Committee All India Political Parties Meet

Executive Board Vinayak Chawla (Chair) and Aniruddha

Talukdar (Vice-Chair)
Agenda
1. Tackling the Current Situation in Kashmir.
2. Review of Capital Punishment Laws in India.

Dear Prospective Members,

At the outset on behalf of the Executive Board, let me extend a warm welcome to all of you and
congratulate you on being a part of the All India Parties Meet.
The All India Parties Meet being simulated at NUJSMUN 2016, would unlike most other All
India Parties Meet simulations you must have heard of or been a part of; focus on political
intellect and analytical application of thoughts in resolving impending politically sensitive issues.
Kindly note, we are not looking for existing solutions, or statements that would be a copy paste
of what the leader you are representing has already stated; instead we seek an out of the box
solution from you, while knowing and understanding your impending political and ideological
limitations.
This Introductory guide would be as abstract as possible, and would just give you a basic
perspective on what you can expect from the committee and areas wherein which your research
should be focused at this given point in time. Given, the extremely political and volatile nature of
this committee, your presence of mind and politico-analytical aptitude is something which we at
the executive board would be looking to test. That being said, kindly do not limit your research
to the areas highlighted further but ensure that you logically deduce and push your research to
areas associated to the issues that would be mentioned.
Additionally, you would be receiving a Rules of Procedure guide, that would help you
understand the functioning of this committee. Kindly note, that unlike most conventional /
unconventional committees you have attended, this committee shall have substantive
intervention by the Executive Board.
Kindly note, that use of any and every electronic device in the committee shall be forbidden,
and under no circumstances shall there be any exception to this rule.
Regards,
Vinayak Chawla
Chairman, AIPPM

Revisiting the Viability of Capital Punishments in light of latest judicial and non
judicial developments
Definition?
Capital punishment, death penalty or execution is punishment by death. The sentence that
someone be punished in this manner is a death sentence. Crimes that can result in a death
penalty are known as capital crimes or capital offences.1 Capital punishment has, in the past,
been practiced by most societies, as a punishment for criminals, and political or religious
dissidents. Historically, the carrying out of the death sentence was often accompanied by torture,
and executions were most often public.2
36 countries actively practice capital punishment, 103 countries have completely abolished it de
jure for all crimes, 6 have abolished it for ordinary crimes only (while maintaining it for special
circumstances such as war crimes), and 50 have abolished it de facto(have not used it for at least
ten years and/or are under moratorium).
Nearly all countries in the world prohibit the execution of individuals who were under the age of
18 at the time of their crimes; since 2009, only Iran, Saudi Arabia, and Sudan have carried out
such executions.3
Capital punishment is a matter of active controversy in various countries and states, and
positions can vary within a single political ideology or cultural region. In the European
Union member states, Article 2 of the Charter of Fundamental Rights of the European

1 Kronenwetter, Michael (2001). Capital Punishment: A Reference Handbook (2 ed.). ABCCLIO. ISBN 978-1-57607-432-9.

2 http://www.pbs.org/wgbh/pages/frontline/shows/execution/readings/history.html
3 https://www.hrw.org/news/2010/10/08/iran-saudi-arabia-sudan-end-juvenile-deathpenalty

Union prohibits the use of capital punishment.4 The Council of Europe, which has 47 member
states, also prohibits the use of the death penalty by its members.
The United Nations General Assembly has adopted, in 2007, 2008, 2010, 2012 and 2014nonbinding resolutions calling for a global moratorium on executions, with a view to eventual
abolition.5 Although many nations have abolished capital punishment, over 60% of the world's
population live in countries where executions take place, such as China, India, the United
States and Indonesia, the four most-populous countries in the world, which continue to apply the
death penalty (although in many US states it is rarely employed). Each of these four nations has
consistently voted against the General Assembly resolutions.
Abolition of Capital Punishment:
Many countries have abolished capital punishment either in law or in practice. Since World War
II there has been a trend toward abolishing capital punishment. 103 countries have abolished
capital punishment altogether, 6 have done so for all offences except under special circumstances
and 50 have abolished it in practice because they have not used it for at least 10 years or are
under a moratorium.
Abolitionists believe capital punishment is the worst violation of human rights, because the right
to life is the most important, and capital punishment violates it without necessity and inflicts to
the condemned a psychological torture. Human rights activists oppose the death penalty, calling
it "cruel, inhuman, and degrading punishment". Amnesty International6 considers it to be "the
ultimate, irreversible denial of Human Rights".

4 http://www.europarl.europa.eu/charter/pdf/text_en.pdf
5 http://www.un.org/apps/news/story.asp?
NewsID=24679&Cr=general&Cr1=assembly
6
https://www.amnesty.org.uk/sites/default/files/amnesty_death_penalty_report_2014_
final.pdf

Proponents for Capital Punishment:

Advocates of the death penalty argue that it deters crime, is a good tool for police and
prosecutors (in plea bargaining for example)7, makes sure that convicted criminals do not offend
again and is a just penalty for atrocious crimes such as child murders, serial killers or torture
murderers.8 Supporters of the death penalty argued that death penalty is morally justified when
applied in murder especially with aggravating elements such as for multiple homicide, child
murderers, cop killers, torture murder and mass killing such as terrorism, massacre, or genocide.
Some even argue that not applying death penalty in latter cases is patently unjust. This argument
is strongly defended by New York Law School's Professor Robert Blecker, who says that the
punishment must be painful in proportion to the crime. 9 18th century philosopher Immanuel
Kant sums it up as following:
But whoever has committed murder must die. There is, in this case, no juridical substitute
or surrogate that can be given or taken for the satisfaction of justice. There is no likeness
or proportion between life, however painful, and death; and therefore there is no equality
between the crime of murder and the retaliation of it but what is judicially accomplished
by the execution of the criminal.
Abolitionists argue that retribution is simply revenge and cannot be condoned. Others while
accepting retribution as an element of criminal justice nonetheless argue that life without
parole is a sufficient substitute. It is also argued that the punishing of a killing with another
killing is a relatively unique punishment for a violent act; because in general violent crimes are

7 http://www.stanfordlawreview.org/sites/default/files/articles/sunstein1.pdf
8 Supporters of the death penalty argued that death penalty is morally justified
when applied in murder especially with aggravating elements such as for
multiple homicide, child murderers, cop killers, torture murder and mass killing such
as terrorism, massacre, or genocide. Some even argue that not applying death
penalty in latter cases is patently unjust. This argument is strongly defended
by New York Law School's Professor Robert Blecker,
9 http://www.bbc.co.uk/ethics/capitalpunishment/against_1.shtml#section_4

not punished by subjecting the perpetrator to a similar act (e.g. rapists are not punished by being
sexually assaulted).10
Indian perspective:
The culture of vengeance and violence is prevailing in Indian society and the Indian State
continues to be very violent and aggressive. Archaic concept of Roman law life for life, eye for
eye has a strong grip over the people of India. Hence, despite the historical fact that India has a
long tradition of ahimsa in a religion like Buddhism, and despite the position of the Father of the
Indian nation, Mahatma Gandhis and others against the application of death penalty and practice
of nonviolence, the arguments for abolition of death penalty has , till today, failed to gain much
ground on Indian soil.
Although India is a signatory to the International Covenant of Civil and political Rights (1966),
and, therefore, is committed to phase out the application of death penalty, India as we have
already mentioned, expanded its scope under various pretexts. It is pertinent to note, way back in
1997, India abstained when the Commission on Human Rights of United nations passed a
resolution calling for an end to judicial executions in the world.11
The last 2 years witnessed capital punishment being awarded to three terrorists Ajmal
Kasab, Afzal Guru and Yakub Memon. This has given rise to a lot of debates regarding the
plausibility and humaneness of the verdicts of the Supreme Court of India rejecting their
mercy petition. Is offering the noose the best way to teach someone a lesson? How can
lesson be learnt after death? This makes capital punishment more of a way of teaching the
society a lesson rather than the criminal himself.12
The death sentence is not given for every crime. The list includes murder, treason, terrorism and
repeated aggravated assaults. During a war threat, death penalty is given for treason that would
10 http://people.smu.edu/rhalperi/
11 http://cafedissensus.com/2014/01/01/indian-judiciary-and-the-issue-of-capitalpunishment/
12https://missionsharingknowledge.wordpress.com/2013/04/05/is-capitalpunishment-justified-a-holistic-perspective/

mean loss of life. Acts of terrorism cause people to be injured or killed and, therefore, is awarded
the death sentence. Death sentenced is also imposed on a person who has been convicted of
aggravated assaults, manslaughter or brutal rape. And also to one who has served a punishment
and after that is convicted of aggravated assaults again.
It should be kept in mind that in a country like India the number of death penalty is very few.
Nathuram Godse was given the death penalty for assassinating Mahatma Gandhi. Kehar Singh
was given the death penalty for being part of Indira Gandhis assassination. Dhananjoy
Chatterjee was given the same sentence for raping and then murdering a school girl.13
Constitutional Validity of Death Penalty:
The study of death penalty was once undertaken by Law Commission of India as far back in
1967 and in its 35th report, it justified for retention of the death penalty. The view was concurred
by the five judges of the Supreme Court of India, when the matter of constitutional validity came
for hearing. Whether the right to life is an inherent right and the State must not be given the
power to extinguish any life irrespective of his or her crime and whether this is violative of
Article 21 and article 14 since two persons found guilty of murder could be treated differently,
the said judicial bench in the well known case , Jagmohan Singh vs State of U. P (1993), refused
to be persuaded by the decision of the U.S. Supreme Court in Forman vs. Georgia in this
regard, and argued for the retention of death penalty. The judges cited different social conditions
and low intellectual level of the public as grounds of argument.
In 1980, there was a renewed challenge in Bachan Singh v. State of Punjab to the constitutional
validity of the capital punishment. Political situation in India in the post-emergency period (1977
onwards) was different; liberal democratic atmosphere was evident and respect for rights of
citizens became the cry of the day. Judicial activism was accepted and heavily appreciated. Yet,
even in these developments, the four judges out of five judges (Justice P.N. Bhagwati being the
sole dissenting voice) upheld the constitutional validity of the death penalty, but severely limited
the scope of this punishment. The majority acknowledged the human rights jurisprudence and
developments in international laws in this regard. They held, inter-alia: A real and abiding
concern for the dignity of human life postulates resistance to taking a life through laws
13 http://www.deathpenaltyindia.com/executedprisoners/dhananjoy-chatterjee/

instrumentality. That ought not to have done save in the rarest of rare cases when the
alternative option is unquestionably foreclosed.14
And till today, this remains the unchanged judicial position in India. This judgment undoubtedly
affirmed again that the death penalty was the exception, not the rule. Subsequently, the Supreme
Court in another famous case, Machhi Singh v. State of Punjab15, directs the trial court to draw
up a balance sheet of the aggravating and mitigating circumstances and opt for the maximum
punishment and considering all these factors, if the judge then finds no other alternative, then he
can hand down the death penalty.

Law Commission of India on Death Penalty: (Latest Development)16

The Law Commission today recommended swift abolition of death penalty except in terrorrelated cases, noting it does not serve the penological goal of deterrence any more than life
imprisonment.
The recommendation by the nine-member panel was, however, not unanimous, with one fulltime member and two government representatives dissenting and supporting retention of capital
punishment. In its last report, the 20th Law Commission said there is a need to debate as to how
to bring about the abolition of death penalty in all respects in the very near future, soonest.
The panel, while refusing to recommend any single model for abolishing death penalty, said, the
options are many - from moratorium to a full-fledged abolition bill. The Law Commission does
not wish to commit to a particular approach in abolition. All it says is that such a method for

14 (1980) 2 SCC 751

15 (1983)3 SCC470
16 http://lawcommissionofindia.nic.in/reports/Report262.pdf

abolition should be compatible with the fundamental value of achieving swift and irreversible,
absolute abolition.
While supporting death for those convicted in terror cases and for waging war against the
country, the report, The Death Penalty said that although there is no valid penological
justification for treating terrorism differently from other crimes, concern is often raised that
abolition of capital punishment for terror-related offences and waging war will affect national
security.
The panel also questioned the rarest of rare doctrine in awarding death to convicts.
After many lengthy and detailed deliberations, it is the view of the Law Commission that the
administration of death penalty even within the restrictive environment of rarest of rare doctrine
is constitutionally unsustainable.
Continued administration of death penalty asks very difficult constitutional questions...these
questions relate to the miscarriage of justice, errors, as well as the plight of the poor and
disenfranchised in the criminal justice system, the report said.17
One of three full-time members Justice (retd) Usha Mehra and both the ex-officio members Law secretary P K Malhotra and Legislative Secretary Sanjay Singh - gave their dissenting notes.
Justice A. P. Shah, Former Chief Justice of the Delhi High Court presented Report No. 262 - The
Death Penalty.
Open debate over the issue:
The former President of India, APJ Kalam, suggested the Government of India to launch an open
debate over the issue of retention of death penalty in Indian statute books. It went unheeded. He
wrote, in his Turning Points18, We all are the creatures of God. I am not sure a human system or
a human being is competent to take away a life based on artificial and created evidence. His
17 http://www.thehindu.com/news/national/law-commission-recommends-abolitionof-death-penalty-except-in-terror-cases/article7599755.ece
18 http://indianexpress.com/article/india/india-others/a-p-j-abdul-kalam-favoursabolition-of-death-penalty/

observations were based on his study of social-economic background of the convicts whose
clemency petitions were pending before him.
At the All India Parties Meet the members are expected to give their partys opinion regarding
capital punishment being still imposed in India. The said debate will lay its ground on the issues
already raised at the international arena and in the light of death penalties awarded previously in
India. The members will lay down their respective arguments and on reaching a conclusion a
resolution will be drafted which will be discussed in the parliament for its potential viability.

CIVIL UNREST IN KASHMIR, 2016

The Kashmiri Insurgency is an ongoing conflict between Kashmiri separatists and extremists and
the Government of India. While few separatist groups favour accession to Pakistan, others

demand the complete independence of the Jammu and Kashmir area and demand the creation of
a separate nation state.
Democratic development was limited in Kashmir until the late 1970s and by 1988 several
democratic reforms provided by the Indian Government had been reversed. Non-violent channels
for expression discontent were limited causing a dramatic increase in support for insurgents
advocating a violent secession from India.
In 1987, a disputed State election created a catalyst for the insurgency when it resulted in some
members of the State Legislative Assembly forming armed insurgent groups. In July 1988, a
series of demonstrations, strikes and attacks on the Indian Government began the Kashmir
Insurgency which escalated into the most important internal security issue in India.

Historical Background- Timeline

Early 1947: A revolt begins in the Poonch region of Kashmir against Hari Singh. Poonch is less
than 100 km from Pakistan, and the rebels are actively supplied by Pakistani forces who dubbed
them as the Azad Army. Hindus and Sikhs are massacred by Muslims.
12 August 1947: Hari Singh asks for a Standstill Agreement with India and Pakistan. The
agreement states that existing arrangements should continue pending settlement of details. The
agreement is signed by only Pakistan. It is widely believed that Singh is still unsure about which
country to join, and generally more inclined to opt for independence. Kashmir is a Muslimmajority State ruled by a Hindu king.
September 1947: Muslims in Jammu are massacred by Hindu and Sikh mobs. Thousands of
Muslims flee Jammu even as thousands of Hindus and Sikhs flee Poonch. The situation in
Kashmir has denigrated drastically.
22 October 1947: Tribal militias composed of Pathans equipped by the Pakistani Army rally with
the Poonch rebels and dissidents and invade Kashmir. There is widespread looting, pillaging and
raping as the tribals quickly make their way to Srinagar.
26 October 1947: Hari Singh writes to then-Governor-General Mountbatten, saying that
soldiers in plain clothes, and desperadoes with modern weapons have been allowed to [infiltrate]
the State In spite of repeated requests made by my Government no attempt has been made to

check these raiders The Pakistan Radio even put out a story that a Provisional Government
had been set up in Kashmir. The people of my State both the Muslims and non-Muslims
generally have taken no part at all I have no option but to ask for help from the Indian
Dominion. Naturally they cannot send the help asked for by me without my State acceding to the
Dominion of India. I have accordingly decided to do so and I attach the Instrument of Accession
for acceptance by your Government
26 October 1947: The Instrument of Accession is signed; Hari Singh accedes the princely state of
Jammu & Kashmir to India. The location where the document was signed is contested; some
historians say its Delhi, others argue its Srinagar. The National Conference the strongest
political party in Kashmir endorses the Accession saying that now India has the legal and
moral justification to send in the Army.
27 October 1947: The Indian Army enters Kashmir to repeal the invaders. The First IndoPakistani War begins.
1 November 1947: Mountbatten meets with Jinnah in Lahore, proposes that in those princely
states where the ruler did not accede to a Dominion corresponding to the majority of his
population, the accession would be reviewed by an impartial reference to the will of the people
(such states wouldve included Kashmir, Junagadh and Hyderabad). Jinnah rejects the offer.
1 January 1949: India takes the Kashmir issue to the United Nations Security Council, invoking
Article 35 of the UN Charter. Consequently, the United Nations Commission for India and
Pakistan (UNCIP) is set up.
21 April 1949: Resolution 47 of the UNSC is passed, recommending a UN-mediated plebiscite in
Kashmir. To ensure that such a plebiscite can be held, the UN asks Pakistan to remove all its
troops and tribals, and asks India to reduce its military presence in the region to a minimum. The
imposition of an immediate ceasefire is advised.
1 January 1949: Ceasefire is imposed; the War ends. India is left in control of Ladakh and most
of the Valley and southern regions while Pakistan is left in control of northern regions and what
comes to be known as Azad Kashmir. The ceasefire line comes to be known as the Line of
Control, the international border between India and Pakistan in Kashmir.
1948-1951: The UN puts up several proposals on how a plebiscite could be conducted in
Kashmir; none of them are accepted by India and Pakistan.

17 October 1949: Article 370 of the Indian Constitution is adopted; J&K becomes a State in the
Indian Union, albeit one with extra privileges.
1951: Elections are held in the Indian State of Kashmir for the first time since independence. The
election is not a substitute for a plebiscite.
30 October 1956: The Kashmiri State Constituent Assembly adopts a State Constitution
declaring it an integral part of the Indian Union.
1962: The Indo-China War takes place. An ill-prepared India suffers territorial losses as China
occupies Aksai Chin. The Line of Actual Control divides India and China in the region.
2 March 1963: The Sino-Pakistan Frontier Agreement is finalized; Pakistan cedes the Shaksgam
Valley to China, a region Pakistan neither occupied nor administered. Relations with India
denigrate further.
1965: Following a failed attempt by Pakistani forces to precipitate insurgency in Kashmir, fullscale fighting breaks out between the two countries.
10 January 1966: The Tashkent Declaration is ratified. It states that both sides will withdraw to
pre-1965 borders and that the two neighbours would consider measures towards the restoration
of economic and trade relations as well as cultural exchanges between India and Pakistan.

RISE OF INSURGENCY IN KASHMIR

State Legislative Elections, 1987

Elections for the Indian state of Jammu and Kashmir were held on 23 March 1987. Farooq
Abdullah was reappointed as the Chief Minister. Four months after the assumption of power by
Dr. Farooq Abdullah, fresh elections were held for the State Assembly on 23 March 1987 which
were contested by the Congress-I and the NC, in coalition. Before the elections, various antiestablishment groups including Jamaat-e-Islami joined hands to form a Muslim United Front
(MUF) mainly pointing out that the NC had capitulated before the Centre for the sake of power
and bartered away the special status of the State. Efforts were made to arouse Muslim sentiments
along communal lines. The NC-Congress(I) combine contested all the 76 seats and the MUF, 43
seats.

In 1987 when Muslim United Front, largely current Hurriyat, believed that it would win the
elections in the Kashmir Valley, its leaders were in touch with the then BJP leaders in Jammu to
form a coalition government in Srinagar. But, the elections were heavily rigged changing the
course of politics in the state. The MUF got four seats,even though it had polled 31% votes and
the BJP two seats. Although Syed Ali Shah Geelani won election from his Sopore seat.Many see
this rigged election as a cause of militancy in Kashmir. Elections for Bhadrawah, Leh and Kargil
were held in June 1983, which was also won by the Congress-NC alliance. The NC-Congress
alliance won 66 seats. This led to widespread allegations of rigging and misuse of power.
Allegations of malpractices and rigging led to the disillusionment of Kashmiris. Accompanied by
rampant corruption by coalition, the government failed to administer the State effectively. In this
environment, secessionist and subversive elements started claiming that they had been denied
democratic rights illegally and began justifying a recourse to unconstitutional and other methods.
It was in this environment that Pakistan encouraged Kashmiri youth to come across the Line of
Control and receive arms training to begin an armed secessionist movement.

2010 Kashmir Unrest

On April 29-30, 2010, the Indian Armed Forces executed Shahzad Ahmad, Riyaz Ahmad, and
Mohammad Shafi in a fake encounter in Kupwara district, claiming them to be
foreign/infiltrating militants from Pakistan.
On 11 June, there were protests against these killings in the downtown area of Srinagar. Police
used massive force to disperse the protesting youth during which a teargas bullet killed a
seventeen-year-old Tufail Ahmad Mattoo who was playing cricket in Gani memorial Stadium.
Several protest marches were organised across the Valley in response to the killings which turned
violent. Thereafter a vicious circle was set, killing of a boy was followed by protest
demonstrations and clashes with police and CRPF in which another boy was killed which led to
another protest by the boys till several youths lost their lives. Indian intelligence agencies
claimed that these protests and demonstrations were part of covert operations of Pakistani
intelligence agencies and were sponsored and supported from them. Media reports earlier in
march had suggested that with the support of its intelligence agencies Pakistan has been once

again 'boosting' Kashmir militants and recruitment of 'martyrs' in Pakistani state of Punjab. In
May 2010 increased activities of militants was reported from across the border in Neelum valley
in Pakistani-administered Gilgit-Baltistan. The locals reported that large numbers of militants
had set up camps in the area with plans of crossing into the Kashmir valley, and they did not
appear to be Kashmiri.
Protests in Kashmir escalated over several days, as demonstrations against public burning of the
Koran as a protest in the United States commemorating the September 11 attacks quickly turned
into separatist protests against the Indian government in the Muslim-majority province. On 13
September, Muslim protesters defied a curfew, setting fire to a Christian missionary school and
government buildings. At least 13 people were shot dead by police, and one policeman was
killed by a thrown rock; at least 113 policemen and 45 protesters were wounded. On 12
September, a church was burned and a curfew instituted in Punjab Violence spread into Poonch
in the Jammu division, with three protesters shot by police. Protesters burned government
buildings and vehicles including the SDM's office, where a gas cylinder exploded inflicting
injuries on six persons; the SDPO office; the Forest Department office; the BDO office and two
police and five civilian vehicles. Police prevented the burning of a Christian school in Poonch,
and another in Mendhar the next day, in clashes leaving four protesters killed, 19 wounded, but
dozens of government offices, a police station, and eight vehicles were burned. As of 18
September, the estimated death toll was approximately 100. The Hindustan Times blamed much
of the resentment on the indefinite military curfew, the first in ten years to affect the entire
Kashmir Valley, calling the curfew "collective punishment" and writing that after four days,
"People are running out of milk, vegetables and baby food. On 18 September, after six days, the
curfew was relaxed in parts of Srinagar and some other areas for four hours to allow people to
buy essentials.

On the night of 17 September, a policeman's house was set on fire in Pinjoora village. On 18
September, a large procession in Anantnag defied curfew, carrying the body of Maroof Ahmad
Nath, who drowned while fleeing police. After "agitating mobs attempted to torch government
property", security forces opened fire, killing Noorul Amin Dagga and injuring five. Fayaz
Ahmad Naiku of Boatman Colony (Bemina), Srinigar died from injuries received the preceding

day. A group stoning and attempting to burn the home of Samajwadi Party leader Fayaz Ahmad
Bhat were dispersed by gunfire. A group of men emerging from a mosque were fired on with one
killed and four injured in Pattan area. A police spokesman disputed claims that the attack was
unprovoked, because a mob tried to block the Srinagar-Baramulla National Highway and started
heavy stone pelting on police.
THE 2016 UNREST
In the 2014 Indian general election, the Bharatiya Janata Party (BJP), which subscribes to a
Hindu nationalist ideology, won a majority in the Lower House of the Indian Parliament.
Narendra Modi became the prime minister. In the state Legislative Assembly elections in the
same year the Peoples Democratic Party (PDP) won a majority of the seats in the Kashmir region
and the BJP won the majority of seats in the Jammu region. Even though both parties
campaigned against each other, they joined together to form a coalition government, with Mufti
Mohammad Sayeed becoming the chief minister. Following his death in 2016, his daughter
Mehbooba Mufti took over as chief minister (first woman chief minister in region). The joining
together of the two parties led to the perception of a shrinking political space. It is said to have
formed the "final straw" in the people's disaffection. The militant wing commanded by Burhan
Wani, part of the Hizbul Mujahideen, has been dubbed "new-age militancy". It has been
designated as a terrorist organisation. It has recruited local youth, educated and middle-class,
who are conversant with social media and not afraid to reveal their identities. They have
achieved an immense popularity among the Kashmiri population.
On 8 July 2016, Burhan Wani was killed in a planned operation by the Jammu and Kashmir
Police and the Rashtriya Rifles. Following a tip-off that Wani was planning to come down from
the Tral forest for Eid celebrations, he and two associates were cornered in the Kokernag area.
According to police officials, after an exchange of fire, the house in which the militants were
holed up was bombed, killing all three militants. However, eyewitnesses have stated that the
three militants were shot down while trying to escape.
According to a police official, there were misgivings within the security establishment against
killing Wani owing to his popularity, but they were not heeded by the authorities.

After the news of Burhan's death spread, protests erupted in some areas of Kashmir Valley.
Curfew-like restrictions were imposed in some places in South Kashmir during the night, and
internet services in many areas were cut. Hurriyat chairman Syed Ali Shah Geelani and Jammu
Kashmir Liberation Front chairman Yasin Malik called for a strike to protest against the killing
of Wani. Geelani, along with other separatist leaders including Asiya Andrabi and Mirwaiz Umar
Farooq, called for a three-day shutdown in Kashmir to protest against the killing. Violent clashes
broke out in response to the killing on 9 July in some areas. Over 20 police stations were
attacked by mobs who stole weapons from the stations and fired upon the security forces. A BJP
office in Kulgam was vandalised. Stone pelting was reported from many parts of Kashmir,
including transit camps of Kashmiri Pandits. Train services and the pilgrimage to Amarnath
Temple were suspended. All state board exams scheduled for 9 July were postponed, and all
vehicular traffic was suspended on the Srinagar Jammu National Highway. By the end of the day,
over 200 people were injured and 11 protestors were killed. By 10 July, more than 20 were
confirmed to have died during the unrest. More than 300 CRPF personnel were reported to have
been injured. In addition, many vehicles and buildings belonging to security forces were attacked
during the day with a number of them being set ablaze. Some suspected militants hiding amongst
protesters also threw grenades at the security personnel. On 11 July, a mob of protesters tried to
storm an Indian Air Force base, however they were dispersed. Several police stations and
vehicles were burnt in many places across the region. On 15 July curfew was imposed in all
districts of Kashmir and mobile phone networks were suspended.
Hurriyat chairman Geelani on 16 July wrote a letter to several international bodies and Heads of
States in several countries outlining six measures that the Indian government should take for
return of normalcy in the valley: acceptance of Kashmir's disputed status along with right to selfdetermination, demilitarisation of the valley, repealing of AFSPA and the Public Safety Act,
release of all political prisoners in Kashmir along with restoration of their right to political
activity, allowance to all international human rights and humanitarian organistations for working
in the state and ensuring free political space to all parties in the state. The unrest also started
spreading to the Chenab valley region of Jammu Division in August with shutdowns being
observed in Kishtwar, Doda, Banihal, Bhaderwah and Thathri. Protests against civilan casualties
in Kashmir took place in Doda with people shouting pro-freedom slogans.

On 9 July, mobile internet services were suspended in Kashmir as well as in Jammu region to
prevent the rumour-mongering. On 16 July, the Jammu and Kashmir government imposed a
press emergency. The police raided the newspaper installations and seized copies of newspapers
and printing plates. They said that, in view of the curfew, movement of newspaper staff and the
distribution of newspapers would not be possible "for a few days". Landline and mobile
telephone services were cut off, except for the lines of a government-owned company, BSNL.
Internet services remained suspended. Cable television was also shut off, ostensibly to stop
Pakistani channels from being broadcast.
On 19 July, Chief Minister Mehbooba Mufti denied that there was a ban on newspapers, and her
advisor Amitabh Mattoo hinted that the decision might have been taken at the "local level".
Mattoo also declared that newspapers would be able to print from 19 July. However, the
newspapers refused to publish on Tuesday, claiming there were uncertainties about the
restrictions. One editor also asked the government to "own the ban" and issue a statement
guaranteeing that the media would not be hampered. The chief minister held a meeting with the
Srinagar-based newspaper editors, expressing regret for the restrictions and assuring them that
their work would not be hampered. Following this, the newspapers went to press on Wednesday,
delivering them on Thursday.The senior superintendent of police of Budgam district Fayaz
Ahamad Lone was held responsible for raiding the press and transferred.
More than 100 people including 2 policemen have died during the unrest. Over 11,000 people
including more than 7,000 civilians as well as 4,000 security personnel have been injured in the
unrest.

APECT LAW
Section 370 and AFSPA

Section 370

Article 370 was and is about providing space, in matters of governance, to the people of a State
who felt deeply vulnerable about their identity and insecure about the future.
At the Bharatiya Janata Partys recent Lalkar rally in Jammu, its prime ministerial candidate,
Narendra Modi, called for a debate on Article 370. This is encouraging and suggests that the BJP
may be willing to review its absolutist stance on the Article that defines the provisions of the
Constitution of India with respect to Jammu and Kashmir. Any meaningful debate on Article 370
must, however, separate myth from reality and fact from fiction. My purpose here is to respond
to the five main questions that have already been raised in the incipient debate.
Why it was incorporated?
First, why was Article 370 inserted in the Constitution? Or as the great poet and thinker, Maulana
Hasrat Mohini, asked in the Constituent Assembly on October 17, 1949: Why this
discrimination please? The answer was given by Nehrus confidant, the wise but misunderstood
Thanjavur Brahmin, Gopalaswami Ayyangar (Minister without portfolio in the first Union
Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir, and the principal
drafter of Article 370). Ayyangar argued that for a variety of reasons Kashmir, unlike other
princely states, was not yet ripe for integration. India had been at war with Pakistan over Jammu
and Kashmir and while there was a ceasefire, the conditions were still unusual and abnormal.
Part of the States territory was in the hands of rebels and enemies.
The involvement of the United Nations brought an international dimension to this conflict, an
entanglement which would end only when the Kashmir problem is satisfactorily resolved.
Finally, Ayyangar argued that the will of the people through the instrument of the [J&K]
Constituent Assembly will determine the constitution of the State as well as the sphere of Union
jurisdiction over the State. In sum, there was hope that J&K would one day integrate like other
States of the Union (hence the use of the term temporary provisions in the title of the Article),
but this could happen only when there was real peace and only when the people of the State
acquiesced to such an arrangement.
Second, did Sardar Vallabhbhai Patel oppose Article 370? To reduce the Nehru-Patel relationship
to Manichean terms is to caricature history, and this is equally true of their attitude towards
Jammu and Kashmir. Nehru was undoubtedly idealistic and romantic about Kashmir. He wrote:

Like some supremely beautiful woman, whose beauty is almost impersonal and above human
desire, such was Kashmir in all its feminine beauty of river and valley... Patel had a much more
earthy and pragmatic view and as his masterly integration of princely states demonstrated
little time for capricious state leaders or their separatist tendencies.
But while Ayyangar negotiated with Nehrus backing the substance and scope of Article
370 with Sheikh Abdullah and other members from J&K in the Constituent Assembly (including
Mirza Afzal Beg and Maulana Masoodi), Patel was very much in the loop. And while Patel was
deeply sceptical of a state becoming part of India and not recognising ... [Indias]
fundamental rights and directive principles of State policy, he was aware of, and a party to, the
final outcome on Article 370.
Negotiations
Indeed, the synergy that Patel and Nehru brought to governing India is evident in the
negotiations over Article 370. Consider this. In October 1949, there was a tense standoff between
Sheikh Abdullah and Ayyangar over parts of Article 370 (or Article 306A as it was known during
the drafting stage). Nehru was in the United States, where addressing members of the U.S.
Congress he said: Where freedom is menaced or justice threatened or where aggression takes
place, we cannot be and shall not be neutral. Meanwhile, Ayyangar was struggling with the
Sheikh, and later even threatened to resign from the Constituent Assembly. You have left me
even more distressed than I have been since I received your last letter I feel weighted with the
responsibility of finding a solution for the difficulties that, after Panditji left for America ... have
been created without adequate excuse, he wrote to the Sheikh on October 15. And who did
Ayyangar turn to, in this crisis with the Sheikh, while Nehru was abroad? None other than the
Sardar himself. Patel, of course, was not enamoured by the Sheikh, who he thought kept
changing course. He wrote to Ayyangar: Whenever Sheikh Sahib wishes to back out, he always
confronts us with his duty to the people. But it was Patel finally who managed the crisis and
navigated most of the amendments sought of the Sheikh through the Congress party and the
Constituent Assembly to ensure that Article 370 became part of the Indian Constitution.
Third, is Article 370 still intact in its original form? One of the biggest myths is the belief that the
autonomy as envisaged in the Constituent Assembly is intact. A series of Presidential Orders

has eroded Article 370 substantially. While the 1950 Presidential Order and the Delhi Agreement
of 1952 defined the scope and substance of the relationship between the Centre and the State
with the support of the Sheikh, the subsequent series of Presidential Orders have made most
Union laws applicable to the State. In fact, today the autonomy enjoyed by the State is a shadow
of its former self, and there is virtually no institution of the Republic of India that does not
include J&K within its scope and jurisdiction. The only substantial differences from many other
States relate to permanent residents and their rights; the non-applicability of Emergency
provisions on the grounds of internal disturbance without the concurrence of the State; and the
name and boundaries of the State, which cannot be altered without the consent of its legislature.
Remember J&K is not unique; there are special provisions for several States which are listed in
Article 371 and Articles 371-A to 371-I.

Fourth, can Article 370 be revoked unilaterally? Clause 3 of Article 370 is clear. The President
may, by public notification, declare that this Article shall cease to be operative but only on the
recommendation of the Constituent Assembly of the State. In other words, Article 370 can be
revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing
to recommend its revocation. Of course, Parliament has the power to amend the Constitution to
change this provision. But this could be subject to a judicial review which may find that this
clause is a basic feature of the relationship between the State and the Centre and cannot,
therefore, be amended.
Gender bias?
Fifth, is Article 370 a source of gender bias in disqualifying women from the State of property
rights? Article 370 itself is gender neutral, but the definition of Permanent Residents in the State
Constitution based on the notifications issued in April 1927 and June 1932 during the
Maharajahs rule was thought to be discriminatory. The 1927 notification included an
explanatory note which said: The wife or a widow of the State Subject shall acquire the
status of her husband as State Subject of the same Class as her Husband, so long as she resides in
the State and does not leave the State for permanent residence outside the State. This was
widely interpreted as suggesting also that a woman from the State who marries outside the State

would lose her status as a State subject. However, in a landmark judgement, in October 2002, the
full bench of J&K High Court, with one judge dissenting, held that the daughter of a permanent
resident of the State will not lose her permanent resident status on marrying a person who is not a
permanent resident, and will enjoy all rights, including property rights.
Finally, has Article 370 strengthened separatist tendencies in J&K? Article 370 was and is about
providing space, in matters of governance, to the people of a State who felt deeply vulnerable
about their identity and insecure about the future. It was about empowering people, making
people feel that they belong, and about increasing the accountability of public institutions and
services. Article 370 is synonymous with decentralisation and devolution of power, phrases that
have been on the charter of virtually every political party in India. There is no contradiction
between wanting J&K to be part of the national mainstream and the States desire for selfgovernance as envisioned in the Article.
Separatism grows when people feel disconnected from the structures of power and the process of
policy formulation; in contrast, devolution ensures popular participation in the running of the
polity. It can be reasonably argued that it is the erosion of Article 370 and not its creation which
has aggravated separatist tendencies in the State. Not surprisingly, at the opposition conclave in
Srinagar in 1982, leaders of virtually all national parties, including past and present allies of the
BJP, declared that the special constitutional status of J&K under Article 370 should be
preserved and protected in letter and spirit. A review of its policy on Article 370, through an
informed debate, would align todays BJP with the considered and reflective approach on J&K
articulated by former Prime Minister Atal Bihari Vajpayee. Only then would the slogans of
Jhumuriyat, Kashmiriyat and Insaniyat make real sense.
Armed Forces (Special Powers) Act
Armed Forces (Special Powers) Acts (AFSPA), are Acts of the Parliament of India that grant
special powers to the Indian Armed Forces in what each act terms "disturbed areas. According
to The Disturbed Areas (Special Courts) Act, 1976 once declared disturbed, the area has to
maintain status quo for a minimum of 3 months. One such act passed on September 11, 1958 was
applicable to the Naga Hills, then part of Assam. In the following decades it spread, one by one,
to the other Seven Sister States in India's northeast. Another one passed in 1983 and applicable to

Punjab and Chandigarh was withdrawn in 1997, roughly 14 years after it came to force. An act
passed in 1990 was applied to Jammu and Kashmir and has been in force since.
The Acts have received criticism from several sections for alleged concerns about human rights
violations in the regions of its enforcement alleged to have happened
The Act
The Articles in the Constitution of India empower state governments to declare a state of
emergency due to one or more of the following reasons:

Failure of the administration and the local police to tackle local issues
Return of (central) security forces leads to return of miscreants/erosion of the "peace

dividend"
The scale of unrest or instability in the state is too large for local forces to handle

In such cases, it is the prerogative of the state government to call for central help. In most cases,
for example during elections, when the local police may be stretched too thin to simultaneously
handle day-to-day tasks, the central government obliges by sending in the BSF and the CRPF.
Such cases do not come under the purview of AFSPA. AFSPA is confined to be enacted only
when a state, or part of it, is declared a 'disturbed area'. Continued unrest, like in the cases of
militancy and insurgency, and especially when borders are threatened, are situations where
AFSPA is resorted to.
By Act 7 of 1972, the power to declare areas as being disturbed was extended to the central
government.
In a civilian setting, soldiers have no legal tender, and are still bound to the same command chain
as they would be in a war theater. Neither the soldiers nor their superiors have any training in
civilian law or policing procedures. This is where and why the AFSPA comes to bear - to
legitimize the presence and acts of armed forces in emergency situations which have been
deemed war-like.
According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as
"disturbed", an officer of the armed forces has powers to:

After giving such due warning, Fire upon or use other kinds of force even if it causes
death, against the person who is acting against law or order in the disturbed area for the

maintenance of public order,

Destroy any arms dump, hide-outs, prepared or fortified position or shelter or training
camp from which armed attacks are made by the armed volunteers or armed gangs or

absconders wanted for any offence.

To arrest without a warrant anyone who has committed cognizable offences or is

reasonably suspected of having done so and may use force if needed for the arrest.
To enter and search any premise in order to make such arrests, or to recover any person

wrongfully restrained or any arms, ammunition or explosive substances and seize it.
Stop and search any vehicle or vessel reasonably suspected to be carrying such person or

weapons.
Any person arrested and taken into custody under this Act shall be made present over to
the officer in charge of the nearest police station with least possible delay, together with a

report of the circumstances occasioning the arrest.

Army officers have legal immunity for their actions. There can be no prosecution, suit or
any other legal proceeding against anyone acting under that law. Nor is the government's

judgment on why an area is found to be disturbed subject to judicial review.

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

On July 8, 2016, in a landmark ruling, The Supreme Court of India ended the immunity of the
armed forces from prosecution under AFSPA, saying, in an 85-page judgment, It does not
matter whether the victim was a common person or a militant or a terrorist, nor does it matter
whether the aggressor was a common person or the state. The law is the same for both and is
equally applicable to both... This is the requirement of a democracy and the requirement of
preservation of the rule of law and the preservation of individual liberties.