The Doctrine of State

Yashwant Sinha

(The Doctrine of State cannot override the Doctrine of Human Rights!)

Mr Yashwant Sinha former Foreign Minister in an interview on NDTV disclosed that a senior Government Officer had informed him that Delhi is following the “Doctrine of State” in Kashmir. According to him, as part of this doctrine the government is going all out in elimination of any rebellion whatsoever in Kashmir. In fact, in the same interview when asked if India was losing Kashmir, he replied that the question of losing does not arise as India has already lost Kashmir and it is being held by dent of the Armed Forces!

“The act-of-state doctrine or foreign act of state doctrine is a principle in English and United States law which states that every sovereign state is bound to respect the independence of every other sovereign state, and the courts will not sit in judgment of another government’s acts done within its own territory”.“The doctrine of state is usually coupled with the doctrine of sovereign immunity. Sovereign immunity, or crown immunity, is a legaldoctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts”. Well, in case of Kashmir, the crown immunity has been replaced by AFSPA (Armed Forces Special Powers Act)! This act gives total immunity to the security forces from any prosecution for all their acts undertaken by them in dealing with what are called ant-national elements. It would be interesting to reproduce some parts of the Act.

The Act is called, “The Armed Forces (Jammu & Kashmir) Special Powers Act, 1990 No. 21 of 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”. The Act empowers the Governor or the Central Government to declare any area as disturbed even though Law and Order is a State Subject

The Act further authorises any Commissioned Officer, Non-Commissioned Officer, and Warrant Officer or any other officer of equivalent rank in Armed Forces to use force even causing death, destroy a dwelling, search any dwelling without warrant, and arrest any person without warrant. He is also authorised to search and seize any vehicle suspected to be used for unlawful activities. The power to search includes power to break open any door, lock, almirah or any other box or so if the key for the same is withheld. In brief, the security forces have total powers to act as they like if they suspect any “anti-national” activity.

There is absolutely no legal protection or remedy to the aggrieved! The article 7 of the Act reads, “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”. This is the most totalitarian clause giving indemnity to one and all in security forces doing whatever they feel to do in the so called “National Interest”! How does one know what is “Good Faith” and how one can judge whether a person has truly acted in “Good Faith” as his actions are not allowed to be adjudicated! There is nowhere in the world such a draconian legislation! It is more than the doctrine of sovereignty!

As stated by Mr. Yashwant Sinha, the government may be applying the doctrine of state coupled with the doctrine of sovereign immunity but they must know that these doctrines come into direct conflict with the doctrine of human rights.Human rights are commonly understood as being those rights which are inherent in the mere fact of being human. The concept of human rights is based on the belief that every human being is entitled to enjoy her/his rights without discrimination. The Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. The Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217 A) as a common standard of achievements for all peoples and all nations. It sets out, for the first time, fundamental human rights to be universally protected.India is a signatory to the declaration as well as to Geneva Convention. One cannot claim immunity from observing the basic human rights under the doctrine of state. The observance of and honouring of these rights transcends all local or international legal regulations.

In view of these international obligations, it would be worthwhile if the government forgets all doctrines involved in suppressing people and depriving them of the right of free expression. The only doctrine which is workable in the present circumstances is the doctrine of a peaceful dialogue! Violence of any kind from any side has never solved any problem. Rather the violence only compounds the problems and makes the solution more difficult. The most ideal and a practical way is to end suppression of all kinds including witch hunting of the youth involving lot of collateral damage. There should be an offer of an unconditional dialogue to all the stake holders. It is only through an open and unconditional dialogue that a final solution will emerge. The alternative is unthinkable as it would not only bleed Kashmir to death but would take down with it both the neighbours!

Mohammad Ashraf I.A.S. (Retired), Former Director General Tourism, Jammu & Kashmir


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