CHAPTER - 1 INTRODUCTION The imperative theory of law is very well expounded by John Austin in the course of his lectures at the University of London (later published in 1832 as a book entitled The Province of Jurisprudence Determined). “A Law”, says Austin “is a command which obliges a person or persons to a course of conduct”. Imperative law means a rule which prescribes a general course of action imposed by some authority which enforces it by superior power either by physical force or any other form of compulsion. Law is thus an important part of the repressive machinery of the state by which it ensures the obedience of its subjects. In this scheme of things, in every modern state there will be some sovereign authority, issuing commands to the subjects, backed up by the sanction of physical force which will necessarily be brought to bear upon the recalcitrant subjects do not obey the commands. The existence of a command and a sanction impose a duty upon the person to Page | 1
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CHAPTER - 1
INTRODUCTION
The imperative theory of law is very well expounded by John Austin in the course
of his lectures at the University of London (later published in 1832 as a book
entitled The Province of Jurisprudence Determined). “A Law”, says Austin “is a
command which obliges a person or persons to a course of conduct”. Imperative
law means a rule which prescribes a general course of action imposed by some
authority which enforces it by superior power either by physical force or any other
form of compulsion. Law is thus an important part of the repressive machinery of
the state by which it ensures the obedience of its subjects. In this scheme of things,
in every modern state there will be some sovereign authority, issuing commands to
the subjects, backed up by the sanction of physical force which will necessarily be
brought to bear upon the recalcitrant subjects do not obey the commands. The
existence of a command and a sanction impose a duty upon the person to whom the
command is addressed, so that the command, duty and sanction are inseparably
connected terms.1
The project deals with how and why sovereign state has control over violence in
the state and what responsibilities and duties it has to protect the interests of the
individuals and the society and what limitations are actually imposed upon it. It
also focuses on how different authors of jurisprudence had different views
regarding a sovereign state creating a monopoly over violence in the state. Focus
would also be on the sovereignty over violence in a country like India. The
Researcher will also try to deal the acts prevailing concerning violence in the
country of India such as the Armed Forces (Special Powers) Act, 1958 in the state
1 P.S. Atchuten Pillai, “Jurisprudence and Legal Theory”, 3rd Edition, Eastern Book Company.Page | 1
of Jammu and Kashmir and the instances of violence after the Delhi Gang Rape
Case, the naxalites, the Telangana issue, etc.
LITERATURE REVIEW
BOOKS REFERRED:-
P.S. Atchuten Pillai, “Jurisprudence and Legal Theory”, 3rd Edition, Eastern
Book Company.
G. W. Paton, “A Textbook on Jurisprudence”, Fourth Edition, Oxford
University Press.
G. C. Venkata Subbarao, “Jurisprudence and Legal Theory”, Ninth Edition,
Eastern Book Company
ARTICLES REFERRED:-
Hobbes's Theory Of Sovereignty In Leviathan By James R. Hurtgen,
www.reasonpapers.com/pdf/05/rp_5_5.pdf last visited on 11th January,
2013.
Austin’s Command And Sovereignty Theory,
www.du.ac.in/fileadmin/DU/.../jurisprudence-1-tr-content.pdf last visited on
11th January, 2013.
Austin’s concept of sovereignty and its relevance in Indian Legal System
and in Indian Judiciary, http://legaljunction.blogspot.in/2011/05/austins-
concept-of-sovereignty-and-its_24.html last visited on 11th January, 2013.
Austin’s theory of Sovereignty in modern India and Pakistan,
Given that Hobbes began writing the Leviathan shortly after a civil war in England
broke out and was concluded,5 account for the stability of political authority was
arguably one of the primary directives of his theory of sovereignty. In fact, a want
of stability serves as one of the primary motivations for men to agree to enter into a
commonwealth.
This want of stability arises from Hobbes' account of the natural state of mankind,
which he depicts as a condition of a war as is of every man against everyman."6
Though men are naturally equal, Hobbes believes that self-preservation can only
be had by constant acquisition of property, thus creating the aforementioned state
of war and a life of man famously depicted as solitary, poor, nasty, brutish, and
short."7 In such a condition, there is no room for industry, commodious living, or
private property beyond what can be secured via one's own force. The fear of
death, coupled with the desire for commodious living are the passions that incline
men to peace."8
This inclination to peace will cause men to generate a commonwealth. As Hobbes
writes at the beginning of Part II of Leviathan, entitled “Of Commonwealth": men
willingly restrain themselves with foresight to getting themselves out from that
miserable condition of war, which is necessarily consequent . . . to the natural
passions of men, when there is no visible power to keep them in awe, and tie them
5 Thomas Hobbes. Leviathan. Ed. by Edwin Curley. Indianapolis: Hackett, 1994. isbn: 978-0-
87220-177-4, p. li.6 Ibid., p. 76. Hobbes, by war, refers to the constant disposition to enter into battle and not
necessarily fighting itself.
7 Ibid., p. 76.
8 Ibid., p. 78.Page | 8
by fear of punishment to the performance of their covenants and observation of
those laws of nature . . . .9;10
Men in the state of nature voluntarily make a \covenant of every man with every
man"11 in order to establish a commonwealth to preserve their peace. The
sovereign will serve as the common power to hold men in awe by the creation and
enforcement of civil laws. Such a common power is necessary because men their
own have no external judge in conflicts and being inherently biased to their
individual cause, will not hold to agreements made. By making this covenant, men
confer all their power and strength upon one man, or upon one assembly of men
[the sovereign], that may reduce all their wills, by plurality of voices, unto one
will. . . ."12 This bestowal of wills not only grants the sovereign supreme authority,
but also makes every subject (i.e. every man who entered the covenant) the author
of every action of the sovereign.
This last condition, which falls out of Hobbes' somewhat formal definition of a
covenant,13 serves as the source of stability and clarity of the sovereign's power.
Because every subject confers their will unto the sovereign's and agrees to abide by
his actions and rulings, the sovereign cannot be overthrown, cannot forfeit his
9 Hobbes, Leviathan, p. 106, emphasis added.10 While many laws of nature are discussed by Hobbes, the first two are the most fundamental:
to seek peace and to willingly give up personal liberty to the degree that other men will in
order to secure peace.
11 Hobbes, Leviathan, p. 109.
12 Ibid.13 Hobbes proceeds much more systematically than Locke. He considers himself the first man
to undertake a scientific study of politics and so proceeds in a “bottom-up" fashion, defining
basic terms and ideas and then deriving more complex ones from them. In this sense, clarity is
built directly into Hobbes' methodology.Page | 9
power, cannot be accused of acting unjustly by his subjects, cannot be punished by
his subjects, acts as judge of what is necessary for peace and defense, determines
when to wage war, and so on.14 Similarly, subjects have no right to private property
that excludes the sovereign.15 Because man without a common judge exists in a
constant state of war, only a sovereign as powerful as this can actually ensure
peace.
2.2 Instances of Violation by a sovereign state
The question of state failure and the potential for intervention raises larger
question: what effect does a state's failure have on its sovereignty? Is sovereignty a
right or a responsibility? The traditional philosophy of "sovereignty as a right", that
has held sway since the Treaty of Westphalia in 1648, has been that a country's
internal affairs are its own affair and that other states do not intervene unless it
threatens them, or breaches a treaty, or triggers an obligation of alliance. This is
illustrated by United States Secretary of State Robert Lansing who when declining
to pursue action against the leaders of Germany, Austria and Turkey at the
conclusion of World War I for what would now be known as "crimes against
humanity" said "the essence of sovereignty is the absence of responsibility".
Reflecting the view of the time he said sovereign leaders should be immune from
prosecution and that the United States could only judge those violations that were
committed against American persons or property.16
14 Hobbes, Leviathan, p. 110-115.
15 Ibid., p. 213.
16 Samantha Power, "a Problem from Hell" America and the Age of Genocide (London:
Flamingo, 2003).Page | 10
On the other hand, "sovereignty as a responsibility" requires that states provide the
appropriate standard of political goods and services to ensure the protection and
wellbeing of their citizens.17 If they refuse assistance there is a responsibility by the
international community to react. This creates a dual characteristic to sovereignty;
an internal component which relates to the state and its relationship to its people,
and an external component which manages the relationships between states.18
There are many other concepts of sovereignty between these two extremes. Robert
Jackson19 refers to positive and negative sovereignty and the concept of "quasi-
states". That is, states that lack the capacity to support themselves without outside
assistance, or to contribute to the international order but who are legally recognised
through membership of the United Nations. Stephen Krasner20 argues that the
Westphalian model of sovereignty based on the principles of autonomy and
territory, has never been an accurate description of many of the entities called
states, since breaches of the model have been an enduring characteristic of the
international environment because there is nothing to prevent them.
Afghanistan and Somalia have demonstrated the danger of ignoring failing or
failed states. Both became bases from which large scale terrorist attacks have been
launched. The question for the international community to establish is how is the
correct response to be determined, even if there is an agreement as to the nature of
the problem, and a realistic assessment of appropriate objectives. The adoption by
17 Francis Deng, Protecting the Dispossessed (Washington, DC: Brookings Institutions, 1993).18 Richard Herr, "The Concept of the 'Failed State': A Brobdingnagian View from Lilliput."
(paper presented at the Fourth Wellington Conference on World Affairs, Wellington, 5
December 2003).19 Robert H. Jackson, Quasi States: Sovereignty, International Relations, and the Third World
(Cambridge: Press Syndicate of the University of Cambridge, 1990).
20 Stephen D. Krasner, "Compromising Westphalia," International Security 20, no. 3 (1995).Page | 11
the international community of the concept of "state responsibility" facilitates a
model to identify where assistance is required.
Page | 12
CHAPTER – 3
ANALYSIS OF THE IMPERATIVE OF VIOLENCE
3.1 Powers and Duties of a Sovereign State
A responsibility of states is to deliver political goods – security, health and
education, economic opportunity, good governance, law and order, and
fundamental infrastructure requirements (transport and communications). States
fail when they are no longer willing or able to carry out these functions. One of the
problems in dealing with failed states is in defining exactly who and what they are.
State failure need not be reserved for cases of complete state collapse, either into
civil war or anarchy but can also be understood as a process involving the
weakening of a state’s capacity to meet its responsibilities. Taking this further it
may be beneficial to consider state failure as a spectrum which ranges from weak
or failing states through failed states to collapse or non-states. In this case a failed
state is one that meets a specific set of conditions and excludes states that only
meet some of the criteria which can then be classed as weak or failing states
depending on the extent of their decline21. By using a state's responsibilities a
model can be developed that enables states to be defined and categorized as weak,
failing or failed, so that the international community can determine which states no
longer meet their sovereign obligations and need support or intervention.
A state that lacks power is not sovereign. The normative notion of sovereignty
within today’s international system is greatly articulated by power holders. Such
understandings of state sovereignty enable contemptible acts of violence to be
21 Robert H. Dorff, "State Failure and Responding to It" (paper presented at the Annual
Convention of the International Studies Association, New Orleans, 2002).Page | 13
legitimatized. Powerful states prescribe legitimacy in the international system to a
great extent, which differs from other social relationships where legitimacy is
achieved, not imposed. Under this system, ethics, norms and even humanity itself
may be divorced from the act of legitimization as the sovereign defines procedure.
The sovereign institution of the state defines the parameters of life through
lawmaking, and the power of the state ensures its continuing existence. Agreat
inequality amongst supposedly sovereign states arises precisely at the injection
point of power into the notion of sovereignty, which explains how particular
conceptions and definitions of violence may come about and be unfairly
legitimized under the rubric of existing power relationships.22
The concept of state responsibility in refers to the responsibility of sovereign states
to deliver a range of political goods and services to its citizens. Rotberg has
identified a bundle of the most crucial political goods, roughly rank ordered, that
establishes a set of criteria according to which states may be judged strong, weak,
or failed.23 The state's most important function is the provision of security. This
means creating a safe and secure environment and developing legitimate and
effective security institutions. In particular, the state is required to prevent cross
border invasions and loss of territory; to eliminate domestic threats or attacks on
the national order; to prevent crime; and to enable its citizens to resolve their
disputes with the state and their fellow citizens. Another major political good is to
address the need to create legitimate effective political and administrative
22 David Martin, The Violence within a Sovereign Decision, Available at
sovereign-decision.pdf last visited on 21st January, 2013.23 Robert I Rotberg, "Failed States, Collapsed States, Weak States: Causes and Indicators," in
State Failure and State Weakness in a Time of Terror, ed. Robert I. Rotberg (Washington
institutions and participatory processes and ensuring the active and open
participation of civil society in the formulation of the state's government and
policies. Other political goods supplied by states include medical and health care,
schools and educational instruction, roads, railways, harbours and other physical
infrastructure, money and banking system, a beneficial fiscal and institutional
context in which citizens can pursue personal entrepreneurial goals, and methods
of regulating the sharing of the environmental commons.24
What is required is a model based on quantitatively based indicators that enables
states to be classified strong, weak, or failed and ranked on a continuum of failure.
Although indicators of state failure are often underdeveloped and unreliable in
weak or failed states, it is possible to develop a model utilising indicators grouped
under the following classifications: Governance, Corruption, Economic, and Social
Wellbeing. It could be contended that these concepts of responsibilities are
essentially western in origin and a few states may argue that they are not applicable
to their situation.25
3.2 Sovereign Monopoly over Violence in a State
The monopoly on legitimate force or violence belongs to the essential elements of
modern statehood – so the scholarly consensus since Thomas Hobbes or at least
since Max Weber. In “Economy and Society” Weber defines the state as a political
organization whose “administrative staff successfully upholds the claim to the
monopoly on the legitimate use of physical force in the enforcement of its orders”.
24 Ibid.25 Ramesh Thakur, "Global Norms and International Humanitarian Law: An Asian
Perspective," International Review of the Red Cross, no. 841 (2001).Page | 15
This definition seems to be very clear, but sometimes it leads to
misunderstandings.
First of all, the use of force is not the sole and not even the normal means for the
modern state “to realize its orders”; it is only the ultima ratio if all other means are
not effective. The crucial point for Weber was the fact that the state cannot be
defined by its “ends” because there are almost no ends that states did not try to
realize in the course of history. Of all social institutions and all possible actors in
modern society, only the state is legitimated to use physical force as a “means”–
with the implication that all forms of non-state violence are illegitimate and have
therefore to be prosecuted and punished according to the penal law (Milanes 1999).
One of the misunderstandings concerns the question sometimes posed in
discussions: How can we speak of a “monopoly on violence” if there is so much
violence originating in society? Yes, there is an important difference between
monopolies in the economy where certain goods or services may be supplied by
only one company whereas the state hasn’t even a chance to monopolize the
ownership of arms, not to speak of innumerable devices that can be used in
exercising violence, for instance, knives. In other words, the state’s monopoly on
violence does not create a “society without violence”, because it is completely
impossible for the state to suppress all forms of violence. The term “monopoly”
refers only to the legitimate use of force or violence!26
Secondly, Weber speaks of a successful claim to the “monopoly” by the state. The
question here is: If the state cannot prevent all forms of violence and if therefore 26 Hans Wimmer, The State’s Monopoly on Legitimate Violence. Violence in History and in
Contemporary World Society as Challenges to the State, Available at
http://homepage.univie.ac.at/johann.wimmer/Wimmer-AkadWiss.pdf last visited on 21st
Section 4(a) of the AFSPA grants armed personnel to shoot and kill. This is clearly
violating article 21 of our Constitution.
Protection against arrest n detention
Article 22 of our Constitution states:
1. “No person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such arrest nor shall he be denied
the right to consult, and to be defended by, a legal practitioner of his choice.
2. Every person who is arrested and detained in custody shall be produced before
the nearest magistrate within a period of twenty-four hours of such arrest excluding
the time necessary for the journey from the place of arrest to the court of the
magistrate and no such person shall be detained in custody beyond the said period
without the authority of a magistrate."35
These two sections of article 22 of the IC can be used to safeguard the people
arrested under the AFSPA.
Military’s immunity/lack of remedies
Members of the armed forces in the state of India are protected from arrest for
anything done within the line of official duty by section 45 of the CrPc (The Indian
35 Article 22 of the Indian Constitution.Page | 23
Criminal Procedure Code)36. Section 6 of the AFSPA provides then with absolute
immunity for all atrocities committed under the AFSPA37. The armed forces
personnel conduct themselves as being above the Law. When they are tried in
army courts, the people are not informed about the proceedings. The results of
many trials such as in the case where BSF and armed forces in Jammu and
Kashmir were punished for the abuses was not published stating that is would
endanger the lives of the soldiers by the NHRC.
The Army Act
The 1950 act was a revision of the 1911 Indian army act. The revision of this act
was to bridge the gap between the army and civil Laws as far as possible in the
matter of punishments of offences. Chapter 5 of the army act grants armed
personnel some privileges including immunity from attachments and arrest for debt
which gives the armed personnel even more freedom and makes them to be
irresponsible for their actions.
AFSPA in Manipur:
In Manipur, the Act has been a heart concern about human right violation in the
region. Its continued application has lead to numerous protests, notably the
longstanding hunger strike by Ms. Irom Chanu Sharmila. The “AFSP Act” focuses
on Manipur since this is one of the states of north- eastern India with the longest
history of military abusing its power under the Act and with a vibrant civil society
indefatigably denouncing those violations.
36 Section 45 of the Indian Criminal Procedure Code.37 Section 6 of the AFSPA.
Page | 24
The judgement against the controversial Armed Forces Special Act, the Guwahati
High Court has authorised the state of Manipur to act on the report of the one man
commission in the alleged rape and killing of Manorama Devi by the Armed Force
in 2004. Sixed years after Manipur erupted with the defining image of anger
against killing and resistance to the armed force Act this judgement should be
crucial in understanding this act is meant to aid civil power and not to substitute it.
The AFSP Act grants extra ordinary powers to the military, including the power to
detain persons, used of lethal force38 and enter and search premises without
warrant. The Act grants the following power to39 military officers, including any
commissioned office and other of equivalent in the military forces.
The provision of the Act have been reportedly continued to be routinely applied in
practice. The overall practical effect of the Act has been the Defacto militarisation
of Manipur. Even the proponents of the Act have acknowledged the general
administration in Manipur is wholly dependent on the security forces.40
Action taken pursuant to the Act reportedly led to 260 killings in 2009 alone.41 The
military also widely used its power to detain persons. As held in the number of
judgement, those arrested pursuant to the Act remained in the military custody
without being brought before judge for a prolonged period of time.42 Several cases
court found that person who has been arrested by military under the Act
38 Section 4 of the AFSPA Act.
39 Section 4 (a) of the AFSPA Act.40 A Kamboj Manipuri and Armed Forces (Special Power) Act 1958, in 28 strategic analysis
(2004),at 618.
41 Interview with K.S Subramaniam, a retired I.P.S officer, in the Times of India (21 Dec 2009).42 CLAHRO V. PL Kukrety,(1988) 2GLR 137; Bacha Bora V. State of Assam, (1991) 2GLR
49.Page | 25
disappeared subsequently,43 which suggest that they have become victims of
enforced disappearances.
AFSPA in Nagaland
The inhabitants of the Naga Hills, which extended across the Indo-Burmese border,
came together under the single banner of Naga National Council (NNC), aspiring
for common homeland and self-governance. In 1929, the NNC petition the Simon
Commission, the Nagas Leaders were against the Indian rule over the people since
India got independence. Mahatma Gandhi publicly announced that the Nagas have
right to be independent as he believe in non-violence.
Under the Hydari Agreement signed between NNC and British Administration,
Nagaland was granted protection status for ten years, after which Nagas would
decide whether they should stay Union or not. However, shortly after the British
withdrew, independent India proclaimed the Naga territory as part of India
Republic.
The NNC proclaimed Nagaland’s independence. In relation, Indian authorities
arrested the Nagas Leaders. An armed struggled ensued and there were large
causalities on the other side. The Armed Force Special Power Act is the product of
this tension.
In 1975, some Nagas leaders held talk with the Goverment of India which result in
what is known as the Shillong Accord. The Nagas Leaders who did not agree with
the Shillong Accord formed the National Socialist Council of Nagaland (NSCN)
and continued to fight for what they call “naga sovereignty.”
AFSPA in Mizoram
In the Lushai hills in early sixties a famine broke out .A relief team cried out for
help from the Goverment of India. The relief team organised themselves into Mizo
43 Nungshitombi V. CM of Manipur, (1982), 1GLR 756.Page | 26
National Front (MNF) and called for armed struggled “to liberate Mizoram from
Colonialism.”In Feb. 1996 armed militant group captured the town of Aizawl and
took possession on all Goverment Offices. It took about one week to recapture the
town. The Army responded viciously with air raids. This is the only place where
the Indian Security Force bombed its owned civilians.
The Armed Forces compelled people to leave their homes and dumped them on the
road sides to set up new villages, so that the armed forces could be able to control
them better. In 1986, the Mizo Accord was signed between the MNF and the
Goverment of India. The MNF agreed to work with the Indian Constitution and to
renounce violence.
The Government of India primary interested in the North-East was strategic and so
was it response to problems. A series of repressive laws were passed by the
Goverment of India in order to deal with the uprising.
However, the AFSP Act is essentially an emergency legislation and therefore, by
definition, its, temporal scope of application should be limited and clearly defined.
The prolonged application of emergency legislation sustains, reinforces or even
creates the exceptional state that may justify emergencies, and has therefore
become the cause rather than the effect of the prevailing situation. Unsurprisingly,
the Act, that is the most visible legal manifestation of this undeclared state of
emergency, has been repeatedly condemned by various UN treaty bodies.
Situation in J&K
AFSPA, after its enactment in 1958 in north-eastern states was later extended to
the state of Jammu and Kashmir in 1990.
As already mentioned under AFSPA, security forces are given unrestricted powers,
once an area is declared disturbed, to carry out their operations; shoot, arrest and
Page | 27
search in the name of ‘aiding civil power’ and ‘maintain civil order’. These powers
also provide unaccountability, since the security personnel are protected from
prosecution and legal proceedings for their actions until the Central Government
sanctions its approval.44
This legal immunity provided to these security personnel has had an opposite
effect on the common population of the state. The present Kashmir crisis is not
between militants and the forces, but has escalated to the present stage because of
unarmed civilians being hit by state-controlled bullets. The state police have also
been engaged in these moves, which has led the death toll in the Valley cross 100
last summers. One has no objection to AFSPA, granted that it is adhered to strictly,
is not abused and is not used by those not linked with army to target civilians
needlessly. Here, it may be pointed out that the army and police fall under two
different departments. So it needs to be scrutinized carefully, whether some
communication error has also led the J&K police assume that they also have the
authority under AFSPA to shoot as and when they sense a risk. Are they also
guaranteed legal immunity? Besides, one may draw attention to it be clearly laid
out that the army officers are granted legal immunity if and when they take action
in keeping with the AFSPA dictates. In other words, they are not above legal
immunity if they abuse and/or violate AFSPA by taking action not permitted by
it.45
The atrocities towards the common people, particularly against women by the
army personnel started soon after the AFSPA Act of 1990. I would like to quote an
instance of the early 90’s. In 1991, a remote village called Kunan Pashpora in
44 Singh, Ranbir and Kannibaran,Kalpana. “Changing the rule(s) of law: colonialism,
criminology, and human rights in India.” Sage Publications India Pvt. Ltd. p.248. Print.45 Suhrawardy, Nilofar. “AFSPA and Kashmir Crisis”. The Milli Gazette. 1 Oct 2010. Print.
Page | 28
Kashmir witnessed an all night terror raid on women, where some 30 women of the
village were raped. Kunan Pashpora has come to symbolize sexual violence against
Kashmiri women and therefore caught the attention of National and International
media. A two member women’s team including Amiya Rao, a senior and well
respected civil rights activist, visited Kashmir and demanded an enquiry into the
rapes at Kunan Pashpora. The Press Council of India sent an enquiry team, headed
by a respected male journalist B.G Verghese who had a good record of supporting
civil rights. Alas, when the report was made public he exonerated the army,
arguing that the allegations were fabricated and motivated in order to ‘defame’ the
army. The nation and the army became synonymous- the version of the army was
the version of the press and the sexual violence against women counted for little.46
Going further, one has no objection to AFSPA being strictly adhered to during
encounters with militants, any person or group being engaged in any action that is
considered as contravention of law and/or dangerous to the security of the region.
At this point, one is forced to recall the instance of Tufail Mattoo , the young
student who was killed on June 11. He was killed by a bullet from police. What
was his fault? Now, would it be fair to assume that police responsible for his death
should be guaranteed legal immunity? Even if his death had occurred from an army
officer’s fire, from what angle would the army officer have been allowed legal
immunity for this action? Tufail was not engaged in any activity that may be
considered as violation of the national law. Neither any army officer nor police
officer can be given legal immunity in case of Tufail’s death strictly in keeping
with dictates laid out by AFSPA. Tufail is not the only Kashmiri civilian who has
fallen victim to state-controlled bullets in recent weeks for no fault of his and for
46 Singh, Kumar Ujjwal. “Human rights and peace: ideas, laws, institutions and
movements”.Sage Publications India Pvt. Ltd. p66. Print.Page | 29
reasons that do not suggest violation of the national law. Should this be allowed to
continue? Against this backdrop, Kashmiris’ anger seems fairly justified. Scores of
deaths have taken place when mourners were taking dead bodies for funeral
services on different occasions. The pent-up anger and agitation was displayed by
these mourners, at times, by shouting slogans. But give a thought, those were not
staged funeral ceremonies. Think of the grievance of people participating in the
same, reflecting on what were they heading for and angry at an innocent youth
being targeted needlessly. Should they have stayed back and not performed the
funeral services? Risking bullets and their lives, they were only playing a socially
responsible role. Perhaps, it is essential for the concerned authorities to clarify
whether such funeral services are viewed as violation of law and can army/police
officers shoot at the mourners in keeping with AFSPA.47
The presence of conflict enterprise in Kashmir is an old story. All the actors have
developed a deep vested interest in the continuation of the ugly conflict. While
everybody involved wants to have his pound of flesh, the common man suffers
endlessly. The diplomatic cables of American diplomats leaked by Wikileaks have
fully exposed the antics of all those involved in the messy situation of Kashmir;
hardly anybody has been left unscathed. Some security officials seek repeated
postings in the valley, what is there so lucrative in conflict-ridden Kashmir?
WikiLeaks solves the puzzle. “Security officers bribe their way into Kashmir
assignments that give access to lucrative civil affairs and logistics contracts.”
Earlier, the forces were involved in organizing ‘Bharat Darshan’ for students and
supplying commuters and furniture to the schools. From this year onwards, the
army has started organizing cricket tournaments in a big way. No harm if through
Sadbhavana operations it can win the hearts and minds of the local people.
47 Suhrawardy, Nilofar. “AFSPA and Kashmir Crisis”. The Milli Gazette. 1 Oct 2010. Print.Page | 30
However, wining hearts and minds amidst continued human rights violations is
impossible. Sadbhavana operations in theory might be a commendable thought; in
practice it has proved to be a goldmine of corruption. Nowadays, the army is busy
in ‘Awami Mulaqat’. Senior commanders, like politicians, address public
gatherings with the civilian bureaucracy in tow. This not only impinges upon the
role of the civilian government, through these shortcuts everlasting peace can
never prevail. What prevails is an eerie calm, described as ‘armed peace’ in
Kashmir.48
CHAPTER – 5
CONCLUSION AND SUGGESTIONS
This research project deals with the responsibility of a sovereign state, that is, the
extent to which states fulfill their requirement to provide political goods and
services to their citizens. By utilizing indicators grouped under the following
classifications: Governance; Corruption; Economic; and Social Wellbeing it is
possible to locate states on a continuum of state strength, based on state
responsibility, from strong through weak to fail. By adopting the concept of state
responsibility as the basis for defining the success or failure of states, it is
necessary to recognise that this has implications for the current conceptions of
sovereignty based on the classical conceptions of authority.