claimed by the Army. The Chief Minister also stressed the need of strengthening the Jammu and Kashmir Juvenile Justice Act. He said that the Act needs to be revised and brought at par with the national Juvenile Justice Act." I have already instructed Department of Law and Justice to take a look at the Act", he said. However, Omar evaded queries about the tourist rush to the Kashmir Valley and the recent statement by Hurriyat (G) chairman Syed Ali Shah Geelani. "I am not commenting on this issue," he responded to a query. (Greater Kashmir, June 6, 2011)

He died before drawing his first salary

Srinagar: His job cost him his life even before he could draw his first salary. Ghulam Jeelani Bhat, 28, the latest victim of stone-pelting in Kashmir, had joined the state-owned road transport corporation some 20 days ago as a driver. His first assignment of ferrying staff for the ongoing panchayat polls in the state would prove fatal. On April 25, while on the way to north Kashmir, Jeelani's bus was allegedly attacked with stones by some miscreants at Azad Gunj in Baramulla, some 55 km from Srinagar. He lost control and rammed into a nearby shop sustaining grievous injuries. Three days later he died of his injuries. "He was a labourer but somehow got a job in the corporation. But fate had other things in store for him. He could not even receive his first salary," said his colleague Shakeel Ahmad Kuchay, who is the chairman of workers' union of the corporation. After Jeelani's death there is no male member who can take over the responsibility of the family. He left behind his 25-year-old wife Sameena and their three children (the oldest one is three years old), his 60-year-old widowed mother and a sister who is living with the family along with her two children for the past two years. The house in which the family lives is a two room kucha one on the banks of Dal Lake in Shalimar on the outskirts of Srinagar city. "Half an hour before the accident he called his wife, telling her to spare some fish they had prepared for dinner. I think the family would never prepare the dish again," said his 45-year-old cousin Abdul Majeed Bhat. "His father left him (Jeelani) in my lap when he died, some 22 years ago. And now he (Jeelani) left his son in my lap," Majeed said. Majeed had nothing to say about the act of 'stone pelters but the death may have prompted a change of heart for many ardent supporters of stone-pelting in Kashmir. After the incident, hardline separatist leader Syed Ali Shah Geelani appealed youth to desist from stone-pelting. (Hindustan Times, May 2, 2011)
(Contd. on page 5)
J&K HUMAN RIGHTS Perspective

Shot at, local polls candidate

Srinagar, May 18: A day after he was shot at and wounded by suspected militants, reportedly for standing in the ongoing Panchayat election, Mohammad Maqbool Bhat Wednesday said he was determined to contest the May 25 polls. "It has been ordained by the Almighty that I contest the polls. Even if my last drop of blood is spilled, I'm not going to backtrack," Bhat told PTI from his hospital bed. Bhat, 65, was shot in his foot at Hajam Mohalla in north Kashmir's Sopore town on Tuesday. He said two "unknown persons" stopped him while he was on his way home and shot him. "They said we have warned you against taking part in the election. Now we will not kill you but only maim you," Bhat said. He added that he told the two gunmen that he would withdraw from the fray if they did not harm him but gave up the idea after they refused, and shot him. (Indian Express, May 19, 2011)

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May-June, 2011

Human Rights Update...

(Contd. from page 4)

conspiracy including the alleged deal of selling the property, the press statement of the police said. (Times of India, May 7, 2011)

Sopore trader shot dead at Lal Chowk

Srinagar: Unidentified terrorist shot at and killed a 55-year-old Sopore shopkeeper in the broad daylight on Monday afternoon at Residency Road near Pratap Park her. Mohammad Afzal Khan of Niharpora in Sopore in north Kashmir was walking down the road on the footpath when a youth opened fire at him from behind, Khan, who feel down with his face down on the footpath, was rushed to SMHS Hospital where doctors declared him brought dead. Dr. Muneer Masoodi, Medical Superintendent of SMHS, said the deceased had received a bullet on the head and had died on the spot. Though Jammu and Kashmir police was yet to establish the link of the murder, a senior police officer said the personal enmity could not be ruled out. Khan was survived by three daughter and two sons and a wife Jamela Begum. The elder daughter of the deceased is married to a driver at Basant Bagh in Srinagar, SP Sopore Altaf Ahmad said. Altaf refused to agree that the killer terrorist must have chased the deceased all the way from Sopore, where from the started his journey to Srinagar on Monday morning to meet his daughter in Basant Bagh in Srinagar. "How is it possible that terrorist could have chased him 50 kms and then killed him in the crowded market?" the SP questioned. Riyaz Ahmad, a local of Niharpora, said that the deceased was a successful businessman and was running a grocery shop in the native village. The police spokesman in Srinagar said, "One person Mohammad Afzal Khan, a resident near Pratap Park, Srinagar. He was shifted to SMHS Hospital where the succumbed to his injuries." The deceased was provision store owner. Initial investigation of police revealed that the deceased had come to Srinagar to collect a huge amount of money on account of property deal. The police was looking into all the angles of this crime, the criminal

Ultras behead abducted villager

Jammu: Terror trail revisited the mountainous district of Kishtwar with barbaric killing of a Congress worker in remote Kwath area of Chatroo tehsil in Kishtwar district. The beheaded body of the villager believed to the associated with the Congress was found in the nearby forest area after he went missing on May 16 evening. Sources in Kishtwar said that newly recruited militant associated with Lashkar-e-Toiba Khurshid Ahmad accompanied with other militants knocked at the door of one Abdul Gani Rather, son of Aziz Rather of Kwath Chatroo, Kishtwar and asked him for the dinner. While his wife get involved in making dinner for the unwanted guests, the invaders forced Abdul Gani to come along with them, sources said adding that his wife in the morning told the others that her husband had gone missing. They added to the surprise of the villagers, they found his beheaded body in nearby forest area. The sources also said that in a view to unleash terror, the head of the deceased had been kept on a stone to mark barbarism. They also added that the deceased was associated with the Congress party and was a vice-president of halqa (local panchayat) unit of party and was actively campaigning for one Piare Lal associated with party and contesting in the ongoing panchayat polls. Doda DIG Kishtwar Munish Sinha confirmed that Abdul Gani had been first kidnapped by the LeT group active in the area but he denied that killing had any kind of link with ongoing panchayat elections. Saying that locals may be giving a spin to a sensitive issue, Sinha said that as per preliminary investigation newly recruited militant Khurshid Ahmad along with his associated Mohammad Ishaq and others rounded the ill-fated person and took him along with them. His body was found near Dundmarg Nallah almost 30 kms away from Kwath which is also a remote link. On July 22, last year, a contractor kidnapped by the militants on the

intervening night of July 20/21 from his house at Lidreri village in Kishtwar district was found beheaded after torture by the militants. And the recent killing came after security forces had tightened their noose around the ultras active in the upper reaches of mountainous district. With such barbaric killings the militants wanted to make their presence felt after suffering losses. (Times of India, May 22, 2011)

Father-son duo killed by militants in Valley

Srinagar: A 50-year-old man and his 29-year-old son were killed by militants in the border town of Handwara, around 100 km north of Srinagar. Police are suspecting involvement of Lashkar militants and a massive manhunt has been launched. "We suspect LeT to be involved as there is presence of the ground in this area," said Muneer Khan, DIG in charge of the area. Reports said that unidentified gunmen of Friday night barged into the house of Ghulam Rasool Mir, from Bawan area of Handwara and opened indiscriminate fire, killing the house owner and his young son Manzoor Ahmad, a government teacher. According to some reports, militants asked for some ration initially. "After gaining entry into the house they asked for masterji (Mir) and his son specifically and killed them on spot," said a neighbour who did not want to be identified. The police statement however, says militants entered the house and "fired indiscriminately." "Reports are suggesting that about four to five people came into the house asking for some ration and fired indiscriminately on the inmates," said Khan. Preliminary investigations have found the Mirs were targeted on the suspicion of being informers of security forces as a militant had been killed in an encounter inside their house in 2009. "We are looking at all possible angles. It can also be a retaliatory action as a militant was killed in the house in 2009," Khan added. The family, however, said that the duo were innocent. "They did nothing wrong, why were they killed," said Khatija Biwi wife of Ghulam Rasool. "They came in and I offered them food. Then they asked or my son. As he came
(Contd. on page 7)
J&K HUMAN RIGHTS Perspective

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May-June, 2011 Rajindar Sachar

Phone Tapping Violation of Fundamental Rights of Privacy and Free Speech

he recently divisive debate in the Parliament about the latest phone tapping of not only of the opposition but also of some high ups in Congress hierarchy has again highlighted the danger of vesting such uncontrolled power in the security and intelligence agencies. The government has naturally denied that it authorized it. The denial by Chidambaram, the astute lawyer, may be technically correct but it does not frontally deny the allegation that phone tapping of political leaders took places. His reply is limited only to assuring that no phone tapping of political leaders was authorized by the government, and that nothing was found in the record of NTRO about it. But that begs the whole question. Report was that conversation of political leaders was tapped and recorded, logged and filed away. Bihar Chief Minister and Digvijay Singh, the Congress leader, confirm that such a conversation as mentioned in the news magazine, did take place. As such, recording cannot be denied. It may be that, as intelligence official explained, because of the sophistication of the instrument it may pick up conversation not even intended to be tapped, like in a case of Digvijay Singh. It may also be that after the news story came out in public, the agency has removed the disk. So technically the Governments answer may be correct-but is it morally right, judged by Gandhiji's public morality principles. Regrettably, it has to be conceded that phone tapping has been done under all governments, of whatever political hue. There was similar exposure by a news magazine in 1990-91, that persuaded Peoples' Union for Civil Liberties (PUCL) to take up the matter in the Supreme Court. Wiretapping of journalists and leaders of various parties like Chander Shekhar, the former Prime Minister, had taken place. The matter was heard only in 1996. It is significant that the authenticity of the news report was not questioned by Union of India before the Court. Rather the CBI in its reply was admitted that its enquiries had revealed unjustified interceptions of telephones of a large number of journalists, Members of Parliament, Chief Ministers, and even some Central Ministers. In fact, the CBI

had proposed that the Prime Minister, in consultation with the Speaker and Chairman of Rajya Sabha, approve tapping in the case of the MPs, when needed. The Supreme Court held that, "Telephone tapping unless it comes within the grounds of restrictions under Article 19(2) would in fact violate Article 19(1) of the Constitution." It also agreed with the USA Supreme Court that, "The security of one's privacy against arbitrary intrusion by the police.is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause." But while holding so firmly on the right of citizens, the Court faltered when it came to indicate remedy to stop this violation. It merely directed that interception may be permitted by Home Secretaries, whose orders will be subject to review by a committee consisting of Cabinet Secretary at the Centre, Chief Secretary in States, along with some other secretaries-which was merely an illusory appeal from Caesar to Caesar, all within the intimate obliging circle of the bureaucracy. This touching, though misplaced, faith in the bureaucracy is a serious flaw in the judgment, especially in view of courts' own finding that several lapses had occurred in the execution of the order passed under the Act. Not only that, but even the moderate recommendation of the Second Press Commission that the original order should emanate in writing from the Minister, and that it should come up for approval before a board constituted on the lines prescribed under the Preventive Detention Law, was not accepted. While disposing of the matter, the Supreme Court stated that it was laying down the procedure and hoped that the government will lay down a fair and reasonable procedure, too. But, alas, in spite of several governments consisting of various political parties (including those who are in the forefront of condemning this practice), none of the governments thought fit to apply its mind to correct this deficiency in the law-not much of a tribute to the commitment to fundamental rights of citizens. Sometimes I wonder whether we are still not in the era of feudal lords

(the political parties) and serfs (citizens like ourselves). It is only when someone steps on the toes of political leaders that this shout of safeguarding individuals rights are projected around. Personally, I feel that this issue can be defused by taking the opposition into confidence and framing a legislation that no phone tapping will be done without prior judicial scrutiny-this safeguard is essential if the right of privacy, a Fundamental Right, is to be protected from the whimsical, and ulterior misuse of power (irrespective of any political colouring of any government as has been shown in the past). The lame excuse put forward by governments that intricate security matters are too subtle and complex for judicial evaluation was sarcastically rejected by USA Supreme Court thus, "There is no reason to believe that judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance". In the newsmagazine there is a disturbing mention that intelligencegathering is frequently deployed in Muslim dominated areas of cities like Delhi, Lucknow, Hyderabad, and also in Seelampur, Jamia in Delhi. This horrendous, unwarranted targeting of citizens of India, especially of minorities, calls for severest of condemnation. Unfortunately, this aspect was not brought out in the debate. Even the Home Minister did not deny it. Such attitude in intelligence community is totally permissible. Why this incursive intelligence-gathering in Lucknow area than in Banaras or Haridwar? I can understand if there is specific information about security danger in certain areas. In that case this may be permissible-but without hard evidence, to pick up areas of minority residence is abhorrent and impermissible. The government needs on its own to clarify this aspect-secular India cannot permit communal intelligence-gathering machinery. Former Chief Justice Delhi High Court

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May-June, 2011

The Armed Forces Special Power Act Must Go

Human Rights Update...

(Contd. from page 5)

he Armed Forces Special Power Act (AFSPA) is in force in the North East of India for more than fifty years. It was on 22 May 1958 that an ordinance to this effect was promulgated by the Union government, subsequently endorsed by the parliament a couple of months later. It is fairly a long period for a sizeable population to live under what some critiques call a state of ``martial law''. It is this state of military rule that Irom Sharmila is protesting against for over ten years with an indefinite hunger strike. She has received a wide ranging civil society support from all over the country. However, the state is yet to respond to her and others' demand of abolishing the AFSPA. The government's argument that the AFSPA is in force to quell insurgency in the concerned regions suffers from many flaws. Firstly, the repressive laws have a tendency to alienate general public of a region, thereby expanding the support base of even an armed insurgency, converting it into mass based, thus becoming counterproductive. Secondly, it is a common knowledge that the unaddressed and accumulated grievances of people over a long period take a form of collective assertion of which militancy could be one of the off-shoots that may also have some silent community support. Using repressive laws across a large region indiscriminately would alienate a whole mass of people whose accumulated anger against the state might reach a stage of breaking point where they wish to part ways with the Indian sovereign identity. This apparently seems the case in the North East and Kashmir. So as a strategy to counter either armed or mass insurgency repressive laws like AFPSA

are ineffectual. Under the shadow of the AFPSA the acts of omission and commission by the security forces allegedly result in mass killings, rapes, disappearances and torture. In the process the state loses legitimacy and moral authority to rule. It is this situation of serious crisis and challenge that the Indian state is facing in the North East and Kashmir. The policy makers at the centre should realise that the Indian security and integrity cannot have strong base while people in the North East and Kashmir feel insecure on daily basis. One should legitimately ask whether the ` security and integrity' of India can and should be maintained at the cost of the mass human insecurity of its people where fear is rampant and a false allegiance to the state is sought under the intimidation of the gun. Repressive laws may hold a large population under the Indian suzerainty temporarily but in the long run as a policy it is bound to fail. The central government has tried for over fifty years to win integration of the people of these regions into the mainstream by using laws like AFPSA and has apparently not succeeded. It must now experiment, as a pragmatic test case and as a value enshrined in the constitution, without such military laws in these regions to achieve those objectives. It should replace the present policy with a policy that is based on respect for fundamental rights and freedoms enumerated in our constitution. Such a policy must begin with the removal of the AFPSA from the statue books. Pushkar Raj General Secretary People's Union for Civil Liberties

down they pointed the guns to him, killing both my husband and my son on the spot," she said. Biwi says the militants spoke in Urdu. When the news of the killings spread in the area this morning hundreds of men, women and children took to streets and staged massive demonstrations. Chanting slogans, the protesters were demanding identification and punishment for the people responsible for the killings. However, a few kilometers from the house, about 30 students were mourning their teacher Ahmad. "We were to go to picnic today but they killed our teacher," said students of class 3 of the government school in the area. (Hindustan Times, May 29, 2011)

European Parliament links FTA with Kashmir

Srinagar, June 12: In a significant development the European Parliament (EP) has linked Kashmir issue with signing of Free Trade Agreement (FTA) with India. The para-33 of the resolution, a copy of which is with Greater Kashmir, passed by the European Parliament (EP) on May 11, 2011 over the FTA between India and European Union states: Human Rights, democracy and security are essential elements of the relationship between EU and India. Therefore, we call on both the sides to ensure that dialogue on open issues is stepped with particular reference to Kashmir. Earlier, the EU had termed Kashmir as world's must beautiful prison and its Parliament had also passed the resolution asking New Delhi to urgently ensure independent and impartial investigations into all suspected sites of mass graves in JK and as an immediate first step to secure the grave sites in order to preserve the evidence in 2008. (Greater Kashmir, June 13, 2011)

IDPD Seminar at Srinagar

Dr. Arun Mitra General Secretary, Indian Doctors for Peace and Development (IDPD); Dr. S.S. Soodan Director Medical ASCOMS and Dr. N.S. Bawa Vice President IDPD participated in a seminar for Medical students and faculty staff held at SKIMS Medical College Bemina Srinagar on 28.05.2011. The fallout of recent Tsunami and Fukushima Disasters with nuclear radiations and the effect of conflict situations and violence were highlighted in this seminar. The preventive and curative role of medical professionals was deliberated in detail. Dr. G.M.Malik President IDPD J&K and Secretary Kashmir region, Dr. Sajjad Sheikh organized the seminar. A poster Editor Office Phone presentation by Medical students on the theme of nuclear violence was widely appreciated. The human issues arising out of ongoing turbulence in Kashmir have seriously affected the society as such earnest appeals were made to the decision makers to spend more resources on health and education of the society so that J&K state may emerge as violence free community in India. The IDPD delegation also held an interactive session with Medical students of ASCOMS at Jammu on 29.05.2011. Ms. Mehvish Khan and Mr. Ahmer Azad presented activities of Medical students' wing of IDPD at Jammu.

: BALRAJ PURI Associate Editor: ELLORA PURI : Karan Nagar, Jammu - 180 005 (J&K) INDIA. : 91-191-2542687, 2543556 Mobile: 94191-02055 E-mail : balraj_puri1@rediffmail.com
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J&K HUMAN RIGHTS Perspective

SEVEN

May-June, 2011

PRESS STATEMENTS
Balraj Puri, Convenor PUCL J&K State, has sought to know the action taken against the army personnel who carried searches in three hotels in Leh and whose action was called illegal by the State Chief Minister. For Armed Forces Powers Act is not applicable to Ladakh, which, he said, is the most peaceful region of the State, where the army does not have the power, that it has in the rest of the State, to interfere in civilian affairs.

ANNIVERSARY OF THE EMERGENCY

Nationwide call to protest on 26 June

Combat Corruption Resist Repression: Save Democracy, Save India
On 26 June 1975, the then Congress Government imposed the infamous Emergency, suspending all civil liberties, muzzling voices of dissent, jailing opponents, and attempting to throttle democracy. This June, 36 years since that black day, we can experience all the symptoms of an undeclared Emergency. Once again, democratic protests are being outlawed. Spaces of protest are being declared out of bounds. Peaceful protestors are brutally assaulted and evicted, even in the national capital. Peoples' movements against corporate plunder, and land grab are facing intensified repression. Workers strikes are declared illegal, and their basic democratic right to form unions of their choice is met with victimization and repression. Voices of conscience, who challenge state repression and corporate loot, are branded 'seditious' and jailed. Mass movements against corruption are branded as a threat to democracy in order to justify repression. Almost every month, there are fresh revelations of huge scams involving a nexus between ruling UPA ministers and private corporations. The oil scam revealed by the CAG is the latest. The Government, in the dock for unprecedented corruption, black money, plunder of the country's natural resources and drain of the public exchequer, is seeking to silence public anger by intimidating peoples' protest. Following the brutal police assault on sleeping protestors are Ramlila Grounds in Delhi, UPA Minister Kapil Sibal declared, "Let this be a lesson to everybody." In this declaration we can hear the footfalls of Emergency. This is the UPA's open threat to all forces of struggle against corruption, all those who cherish and defend democracy. At the same time, the ruling class 'opposition' cannot offer any credible resistance to either corruption or repression. BJP-ruled states such as Karnataka, Gujarat, Chhattisgarh, and Uttarakhand are notorious for some of the worst instances of corporate plunder of natural resources, severe repression on people's resistance and crackdown on democratic rights. Be it Forbesganj in NDA-ruled Bihar, Bhatta Parsaul in BSPruled Uttar Pradesh, Jagatsinghpur in BJD-ruled Odisha or Jattipur in Congress-ruled Maharashtra, people's movements against corporate land grab and forced eviction are being met with the same naked police brutality and bullets. While the Congress-UPA government has declared war on democracy, the ruling class opposition's complete bankruptcy on the question of combating corruption and repression has been exposed. It is up to the people of the country to build and sustain the movement against the all-pervasive rot or corruption and the all-out assault on our freedom and democracy. On 26 June this year, remembering the Emergency and peoples' resistance to it, let us pledge to throw off the yoke of repression and demand democracy. (ML Update, 21-27 June 2011)

Balraj Puri, convenor PUCL J&K State, reiterated his demand he has been making for the last many years to make it optional for Haj aspirants from Jammu region to board international flight for Jedda either from Srinagar or Delhi. It is much convenient and less expensive, according to him, for Jammu residents to fly from Delhi than to travel to Srinagar, and face hazards of weather en route. Moreover, the weather in Jammu, he added, was similar to Delhi and that in Mecca. The Haj aspirants who travel on this route, will not have to carry extra woollens they need in the journey via Srinagar, particularly if the Haj season is in winter. He recalled many assurances that he had received to consider his request. Indeed, when GN Azad was the State Chief Minister, he had assured Mr. Puri that Jammu will soon have an international airport. Mr. Puri regretted that such assurances were not met.

Balraj Puri, convenor PUCL J&K State, expressed deep concern over the unresolved case of alleged murder and rape of Asiya and Nilofar in Shopian two years ago. Though the judicial inquiry headed by Justice (retd) Muzaffar Jan in his report held some police officers guilty of the crime, the CBI reversed his judgment. The case was referred to the High Court, but due to unknown reasons, it has not given its verdict so far. Puri urged the government to pursue the case earnestly and expedite the decision. He recalled no political party, including the separatist, were behind the movement for justice but some non-Muslims from Jammu joined it on humanitarian grounds. Puri also asked the government to explain the reasons for externment order served on Gautam Navlakha and his colleague Sahba Hussain at the Srinagar airport, which is prima facie an attack on freedom of movement.

5000 Years of Kashmir and Challenges Ahead

The above title was published in 1997. All its editions, in all languages, soon ran out of print. We are publishing a new edition of the same. Contributors to the earlier version, who feel their articles need to be updated, are requested to contact us with proposed modifications, which we will try accommodate to the extent possible. Balraj Puri Director, Institute of Jammu and Kashmir Affairs, Karan Nagar, Jammu. 180005. Mobile: 09419102055

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EIGHT

J&K HUMAN RIGHTS Perspective

Edited, Printed and Published by Balraj Puri for Institute of Jammu & Kashmir Affairs, Karan Nagar, Jammu. Printed at ESS ESS ESS Offset Press, Wazarat Road, Jammu.