ARMED FORCES SPECIAL POWERS ACT -- PET SCAPEGOAT?

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ABSTRACT

The Armed Forces Special Powers Act continues to be used by the Indian government in insurgency ridden areas, gaining wide traction in the debate on conflict and its resolution. Civil society condemns the Act for issues relating to Human Rights, and the draconian powers it seemingly bestows on the armed forces. This research paper seeks to examine the debate in the larger context of its legality, its validity in the current scenario, and the artificial divide it creates in civil society discourse.

KEYWORDS

Jammu & Kashmir, Politics, Conflict, Armed Forces, Violence, Analyses, Civil Society, Human Rights, Special Powers

INTRODUCTION

The Armed Forces Special Powers Act has been used by the Government of India in insurgency areas since the 1950s. It has certain provisions which have been termed ‘draconian’ for their neglect of human rights and the powers given to the armed forces which can be interpreted as being against constitutional rights. The Act has played a major role in the spiralling of the conflict since its enactment in 1990. It becomes a catalyst for an artificial divide within civil society. Indian society has a burning issue for debate and it is all encompassing. Apart from the police and the armed forces which get dragged in to the debate, AFSPA has the attention of the sharpest legal minds of the country and the voices of the human rights groups. Politicians of all hues partake in the debate and contribute according to their political flavour of the day. There is little doubt that armed forces need some form of protection in insurgency operations; however prolonged or even indefinite employment of the act serves to create the impression that it is meant to cover up human rights violations. The Supreme Court has upheld the validity of the Act, but has also given out some very relevant guidelines in this regardⁱ. This section analyses the provisions of the Act, as well as what causes the debate. In doing so, the factual data has been ascertained from the texts of various documents in public domain. The debate is substantiated by the certain incidents which have caused the rising crescendo for the revocation of the Act. The paper is concluded by looking at what aspects of the current debate are not fully understood and hence need to be focussed upon.

DISTURBED AREAS AND THE ARMED FORCES SPECIAL POWERS ACT

If the President or the Governor of a state opine that an area is in such a disturbed or dangerous state that armed forces of the Union are required to aid civi authorities, they have the power to declare the areas as ‘disturbed areas’. The power emanates from two Union Acts, namely the Armed Forces (Special Powers) Act 1958, and the Armed Forces (Jammu and Kashmir) Special Powers Act 1990. Certain specified categories of officers from the Union armed forces are allowed to exercise enhanced powers by virtue of being deployed in such ‘disturbed areas’. The power to declare an area as ‘disturbed area’ has been used by the Indian government in areas facing insurgency such as the north-eastern states and J&K (Jha 2015: 22)

The Armed Forces Special Powers Act (AFSPA) owes its origins to an ordinance of the same name promulgated by the British in 1942 to suppress the Quit India movement. After Independence, the Indian government issued four ordinances to control the widespread communal rioting and breakdown of law and order post partition. These ordinances were issued for Bengal, Assam, East Punjab and Delhi, and the United Provinces. The ordinances were based on the British one of 1942. These four ordinances were replaced by the Armed Forces Special Powers Act 1947, temporarily for one year, and finally by the Act of 1958 in response to the deteriorating internal security situation in Assam at the behest of the Naga tribes.

The British ordinance had sweeping powers provided to officers to enable them to deal with violence in emergencies, such as powers to arrest any person who did not respond when challenged or found damaging property. It also enabled officers to use force including if it caused death. Finally the officers were afforded immunity from prosecution save with prior approval of the government. When the same were sought to be enshrined in the Indian Act of 1958, it was subjected to intense debate in Parliament. The argument was that such powers would result in violation of the rights of the people, as also allow the armed forces to use excessive force even when not required. However the Act was passed in Parliament (Das 2012). This Act has been enforced in the north-eastern states since the 1950s, in Punjab in the 1980s, and in J&K since 1990. The complete text of the Armed Forces Special Powers Act 1990 has been attached at Appendix 1 to this research.

As stated above, AFSPA enables the President or the Governor to declare the area ‘disturbed’ making the use of the armed forces in aid of civil authority possible. This is supposed to be within a time limit, with provisions for periodic review every six months. The definition of the term ‘disturbed area’ has been clarified by the Delhi High Court, wherein it states “the term ‘disturbed area’ defies any definition- it has to be adjudged according to the location, situation and circumstances of a particular case”ⁱⁱ (Jha 2015).

AFSPA gives special powers vide its section 4 to commissioned officers, warrant officers and non-commissioned officers, to fire or use force against any person causing disturbance in the given area, or carrying arms, ammunition and explosives. They can also destroy arms dumps, fortified positions or training camps in use by armed gangs. They can arrest people committing cognisable offences, or enter and search premises where arms or ammunition may be stored, without the requirement of a warrant. While these seem unduly excessive, the same powers are given to police officers under Criminal Procedure Code (Cr PC) 1973. It therefore raises the question as to why AFSPA should be required if the same provisions can be exercised by the police forces.

In terms of the provisions in section 5 of AFSPA arrested persons are to be handed over to the nearest police station at the earliest. This leads to the question of arbitrariness in deciding ‘least possible delay’. The arresting authority cannot keep the arrested for interrogation and has to be satisfied that the person is involved in the matter before the arrest is made. Armed forces working in such ‘disturbed areas’ are provided protection under section 6 of AFSPA, and prosecution is possible with the sanction of the Central government. The government sanction or refusal thereof is subject to judicial scrutiny. In itself it nullifies any argument on the immunity afforded to armed forces, since the matter is subject to judicial review. Also, the same provisions apply to police forces under section 197 of Cr PC, as well as the Jammu and Kashmir Public Safety Act, 1978, amended in 1987 and 1990.

While questioning the deployment of AFSPA in disturbed areas, its inherent contradictions of constitutional rights of citizens as well as the duplicity of the same powers under it as under CrPC, most human rights activists and legal practitioners also agree that the Act must be recast in such a way that it meets the challenges thrown up by these questions. In the same instance, the final decision of redeployment must be done in consonance with the armed forces’ requirements. Former Chairperson of National Minorities Commission Wajahat Habibullah writes the following:

This said, it must be clearly understood that the final decision on this must rest on the advice of the armed forces. It might be said that the idea of redeployment has in fact originated from amongst army officers that have served in the State, with a high sense of purpose. If, by mutual consultation it is agreed that the law must continue, this must then be subject to review and Rules carefully crafted for its enforcement, which must bring the law into the fullest conformity with the freedoms of every Indian citizen guaranteed to them by no less than the Constitution of India (Habibullah 2012).

DEBATE ON AFSPA

In the history of conflict in J&K, AFSPA became controversial after other Acts had laid a groundwork for challenging their enforcement owing legal loopholes and human rights violations. The J&K Public Safety Act 1978 has certain provisions that could be misinterpreted to suit the police. According to the Act, persons acting against the security of the state or law and order can be detained upto two years, and without charges for upto one year. The Act was further amended to exempt information about the arrest to the detainee. This has been commented upon by the International Court of Justice (ICJ) for its ‘highly discretionary tone’. Similarly, the Terrorist and Disruptive Activities (Prevention) Act 1987 (TADA) has found itself being challenged due to the very definition of disruptive activities which could be against the constitutional right to freedom of speech. AFSPA too faces a similar comment from the ICJ; the possible use of armed forces in the ‘disturbed areas’ to suppress political activity cannot be justified (Schoefield 2003). The points of contention surrounding the debate on AFSPA are being analysed in the larger context of conflict in J&K.

Commissions for Judicial Scrutiny. In the course of its long history, AFSPA has been subjected to judicial scrutiny as well as reviews carried out with an aim to bring it closer to ensuring protection of human rights. As a result the Act has been whetted thoroughly. These committees have also suggested means to having increased transparency while ensuring that armed forces are not impeded in their functioning in such complex conflict environments.

• Justice Reddy Committee 2005. The committee was set up in the aftermath of the custodial death of Manorama Devi in July 2004 in Manipur. The committee was mandated to amend AFSPA to the extent of protection of human rights, and to replace with a more humane act if required. After extensive study and analyses of the problem in consultations with members of civil society such as individuals, groups, legal fraternity and tribal groups as also the army in the state as well at the central level, the committee submitted its report in June 2005. It reported that the overwhelming desire of the people was the retention of the army, but with suitable changes in the legal mechanisms; so as to create an environment for the operation of armed forces against militants without harming rights of the people. In doing so, the committee opined that the existing Unlawful Activities (Prevention) Act (UAPA) 1967 with some amendments could be utilised to give the armed forces the protection they needed. The reasons given by the committee were the fact that UAPA was designed to deal with terrorism, had defined activities and groups involved in terrorism, has inbuilt protection for armed forces and paramilitary, and is applicable pan-India. At the same time accused people would be afforded protection under section 45 of UAPA. It also suggested the setting up of grievance cells with members from the local administration, the army and the police.

The Justice Reddy committee was criticised for being regressive in nature; although advocating the repeal of AFSPA, it was recommending special powers via the UAPA. It would be violating human rights yet again, albeit in the guise of another law. The report contained the guidelines of the Supreme Court which were an improvement on the Dos and Don’ts issued by the army for insurgency operations. The same have been attached at Appendix 2 of this research (Gonsalves 2005)

• Justice Hegde Commission 2013. The commission was appointed by the Supreme Court after investigations were sought against extrajudicial deaths in Manipur from 1978 to 2010. It was mandated to evaluate the role of the security forces in the state; apropos the commission consulted members of civil society publicly, collected documentary evidence and the testimony of various members of the security forces. It reported that investigations by the security forces were inadequate and use of force had been more than required. It also advocated the strengthening of the police forces which were found ill trained to deal with insurgency in the state, in order to remove the armed forces. It also pointed out to the disproportionate use of ammunition while not attempting to apprehend the accused (Justice Hegde Commission Report 30 March 2013)

The Justice Hegde Commission has been viewed as unrealistic in the context of insurgency operations. Such views are widely acknowledged amongst senior officers of the armed forces. The major flaw is to expect personnel operating in highly dangerous and life threatening environment to be able to use non-lethal force.

• Justice Verma Committee 2013. This particular report is being mentioned separately since it was not directly pertaining to AFSPA, but has commented on it. The government appointed Justice Verma Committee to review laws against sexual assault, in the aftermath of the gang-rape and murder of a girl in Delhi in December 2012ⁱⁱⁱ. The report included comments on sexual offences committed in conflict zones. It said that sexual offences were legitimized by means of the AFSPA. It recommended that armed forces be tried under ordinary criminal law, and the training and monitoring of personnel be re-oriented to deal with the issue of sexual offences (Justice Verma Committee Report 2013).

The Justice Verma Committee report has been criticised for misstating facts as well as not taking cognisance of existing rules and regulations in the armed forces which take any form of sexual assault offences with utmost seriousness and the strictest disciplinary action is initiated against the offender. Similarly, incorrect factual knowledge of military deployment in insurgency operations, insufficient and factually incorrect knowledge of speedy legal process in the army has been criticised (Kadyan 2013).

Apart from the judicial review cited above, the Supreme Court has upheld the constitutional validity of the AFSPA, stating that powers given to armed forces are not ‘arbitrary’ or ‘unreasonable’ (Jha 2015). The same has been categorically repeated by senior hierarchy of the army with a view towards public opinion on the issue^iv.

Constitutional Contradictions. Certain provisions of the AFSPA have been regarded as being in direct contradiction to constitutional rights of the people. The argument is made that AFSPA actually violates these rights because it dilutes the very provisions of the Constitution. As a result, a counter-productive approach is being made to security challenges. Some of the issues that make this part of the debate are being analysed here with both sides of the argument in focus.

• Disproportionate Use of Force. One of the most hotly debated points is the use of force, and the use of force disproportionate to the offence. Detractors of AFSPA argue that use of force has been laid down in international law as justified by self-defence, or as a means of last resort (Srivastava 2012). However, anyone who has served in insurgency operations will realise that the question of self-defence is itself the answer to why use of force as per AFSPA is required. Functioning in an environment where there is no distinction between a normal citizen and an insurgent who will open fire at will, and with the intent of killing as many people as possible, requires such use of force. If this power is reduced, troops would not be safe to step out on patrolling duties or for cordon and search operations.
• Arbitrariness of Arrest. Critics argue that the provisions for arrest and detention under AFSPA overlook the due process of law including medical examination of the accused. In itself it may make sense, but in the context of the violence unleashed by terrorists, arrest is a bonus. It means that the operating force would be fortunate to make an arrest rather than be fired upon, or even worse, lose its personnel under hostile fire. Further, to counter arbitrariness the Act has, within its provisions, the additional clause that the arrested person needs to be handed over to the police. Also, no interrogation is allowed after the arrest; the onus of satisfying itself of the validity of the arrest is before the arrest for the forces. These safeguards ensure that no arbitrariness is exhibited in arresting or detaining anybody. The Supreme Court has also upheld the provisions of the AFSPA based on a realistic look at the ground situation during such operations^v.
• Immunity Afforded against Prosecution. The argument against the immunity clause of AFSPA is that since no prosecution is possible without prior central government sanction, no prosecution takes place. Victims therefore have no remedy with either the sanction not coming through or just being used as an excuse to overlook excess on the part of the armed forces (Srivastava 2012). To this the response of the armed forces is that the provisions relate to frivolous charges which are natural in conflict areas such as J&K and which tie up the armed forces from doing their actual tasks. The second response pertains to the existing mechanism for prosecuting offenders under the Army Act. In fact, prosecution is much faster and efficient under the provisions of the Army Act. It is however also a fact that such cases are kept low profile with no undue publicity (Kadyan 2013). Further Court Martial proceedings are based on rule of law, with the army itself keen that offenders get punished to maintain the discipline required of a fighting force.

While the concerns voiced by various interest groups about excessive powers given under the provisions of AFSPA are correct in terms of the legal, constitutional and rights based arguments, it remains equally pertinent that armed forces working under such adverse circumstances need the protection they can be given. This has a direct bearing on troops’ functioning and morale. In the absence of such safeguards, troops would suffer unnecessary casualties; it is akin to fighting with one arm tied behind the back. It is also in the interest of the armed forces that any cases of excessive or undue force, or of criminal offences such as sexual assault or rape be dealt with promptly under the law. Finally it becomes obvious that continuous efforts be made to educate officers and troops about the law, as well as a humane approach in such conflict zones. In the zeal to perform their given tasks, they must never overlook the fact that there are ordinary people also involved.

Emergency vs Human Rights. Established principles of human rights are usually sidelined in the violence of armed conflicts such as J&K. Peace becomes a term difficult to comprehend, especially in the vocabulary of violent strife which overcomes basic human decency and rule of law. The mechanisms of governance are used to bring semblance of order. It is this act of the government that initiates such requirements as declaring an emergency and bringing the region under the gambit of ‘disturbed areas’. Where then do human rights figure in this discussion?

Critics of AFSPA argue that in international law, even during such violence in conflict zones, the rights to life and liberty remain paramount. Emergency laws too need to be utilised with certain inbuilt safeguards to ensure that they do not end up being despotic or dictatorial in nature. The other focus of international law is that the non-state actors would also have some manner of organised structure, firstly to be able to create conditions of conflict, and secondly to be able to pursue their aims. In the case of J&K, this structure emanates from Pakistan using its proxy apparatus. Lastly, the protections afforded in such laws as AFSPA need to be viewed in light of the military necessity of deploying forces (Ahmed 2012).

If AFSPA indeed creates conditions for the violation of basic human rights and rights enshrined in the Constitution, then the onus of rescinding such laws lies with the government. As is evident from the judicial reviews, the law recognises the requirement of such a law in disturbed areas. But the argument against the retention of such laws has given impetus to the thought process that these will invariably bring an erosion to civil liberties. In the long run, these will prove detrimental to any peace process.

View Point of Armed Forces. If the armed forces are the to be part of any consultative mechanism in deciding the future of AFSPA, then their views bear weight (Habibullah 2012). The senior hierarchy of the armed forces have stressed upon the requirements of the intrinsic safeguards of AFSPA in operating under duress in insurgency or internal security. Yet they also agree that the final call on restoring the rule of law in conflict zones lies with the government inasmuch as devising means to garner confidence in the people. It is the sheer compulsion of having run out of options that the armed forces have been called in. In that case why grudge the armed forces certain protection? In its defence the army reiterates that it accords the highest priority to upholding human rights, avoiding collateral damage and maintaining high moral standards (Jha 2015). Since 1994, 1517 cases of violations have been reported with only 54 found to be true. 38 Officers, 12 Junior Commissioned Officers and 79 soldiers have been punished, with punishments ranging from life imprisonment to dismissal from service.

CONCLUSION

Various interest groups have alleged the violation of human rights, constitutional rights to life and liberty, and heinous crimes which fall in the category of war crimes. All these allegations stem from the powers given to armed forces under provisions of Armed Forces Special Powes Act. On the one hand, insufficient research has gone into establishing links between some or all these groups and the insurgents or their proxy partners in Pakistan. Without empirical evidence, it remains a conjecture, but worth investigation. Similar investigation is required into Indian researchers being funded by overseas organisations to critique AFSPA. On the other hand, it is pertinent to understand that deployment of armed forces without protective mechanisms amounts to making them fight with one arm tied behind their backs; virtual cannon fodder. Hence the requirement of AFSPA is beyond reasonable doubt. The same has been upheld by the Supreme Court in terms of its constitutional validity. In the same breath, all possible avenues must be explored to amend the provisions of AFSPA in order to make it more humane in nature. The system of military justice also needs to be further strengthened. Finally for the man on the ground, strict rules of engagement must be laid down with no room for any deviation; if deviation happens, a speedy justice system must bring the deviant to book. The Armed Forces Special Powers Act has been examined as part of the narrative of conflict in J&K. In doing so, this research has relied on primary and secondary sources for its historical correctness and certain specific survey based interviews to ascertain opinions and viewpoints.

APPENDIX 1: ARMED FORCES SPECIAL POWERS ACT 1990

ARMED FORCES (SPECIAL POWERS) ACT, 1990

The Gazette of India EXTRAORDINARY
PART II-Section 1
PUBLISHED BY AUTHORITY
NEW DELHI, TUESDAY, SEPTEMBER 11, 1990/

BHADRA 20, 1912
MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the 11th September, 1990/Bhadra 20, 1912 (Saka)

The following Act of Parliament received the assent of the President on the 10th September 1990, and is hereby published for general information:

THE ARMED FORCES (JAMMU AND KASHMIR) SPECIAL POWERS ACT, 1990
No. 21 of 1990

[10th September, 1990.]

An Act to enable certain special powers to be conferred upon members of the armed forces in the disturbed areas in the State of Jammu and Kashmir.

BE it enacted by Parliament in the Forty-first Year of the Republic of India as follows:

1. Short title, extent and commencement. (1) This Act may be called the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990.

(2) It extends to the whole of the State of Jammu and Kashmir.

(3) It shall be deemed to have come into force on the 5th day of July, 1990.

2. Definitions. In this Act, unless the context otherwise requires,—

1. (a) “armedforces”meansthemilitaryforcesandtheairforces operating as land forces and includes any other armed forces of the Union so operating
2. (b) “disturbedarea”meansanareawhichisforthetimebeing declared by notification under section 3 to be a disturbed area;
3. (c) all other words and expressions ‘used herein, but not defined and defined in the Air Force Act, 1950,1 or the Army Act, 1950,2 shall have the meanings respectively assigned to them in those Acts.

3. Power to declare areas to be disturbed areas. If, in relation to the State of Jammu and Kashmir, the Governor of that State or the Central Government, is of opinion that the whole or any part of the State is in such a disturbed and dangerous condition that the use of armed forces in aid of the civil power is necessary to prevent—

1. (a) activities involving terrorist acts directed towards overawing the Government as by law established or striking terror in the people or any section of the people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people;
2. (b) activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India front the Union or causing insult to the Indian National Flag, the Indian National Anthem and the Constitution of India, the Governor of the State or the Central Government, may, by notification in the Official Gazette, declare the whole or any part of the State to be a disturbed area.

Explanation.—In this section, “terrorist act” has the same meaning as in Explanation to article 248 of the Constitution of India as applicable to the State of Jammu and Kashmir.

4. Special powers of the armed forces. Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,—

1. (a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances;
2. (b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offence;
3. (c) arrest, without warrant, any persons who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;
4. (d) enter and search,without warrant, any premises to make any such arrest as aforesaid or to recover any person believed to be wrongful restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawful kept in such premises, and may for that purpose use such force as may be necessary, and seize any such property, arms, ammunition or explosive substances;
5. (e) stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is a proclaimed offender, or any persons who has committed a non- cognizable offence, or against whom a reasonable suspicion exists that he has committed or is about to commit a non- cognizable offence, or any person who is carrying any arms, ammunition or explosive substance believed to be unlawfully held by him, and may, for that purpose, use such force as may be necessary to effect such stoppage, search or seizure, as the case may be.

5. Power of search to include powers to break open locks, etc.

Every person making a search under this Act shall have the power to break open the lock of any door, almirah, safe, box, cupboard, drawer, package or other thing, if the key thereof is withheld.

6. Arrested persons and seized property to be made over to the police. Any person arrested and taken into custody under this Act and every property, arms, ammunition or explosive substance or any vehicle or vessel seized under this Act, shall be made over to the officer-incharge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest, or as the case may be, occasioning the seizure of such property, arms, ammunition or explosive substance or any vehicle or vessel, as the case may be.

7. Protection of persons acting in good faith under this Act.

No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

8. Repeal and saving. (1) The Armed Forces (Jammu and Kashmir) Special Powers Ordinance, 1990,3 is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act.

V.S. RAMA DEVI, Secy. to the Govt. of India

CORRIGENDA

In the Constitution (Sixty-sixth Amendment) Act, 1990 as published in the Gazette of India, Extraordinary, Part II, Section 1, dated the 7th June, 1990 (Issue No.32),—

At page 1, in second line from the bottom, for “Regulation, 1963 (Andhra Pradesh Regulation 2 of” read “Regulation, 1970 (Andhra Pradesh Regulation 1 of”.

At page 2, in line 7, for “(Bihar Act 8 of 1985)” reads “(Bihar Act 8 of 1885)”.

______
EXTRAORDINARY
THE
JAMMU & KASHMIR GOVERNMENT GAZETTE
Vol. 103] Srinagar, Fri., the 6th July, 90/15th Asa., 1912. [No.14-1 PART I-B
Jammu and Kashmir Government—Notifications.
..........
GOVERNMENT OF JAMMU AND KASHMIR,
CIVIL SECRETARIAT—HOME DEPARTMENT.

SRO NO. SW 4 Dated 6-7, 1990

In exercise of the powers conferred under section 3 of the Armed Forces (Jammu and Kashmir) Special Powers Ordinance, 1990, the Governor of Jammu and Kashmir hereby notifies the areas given in the Schedule to this notification as Disturbed Areas.

(Sd.)............................. Additional Chief Secretary (Home), Jammu and Kashmir Government. ...............................

SCHEDULE

1. Areas falling within 20 Kms. of the Line of Control in the Districts of Rajouri and Poonch.

2. Districts of Anangtnag, Baramulla, Badgam, Kupwara, Pulwama and Srinagar.

(Sd.)............................ Additional Chief Secretary (Home), Jammu and Kashmir Government.

Government of Jammu and Kashmir

Civil Secretariat Home Department

NOTIFICATION

SRINAGAR, THE 10TH AUSUGT, 2001

SRO 351: Whereas the Governor is of the opinion that the State is in such a disturbed condition that the use of Armed Forces in the aid of civil power is necessary to prevent the activities involving terrorists acts directed towards striking terror in the people;

Now, therefore, in exercise of the powers conferred by section 3 of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, the Governor hereby declares the districts of Jammu, Kathu, Udhampur, Poonch, Rajouri and Doda to be disturbed areas in addition to districts, Srinagar, Budgam, Anantnag, Pulwama, Baramulla and Kupwara which stand already so declared.

By order of the Governor

Principal Secretary to Government Home Department

NO: Home-219/97-ISA dated 10.8.2001. Copy for information to :

1. Chief Secretary, J&K, Srinagar.
2. Secretary, Ministry of Home Affairs, Govt. of India, New Delhi.
3. Secretary, Ministry of Defence, Govt. of India, New Delhi.
4. Joint Secretary (K-I), MHA (Deptt. of J&K Affairs), New Delhi.
5. Principal Secretary to HE the Governor.

6. Principal Secretary to Hon’ble Chief Minister.
7. Commr/Secretary, Law.
8. Director General Police, Srinagar.
9. Director General, BSF, New Delhi.
10. Director General, ITBP, New Delhi.
11. Director General, CRPF, New Delhi.
12. GOC, XVI Corps C/o 56 APO
13. GOC, XV Corps C/o 56 APO
14. GOC, XIV Corps C/o 56 APO
15. Divisional Commissioner, Jammu.
16. Director Information, J&K, Srinagar.
17. All District Magistrates of Jammu Division.
18. All District Superintendents of Police, Jammu Division.
19. Pvt. Secretary to Hon’ble MOS(Home)

Accessed from:: http://mha.nic.in/sites/upload_files/mha/files/pdf/Armedforces%20_J&K_%20Splpowersact1990.pdf

on 15 November 2015

APPENDIX 2: GUIDELINES OF THE SUPREME COURT OF INDIA

LIST OF DOS AND DON’TS DIRECTED BY SUPREME COURT

Dos

1. Action before Operation

(a) Act only in the area declared ‘Disturbed Area’ under Section 3 of the Act.

(b) Power to open fire using force or arrest is to be exercised under this Act only by an officer/JCO/WO and NCO.

(c) Before launching any raid/search, definite information about the activity to be obtained from the local civil authorities.

(d) As far as possible coopt representative of local civil administration during the raid.

2. Action during Operation

(a) In case of necessity of opening fire and using any force against the suspect or any person acting in contravention of law and order, ascertain first that it is essential for maintenance of public order. Open fire only after due warning.

(b) Arrest only those who have committed cognizable offence or who are about to Commit cognizable offence or against whom a reasonable ground exists to prove that they have committed or are about to commit cognizable offence.

(c) Ensure that troops under command do not harass innocent people, destroy property of the public or unnecessarily enter into the house/dwelling of people not connected with any unlawful activities.

(d) Ensure that women are not searched/arrested without the presence of female police. In fact women should be searched by female police only.

3. Action after Operation

(a) After arrest prepare a list of the persons so arrested.

(b) Hand over the arrested persons to the nearest police station with least possible delay.

(c) While handing over to the police a report should accompany with detailed circumstances occasioning the arrest.

(d) Every delay in handing over the suspects to the police must be justified and should be reasonable depending upon the place, time of arrest and the terrain in which such person has been arrested. Least possible delay may be 2-3 hours extendable to 24 hours or so depending upon a particular case.

(e) After raid make out a list of all arms, ammunition or any other incriminating material/document taken into possession.

(f) All such arms, ammunition, stores etc. should be handed over to the police station along with the seizure memo.

(g) Obtain receipt of persons and arms/ammunition, stores etc. so handed over to the police.

(h) Make record of the area where operation is launched having the date and time and the persons participating in such raid.

(i) Make a record of the commander and other officers/JCOs/ NCOs forming part of such force.

(k) Ensure medical relief to any person injured during the encounter, if any person dies in the encounter his dead body be handed over immediately to the police along with the details leading to such death.

4. Dealing with Civil Court

(a) Directions of the High Court/Supreme Court should be promptly attended to.

(b) Whenever summoned by the courts, decorum of the court must be maintained and proper respect paid.

(c) Answer questions of the court politely and with dignity.

(d) Maintain detailed record of the entire operation correctly and explicitly.

Don’ts

1. Do not keep a person under custody for any period longer than the bare necessity for handing over to the nearest police station.
2. Do not use any force after having arrested a person except when he is trying to escape.
3. Do not use third-degree methods to extract information or to a extract confession or other involvement in unlawful activities.
4. After arrest of a person by the member of the armed forces, he shall not be interrogated by the member of the armed force.
5. Do not release the person directly after apprehending on your own. If any person is to be released, he must be released through civil authorities.
6. Do not tamper with official records.
7. The armed forces shall not take back a person after he is handed over to civil police.

List of Dos and Don’ts while Providing Aid to Civil Authority Dos

1. Act in closest possible communication with civil authorities throughout.
2. Maintain inter-communication if possible by telephone/radio.
3. Get the permission/requisition from the Magistrate when present.
4. Use little force and do as little injury to person and property as may be consistent with attainment of objective in view.
5. In case you decide to open fire:
   (a) Give warning in local language that fire will be effective; (b) Attract attention before firing by bugle or other means;

(b) Attract attention before firing by bugle or other means;

(c) Distribute your men in fire units with specified Commanders;

(d) Control fire by issuing personal orders;

(e) Note number of rounds fired;

(f) Aim at the front of crowd actually rioting or inciting to riot or at conspicuous ringleaders, i.e., do not fire into the thick of the crowd at the back;

(g) Aim low and shoot for effect;

(h) Keep Light Machine Gun and Medium Gun in reserve;

(i) Ceasefiringimmediatelyoncetheobjecthasbeenattained;

(j) Take immediate steps to secure wounded.

6. Maintain cordial relations with civilian authorities and paramilitary forces.

7. Ensure high standard of discipline.

Don’ts

8. Do not use excessive force
9. Do not get involved in hand-to-hand struggle with the mob
10. Do not ill-treat anyone, in particular, women and children
11. No harassment of civilians
12. No torture
13. No communal bias while dealing with civilians
14. No meddling in civilian administration affairs
15. No Military disgrace by loss/surrender of weapons
16. Do not accept presents, donations and rewards

Accessed from: https://www.upr-info.org/IMG/pdf%20COHR_IND_UPR_S1_%202008anx_Annex_XXII_AI_Breifing_on_AFSPA_in_Manipur.pdf

on 15 November 2015

REFERENCES/ BIBLIOGRAPHY

Ahmed, Ali. 2012. ‘AFSPA in Light of Humanitarian Law’ in Chadha, Vivek (ed.) Armed Forces Special Powers Act: The Debate. New Delhi: Lancer Books with Institute for Defence Studies and Analyses (IDSA).

Das, Pushpita. 2012. ‘The History of Armed Forces Special Powers Act’ in Chadha, Vivek (ed.) Armed Forces Special Powers Act: The Debate. New Delhi: Lancer Books with Institute for Defence Studies and Analyses (IDSA).

Gonsalves, Colin. 2005. The Fake Repeal of AFSPA. E-Pao website. Accessed on 13 June 2016 http://www.e-pao.net/epSubPageExtractor.asp?src=news_section.opinions.Opinion_on_Killing_of_Manorama.The_Fake_Repeal_Of_AFSPA

Habibullah, Wajahat. 2012. ‘Armed Forces Special Powers Act, Jammu and Kashmir’ in Chadha, Vivek (ed.) Armed Forces Special Powers Act: The Debate. New Delhi: Lancer Books with Institute for Defence Studies and Analyses (IDSA).

Hegde, Justice Santosh. 2013. Hegde Commission Report on AFSPA. The Hindu. Accessed on 26 July 2016.http://www.thehindu.com/migration_catalog/article11984420.ece/BINARY/Hegde%20Committee%20Report%20on%20AFSPA

Jha, UC. 2015. Armed Forces Special Powers Act: A Draconian Law? Delhi: Vij Books Pvt Ltd.

Kadyan, Raj. 2013. The Armed Forces Special Powers Act- Need for Review? New Delhi: United Service Institution of India, Journal of the United Service Institution of India, Vol. CXLII, No. 591, January-March 2013.

Schoefield, Victoria. 2003. Kashmir in Conflict: India, Pakistan and the Unending War, New York: IB Tauris & Co Ltd.

Srivastava, Devyani. 2012. ‘Rights-Based Critique of AFSPA’ in Chadha, Vivek (ed.) Armed Forces Special Powers Act: The Debate. New Delhi: Lancer Books with Institute for Defence Studies and Analyses (IDSA).

Verma, Justice JS. 2013. Report of the Committee on Amendments to Criminal Law by Justice JS Verma Committee. Kafila website. Accessed on 27 Jun 2016. https://kafila.online/2013/01/27/the-justice-js-verma-committee-report/

i The text of the Armed Forces Special Powers Act 1990 has been attached at Appendix 1. The Guidelines of the Supreme Court of India in the form of Dos and Don’ts have been listed out in Appendix 2.

ii The ruling has been given in the case of Indrajit Barua vs State of Assam, 1983.

iii The gang-rape and brutal attempt to murder a girl in Delhi on 16 December 2012 is known as the Nirbhaya Case. The name Nirbhaya was given to protect the girl’s identity from public, but was found and made public by some sections of the media. The girl died subsequently due to extensive injuries sustained during the rape and violent physical assault by the rapists. All the rapists have been given the death penalty, and the same has been upheld by the Supreme Court. Though the Justice Verma Committee was not mandated as such, it has commented on the issue of sexual offences in conflict zones.

iv For instance, General VK Singh, Former Chief of Army Staff, Indian Army, and currently Member of Parliament from the ruling Bhartiya Janata Party, in an interview with Frank Pereira on 'To The Point', talk show on Rajya Sabha Television, 15 January 2015.

v The Constitutional validity of AFSPA has been challenged in the Naga People’s Movement of Human Rights vs Union of India case in 1997. The Supreme Court has upheld the Constitutional validity of the Act, ruling that the powers given to the army are not ‘arbitrary’ or ‘unreasonable’, or violative of the provisions of Articles 14, 19 and 21 of the Constitution. Arrests pertaining to women need to follow the same procedure as laid down in the Criminal Procedure Code, Sections 47(2), 51(2), 100(3) and 160(1). On the issue of declaring an area disturbed, the Court ruled for a review every six months. If the Government of India does not give sanction for prosecution in any particular case, it has to justify the refusal of sanction. The same is subject to judicial scrutiny.

EVIDENCE OF VIOLENCE IN JAMMU & KASHMIR: NARRATIVES FROM THE HINTERLAND

Online version of this paper can be accessed at:

http://www.ijrssh.com/images/short_pdf/1499360765_Amitabh_Hoskote_10.pdf
and at:
http://www.ijrssh.com/currentissue.php

ABSTRACT

Jammu and Kashmir is dubiously distinguished as one of the most violent prone conflict zones in the world. What is the Evidence of this violence? This conflict has been examined through the lens of narratives from the hinterland. What is the relation of violence with state and non-state actors? Are extant ethnic divides constructively or destructively oriented? Using this history and evidence of violence, the paper seeks to delve into questions which must necessarily form the backbone of any meaningful resolution mechanism. Analyses have been based on examination of cases from conflict afflicted areas, historical contextualization of arguments, and debates from primary and secondary sources.

KEYWORDS

Jammu & Kashmir, Politics, Conflict, Violence, Analyses, Inequality

DEFINITION OF VIOLENCE

How does one define violence? The World Health Organization defines Violence as "the intentional use of power or physical force, threatened or actual, against oneself, another person, or against a group or community, which either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment, or deprivation", but acknowledges that the inclusion of "the use of power" in its definition expands on the conventional meaning of the word (World Health Organization 2002). Spanning the entire spectrum, violence in conflict ranges from that inflicted by adversaries, whether state or non-state actors, and also ranges the entire gamut of ethnic, religious or gender based 'direct' violence or economic, political or culture based 'indirect' violence.

In response to widespread threats and targeted attacks and killings by militant groups, many Hindus had fled. Jagmohan's government ultimately assisted some 90000 Hindus in leaving the Kashmir valley for camps in Jammu and New Delhi….security forces opened fire repeatedly on unarmed protestors….constituted a serious violation of international humanitarian lawⁱ.

THE STATE AND VIOLENCE

What is the relation of the state with violence in a conflict zone? Extant studies have attributed it to certain factors which are being discussed here. It may be (a) the kind of regime that dictates the violence. The reasoning goes that democracies encourage dissent and therefore collective action, but totalitarian or tyrannical regimes stifle these. It is therefore in certain 'anocracies', which would be the grey area between a democracy and an authoritarian regime, semi- democratic so to speak, that the use of violence would be most rampant. Alternately, it may not be the kind of regime, but (b) specifically its use of repression. This may therefore, be the reason for violence at various levels of repression. Yet another theory denotes it to (c) the quality of rule that the state is able to provide its citizenry. To quote (Lawrence and Chenoweth 2010)^:

States with a ruling elite that has historically dominated particular ethnic groups or classes may invite violent uprisings….States themselves may initiate civil violence when it is in their interest to do so….state policies toward ethnic groups depend upon the international environment…. Studies point to the need to consider the nature of the state and the quality of its rule as a variable, rather than a fixed state characteristic. Changes in state behaviour, rather than particular classes of states, may better explain episodes of political violence.

Where does the conflict in J&K define itself? To my mind, our study fits itself as a mix of the second and third theories. Since India as a whole cannot be categorized as an anocracy, one must look at the microcosm of J&K, where the state definitely shows signs of being an anocracy, characterized as it is by inherent political instability and ineffectiveness and an incoherent mix of democratic and autocratic traits and practices, making repression inherent to its functioning. This, when coupled with the quality of rule that is perceived in ibid microcosm, causes for violence to be perpetuated (when in own interest), as also a penchant for variable policies dependent on the larger (international?) environment.

This lethal mix lays the basic groundwork for both insurgent violence as well as state violence for political space and/ or agenda. A comparison is sought to be drawn below. Yet, a few facts need to be understood before proceeding ahead. Violence is an elementary form of communal activity (communal as in arising from a community or group, not communal in religious terms). It arises from a definite set of circumstances and it affects flesh and blood victims. It creates a number of scenarios, which may be dealt with in different ways. Finally it has finite consequences for the conflict; the conflict may move in a negative or positive direction, again depending on the way the various protagonists react or view the violence. Any violence does not target its victims at random, it is not quirky and its victims may be representative of a larger target audience, a messenger so to speak. To the victim and the perpetrator both, violence is not senseless or meaningless, though usually from a standoff point of view, this may well seem so. The perpetrator is trying to send a message across by means of his violent acts; similarly, the victim will understand where the warning lies. However much it may seem like an outlier, violence is not a segregated act. If unravelled far enough, it has its indelible connection to a cause, and hence it is an effect.

COMPARISON OF CONFLICTS WITH EVIDENCE OF VIOLENCE

It is the set of proportions outlined above that make it possible to compare violence in different conflicts and draw lessons there from. Conflicts both in the domestic and the international sphere exist, which are comparable to the issue of J&K. Amongst the notable and hence, being focused upon here, striking similarities are the long drawn counterinsurgency campaign, coupled with a high toll of human life, death cases, disappearance cases, the strung out violence by both the state and the non-state actors, and the political violence attached to the conflict.

….I visited a friend's orchards in village Romo….off the Pulwama- Shopian road….the commanding officer of a BSF company stationed there who turned out to be the worst kind of advertisement for the armed forces in Kashmir. His demeanour, even the way he walked and the tone he used when talking to the locals, was designed to intimidate people. With absolute confidence he told me that yes, tough measures were used with the youth, 'even with those who are picked up on grounds of suspicion'….he said, it was necessary (Quraishi 2004).

The description in this passage could well have been from a case study of the Punjab insurgency in the 1980's, with names of places changed to those in rural Punjab. In the backdrop of militant organizations getting a fillip during Indira Gandhi's Prime Minister ship, and during the Emergency days, the conflict remained nonviolent from 1978 to 1984. Though the state of Punjab saw rising episodes of communal clashes, the government at the Centre and the hardliner separatists did not openly profess violence towards each other. It was only in 1984, when the militants took up fortified positions inside the Golden Temple complex in Amritsar, that a decision was taken by the government to use the Army to flush them out, in Operation Bluestar. The bloodbath that followed still remains in the institutional memory of the Sikhs, and indeed, led to the assassination of Indira Gandhi by her own Sikh bodyguards.

What was glossed over in the build up to Operation Bluestar however was the repeated failure of talks between the Akali Dal and the central government, effectively discrediting the Akalis in the eyes of their own electorate, as well as giving a boost to the secessionists under Jarnail Singh Bhindranwale. It became common-speak in Punjab that the only way out was to launch a violent agitation. The central government, in its defence spoke of the measures it had taken to resolve issues, sadly not realizing the futility of too little, too lateⁱⁱ. In the aftermath of Operation Bluestar, and the subsequent failure of the much touted Rajiv Gandhi- Longowal Accord of 1985, the stand of the secessionists became appealing to the ordinary man. It resulted in increasing violence between 1987 and 1992. The spirals of violence were not only between the insurgents and the police (and later on, the Army); it was also a contest between the various militant groups vying for supremacy on the political side of things. Escalation of violence often meant the common man was in the gun- sights of both sides, and eventually led to his alienation. This very alienation of the man on the streets, was seen as central to the success of the counterinsurgency campaign under the stewardship of Julio Rebeiro, followed by (the infamous) KPS Gill, then Chiefs of Police in Punjab.

What does the study of these two conflicts, namely J&K and Punjab, both within the sovereignty of India, offer to the student of Conflict and Violence?

First and most conspicuous observation is the direct correlation that the (current) political situation at the Centre has to the position it adapts towards the state. The period of stability at the Centre offers some indication of resolution with the partisan groups. This is however, heavily overshadowed by the periods of uncertainty, instability and political turmoil. It not only creates chaos at the macro level of dialogue and efforts at reconciliation. At the micro level, it brings forth the worst form of violence. Though the explanation may seem rather simplistic, but invariably, the grass root levels perceive this as a refusal to look at their genuine grievances. Violent means are seen as the only way to make their presence felt and their voices heard. The state, on the other hand, does not concede its flawed outlook or its inability to resolve. It comes down with all the might at its disposal, to deal with the violence of the perpetrators. This effectively sets in motion a vicious cycle of violence begetting violence, with neither side willing to or able to extricate itself. All signs of reconciliation and resolution disappear. In order to gain primacy for its own views, there is a tendency to ignore the views of the other. Objectivity is lost sight of, as a result, and violence becomes a priority.

Secondly, inherent contestation in both sides seeking legitimacy to their actions is evident even from the semantics involved. In the words of Kalyvas, ‘the term is often claimed by the vanquished in their quest for political redemption and inclusion, and denied by the winners who seek the permanent exclusion of the losers from the political, or even national, realm’ (Kalyvas 2006). What is definitively discerned is the violent redrawing of boundaries, turning the scape in to armed camps within the same sovereign entity. This is a territorial division which acts as a 'kernel' or a 'centrifuge' of the conflictⁱⁱⁱ. It also serves to heighten the violence rather than calm it down.

If human dignity is choked and abused, nothing remains. There is no space for finer emotions. It’s been a tension ridden life for all of us. My own brother was picked up for questioning and taken to an interrogation centre where he was subjected to electric shocks in his private parts….don't talk to us about love and our personal lives (Quraishi 2004)^iv.

There abound hundreds of such stories which give serious anecdotal evidence of the violence that ordinary people have to live with in conflict zones. In his treatise, “On War”, Carl von Clausewitz defines war as an act of violence intended to compel and make the opponent submit to and fulfil one's will^v. In a later expansion of his initial definition he qualifies his statement by saying war is not merely a political act, but a real political instrument (Clausewitz 1997{reprint}). In this definition of war, the underlying reasons for civilian targeting can be discerned. It appears almost as if ordinary people, non- combatants, are deliberately victimized in order to drive home the military and political message, with a resounding thump! The state selecting deliberate targeting of civilians seems to form the strategy in a good 20- 30% of all conflicts. Not being the stated policy, this percentage may not be fully substantiated, yet this figure forms the core of several studies. The accomplishment of military and/ or political objectives may be considered strong enough a reasoning to adopt this as a strategy. The 'collateral damage', as it is often, and lightly, referred to is one of the worst ramifications of any armed conflict, yet widely believed to terrorize the population in to submission. In some ways it serves as a corroboration of the idea that violence seems to flowing out of the relentless pace of the conflict.

NON-STATE ACTORS AND VIOLENCE

Any discourse is not complete without reference to unbridled violence by Non-state actors. Here again, the desired objectives may decide the course of action; an equitable and cooperative relationship between adversaries would mean struggles of a nonviolent kind. Studies on types of strikes have shown the use of nonviolent stoppage of work in strikes where an improvement in the work culture or the interests of workers was desired (Lammers 1969). In case of strikes where usurping power was the main motive, violence, killing of superiors etc. has found predominance, more like a mutinous situation. Again, this is a testament to the inexorable nature of conflict, whether leading to violence or not being a choice with the protagonists.

Pakistan has been working on multiple planes to bleed Kashmir. It wants to send the people of Kashmir to an ICU (intensive care unit) from where they can never come out. The proxy war since the late 1980s is a classic example of this. It has left more Kashmiris dead and maimed than others. It has brought darkness to the lives of tens of thousands of Kashmiris, who have lost their near and dear ones. There is neither solace for them nor any light at the end of the tunnel^vi (Joshi 2013).

Relationships between two people are an interconnection between the individuals, where the two are bound by their feelings for each other. Similarly, a conflict can be termed as a relationship between two adversaries, where the two are seemingly in a marriage like alliance, bound by their antagonism towards each other. Going further in this analogy, disagreements are an integral part of any relationship, and the more the disagreement deepens, it leads to strong words, arguments and fights. This part of a relationship is akin to the violence erupting between adversaries in a conflict, their antagonism for each other reaching the point of no agreement. This is the tipping point in a conflict, leading the perpetrators to believe in the efficacy of violence as a means to achieve their perceived solution.

ETHNIC CLEAVAGES AND VIOLENCE

In citing various illustrations from the Kashmir issue, this study finds a high degree of correlation between the views espoused by the protagonists, their interdependence of antagonistic sentiment towards each other, and the legitimacy they seek to gain or derive in the larger context of the conflict itself. If opponents view each other and their views as legitimate, they tend to move towards resolution. Since India, Pakistan, and now, the people of J&K have become increasingly unresponsive to each other’s stances; they tend to ignore common values, norms and interests. It becomes even more convoluted given the entire generation of Kashmiri youth who perceive the Indian intervention in 'humiliating' terms; thus, they demonize the Indian government, its military presence, and every instance of past atrocity, real or imagined^vii (Kriesberg and Dayton 2013). This extreme sentiment finds an echo from the conflicts in Rwanda between the Hutus and Tutsi, as also between the Serbs, Bosnians and Croats in former Yugoslavia.

Growing up in the shadows of conflict, of guns wielded by both militants and armed forces, we in Kashmir have witnessed many confusing narratives that sometimes just 'happened' but which are now imprinted in our minds, seemingly forever. Everything in 1990s Kashmir was, as I remember it iteratively, brought to a standstill each day. Our lives as young boys were ruled by a primary goal: to save ourselves and to live just for one more day. While boys of our age in other parts of the country were aiming for productive careers in the engineering, medical and civil services and concentrating on their studies, our lives were part of another narrative—knotted, twisted and often grotesque – despite the shimmering beauty of the landscape we inhabited. This personal narrative tries to explain how we as common people in Kashmir have witnessed at least three crucial stages of conflict dynamics. (i) Pre-militancy era – when everything was normal and after returning from the local school, we would play with the army men [without arms] who had camped in our village for some social service, and were perceived as within ‘us’, not ‘them’ or the ‘other’. Kindness was at its peak and the red clouds in the sky innocently followed folklore to mean that blood was being spilt or any unwanted incident was occurring in some distant ‘other’ corner of the world. (ii) The militancy era – with haunting memories which still predominate our terrified dreams of cross-firing, crackdowns, identification parades, serving food to one militant party followed by the raids of another militant party and then nocturnal raids by the armed forces. Caught in the existential paranoia, career and conflict, absolute anarchy of this era is the strongest part of our memories, thought process and behaviour. (iii) The post militancy era again consists of many catastrophic phases and is dominated by the agonizing ‘manufactured’ and ‘action’ narratives (Bhat 2014).

Two arguments related to ethnicities are offered here. Firstly, whether inclusion or exclusion is the aim of the political class is indicated by the policies adopted by them. Secondly, is violence to be treated as a degree of the conflict or is it just a (different) form of conflict. In context of the lines quoted above, these may be seen in light of the distinct phases or stages of conflict dynamics that Dr Bhat refers to.

If one views the state of Czechoslovakia, formed in the aftermath of the First World War as one of the outcomes of the Paris Peace Conference, it serves as an example of the ethnic cleavages that form part of a newly carved state. In Czechoslovakia the Czechs had a majority, with the Germans forming the next biggest ethnic group, followed by the Slovaks, Hungarians, Ukrainians and Poles. The Germans formed the majority of the population in the border area known as Sudetenland. Despite such ethnic cleavages in the country, Germans were treated with a fair degree of liberalism, irrespective of the government being left-wing or right-wing. In fact at times it went beyond the requirements laid by the minorities’ treaties; for example, those Germans in possession of war bonds sold by Germany, which were now rendered worthless, were compensated for their investment by the Czechoslovakian government, albeit at a lower rate (Luza 1964). Similar liberal policies were followed in education with Germans being allowed to study in German language schools and even a German University. Possibly, the one area where the Germans suffered was their share in the bureaucracy, attributed to the requirement of knowing Czech in the newly restructured Czechoslovakian bureaucracy.

Similar examples abound in provinces of Balochistan, Sindh, East Bengal and North West Frontier Province seen in the nascent stages of Pakistan's formation. The ethnic cleavages existed despite the Muslim nation theory of Jinnah, as each ethnic group had its distinct identity which religion could never bind together. The dominant Punjabi majority in governance and bureaucracy was further amplified by rendering Urdu as the official language (Jaffrelot 2015). Thus, those ethnicities which were already in minority, felt the pinch of these policies of exclusion by the state, even leading to revolt especially in case of the Balochs and the Bengalis.

The examples here show the two diametrically opposite forms of policy adopted; in case of Czechoslovakia, an inclusive policy lead to the assimilation of the Germans in the new state, whereas Pakistan's policy of exclusion right from its very inception lead to alienation and subsequent turmoil. In the Indian state of J&K, the pre militancy era has been described as ‘an age of kindness’, and even the army as ‘within us’. It would be reasonable to say that the state followed some manner of inclusive policies. For instance, the government of India allowed the continued use of Kashmiri language within the state administration. The bureaucracy too functioned in an autonomous manner, despite a fundamental lack of administrative skills in Sheikh Abdullah. The pre-militancy era was in fact an age of progress, investment and growth, and indeed acknowledged by Kashmiris as being much better off than the rule of the Maharaja (Schoefield 2010). The genesis of Article 370 of the Indian Constitution also lay in the protection of rights of the Kashmiri people^viii. All these were ample indicators of an inclusive set of policies being followed by the state.

From its very inception ethnic cleavages existed in J&K, between the people of Kashmir, vis-a-vis those of Jammu, vis-a-vis the Ladakhis who shared their roots with the Tibetans, and even smaller and minority communities like the Gujjars and the Bakharwals. There was the occasional talk of a realignment or readjustment at regional level owing to resentment of Sheikh Abdullah's centralising tendencies, but these ethnic differences did not result in any major political changes. Balraj Puri has written extensively on this chasm in the state of J&K (Puri 1982). Discontent also sprang from insecurities within these communities about the reforms that were started by Sheikh Abdullah. These reforms were not only social but economic in nature as well. The reforms were meant for the landless and poor peasants, invariably Muslim, but at the receiving end were the rich and landlord class amongst the Dogras in Jammu, and also by default certain religious heads such as the Abbot of the Spituk Monastery, considered as the spiritual head and sitting atop enormous wealth of the Buddhist monasteries (Schoefield 2010). Another major cause of resentment arose from the spectre of a plebiscite which might be overwhelmingly pro-Pakistani in its verdict, as also the ‘prevarication of Kashmiri leaders over accession’, leading to suggestions of zonal plebiscites (Puri 1982). Yet these were never allowed to deepen the existing fault lines by ethnicity. With some manner of political manoeuvring the state continued to see a path of general peace and progress, albeit slower than the rest of India.

HISTORY OF VIOLENCE

In this distinct period of time spanning nearly 40 years which can be called the pre-militancy era, a definite pattern of inclusive policies emerges, despite ethnic cleavages in society. Political differences tended to be a stronger driving force and some manner of co-operation between groups was seen. Further, violence which was sporadic at best was seen as a manifestation of the underlying conflict in the society.

How did these facets change in the militancy era? Did they give the entire argument a violent twist? What caused a radicalization and created a shift from differences based on political agenda towards ethnic considerations? These are questions sought to be answered here. Violence tends to be viewed as a degree of the underlying conflict; it is but a continuum of the conflict itself, or simply put, that the social movement process has reached so contentious a point that violence is justified as the only way out. Both, extreme grievances as well as a strong commitment to the cause would push the conflict in the direction of violence.

Militancy in J&K had its roots going back to the transition from Sheikh Abdullah to his son Dr Farooq Abdullah. On the passing away of the Sheikh in 1982, Dr Farooq Abdullah who had been inducted in to his father's government succeeded him. In his initial years, J&K politics saw a gamut of machinations by all parties, ranging from the ouster of Dr Farooq Abdullah, to his replacement by GM Shah with help from the Congress at the centre. The June 1983 elections were marred by violence, and though Abdullah managed to return to power, shortly thereafter in July 1984, GM Shah once again played defector, and subsequently assumed power with Congress support. This period of Shah's rule of a little less than two years, was characterised by misrule in administration and an unprecedented level of communal violence in the state. The deepening of the ethnic cleavages was getting evident.

In November 1986, the Rajiv- Farooq Accord was announced, ostensibly to focus on the all-round economic development of the state and in a bid to stem the growing secessionist voices. However, it served as a means to do just the opposite. The 1987 elections in J&K proved to be a watershed in the history of the politics of the state. Wherein the opposition comprised mainly of secessionist and fundamentalist parties under the banner of the Muslim United Front, they canvassed on the plank of the moral subservience of the National Conference to the Congress, having bartered away both their position in J&K politics and the unique position enjoyed by the state, in a bid to remain in power. This election also saw claims of widespread rigging and election fraud, which were hitherto fore the claim-to-fame of UP and Bihar (Nirmal and Bartaria 1996). Reports ranged from anticipatory arrests and beatings of opposition candidates, to booth capturing, to fudged ballot counting as well as invalidation of votes, to curfew in areas where civil unrest was foreseen. Irrespective of the fact that the state machinery remains silent on this to date, the 1987 elections have been the final attributable cause to the rise of militancy in the state of J&K. With the National Conference losing almost overnight its credibility which had been nurtured by the Sheikh, a vacuum was created in the political space. As would be seen soon enough, this vacuum was filled by the ideas of secession and fundamentalist ideologies.

Movement of extreme ideologies from the fringes of politics to the mainstream takes only odd incidents of this nature. It tends to lend legitimacy to the use of extreme means. If due process of law and democracy are followed, there is no legitimate reason for such violence to bloom. It is the very failure of state machinery that creates an artificial legitimacy, thereby making violence a viable alternative. Mir Abdul Aziz had been Sheikh Abdullah's political opponent since the 1930s, and had been forced to cross over to POK, from where he observed the unfolding of events. In an interview, he said, “that manipulation of the election disappointed the Kashmiris. They said that 'we were trying to change the political framework by democratic and peaceful methods, but we have failed in this. Therefore we should take up the gun.' That was one of the reasons for the militancy. The people of Kashmir got disgusted and disappointed and disillusioned” (Schoefield 2010). Post the 1987 elections, the space created by the loss of credibility for the National Conference was rapidly filled by the fundamentalist groups, secessionist ideologies and violent and unconstitutional protests. It also got impetus by Pakistan's Inter-Services Intelligence (ISI). The ISI facilitated the crossing of Kashmiri youth to Pakistan Occupied Kashmir (POK), training them in the use of weapons, explosives, and not the least, anti-India ideology. By around mid-1988, the first of these newly converted youth returned to the Valley. In their wake followed violence, explosions, the widespread use of the AK-47 Kalashnikov assault rifle and increasing fundamentalist exhortations based on a new definition of Jihad (religious war) to the Muslims of the Valley. Gradually this violence spiralled in to a coalescence of militant groups.

In a seemingly uncontrollable spiral of events in the decade that followed, an entire new set of questions were set forth before the polity, and indeed, the people, in India and in the state of J&K. The number of militants infiltrating from Pakistan went up including a number of foreign origin (Afghans, Yemenis etc.) militants who were lured by promises of quick money, rape and pillage. 15^th August 1989 was observed as Black Day, followed by threatening letters to non- Kashmiris and Hindus in the valley. The 1989 Lok Sabha elections were boycotted with polling as low as 5%, demonstrating the control that militant organisations were rapidly gaining over the people. The VP Singh government formed at the Centre appointed Mufti Mohammad Sayeed as the Home Minister; in December of the same year, the Mufti's daughter Rubaiya was kidnapped by militants in Srinagar, forcing the government to buckle under and order the release of five hard core militants. Jagmohan was once again appointed as the Governor of the state, resulting in Farooq Abdullah resigning as a mark of protest.

In January 1990, the government ordered the launch of paramilitary forces; though little was gained by this massive operation, it further served to alienate the people who turned out in a huge and vehement protest. In February the Governor dissolved the Legislative Assembly. While all this was instrumental in bringing governance to a grinding halt, it was further exacerbated by the growing number of political assassinations. Mosques started being used as platforms for divisive propaganda, strikes and protests became the order of the day, and the government started resorting to curfew more often. The use of paramilitary forces was followed by the deployment of the Army for internal security, counter- insurgency operations, rear area security, and road opening. In time, the 1990s saw an entire grid of deployment of armed forces, including the newly raised Rashtriya Rifles meant specifically to augment force levels in J&K. The decade also saw the exodus of the Kashmiri Pandits from the valley, a widely politicised debate even till date.

This decade of the 1990s can be acknowledged as the militancy era, as described by Dr Bhat above. More importantly, it cast a pall over the entire state. Where comprehensive and across the spectrum strategy review was required, a colossal erosion in the inclusive policy framework was seen. Rapid armament (militancy) and a crushing response by the machinery of the state (deployment of troops) resulted in not only a deepening of the extant ethnic cleavages; political mishandling and increasing aversion to concurrence in any form, further exacerbated the situation. What was earlier perceived as only a simmering, sub-surface anger now manifested itself openly in the form of radicalization and violence. This serves to further substantiate and validate the point discussed above. Violence is but a continuum of the conflict itself, a degree of the conflict itself, a point of no viable alternative in the course of the social conflict.

Here a compelling argument is the significance of George Wilhelm Friedrich Hegel's theoretical construct of thesis, antithesis, and synthesis better known as the Dialectical method of understanding reality. It comprises of three constructs, called the Triad. The thesis is a rational premise. The antithesis is the repudiation of the thesis, a rejoinder to the proposition. The synthesis seeks to harmonize the conflict between the thesis and antithesis by accommodating their common truths and forming a new thesis, starting the process over. This means a conflict will likely unravel in a rational or analytical pattern. When X counters or denies Y, it results in a contention of issues or a state of strife. Where Y is the state of affairs, X is its contrarian view, or even its very renunciation; where Y is the thesis, X is the antithesis. Their meeting will result in a synthesis, irrespective of any arbitration. Therefore, synthesis is a connotation for the confrontation of thesis and antithesis. What kind of synthesis it will bring about, however, might depend on the arbitration or lack thereof. For example, in the first scenario, the synthesis might become an intractable conflict with a constant stalemate, as seen between Israel and Palestine. Or for instance, in the second scenario, the synthesis may become an intractable conflict, but not with a constant stalemate, however, still lacking communication and the alacrity to engage the conflict, similar to the example of Turkey and Armenia. In the third scenario, the synthesis might unfortunately end up being a violent act, such as murder, war, or genocide (Erol 2010). This is the closest explanation of what unfolded in J&K during the militancy era. If the official stance of the government of India was the thesis, its antithesis was the violent stance adopted by the militants. It resulted in a conflict of epic proportions, bordering on war. Sumantra Bose has written of his experience in the Valley in the 1990's, enumerating a vivid visual narrative. He says (Bose 2003):

When I toured the Valley and Doda- Kishtwar district of Jammu in 1995, the entire region resembled an armed garrison, teaming with soldiers, and a vast prison camp for the population. Roadblocks were ubiquitous in both towns and rural areas, and verbal abuse as well as beatings of citizens was common at these checkpoints. Srinagar had become a 'bunker city', adorned with hundreds if not thousands of bunkers manned by paramilitary soldiers crouching behind sandbags and wire netting (the latter as protection against grenade attacks), their guns peering out through firing slits….military convoys travelled at all hours, the lead vehicle sporting a mounted machine gun. Even remote villages existed cheek-by-jowl with Indian military encampments^.

The government of India has justified its stance based on the large presence of foreign militants, including Pakistani, Afghan, Lebanese, Sudanese and Yemeni nationals. This changed the very character of the insurgency from a Kashmiri demand for self-determination to an Islamic fundamentalist grand state or Caliphate. It also served to harden the government's stand since it now became an attack on the territorial integrity of India.

The culmination and both a turning point as well as a standoff point, of this decade long violence, was the period between 1999- 2002. In quick succession, events were perceived as the ominous portent of what could be. While official India-Pakistan talks were being hailed as the harbinger of change, infiltrators of the Pakistan army moved in to the high altitude and equally high value targets of Kargil, Drass, Mushkoh valley, Turtok and Chorbat La, with an aim to cut off the road link between Leh and Srinagar^ix. It led to the most serious military confrontation between the two countries since the 1971 war. It could only be resolved with international intervention with America, Russia and China pressurizing both countries to maintain peace. With General Pervez Musharraf assuming control as the Martial Law administrator, and thereafter as President, the role of the Pakistan Army and the ISI in the fuelling of the conflict in J&K was perceived as becoming more overt than covert; more so, since Musharraf had planned and executed the Kargil invasion, without referring to the elected government. However, with the 9/11 attacks on the American mainland, attention shifted focus on to the terror network of Al Qaeda, in collusion with Mullah Omar's Taliban in Afghanistan. Though the Pakistani administration declared its support to the 'war on terror', it was largely seen as a delicate balancing act in order to continue bleeding India while extracting the most from its partnership with the US. Military aid of unprecedented proportions flowed in ostensibly for the 'war on terror', but was duly diverted to arming Pakistan (and its sponsored militants) against India (Haqqani 2013). In 2001, the Indian Parliament was attacked on 13^th December, leading to the closure of all borders, and mobilization of the Indian Army, followed by the Pakistani Army on 29^th December and 1^st January 2002 respectively. In a yearlong deployment, with a number of incidents seen as possible flash points to full-fledged war, and a potential nuclear exchange, it only further eroded the probability of any normalcy in the state of J&K. Once again international pressure was brought to bear upon the two countries to restore peace and normalcy in relations (Schoefield 2010). This time around, it proved an even more onerous task, as the responsibility was now sought to be fixed on 'national anger' by Prime Minister Vajpayee. He stated it as such to both President Bush in the US and Prime Minister Blair in the UK, ‘there is a national anger because Musharraf has not translated into reality the promises he made in his 12^th January speech to stop cross- border terrorism’, referring to a speech by the Pakistani President earlier that year^x.

Perhaps this chain of events was responsible for the winds of change that the sub- continent saw 2003 onwards. It started with a change in the very hyperbole attached to Pakistan's stance towards India. Musharraf proposed an approach with four tenets, namely the start of a dialogue between the two countries, accepting the centrality of the J&K issue, exclude undesirable and objectionable issues, and arrive at a solution adequate to the cause of both countries as well as the people of J&K. Though seen as many in J&K as a sell out by Pakistan, it was also at least a start to the discussion of possible alternatives. Musharraf went on to suggest a cease-fire at the UN General Assembly, followed by a cease-fire on ground, towards the end of the year. 2004 saw the resumption of flights between the two countries. While meeting at the UN, Prime Minister Manmohan Singh (of the new Congress led government) and President Musharraf reaffirmed their commitment to the peace process.

2005 witnessed the resumption of the bus service across the Line of Control (LoC) from Srinagar to Muzaffarabad, with the promise of opening up the Poonch- Rawalakote route in the future. India announced seven Confidence Building Measures (CBMs). These included a revival of bus links traditionally existing; meeting of relatives at various points across the LoC including Uri and Poonch; development and promotion of trade across the LoC; promotion of tourism on both sides; cooperation in the field of forestry and environment management on both sides; extend permissions to pilgrims to visit shrines and temples, whether Hindu, Muslim or Sikh; and enhancing the level of cultural interactions. In June, the All Party Hurriyat Conference (APHC) met the Prime Minister of Pakistan, followed by a meeting with the Indian Prime Minister in September. The Hurriyat had factionalised into the 'moderates' and the 'hardliners'; invariably this initiation of talks was done by the moderates. In October, a 7.6 Richter scale earthquake with its epicentre at Muzaffarabad shook the entire region. In India, the areas of Uri and Baramula saw immense destruction. It was envisaged by some as a catalyst, and notwithstanding the efforts by India to provide aid, no meaningful political solution emerged. In fact, in Pakistan, Lashkar-e-Toiba (LeT) members operating in the guise of Jama'at ud Dawa, provided help and collected funds for the relief work (Mortenson 2005).

2006 started with the promise of redeployment of troops in J&K; the Indian government carried out its redeployment of 5000 troops indicating some improvement of the situation on ground. However attacks in Doda and Udhampur raised tensions again perceived by many as a precursor to the Prime Minister's visit and subsequently led to the boycott of talks by the Hurriyat. Once again, the bogey of terrorism put paid to the efforts at initiating peace; seven bomb explosions in the suburban train network of Mumbai on 11^th July killed as many as 200 people and wounded another 700. The almost instant denial by Pakistan was once again criticised widely in India, marking it as a sign of its ill intentions towards India.

Benazir Bhutto's return from an eight year old exile was to be the highpoint of 2007, and the chance that perhaps a democratic process would move things in the right direction. Things took an ugly turn when the procession of vehicles in which she was moving was attacked by two suicide bombers in October. Though she escaped unhurt, two months later, a second suicide attack proved successful. Bhutto was assassinated during an election rally in Rawalpindi on 27^th December.

The next set of Foreign Secretary level talks were held in May 2008, resulting in more lip service. In the following month, street level protests broke out once again in the valley, reminiscent of the early 1990's. This time the issue was the allotment of land to the Amarnath Shrine Board. When in July, the allotment was rescinded, it resulted in massive protests by Hindus and blocking of the Jammu- Srinagar highway. In retaliation, Muslim protestors marched towards the LoC, resulting in firing by the forces and the death of the Hurriyat leader Sheikh Abdul Aziz. Musharraf was forced out of power in August, bringing in Asif Ali Zardari, Benazir Bhutto's husband. He proposed the opening up of trade routes and a policy of nuclear restraint by both countries. However Pakistan refused to back off from its stated policy of support to the separatists.

On 26^th November 2008, a group of 10 LeT trained terrorists made their way in to India using the sea route and landing in Mumbai. They attacked multiple locations including the Taj and Oberoi Hotels, and other places known to be frequented by both Indians and western tourists. The attacks highlighted the growing influence of the LeT, and its ability to target apart from Indians, Americans and Jews, in line with its global 'Jihad' against all infidels or non-believers. Public opinion turned drastically away from any talk of peace and there was growing talk of massive and military retaliation.

Meanwhile, J&K went to polls in November and December 2008. The National Conference formed the government in coalition with the Congress and Omar Abdullah became the Chief Minister (his father, Farooq Abdullah found a place in the Congress led government at the centre). The new government was in the eye of the storm soon after, with the rape and murder of two young women in Shopian in May 2009. In a complete mismanagement of the event as it was, the government declared it as death by drowning, leading to widespread protests. These got further compounded by the report submitted by the Central Bureau of Investigation, which upheld the theory. The case has been left with a huge question mark on whether justice was served or not^xi.

ANALYSES OF VIOLENCE

This entire post militancy era, as described by Dr Bhat above, was “dominated by agonizing 'manufactured' and 'action' narratives”. An evaluation of these narratives leads one to the evidence of violence, perpetuated by an almost generational shift in the level of involvement, and the sporadicity of the separatist demand. The conflict saw the ouster of original protagonists, the generation which saw the movement against the misrule of Maharaja Hari Singh and partition of sub-continental India. These comprised of the Muslim Conference and its pro- Pakistan stance on the one hand, and the secular and mostly pro- India National Conference. Evidence of violence was intermittent at best with no set patterns or regularity for a separatist agenda. The first generational shift was seen with the generation coming in to awareness around (both before and after) the 1965 Indo- Pak war. The advent of martial law in Pakistan eroded the support for accession to Pakistan; it was obviously detrimental to any right to self-determination that the Kashmiris aspired to! This has also been the view of the intelligentsia in popular discourse in Pakistan (Mahapatra and Shekhawat 2007). Therefore, this generation of Kashmiris did not believe either in the veracity of Pakistan's claims, or in the realization of any meaningful gains by violent means. Briefly, there was a spike during the Hair of Prophet crisis in 1963, but it can be judged more an aberration than the rule.

The second generational shift was seen during the late 1980's and early 1990's. By now, Indian policies had contributed so much to the churn of sentiment, that an inevitable intensity built up to the events of that decade. Violence was extremely evident as has been analysed above. The separatist demand also got the impetus that might have been nipped in the bud. Had the Indian political climate been more conducive, with sufficient interest given to the development of J&K, things may have taken an entirely different turn. Had the harshness of Indian actions been watered down, it may have resulted in a drastically divergent scenario. Even during the height of the crisis as it unfolded, some proactive and disparate thought infusion would probably have seen calmer times.

The third generational shift has ensued in the last decade. This is the generation of Kashmiris who have grown up amidst fear, gunfire, helplessness and tremendous indignity. They are susceptible to narratives which have no relation to their lives or which are simply impossible for them to connect with; hence, they are impressionable and vulnerable, open to any thought that incites the violent streak in them, makes them want to lash out at the establishment, and makes them prone to divisive politics and the call for a movement! They may not connect with the fires in Muslim areas (in the late 1960's), but today's clarion call against the Kashmiri Pandits will resonate with them, irrespective of the relevance of that debate. They may not associate with the Maharaja's times and the improvements thence, but they will and do relate to the fact of being educated but unemployed or underemployed. It results in all fingers pointing at the state in being unable to meet their aspirations. In to this cauldron of high headed emotions, any spark is enough to create an inferno. Therefore, there is evidence of violence invariably culminating in a separatist agenda; the motives and the motivation may be questionable, but exist it does.

CONCLUSION

In concluding the debate on evidence of violence in conflict, this evaluative analysis seeks to emphasize on a fusion of state repression and the character and quality of rule that any state (and hence the government) is able to afford its citizenry. Individual events may not have the kind of impact that continuous policy (and its implementation) has. It is the lack of or non-performance of institutions that germinate extremist, militant and terrorist movements. 'Terrorism and other nihilistic movements grow in societies with tyrannical governments'^xii. We would be a wiser society if we remember this.

This analysis also provides the keys to resolution mechanisms, giving a stark insight into peace challenged by unbridled violence in conflict. Theoretical constructs provide us only with the foundation for reconciliation and resolution; in the end we need paradigm reconstruction of state legitimacy to give us that ever elusive peace.

REFERENCES

Bhat, M Ashraf. 07 March 2014. Memories of Kashmir: Past, Present and Hope. Published in Countercurrents.org. http://www.countercurrents.org/bhat070314.htm

Bose, Sumantra. 2003. Kashmir: Roots of Conflict, Paths to Peace. New Delhi: Vistaar Publications.

Clausewitz, Carl Von. 1997 (Reprint). On War. Herefordshire: Wordsworth Classics of World Literature.

Erol, Ali E. 01 September 2010. Understanding in Conflict: a Hegelian Approach to Conflict Analysis and Transformation. Published in Unrest Magazine: Engaging Systems of Violence.

Haqqani, Husain. 2013. Magnificent Delusions: Pakistan, The United States, and an Epic History of Misunderstanding. New York: Perseus Books Group.

Jaffrelot, Christophe. 2015. ‘Five Ethnic Groups for One Nation’, in The Pakistan Paradox: Instability and Resilience, New Delhi: Random House India.

Joshi, Arun. 2013. ‘Where is strife torn J&K headed?’ in On The Frontline. Bathinda: The Tribune. 30 September 2013.

Kalyvas, Stathis. 2006. ‘Concepts’, in The Logic of Violence in Civil War. Cambridge University Press.

Kriesberg, Louis and Dayton, Bruce. 2013. Constructive Conflicts: From Escalation to Resolution. New Delhi: Viva Books.

Lammers, CJ. 1969. Strikes and Mutinies: A Comparative Study of Organisational Conflict between Rulers and Ruled. Published in Administrative Science Quarterly: 14.

Lawrence, Adria and Chenoweth, Erica. 2010. ‘Introduction’ in Rethinking Violence: States and Non-State Actors in Conflict. Cambridge, Massachusetts: Belfer Center Studies in International Security, The MIT Press.

Luza, Radomir. 1964. The Transfer of the Sudeten Germans: A Study of Czech-German Relations, 1933–1962. New York University Press.

Mahapatra, Debidatta Aurobinda and Shekhawat, Seema. 2007. ‘The Kashmir Conflict’, in Conflict in Kashmir and Chechnya: Political and Humanitarian Dimensions. New Delhi: Lancer Books.

Mortenson, Greg. 2005 With winter looming, International support for Pakistan earthquake victims dismal. Published in www.K2climb.net on 2^nd November 2005.

Nirmal, Anjali and Bartaria, Virendra. 1996. Kashmir: An Experiment Gone Sour. Jaipur: Pointer Publishers, pp. 11-16.

Puri, Balraj. 1982. Jammu & Kashmir: Triumph and Tragedy of Indian Federalization. New Delhi: Asia Book Corp.

Quraishi, Humra. 2004. ‘The Lost Generation’, in Kashmir: The Untold Story. New Delhi: Penguin India.

Schoefield, Victoria. 2010. Kashmir in Conflict: India, Pakistan and the Unending War, New York: IB Tauris & Co Ltd.

World Health Organization. 2002. World Report on Violence and Health.

i Kashmir and International Law: How War Crimes Fuel the Conflict, available at: http://www.crimesofwar.org/onnews/news-kashmir.html . Accessed on 10 February 2013.

ii The Government of India established the Sarkaria Commission on Centre-State relations, with a mandate to recommend changes to the structure of balance of power between centre and states within the ambit of the Constitution of India. The Commission was established in 1983 under Justice RS Sarkaria, a retired Supreme Court judge. It submitted its report in 1988 in the form of a White Paper extending to 1600 pages, with detailed recommendations on all aspects of centre-state relations. To what extent the government took upon itself seriously, the task of implementation is evident from the fact that even in 2005, it was partially implemented/ at “some stages” of implementation.

iii The idea of territorial ambitions becoming the kernel or centrifuge of the conflict has been written by the authors in a separate paper analysing conflict.

iv Dr Noor Mohammad Bilal, as quoted by Humra Quraishi.

v Carl von Clausewitz, German General Officer, who served in the Prussian and Russian armies, in the era of the Napoleonic Wars in Europe, lived from 1780- 1831. His writings comprised his observations and personal experiences during the time. After his death, his wife edited his works and these were subsequently published. These remain one of the foremost works on war and military strategy, even though they were written in times of tactics and technology which were rendered obsolete soon after his death. His treatise On War is considered as one of the most comprehensive theory on military practices till date.

vi Arun Joshi, ‘Where is strife torn J&K headed?’ in On The Frontline, The Tribune, Bathinda Edition, 30 September 2013.

vii Kriesberg and Dayton have attributed the continuing and persistent enmity to this factor of past 'humiliation', which gives impetus to increasingly dehumanized modes of conflict. In the context of this study, the situation in J&K has reached such proportions, providing the opportunity for mobilizing of such sentiments.

viii The vexatious Article 370 has increasingly gained traction as being responsible for growing inequality and fuelling conflict in J&K. The authors have written on the debate surrounding the revocation of Article 370 in a separate paper titled ‘Jammu and Kashmir & the Politics of Article 370: Seeking Legality for the Illegitimate’. The same can be accessed at http://grdspublishing.org/index.php/people/article/view/474 .

ix The author of this paper was deployed in these high altitude operations in 1999, called Operation Vijay.

x Statement by Atal Bihari Vajpayee, Prime Minister of India, to Prime Minister Tony Blair, as reported in The Nation, London Edition, 6^th June 2002.

xi Fact Finding Report By The Independent Women's Initiative for Justice, 11^th December, 2009, available at: www.countercurrents.org .Accessed on 20 September 2015.

xii Statement by Fawaz Gerges, Professor, London School of Economics on CNN Live, 7^th April 2016.