Pathribal would continue to be debated, for right reasons. Army’s closure of the case has been variously branded—justice murdered, justice miscarried. However in the wide debate, an important aspect is forgotten—was carriage of justice ever promised? Or, is AFSPA that immunizes security forces from any legal scrutiny consistent with justice? Vis-à-vis JK, Indian nation state has washed its hands off any justice. It is clear from what has transpired between the state and the international community, pitching for fair play in pursuing, whatever be the objective of the state face to face with an exigency–the provision that Indian nation pleads in parading as draconian a law as AFSPA in JK and northeast.
In 1990’s United Nations Human Rights Committee [UNHRC] questioned the constitutionality of the AFSPA under Indian law and asked how it could be justified in light of Article 4 of the international covenant on civil and political rights. Article 4:1 of the covenant provides for emergencies, it reads, ‘In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin’. This is not however an internationally guaranteed license to operate at will in such exigencies. There are restricting clauses in article 4, which need recounting to comprehend fully what is otherwise implied.
Article 4, clause 2 implies, ‘No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision, while as 4: 3—implies keeping other states parties to the present Covenant informed of derogation, reasons for accentuation, termination of such derogation though secretary general of UN. Article 6:1 relates-Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life and article 7: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The restricting articles and clauses make it clear that while as international covenant on civil and political rights makes a provision for exigencies that any state may face, the state still stands to respect right to life and restrain from any activity that implies torture, cruelty, degradation or punishment. It may be asked has New Delhi acceded to or taken into account article 6:1 or what is implied in article 7. Yet again, is AFSPA in its provisions consistent with article 4:2 which implies no derogation from 6, 7 and other restraining articles and clauses? If not, as it surely isn’t—can India ever claim to be a responsible member of international community? So, where rests the Indian defence on acts of omission and commission in JK?
In 2009, on March the 23rd India took the plea of Article 355 of her constitution which implies that it is the ‘Duty of the Union to protect States against external aggression and internal disturbance–It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution’. It was invoked to overcome objections raised by UN Commissioner for human rights, Navanethem Pillay to AFSPA. Terming it as colonial, the commissioner termed the law as "dated and colonial-era law that breach contemporary international human rights standards." Indian Attorney General pleaded that there is no duty under international law to allow secession.
Secession is implied where a merger has taken place. JK has acceded and not merged. This is not only the stand of resistance forces, wrongly termed as separatists [yet again, separatism is implied where merger has taken place] but also that of so called mainstreamers [mainstream caters to dominant sentiment not the dominant state tailored discourse]. In 2010, at the height of disturbances, Omar Abdullah stated on the floor of JK legislative assembly that JK has acceded and not merged. And there is enough to prove that the accession is conditional. Moreover East Timor and Southern Sudan did not have such conditions which JK’s accession to Union of India implies, yet they were allowed to secede without a whimper.
The plain fact is that New Delhi has bowed to the will of security forces, in contravention of international covenants, as also the considered opinion of commissions appointed by the very state that rejected what was recommended. Justice B.P. Jeevan Reddy [former judge of the Supreme Court] led 5 member committee appointed in the wake of intense agitation that was launched by several civil society groups in northeast recommended AFSPA withdrawal on June 6, 2005. The then Defence Minister Pranab Mukerjee rejected the withdrawal or significant dilution of the Act on the grounds that “it is not possible for the armed forces to function” in “disturbed areas” without such powers. Judicial opinions judiciously submitted do not make way in the lexicon of nation state.
Yaar Zinda, Sohbat Baqi
[Reunion is subordinate to survival]