aippm - Daulat Ram College Model United Nations Conference

DAULAT RAM COLLEGE
MODEL UNITED NATIONS
CONFERENCE 2015
MARCH 27th -28th 2015
BACKGROUND GUIDE
ALL INDIA POLITICAL PARTIES MEET
Letter from the Executive Board
Greetings Delegates
It gives us great honor to welcome you to the simulation of All India Political Parties Meet at DRCMUN.
The agenda for this simulation is very interesting as it makes for a good political as well as policy based
and legal debate.
The AFSPA has been under the public eye for quite some time now (with some noted media
appearances). The entire debate around this generally follows two schools of thought- one which
emphasizes the need of drastic measures to protect the state and the other which stresses on individual
rights and their effect vis-à-vis the status of the country. In such a scenario, it becomes imperative on the
part of political parties to find a middle ground. This becomes more important when we see that the states
where the act holds relevance have been a major security concern for the nation.
The background guide follows a path where we have attempted to include contradicting views in a way
that it remains logical while including contradicting views at the same time. You will be required to
connect the sections to specific cases as seen in the media and around us. Remember, AIPPM is a
consensus building body and therefore you need to the elasticity of your political affiliations in order to
even discuss a compromise.
In the session, the executive board will encourage you to speak as much as possible, as fluency, diction or
oratory skills have very little importance as opposed to the content you deliver. So just research and speak
and you are bound to make a lot of sense.
We are certain that we will be learning from you immensely and we also hope that you all will have an
equally enriching experience. In case of any queries feel free to contact us. We will try our best to answer
the questions to the best of our abilities.
Regards
Syeda Asia
Animesh Mohan
Chief Moderator
Moderator
[email protected]
[email protected]
Committee Background:
An All India Political Parties Meet is a meeting between all the political parties of the nation. Typically
called before the session of the parliament or before the introduction of a bill, the committee aims to
arrive at a consensus before the sessions began. Initially the meetings were aimed to prevent wastage of
floor time during the session of the Parliament but now they’ve moved to provide better insight into the
issues of the nation and providing a diverse viewpoint before the actual lawmaking procedure begins. The
committee normally includes participants from political parties though the moderators can invite certain
other belligerents with a non-political affiliation.
Procedural Construct:
1. This meeting will not adhere to parliamentary rules of procedure. Procedure is subject to circumstantial
change(s).
2. Members may speak in either English or Hindi. There shall be no preferential marking in terms of the
language spoken.
3. However, all documentation (written work) must be in English.
4. This meeting will function as follows:
•
•
There would be a round-robin for the presentation of the respective party (with each member
getting 90 seconds) stands along with a questions which would be discussed after the
presentation.
Three motions would be considered during the committee that will be taken on the discretion of
the chair. They are:
(i) Moderated Caucus (Both Public and Private)
•
Public Moderated Caucus: When committee is in public moderated caucus, each statement
released shall be enshrined in public record and hence will be subject to media critique. Media
and outside observers will be present during public sessions.
•
Private Moderated Caucus: Leaders may motion for a Private Moderated Caucus. All
exchanges in private sessions shall not be put on record and will be privileged and confidential.
Outside observers and media personnel shall not be permitted. Movement will be permitted in a
Private Moderated Caucus. The purpose of a private session is to provide a moral-free, protected
forum to consider the unsavory political realities existing in the polity of India.
(ii)
Un-moderated Caucus: This session shall be used for the negotiations and lobbying required
between political parties for consensus building in their support.
(iii)
Secret Caucus: Any two or more parties can enter into a secret caucus where they will be
allowed to have a conversation without the presence of the Executive Board, Conference Staff or
Media. The party prior to raising a motion for a secret caucus should have the consent of the parties
involved in the secret caucus under discussion.
IMPORTANT: Members cannot refer to anything that might have been said/done during the
private caucus in public debate. If this cardinal rule is violated, it may lead to suspension or in
extreme cases, expulsion from the meeting.
5. Documentation for this session will be in the form of a communication to the press (in the form of
report, party letters, press release or a communique).
Introduction:
The precedence for the act comes from the British Raj when The Armed Forces Special Powers
Ordinance of 19411 which was passed to suppress the Quit India Movement. Four other ordinances were
passed on the same lines at the time of partition for Bengal, Assam, East Bengal and United Provinces.
The Naga unrest in the region resulted in the enactment of Assam Disturbed Areas Act in 1955, it was
replaced by the act in 1958. The act pursuant to Jammu and Kashmir was enacted in 1990.
Provisions:
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 to2:
•
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 over to the officer
in charge of the nearest police station with the 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
1
2
http://indianarmy.nic.in/Site/RTI/rti/MML/MML_VOLUME_3/CHAPTER__01/452.htm
http://indianarmy.nic.in/Site/RTI/rti/MML/MML_VOLUME_3/CHAPTER__03/457.htm
Disturbed Areas v/s State of Emergency:
The terminology disturbed areas is a direct interpretation from the definition of State of Emergency. As is
mentioned both in the act and the constitution.
A disturbed area is, as defined by the act itself as being a state or a part of the state in such a disturbed or
dangerous condition that use of armed forces in aid of the civil power is necessary. The notification for
such a declaration is made by the Governor, Administrator (in case of Union Territory) or the Central
Government in the Gazette. The declaration is subject to the opinion of the Governor or the
Administrator.
A state of emergency refers to a period of governance under an altered constitutional paradigm in certain
abnormal situations. The definitions for emergency are three-fold: National Emergency (Art. 352), Failure
of constitutional machinery in the State (Art. 356) and a Financial Emergency (Art. 360).
An ‘armed rebellion’ poses a threat to the security of the State as distinguished from ‘internal disturbance’
contemplated under Article 355.
When the constitution simply uses the expression ‘Proclamation of Emergency’, the reference is [Art.
366(18)] to a Proclamation of the first category, i.e. under Art. 352. The Emergency provisions in Part
XVIII of the Constitution [Arts. 352-360] have been extensively amended by the 42nd Amendment (1976)
and the 44th Amendment (1978) Acts.
An ‘Emergency’ means the existence of a condition of a condition whereby the security of India or any
part thereof is threatened by war or external aggression or armed rebellion while a disturbed area refers to
a more localized situation wherein it is left to the judgment of the state authorities.
Involuntary Disappearances:
The procedural safeguards against arbitrary arrest and detention are provided for in clauses 1 and 2 of
Article 22, are(a) No person who is arrested shall be detained in custody without being informed, as soon as may
be, of the grounds for such arrest.
(b) No such person shall be denied the right to consult, and to be defended by, a legal practitioner of
his choice.
(c) Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty- four hours of 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.
The above safeguards are not, however, available to –
(a) An enemy alien;
(b) A person arrested or detained under a law providing for preventive detention.
The Constitutional itself authorizes the Legislature to make laws providing for Preventive Detention
However there is a different interpretation for the same when it comes to the AFSPA, Section 5 in the act
stipulates:
Any person arrested and taken into custody under this Act shall be made over to the officer in charge of
the nearest police station with the least possible delay, together with a report of the circumstances
occasioning the arrest.
The terminology “least possible delay” creates a typical interpretation in the legal terms, several human
rights activists have alleged that this results in several involuntary disappearances of the arrested. While
the army and the government both deny such allegations, several human rights organizations such as
Amnesty International have raised concerns on this.
A repeated reference in this regard is made to Papa II interrogation center in Jammu and Kashmir. It was
operated by the Border Security Forces from 1989 to 1996. A lot of reference is made to this particular
center for the cases of involuntary disappearances.
State Views:
The state has maintained the usefulness and validity of the AFSPA. The argument presented in this regard
has been the need for such measures in areas with extremely sensitive security situations. Officials argue
that these measures are important considering the level of penetration in the regions. Also several office
holders have cited the lack of consensus for a possible review.
Non State Views:
The act has been criticized by Human Rights Watch as a "tool of state abuse, oppression and discrimination".
The South Asian Human Rights Documentation Centre argues that the governments' call for increased force is
part of the problem.
A report by the Institute for Defense Studies and Analysis points to multiple occurrences of violence by
security forces against civilians in Manipur since the passage of the Act. Many human rights organizations
such as Amnesty International and the Human Rights Watch (HRW) have condemned human rights abuses in
Kashmir by police such as "extra-judicial executions", "disappearances", and torture;] the "Armed Forces
Special Powers Act", which "provides impunity for human rights abuses and fuels cycles of violence. The
Armed Forces Special Powers Act (AFSPA) grants the military wide powers of arrest, the right to shoot to kill,
and to occupy or destroy property in counterinsurgency operations. Indian officials claim that troops need such
powers because the army is only deployed when national security is at serious risk from armed combatants.
Such circumstances, they say, call for extraordinary measures." Human rights organizations have also asked
Indian government to repeal the Public Safety Act, since "a detainee may be held in administrative detention
for a maximum of two years without a court order."
Activists who are working in J&K for peace and human rights include names of Madhu Kishwar, Ashima
Kaul, Ram Jethmalani, Faisal Khan, Ravi Nitesh, Swami Agnivesh, Dr. Sandeep Pandey and many others.
They all accept that people to people communication and development of new avenues are the only way for
peace, however laws like AFSPA are continuously violating human rights issues there. "What [the Indian
State] has failed to see is that such small, ethnic groups are resisting the Indian state for 55 years" says legal
activist and scholar, Babloo Loitongbom
The report states that residents believe that the provision for immunity of security forces urge them to act more
brutally. The article, however, goes on to say that repeal or withering away of the act will encourage
insurgency. Irom Chanu Sharmila also known as the "Iron Lady of Manipur" or "Mengoubi" ("the fair one")
[1] is a civil rights activist, political activist, and poet from the Indian state of Manipur. On 2 November 2000,
[2] she began a hunger strike which is still ongoing. On 2 November 2000, in Malom, a town in the Imphal
Valley of Manipur, ten civilians were shot and killed while waiting at a bus stop. The incident, known as the
"Malom Massacre" was allegedly committed by the Assam Rifles, one of the Indian Paramilitary forces
operating in the state.
In addition to this, there have been claims of disappearances by the police or the army in Kashmir by several
human rights organizations.
Santosh Hegde Commission:
A high-power commission headed by the retired Supreme Court judge, Santosh Hegde was constituted in
January 2013 to probe six encounter deaths in Manipur. The committee, comprising former Supreme
Court judge Santosh Hegde, ex-CEC J M Lyngdoh and a senior police officer, has said in its report that
the probe showed that none of the victims had any criminal records. The judicial commission set up by
the Supreme Court is trying to make the controversial Armed Forces Special Powers Act (AFSPA) more
humane, and the security forces more accountable. The committee has suggested fixing a time frame of
three months for the central government to decide whether to prosecute security personnel engaged in
extrajudicial killings or unruly behavior in insurgency-hit regions. The Commission noted that AFSPA
was an impediment to achieving peace in regions such as Jammu and Kashmir and the northeast. The
commission also said the law needs to be reviewed every six months to see whether its implementation is
actually necessary in states where it is being enforced. About Section 6 of the act, which guarantees
protection against prosecution to the armed forces, the report said: "It is not that no action can be taken at
all. Action can be taken but with prior sanction of the central government.
B P Jeevan Reddy Committee:
A committee was set up by the Prime Minister was supposed to review the AFSPA. The other members of
the Committee set up by the Prime Minister in November 2004 are Lt. Gen (Retd.) V.R. Raghavan, P.P.
Shrivastava, a former special secretary in the Union Home Ministry, Dr. S.B. Nakade, a former ViceChancellor of the Marathwada University, and senior journalist Sanjoy Hazarika. The panel turned in its report
in June 2005.
The Armed Forces (Special Powers) Act, 1958, should be repealed," it notes in its recommendations. "The Act
is too sketchy, too bald and quite inadequate in several particulars".
The report adds that the impression gathered by the Committee during the course of its work is that "the Act,
for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination
and high-handedness."
Acknowledging that the Supreme Court had upheld the constitutional validity of the Act, the Committee said
that judgment "is not an endorsement of the desirability or advisability of the Act."
The apex court may have endorsed the competence of the legislature to enact the law. But "the Court does not
it is not supposed to pronounce upon the wisdom or the necessity of such an enactment."
On this point, the Jeevan Reddy Committee's findings are clear: "It is highly desirable and advisable to repeal
the Act altogether, without, of course, losing sight of the overwhelming desire of an overwhelming majority of
the [North-East] region that the Army should remain (though the Act should go)."
It also noted that "while providing protection against civil or criminal proceedings in respect of the acts and
deeds done by [the armed] forces while carrying out the duties entrusted to them, it is equally necessary to
ensure that where they knowingly abuse or misuse their powers, they must be held accountable therefore and
must be dealt with according to the law applicable to them."
Accordingly, the Committee recommends amending the ULP Act to incorporate measures that would regulate
the already permissible conduct of armed forces personnel in areas where they are deployed to fight terrorist
activities and provide protection to ordinary citizens against possible abuse.
Rejecting the principal submission made by the armed forces in favor of continuation of the AFSPA, the
Committee pointed out that protection from legal proceedings against soldiers acting in good faith already
exists in Section 49 of the Unlawful Activities (Prevention) Act, 1967 (ULP Act).
Constitutionality:
The Indian Constitution provides for protection against arbitrary arrests as a fundamental right, these
rights are however suspended in the state of an emergency. An exception is made out in case of
preventive detentions as well.
The debate regarding the arrests has a tricky interpretation of the law in them. The case is made out that
whether an arrest made under provisions of the AFSPA can be classified in both the categories. Also any
arrest made has to undergo certain provisions by law. These provisions are meant to ensure the sanctity of
the chain of custody of evidences. A delay in handing over the individual might result in the chain of
custody being broken. This would create serious problems for the prosecution as well as the police while
determining the relevant sections of the offence.
Evidence Management and traceability are important issues in the criminal justice procedure and have to
be taken care of.
These are the issue that we hope to discuss in the simulation