Shahzad Hussain Hamdani
The time when people from all over the world were keen to come to India, Britishers came and ruled over India for nearly 200 years. After the battle of Plassey in 1757, the British achieved political power in India. And their paramount was established during the tenure of Lord Dalhousie, who became the Governor- General in 1848. During the rule of 200 years over India, Britishers introduced many draconian laws in order to curb the voices of the masses and also to protect themselves when combating with Indian Revolutionaries. One of such law which was introduced by the Britishers was “The Rowlatt Act”
The Rowlatt Act was passed by the Imperial Legislative Council in London on 10 March 1919, indefinitely extending “emergency measures” (of the Defence of India Regulations Act) enacted in order to control public unrest and root out conspiracy. Passed on the recommendations of the Rowlatt Committee, named for its president, British judge Sir Sidney Rowlatt. According to Rowlatt Act:
- The government effectively authorized to imprison for a maximum period of two years, without trial, any person suspected of terrorism living in the Raj and gave British imperial authorities power to deal with revolutionary activities.
- The Act Further provided for stricter control of the press, arrests without warrant, indefinite detention without trial and juryless in camera trials for proscribed political acts. The accused was denied the right to know the accusers and the evidence used in the trial.
- Those convicted were required to deposit securities upon release and were prohibited from taking part in any political, educational, or religious activities.
Being a past victim in the hands of British rule, India has somewhere failed to learn the lessons from its own History and has repeated same draconian measures in Kashmir. According to Barbara Crossette , The Nation’s United Nations correspondent who has also been a former foreign correspondent for the New York Times, “ Delhi’s blinkered Kashmir policy since partition in 1947 – ignoring UN demands for a self-determination plebiscite, rigging elections, manipulating or overthrowing elected governments, and neglecting economic development – lies at the heart of the problem,.
The violence “is a reminder that many Kashmiris still do not consider themselves part of India and profess that they never will,” she said. “India maintains a force of several hundred thousand troops and paramilitaries in Kashmir, turning the summer capital, Srinagar, into an armed camp frequently under curfew and always under the gun. The media is labouring under severe restrictions. Torture and human rights violations have been well documented.” Comparisons with Israel’s treatment of Palestinians were not inappropriate.
Another recent study by Robert Bradnock of Chatham House found 43% of the total adult population of Kashmir, on both sides of the line of control (the unrecognised boundary between Indian and Pakistan-administered Azad Kashmir), supported independence for Kashmir while only 21%, nearly all of whom live on the Indian side, wanted to be part of India. Hardly anyone in Jammu and Kashmir wanted to join Pakistan.
All these things clearly point out that India’s policy towards Kashmir is more of a British nature. The Much hyped and criticized draconian law enacted by India in Kashmir known as Armed Forces Special Power Act, in nothing more than a new version of Rowlatt Act.
Armed forces special powers Act came into force in the year 1990, in the State of Jammu and Kashmir. Meanwhile during its enforcement in the State of Manipur alot of hue and cry was made related to the human rights violations done by Assam Rifles in the Manipur and In 2004, in the wake of intense agitation that was launched by several civil society groups following the death of ThangjamManorama, while in the custody of the Assam Rifles and the indefinite fast undertaken by IromSharmila, the then Union Home Minister ShivrajPatil visited Manipur and reviewed the situation with the concerned state authorities. In the same year, Prime Minister, Manmohan Singh assured activists that the central government would consider their demand sympathetically.
The Central Government accordingly set up a five-member committee under the Chairmanship of Justice B P Jeevan Reddy, former judge of the Supreme Court. The panel was given the mandate of “review[ing] the provisions of AFSPA and advising the Government of India whether
(a) to amend the provisions of the Act to bring them in consonance with the obligations of the government towards protection of human rights; or
(b) to replace the Act by a more humane Act.”
The Reddy committee submitted its recommendations on June 6, 2005.
When India presented its second periodic report to the United Nations Human Rights Committee in 1991, members of the UNHRC asked numerous questions about the validity of the AFSPA. They questioned the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of the International Covenant on Civil and Political Rights, ICCPR. On 23 March 2009, UN Commissioner for Human Rights NavanethemPillay asked India to repeal the AFSPA. She termed the law as “dated and colonial-era law that breach contemporary international human rights standards.”
On 31 March 2012, the UN asked India to revoke AFSPA saying it had the no place in Indian democracy. ChristofHeyns, UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions said “During my visit to Kashmir, AFSPA was described to me as ‘hated’ and ‘draconian’. It clearly violates International Law. A number of UN treaty bodies have pronounced it to be in violation of International Law as well.”
NOW as above Mentioned the said Act came into the state of J&k in the year 1990. Since than many cases of Fake Encounters and human rights Violations have been reported in the State. Even the UN has directed the Indian government to repeal such inhuman laws.
The voice against AFSPA has been raise by many Indian Civil societies as well. A human rights activist and noted Supreme Court lawyer Prashant Bhushan while criticizing AFSPA said, “Army is suppressing people in the garb of this contentious Act and it must be abolished.” He also said, “The Government of India should resolve Kashmir issue as soon as possible, I feel no Kashmiri is safe in any part of India as communal forces are ruling the country. In Kashmir, Army is responsible for suppression while in India communal forces including extremist Hindu outfits are busy in terrorizing Kashmiri people who manger their affairs in different parts of the country. How can you expect that a Kashmiri is safe in India when police can do an encounter of anybody, even an Indian, in any part of the country?”
When we look into the deep history of India, we find that Armed Forces Special Power Act is nothing but a Modified version of Rowlatt Act, which was passed by the British during their rule in India.
Another draconian law is the disturbed area Act, which was passed in the year 1997 for the state of Jammu & Kashmir. The act provides power to the State Government to declare whole or any part of any district of Jammu and Kashmir as a disturbed area. Also it is pertinent to mention that Section 4 of the Disturbed Area act provides power to a Police Officer not below the rank of Sub-Inspector or Head Constable in case of the Armed Branch of the Police, to fire upon, or otherwise use force, even to the causing of death, against any person who is indulging in any act which may result in serious breach of public order or is acting in contravention of any law or order. Further Section 6 of the same Act states that No suit, prosecution, or other legal proceedings shall be instituted except with the previous sanction of the State Government against any person in respect of anything done or purporting to be done in exercise of the powers conferred by Sections 4.
The only amendment made in that act was that a police officer, if he causes a death or grievous injury, shall forward a report in writing to the nearest magistrate within 24 hours about the incident. No such amendment was made related to the immunity given against any criminal or civil proceedings.
So, since many questions have been raised that the state government has no power to act against AFSPA and also that the state government has no direct power for the repealing of AFSPA. Since the Law has been made and enforced by the Central Government, it is to mention that therole which the state can play is to pass a resolution for the revocation of AFSPA. After passage of the resolution, they can recommend the revocation of AFSPA to the Parliament”
Another thing they can do is to repeal the Disturbed Area Act prevailing in the state, which is solely in their hands of the state government. Repealing AFSPA and keeping the Disturbed area act intact, will surely serve no purpose.
While the people of the state are yet to come out of these draconian laws, the state government has introduced Jammu & Kashmir Draft Police Bill 2013. The preamble is the sum and substance of any law. It is an introduction to overall intention of the legislation. However in this case the Preamble uses phrases like “power” “empowering the police” etc and puts police ahead of everything.
According to the Police Bill, the administration of Police in District should vest in S.P. The Bill has excluded District Magistrate completely from the scheme of things. Also the proposed bill take away the powers under 129/133/144 CRPC from Magistrates and have been given to Sub Inspectors and above ranked police officers. That means a Police Officer can declare any procession as un-lawful and use force to disperse it. So all together the police bill is over riding the amendment done in the disturbed area act and has been criticized by all sections of the society.
Thus India and in particularly the State government should not promote draconian laws in Kashmir and should understand that such draconian laws is the “root cause of every evil in Kashmir.” Sane voices point “Police and Army is suppressing people in the garb of these contentious Acts and it must be abolished. Make Army and the police accountable and take action against erring army and police personnel who kill people. But the unfortunate part is that people of Kashmir are not being heard and flocked like cattle’s. All these contentions clearly show that yesterday’s oppressed is today’s Oppressor.”
The way such draconian laws are enforced in the state, it clearly shows,what draconian laws British brought for India, the same is what India has been implementing in Kashmir; making it more over a British rule in Kashmir.