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Thursday, 11 February 2016

In Pursuit of The Bandit

BLACK THROAT TIT- THE BIRD WITH THE BANDIT MASK

So here is the Bandit Bird- and this was the first sight. what followed was a merry cat and mouse game between me and the 'bandit'. I wanted a nice click ; he was determined to evade capture.

The bandit resorted to acrobatics to forewarn me what I was up against. He was determined to take advantage of the cover available


The manner in which the naughty bird troubled me is vividly illustrated in the accompanying photographs.







It did, however allow me to take a few good shots, before flying off in pursuit of forage.


Wednesday, 27 January 2016

In Pursuit Of The Indian Peafowl


The Indian Peafowl was not something I expected to see when I was having Lunch with a few good friends. I left the food and this is all that I managed.



THE FIRST SIGHTING


The food and foraging habits of the Indian Peafowl is such that my habitat did not seem too attractive for the proud avian. So, I cursed my hard luck and got along with the normal humdrum of daily life. I was sure that this would have been a one time lucky sighting.

Then on one particularly lazy evening, my buddy suddenly reported the sighting of the peafowl family outside the kitchen premises. I managed to click some photographs using the kitchen window as a hide.


THE PEAFOWL EMERGING

As I waited with bated breath, I caught the first sight of the peafowl emerging from a fold of the ground. The bird looked awesome- to say the least.


THE PEAFOWL IN FULL VIEW

As the bird emerged from the the folds of the ground, I  clicked away to glory.

THE PROUD PEAFOWL

It was not too late that the bird realised that I had been photographing it and invading its privacy. The proud stance was back. It decided that it had had its fill of food for the day and now was the time to go back to its nest.

THE HURRIED EXIT

The bird may have left, the photos were not the best but I had my tryst with our National bird. 

Tuesday, 19 January 2016

Murphy's Law and the Power of Love- A Commentary on Interstellar

THE BEAUTIFUL POSTER 

PURE MASTERSTROKE-THE QUOTE


The Justification For This Blog

I had the opportunity to kill some time last night. and I ended up watching an arguable  masterpiece of a movie- Interstellar. While many have tried to understand the Science behind Interstellar, what caught my attention was the relationships between the protagonists- the father - daughter relation ship of Cooper &  Murphy and Dr Brand & Brand.

The Genesis of Conflict

Now Murphy is a troubled child- motherless and in constant conflict with her identity that she attributes to the infamous law of her namesake- Whatever Has To Go Wrong, Will Go Wrong. She loves her father, and in a difficult world on the brink of starvation, crop failures and imminent apocalypse, the last thing that she expects is a father who is on the verge of discarding farming, abandoning the family and heading into unknown space.

The Protagonists Coming in Terms

Meanwhile Cooper undertakes his journey with a steely resolve to explore the unknown and find finer pastures for the rest of humanity. Yet he yearns for taped messages from his daughter, what he gets is just the messages from his son instead. having lost a co flier in the quest for Miller's planet after the first inter galactic voyage, the crew has the choice to explore either Dr. Mann's Planet or Edmund's Planet. With logic supporting a journey for the previous ,I liked the part where Brand, his co traveller argues  in the complexity of 3D- 5D worlds that it is not space or time but love that transcends the various dimensions and hence her reasoning that they should head for the later planet instead. That led to Cooper actually seeing the greater common good and risking his own existence to unite Brand with Edmund. But landed up in a 5D maze as the Ghost pining to send the right signals for Murphy to discover her Eureka moment.

That struck me- this argument in support of love adds the philosophical touch to an otherwise oblique science fiction movie. 

The other important protagonist, Murphy never came in terms with the sense of abandonment, that was thrust unto her by her father. For years, she lived in the guilt of failing to tell her father to stay. it was only when she realised that his father had left without being aware that he would never return that she came into terms with the spirit of the Interstellar voyager. With her bitterness gone, she could finally make sense of the signals that her father had been communicating to her ever since she was a child. 

The Happy Ending. With happy endings being the norm,  the philosophy of love and hope takes centre stage at the climax again when Murphy exhorts her 124 years young father to go out in quest of Brand instead of being witness to the death of his child.

My Commentary. Readers who do not enjoy the proximity of their near and dear ones for a greater cause and the sense of duty would empathize with the difficulties of staying away from home. It is really difficult for any of our near and dear ones to get over the bitterness caused by such separations. Not everyone of us would be as lucky as Cooper or Murphy to be re united with a sense of hope and understanding. A few of us would indeed become sacrificial lambs in the first place, like Brand, who was handed over a one way ticket to the unknown by her own father and  ended up next on Edmund's planet due to the sudden change of heart of her co passenger- and thrust yet again into the unknown -all alone. Yet, undeniably, it is love that gives us the strength to stand up against all the forces of nature, the twisted irony of destiny and even the quantum physics of muliple dimensions. The  strength of love is far more powerful than any of the forces known or unknown to us. We derive courage, fortitude and perseverance due to the power of love. 

Endnote. To Love and be Loved is the Greatest Joy of Existence.


Sunday, 27 December 2015

Broad Corporation,China and A Short Piece on Patriotism

1.   This Sunday afternoon I happened to come across a BBC World Feature program "Sky is the Limit" that showcased the growth of Broad Corporation, which specializes in sustainable air conditioning and prefabricated sustainable building structures.

2.  Founded in 1988, his group had built up a 15 story hotel in six days and caught world attention.The program showcased work philosophy of Mr Zhang Yue, who is the founder and chairman of the Broad Group. What caught my attention were certain aspects of his recruitment policy and work culture.

(a)   The aspirants intending to join this group undergo a two week military drill/ training course as part of the selection/orientation program.

(b)   The group has an anthem, composed by the Chairman himself that calls for loyalty to the group, prosperity for the clients, love for China-their motherland and above all sustainable development for the Mother Earth.

(c)   The group strives to make its employees put in that extra effort to master the mundane and boring intricacies of engineering science that will make them beat their own timelines and become world class in whatever they pursue. 

(d)   Not only does the group believe in a happy work place to cater for the various requirements of its employees in house, it also has a community service based organic farming system in place to meet the demands for the in  house food chains.

3. Most of the above mentioned points would indicate the private megalomania of a successful entrepreneur, However when one realizes that in 2013, this group undertook a seven and a half month schedule to build the world's tallest tower-the 838 METER/220 FLOOR SKY CITY-ONE BUILDING, ONE CITY. The project got stuck up with clearances yet the group managed to build a 57 story Mini Sky City. So not only is Mr Yue a man with a vision, he knows how to turn them to reality.

4. The Lessons in Patriotism

(a)  The man may aspire to be  world class, yet he has his feet firmly planted in China. He  uses patriotism and the Chinese way of life as the binder to keep his flock together.

(b)  Any starry eyed individual who joins the Broad Corporation does not do it fior the awe of its Chairman, but for the higher aim of being a part of sustainable development and for serving the nation.

(c)  The perks and privileges are not what draws talent, it is the pride in the Chinese example of Corporate ethos that draws talent.

(d)  It is not the sense of individual achievement that drives their employees, but the sense of responsibility as a community, is what I found remarkable.

5. The Indian Context.

(a)  A private organisation imparting military training would be enough to raise heckles here, getting the clearances for a 838 meter building based on untried technology may be another impossibility, so these may be left out of the purview.

(b)  As our individual gains make us hop from one branch to the other for want of better opportunities, why can we not imbibe a sense of belonging, togetherness, love for the organisation, patriotic fervor and responsibility towards the Mother Earth in the organisations that we serve. Why do we allow the Indian way of economic transactions be relegated to the lowest priority in a mad rush to ape the Western models.

Why cant we simply harness the strength that is within us as individuals and as a community for the betterment of our organisations and our nation



Sunday, 20 December 2015

Yellow Billed Blue Magpie- a Regular Visitor





The Yellow Billed Blue Magpie has been one of the most regular visitors to my backyard. It has a buddy and they lose no opportunity to forage on the available foodstuff or to quench their parched throats.

Saturday, 19 December 2015

ROLE OF INDIAN ARMY IN PREVENTING HUMAN RIGHTS VIOLATION AND IMPLEMENTING STATE LAWS( ARTICLE 356)



GROUND REALITIES

“A bullet fired by the soldier becomes a massacre by the Security Forces & and yet every act of terrorism is attributed to the colossal failure of security”

Introduction

1. The aforementioned quote underlines the dilemma faced by the Indian Army (IA)  deployed for decades in the various ‘Disturbed Areas’ of our country for decades to uphold the writ of the Indian Constitution in these places. With respect to the Indian State of J& K, where Pakistan has been waging a proxy war since 1989, some people attribute the spike in Human Rights (HR) violations here, as a direct result of the invoking of The Armed Forces Special Powers Act (J & K), 1990.

2. On the one hand, the Internal Security sit has deteriorated in various parts of the country leading to protracted Low Intensity Conflict Operations (LICO). The role of the Armed Forces has become increasingly intense in rendering assistance to the civil administration. On the other hand the Armed Forces have come under increased media scrutiny and facing fire from the various Human Rights Reports as they struggle to maintain the law of the land in a hostile operational environment within the ambit of civilian control.

3. Civilian Control over the Armed Forces. Civilian control over the use of armed force is widely accepted as a key constitutional principle for a modern liberal democracy. Like any other branch of executive government, the military and police establishment are subject to constitutional and statutory limits on their powers. Most constitutions invariably go further and pay special attention to the problem of securing and maintaining civil control over the armed forces, and establish an elaborate sys of institutional checks and balances to this end. A failure to properly institutionalize, and thereafter maintain, these constitutional arrangements can have a dramatic impact on the durability of national constitutions. 



LOCUS STANDI ON ARTICLE 356



Constitution of India - Emergency Provisions

4. War Emergency. If the President is satisfied that a grave emergency exists whereby the security of India or any part of its territory is threatened by war, external aggression or armed rebellion, he may proclaim a state of emergency under Article 352. It may be proclaimed even before the actual occurrence when external aggression is apprehended.

5. Constitutional Emergency. If the President is satisfied on receipt of a report from the Governor or otherwise that a situation has arisen in which the Government of a State cannot be carried on in accordance with eh provisions of the Constitution, he is empowered to proclaim an emergency under Articles 356 and 365.

6. Suspension of Fundamental Rights. During the period of emergency, as declared under the either of the two categories discussed above, the State is empowered to suspend the Fundamental Rights guaranteed under Article 19 of the Constitution.

7. Financial Emergency. Under Article 360.

8. The 44th Amendment. The 44th Amendment adopted by Parliament in December 1978 ensures that the proclamation of emergency can be made only on the basis of written advice tendered to the President by the Cabinet. Internal disturbance not amounting to armed rebellion will no longer be grnd for declaration of emergency. Emergency can be proclaimed only when the security of the country is threatened by war, external aggression or armed rebellion. As an addl safeguard, proclamation of emergency will require approval within a month by a resolution of Parliament by a majority of the total membership and not less than two-thirds of the members present and voting.

President's rule

9. In  India, the phrase "President's Rule" refers to the imposition of Article 356 of the Constitution of India on a State whose constitutional machinery has failed. In the event that a State government is not able to function as per the Constitution, the State comes under the direct control of the central government; in other words, it is "under President's rule". Subsequently, executive authority is exercised through the centrally appointed Governor, who has the authority to appoint retired civil servants or other administrators, to assist him.

10. In Jammu and Kashmir, failure of constitutional machinery results in Governor's rule, imposed by invoking Section 92 of Constitution of Jammu and Kashmir. The proclamation is issued by the state's Governor after obtaining the consent of the President of India. If it is not possible to revoke Governor's rule before within six months of imposition, President's Rule under Article 356 of the Indian Constitution is imposed. There is little practical difference between the two provisions.

11. Imposition. In practice President's Rule has been imposed under different circumstances such as these:

(a) State Legislature is unable to elect a leader as Chief Minister.

(b) Breakdown of a coalition.

(c) Elections postponed for unavoidable reasons.

12. Military Control of the State Placed Under Article 356. The Seventh Schedule to the constitution provides instruction on how power shall be distributed between the Centre and the states. The Forty-Second Amendment to the Constitution amended Entry 1 of the State List to exclude control over military power from the states, and included Entry 2-A in the Union List to vest the power to deploy armed forces with the central government. Entries 2-A of the Union List and Entry 1 of the State List read as follows:

(a) 2-A: Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any state in aid of the civil power, powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.

(b) 1: Public order (but only including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of civil power).

13. Implementation.

(a) So far, there have been four occasions when War Emergency was proclaimed by the President: 1962 (Chinese aggression), 1965 (Indo-Pakistan war), 1971 (Indo-Pakistan war before the emergence of Bangladesh) and 1975 (internal emergency). The working of the Constitution, so far, shows that the suspension of Fundamental Rights took place rarely. That happened as a result of the proclamation of national emergency in 1962, 1965, 1971 and 1975.

(b) Article 356 of the Indian Constitution has acquired quite some notoriety due to its alleged misuse. The essence of the Article is that upon the breach of certain defined state of affairs, as ascertained and reported by the Governor of the State concerned (or otherwise) the President concludes that the 'constitutional machinery' in the State has failed. Thereupon the President makes a 'Proclamation of Emergency,' dismissing the State Legislature and Executive. During a state of emergency, the President is vested with tremendous discretionary powers.

(c) Article 356 gave wide powers to the central government to assert its authority over a state if civil unrest occurred and the state government did not have the means to end the unrest. This is one of the articles that gave the Indian constitution some amount of unitary character. Though the purpose of this article is to give more powers to central government to preserve the unity and integrity of the nation, it has often been misused by the ruling parties at the centre. It has been used as a pretext to dissolve state governments ruled by political opponents. Thus, it is seen by many as a threat to the federal state system. Since the adoption of Indian constitution in 1950, the central government has used this article several times to dissolve elected state governments and impose President's rule.

14. Criticism. The Constitutional Emergency article was used for the first time in up 1954. It has also been used in the state of Patiala and East Punjab States union (PEPSU) and then during Vimochana Samaram to dismiss the democratically elected Communist state government of Kerala on 31 July 1959. In the 1970s and 1980s it almost became common practice for the central government to dismiss state governments led by opposition parties. The Indira Gandhi regime and post-emergency Janata Party were noted for this practice. Indira Gandhi's government between 1966 and 1977 is known to have imposed President' rule in 39 times in different states. Similarly Janta Party which came to power after the emergency had issued President's rule in 9 states which were ruled by Congress.

15. Most often, until the mid-1990s, it was imposed in states through abuse of the authority of Governors in collusion with the federal govt. It is only after the landmark judgement in 1994 in the S. R. Bommai v. Union of India case that the misuse of Article 356 was curtailed. In this case, the Supreme Court established strict guidelines for imposing President's rule. Subsequent pronouncements by the Supreme Court in Jharkhand and other states have further whetted down the scope for misuse of Article 356. Hence since the early 2000, the number of cases of imposition of President's rule has come down drastically. Since March 2015, no State has been under President's rule.

16. Article 356 has always been the focal point of a wider debate of the federal structure of government in Indian polity. The Sarkaria Commission Report on Centre–State Relations- 1988 has recommended that Article 356 must be used "very sparingly, in extreme cases, as a measure of last resort, when all the other alternatives fail to prevent or rectify a breakdown of constitutional machinery in the state".

17. Failure To Invoke Emergency Provisions. On the other extreme of misuse of Article 356 was the failure of the Union Executive to invoke Article 356 following the Godhra train incident on February 27, 2002, in the State of Gujarat. The Constitution may not have envisaged a situation where an emergency has arisen in a State where the ruling party is of the same political persuasion as the one at the Center and, hence, the Center might be biased against dissolving that government by invoking Article 356. The word 'otherwise' in the text of Article 356 becomes instrumental in such a situation to allow the President to act without waiting for the 'Governor's Report.'



ROLE OF IA IN IMPLEMENTING ARTICLE 356





Constitutional Modes to Govern Use of Military Force

18. The primary mode through which the Indian Constitution regulates the use of Armed Forces is by distinguishing between military powers and law and order powers which are conferred on the Union and state governments respectively. This distinction is ostensibly about the use of armed force outside and within the territory of the Union and the states. In recent times, the Union has been increasingly involved in the maintenance of law and order within the territory of India.

19. The second mode through which the Union’s use of armed force is regulated is legislation. The army, navy and air force are governed by separate legislation and the new paramilitary forces raised by the Union like the Border Security Force, Central Reserve Police Force, and the Central Industrial Security Force are constituted under their respective statutes.

(a) The Cantonments Act regulates the territorial application of these legislation and rules. The state’s law and order powers are primarily regulated by the pre-constitutional criminal legislation.

(b) The Indian Penal Code 1860 and the Code of Criminal Procedure 1973. Some provisions in such legislation (for instance, Sections 130 and 131 of the Code of Criminal Procedure) allow for the use of military power to aid ordinary law and order in special circumstances.

(c) The states have enacted Police Act’s which regulate the functioning of the law and order machinery. The Union and the states have enacted various special criminal laws dealing with particular offences such as the Domestic Violence Act or the Organized Crime Acts.

20. The third mode by which the constitution regulates the use of armed force is by distinguishing between ordinary and emergency situations. Where a national emergency is proclaimed under Article 352 or a regional emergency is proclaimed under Article 356, the Union acquires the power to deploy armed force within the territory of India.

21. However, the constitution strictly regulates the circumstances when such a proclamation may be issued and allows the legislature to override these executive proclamations. Under Article 355, the Union is enjoined with the special responsibility to maintain civil government in the territory of India and may use armed force in support of such civil government.

22. Root Cause of Opposition to Armed Forces (Special Powers) Act. In recent years, two types of Union legislation have blurred the distinction between the Union’s use of armed force in ordinary times and during an emergency. There has been significant civil society protest and executive agency review of the rationale and justification for these legislations:-

(a) The Armed Forces (Special Powers) Act 1958, and

(b) Anti-terror legislation such as the Terrorist and Disruptive Activities (Prevention) Act 1985 and the Prevention of Terrorist Activities Act 2002.

Armed Forces (Special Powers) Act, 1958

23. According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as "disturbed", an officer of the armed forces has powers to:

(a) Fire upon or use other kinds of force even if it causes death, against the person who is acting against law or order in the disturbed area for the maintenance of public order, after giving such due warning.

(b) Destroy any arms dump, prepared or fortified position or shelter or training camp from which armed attacks are made by the armed volunteers or armed gangs or absconders wanted for any offence

(c) To arrest without a warrant anyone who has committed cognizable offences or is reasonably suspected of having done so and may use force if needed for the arrest.

(d) To enter and search any premise in order to make such arrests, or to recover any person wrongfully restrained or any arms, ammunition or explosive substances and seize it.

(e) Stop and search any vehicle or vessel reasonably suspected to be carrying such person or weapons.

(f) Any person arrested and taken into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.

(g) Army officers have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. Nor is the government's judgment on why an area is found to be disturbed subject to judicial review.

(h) Protection of persons acting in good faith under this Act from prosecution, suit or other legal proceedings, except with the sanction of the Central Government, in exercise of the powers conferred by this Act.

24. The Armed Forces (Special Powers) Act 1958 originally conferred certain powers on military personnel in areas of Assam and Manipur. It was subsequently amended and the scope of the act was extended to the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. Originally, only the Governor of the state could declare an area to be a ‘disturbed area’ (i.e., an area to which the act would be applicable), but subsequently this power was also conferred upon the central government.

25. Challenges for the Armed Forces (Special Powers) Act. There were two primary challenges to the act: first, that the act was beyond parliament’s legislative competence; and second, that it violates several fundamental rights under the constitution.

26. In July 1990, Indian Armed Forces were given special powers under an Armed Forces (Special Powers) Act (AFSPA) that gives protection to Indian Armed Forces personnel from being prosecuted. The law provides them a shield, when committing human rights violations and has been criticised by Human Rights Watch as being wrongly used by the forces. This law is widely condemned by human rights groups. United Nations High Commissioner for Human Rights Navanethem Pillay , urged India to repeal AFSPA and to investigate the disappearances in Kashmir.

27. The central contention challenging parliament’s competence was that the act gave the military independent power in a ‘disturbed area’ whereas the aforementioned entries only stipulate that military power shall operate ‘in aid of civil power.’ Thus, it was argued that the import of the Entries was that parliament may enact legislation for the use of military power but that such power must be exercised under the supervision of state authorities, and not independently and exclusive of the state machinery. Hence military power may not substitute state control, but merely assist it.

28. Supreme Court Stand on Armed Forces (Special Powers) Act. The Court held that the Entries do not require military personnel to operate under the control of the state; they envision a more coordinated effort to secure law and order. The court accepted that military personnel could not supplant state control, but concluded that the impugned act did not create such a situation. It required the state’s assent and involvement at various levels. For instance, certain provisions under the act (Section 4) could only be exercised upon orders issued by the state. Since the state’s involvement would be necessary for the operation of the act, the court rejected challenges on the ground that the central government could declare an area to be a ‘disturbed area’ without any consultation with the concerned state.

29. The second important challenge to the legislation was a rights-based one. The court examined several provisions of the act, examining whether they conferred arbitrary and unreasonable powers on the military. Under the Indian Constitution, the arbitrariness standard of review takes place under Article 14, which guarantees the right to equality. The Court did not engage in any rigorous analysis of whether the impugned legislation violates Article 21, which guarantees the right to life and personal liberty.



ACCUSATIONS AGAINST IA WRT HR VIOLATIONS & RESPONSE THERETO



Accusations against IA wrt HR Violations

30. Gen. Thousands of Kashmiris have reported to be killed by Indian security forces in custody, extrajudicial executions and enforced disappearances and these human right violations are said to be carried out by Indian security forces under total impunity. International NGO's as well as the US State Department have documented human rights abuses including disappearances, torture and arbitrary executions carried out during India's counter terrorism operations

(a) United Nations has expressed serious concerns over large number of killings by Indian security forces. Torture, widely used by Indian security, the severity described as beyond comprehension by amnesty international has been responsible for the huge number of deaths in custody.

(b) The Telegraph, citing a WikiLeaks report quotes the International Committee of the Red Cross (ICRC) that Indian security forces were physically abusing detainees by beatings, electrocutions and sexual interference. These detainees weren't Islamic insurgents or Pakistani- backed insurgents but civilians, in contrast to India's continual allegations of Pakistani involvement. The detainees were "connected to or believed to have information about the insurgents". According to ICRC, 681 of the 1296 detainees whom it interviewed claimed torture. US officials have been quoted reporting "terrorism investigations and court cases tend to rely upon confessions, many of which are obtained under duress if not beatings, threats, or in some cases torture."

(c) Amnesty International accused security forces of exploiting the Armed Forces Special Powers Act that enables them to "hold prisoners without trial". The group argues that the law, which allows security to detain individuals for as many as two years "without presenting charges, violating prisoners’ human rights".

(d) Fast-Unto-Death By Manipuri Activist Irom Sharmila The moral and political core of civil society protest against the act has been the fast-unto-death by Manipuri activist Irom Sharmila against the abduction and killing of her friend Thangjam Manorama. Civil society activists have emphasized that the act is an endorsement of extra-judicial military executions by the army and a violation of the constitutionally guaranteed right to life. Further, they suggest that the act results in the imposition of a de facto emergency without a constitutional basis. The government response to this debate has been fitful.

31. APDP/IPTK Report Released in Sep 2015. The main findings of this report are as follows:

(a) This report lays down the structure of the Indian army and the Border Security Force [BSF] from the highest level – army headquarters and Director General, BSF – all the way down to the Brigade/Sector level in the case of the army, and Battalion level in the case of the BSF. This report estimates the strength of the armed forces, including the army and BSF, in Jammu and Kashmir from a conservative 6, 56,638 to 7, 50,981.

(b) This report, based on preliminary investigations, finds that the army at the Sector level had control over, and is responsible for the crimes committed in, the areas of study. Further, the Indian army controlled, armed and financed government gunmen – Ikhwan and Muslim Mujahideen – and used these operatives to commit crimes.

(c) This report understands the operation of this structure of State through specific spectacles of “mass violence”. Five case studies, comprising eight different events/crimes including extra-judicial killing, torture and sexual violence, and a range of perpetrators [army, paramilitary, police, government gunmen] illustrate the extent of violence and the intended effect of this violence on communities. The violence, obfuscation and impunity at every step illuminates the system at work and reiterates the argument that there can be no justice from the judicial system.

(d) This report highlights a mechanism that specifically supports the military structure of violence: court-martials. Widely accepted internationally to be an inappropriate judicial remedy in armed conflict, the court-martial in Jammu and Kashmir is found to be opaque, impossible to access, against principles of natural justice, and biased. In its functioning, result and impact, it serves as a tool for the armed forces to protect their own.

(e) This report presents and analyzes 333 case studies of enforced disappearances, extra- judicial killings, sexual violence and torture with 972 identified alleged perpetrators. The case studies reiterate the lack of any will to provide justice. The list of alleged perpetrators, their ranks, units and area of operations strongly suggests that crimes in Jammu and Kashmir are widespread, systematic and systemic and under directions and in the knowledge of senior officials of the armed forces and the State itself. From the 333 cases emerges a list of 972 individual perpetrators, which include 464 army personnel, 161 paramilitary personnel, 158 Jammu and Kashmir Police personnel and 189 Government gunmen. Among the alleged perpetrators are one Major General and seven Brigadiers of the Indian Army besides 31 Colonels, four Lieutenant Colonels, 115 Majors and 40 Captains. Add to this, 54 senior officials of the paramilitary forces and the following Jammu and Kashmir Police personnel: a retired Director General of the Jammu and Kashmir Police, a present Additional Director General of Police,two Inspector Generals, two Deputy Inspector Generals, six Senior Superintendents of Police, and three Superintendents of Police.

(f) Key Recommendations. While, Government of India is reminded of its obligation to protect and preserve evidence and allow international human rights agencies entry to Jammu and Kashmir, the key recommendations are as follows:

(i) IPTK/APDP appeal to the UN Human Rights Council to appoint a Special Rapporteur to investigate the crimes committed in Jammu and Kashmir.

(ii) IPTK/APDP appeal to the UN Security Council to exercise its power to refer the situation in Jammu and Kashmir to the Prosecutor of the International Criminal Court.

(iii) IPTK/APDP appeal to foreign governments, and their embassies/mission in India, and the UN Department of Peacekeeping Operations, to record the names and identifying information of all alleged perpetrators listed in this report, and deny them entry into their territory or into the UN peacekeeping forces. Foreign governments, under universal jurisdiction, where applicable, must prosecute these accused persons.

Efforts Towards Review Of AFSPA

32. The government established a committee to review the Armed Forces (Special Powers) Act, 1958 headed by Retired Justice B.P. Jeevan Reddy in November 2004. The committee raised considerable hopes as it heard a wide variety of civil society and government opinion. However, when it finally presented its report to the government in June 2005, these hopes were only partially realized.

33. The report may be divided into two parts:

(a) The first, which substantially accepts the arguments against the use of the act and recommends its repeal and

(b) The second, which recommends that the Unlawful Activities (Prevention) Act 1967 may be suitably amended to reinstate some of these powers.

34. The conclusions of this report were endorsed in June 2007 by the fifth Report of the Second Administrative Reforms Commission on Public Order. However, this momentum has flagged and the government has taken no action on these reports.

35. The government’s failure to act may be explained in two unrelated but relevant criticisms.

(a) The first relates to the reaction of the armed forces, which are apparently dissatisfied with the proposed changes as they are concerned that the government may impair their operational ability.

(b) The second explanation for the government’s failure to act on these reports is the strong criticism of these proposals by sections of civil society. It is argued that the proposed changes are merely cosmetic window dressing and that the impunity of the armed forces will remain unchecked.

36. Amnesty International in its Briefing Paper concludes that the proposed changes do not eliminate the key weakness in the existing Act: the ability of the government to use military force to quell an undefined ‘internal disturbance’ without the ordinary checks and balances of the civil and criminal law of the land. As the report’s proposals maintain these islands of impunity, it is argued that these proposals need to be radically revised before implementation. To the extent that these criticisms are accurate, there is little to be gained by the implementation of the report as it stands.



RECOMMENDATIONS-ROLE OF IA IN PREVENTING HR VIOLATION AND 


IMPLEMENTING STATE LAWS(ARTICLE 356)




Review Of AFSPA

37. The following aspects are recommended in for Review/ Repeal of AFSPA:-

(a) Name . May be termed Grant of Internal Security Powers to the Armed Forces Act.

(b) Applicability . Unchanged for any area termed as “ Disturbed Area”.

(c) Forces Involved . Armed Forces to include Army, Air Force and Navy.

(d) Authority . Only the Central Government should exercise the authority to discern a “Disturbed Area” as such. The term should be very clearly and concretely defined.

(e) Duration. Six months followed by joint review by the respective state and central government.

(f) Exercise of Powers. Only by Officers, Junior Commisssioned Officers and Non Commissioned Officers not below the rank of Havildar.

(g) 24 Hour Time Limit . To exclude the time taken from the place of arrest to the Court of the Magistrate.

(h) Act of Heinous Nature. Armed personnel committing committing Rape, murder, torture, molestation and theft will not be covered by the provisions.

(j) Destruction of Property. In case of such an operational necessity, only under the authority of a Commissioned Officer with adequate compensation to the affected civilian.

(k) Planned Military Operation . Civilian authorities must be co-opted if civilian population is likely to get affected.

(l) Search and Seizure . As per the Code of Criminal Procedure.

(m) Remedy Against Abuse of Authority. Must be followed up by athorough inquiry and adequate compensation to genuine victim.


Steps to Ensure HR

38. Actions by the Government:-

(a) Political Process to Combat insurgency. Armed forces must be used as a last resort if all the political means have failed from the grass root level to the national level.

(b) Restrictive Use of Armed Forces in Aid to Civil Authority. Para Military Forces are better suited to deal with law and order issues. They should be trained and modernised accordingly.

(c) Strengthening of Civil Administration and Police. These agencies cannot be allowed to become non-functional in Disturbed areas. They need to supplement the effort of the Armed Forces and ensure transparency in all actions and functionaries.

(d) Integration of Intelligence Agencies. To ensure timely and surgical ops and to reduce the risks of collateral damages.

(e) Legal Provision for Interrogation by Armed Forces. For intelligence gathering as well as prevention of possible losses/damages in future due to terrorist activities.

(f) Media Management. Government must make media responsible and accountable for their actions. Any biased/ wrong/ unauthentic reporting must be investigated and necessary actions initiated.

39. Actions by the Indian Army:-

(a) Do’s and Don’t’s. Do’s and Don’t’s issued by the Army headquarters must be adhered in letter and spirit and and any case of violation must be dealt with expeditiously.

(b) Training. Respect for Human Rights must form part of the curriculum of any Pre Induction Training duly covering all the aspects of the Armed Forces Special Powers Act, the provisions and the limitations of the law. Some of the aspects that need special attention are as under:-

(i) Concept of Human Rights. Most of the cases of HR violation by the Armed Forces Personnel take place due to lack of knowledge on the subject. Hence all course, cadres and training activities must include this subject.

(ii) Armed Forces Special Powers Act. All ranks must be conversant with the nuances and the Do’s and Don’t’s that are covered by the same.

(iii) Psychological Conditioning of Troops. Troops must not get provoked by militant activities and end up causing collateral damages.

(iv) Interrogation Techniques. Same along with the methods of screening the local population must be imparted to selected persons. Majority of the cases of HR violations take place due to unauthorised and inappropriate methods of interrogation.

(v) Media Management. Selected persons must be trained for the same to prevent wrong interpretations/reporting of incidents by the media.

(c) Surgical Operations. Intelligence based surgical operations be encouraged to ensure minimum loss of life and property. Fire for effect needs to be inculcated as shoot to incapacitate and not to kill. The tendency to be reactive or overzealous also needs to be curbed by psychological conditioning of troops.

(d) Intelligence Network. A sound intelligence network needs to be established in the area of responsibility with the integration of various agencies involved. Also necessary is the cultivation of reliable informers and sources by the units deployed.

(e) Investigation of Allegations. Must be done promptly and fairly. Tendency to save the guilty must be curbed at all costs.

(f) Need For Change in Mindset of Commanders. There is a need for a change in the mindset of senior officers with respect to the undermentioned:-

(i) Number Game and Kills.

(ii) Compulsion to produce quick results.

(iii) Applying undue pressure on subordinates for execution of tasks/ achievement of tangible results.

(iv) Undue lack of transparency in conduct and outcome of ops.

(g) Conduct of Operations.

(i) Elements of civil administration, police and local media should be incorporated as much as possible to ensure transparency.

(ii) Village elders to be incorporated as eye witnesses during search operations.

(iii) Response from troops should be guarded during chance encounters and only directed against identified hostiles.

(iv) When detentions are made screening must be done at the earliest to avoid unnecessary harassment to civilians.

(v) Even in the event of casualty to own troops, the retaliation must be measured and repulsion avoided at all costs.

(vi) No indiscriminate firing or use of excessive force should be allowed at any cost.

(vii) No ill treatment of any person especially womenfolk, children and the elderly.



(h) Safeguard against Fabricated Allegations.

(i) Ensure presence of police representatives during conduct of operations involving civilians.

(ii) Incorporating women police personnel and village elders while conducting search operations in villages or houses.

(iii) Proper documentation and obtaining the No Claim Certificate duly countersigned by the persons affected and the village authorities.

(iv) Handing over the arrested persons to Police only after a Medical Check Up and obtaining a copy of the First Information Report from the police authority.

(v) All arrests/releases must be made through local police authority only.

(j) Improvement in Media Handling.

(i) Specialised training of officers in media management.

(ii) Regular interactions with the press.

(iii) Ensuring that the fera of militants is removed in the minds of press persons belonging to vernacular media.

(iv) Involvement of press in operations in so far as practicable.

(v) Truthful dissemination of information.

Conclusion

40. Employment of IA in LICO is not likely to come to an end in the near future especially with the rapid rise in Left Wing Extremism. Hence synergy between the Armed Forces and the Civilian counterparts in complex conflict situations is the call of the hour. There is an element of truth in the allegations of HR Violations by the Armed Forces, yet the presence of the Armed Forces or the AFSPA cannot be held to blame. The Indian Army must continue to uphold its rich traditions and highest standards of professionalism and discipline to produce concrete results in all possible conflict scenarios.



Endnotes. The under mentioned sources from the internet have formed the basis of information on the topic :-

1. Indian Constitutional Law : The New Challenges; Executive Discretion And Article 356 Of The Constitution Of India: A Comparative Critique-K. Jayasudha reddy and Joy V. Joseph : jjoseph@business.uconn.edu and jayasr@hotmail.com.

2. Human Rights Abuses in Jammu and Kashmir - From Wikipedia, the free encyclopedia.

3. http://www.jkccs.net/structures-of-violence-apdpiptk-report-released.

4. Military power and the Constitution-Sudhir Krishnaswamy & Madhav Khosla; india-seminar.com

5. President's Rule From Wikipedia, the free encyclopedia.

6. Human Rights and Indian Armed Forces in LICO- ukessays.com.