Consequential Omission

Consequential Omission
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In a response to an RTI, the Home Department of Jammu and Kashmir has revealed that “rules and Standard Operating Procedures (SOP’s) have not been applied when taking recourse to this Act. It may be noted that the PSA traces its beginnings, especially in terms of its application, to the late 1970’s in Kashmir. In some senses, this is a startling revelation given the rather vigorous use of the Act by the administration. By its very nature, the Act makes it difficult to argue against given the very ambiguity that inheres in its nomenclature and perhaps its content(s). As such, these very features of the Act make it rather easy for the administration to employ it. However, the very fact those employing it have been remiss in terms of the absence of the SOP and what may be called “rules of engagement” is startling. These aspects and, to repeat, features of the Act render the Act open to flagrant use. This startling facet of the Act comes in the backdrop of the Governor of Jammu and Kashmir, making a pitch for peace. If and when there is a glaring lacuna in the very premises and application of law in Kashmir, any pitches or pleas are rendered academic and even infructuous. If, for example, there are no clear rules, guidelines and SOP’s in terms of the application of the said Act, then the Act itself becomes controversial, among other things. But, in a way, all this is beside the point. In reality, the Act should not exist in Kashmir. This assertion, given the conflict in Kashmir, might sound startling to some but as one Chinese philosopher has stated and implied that law(s) and recourse to these is only needed when something is amiss. In a “normal” society, laws and ethics are so internalized by the people that adherence to these becomes normative; but, Kashmir is not normal. It is riven by conflict. The response to this conflictual condition by powers that be has been to construct, devise and apply stringent and tough legal artifices and edifices. But, this is short sighted and has not really worked in the context of Kashmir. Instead of these laws, a more prudent approach would be to devise a conflict resolution paradigm that redounds to the benefit of all. There then would accrue gain without pain- a prospect that would negative the needs for these stringent laws and lead to peace, within and without.

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