Blog piece by Rekha Oleschak-Pillai

Photo Credits: Akshay Vaidya / Sreejith Karanavar (2016)

Farooq Ahmad Dar’s fate might have been different had he been a resident of some other place but Kashmir. On 9 April 2017, he was beaten and tied to the front part of a green army vehicle, a red flag placed in front of him, and a notice pinned to his chest “this is the fate that will befall stone throwers”. He was then driven around in the surrounding villages for over five hours. A so-called “human shield”, Farooq Ahmad Dar’s fate is shared by many others living or trying to live in Kashmir. What seems shocking to outsiders is reality for many Kashmiris, as human shields are just one of the many instruments of torture used by the Indian government in Kashmir.

A lot has been debated and many articles written about Kashmir. Yet, there is so much uncertainty about the situation, both from a legal and political perspective. Where does the disputed status of Kashmir arise from? What have been the legal and political developments over the past few decades in the Indian part of Kashmir? How and when did Kashmir become the highly militarised zone that it is today? What role has the Indian government played in exacerbating the situation in Kashmir? What implications do the recent changes to the legal status of Kashmir hold? These are huge questions for which there are no simple answers.

One might ask the question, why would one want to write something in this complex maze of questions. The simple answer is, one has a responsibility to seek the truth and to acknowledge the truth. When facts are so overwhelmingly convincing, it is not only irresponsible but also gross negligence to overlook these. I write as a concerned academic and as a concerned human being living as part of a collective humanity. To quote Hannah Arendt, “… no moral, individual and personal standards of conduct will ever be able to excuse us from collective responsibility. This vicarious responsibility for things we have not done, this taking upon ourselves the consequences for things we are entirely innocent of, is the price we pay for the fact that we live our lives not by ourselves but among our fellow men…”.[1]

To tackle just a tiny fragment and to bring clarity to how the situation looks from a human rights perspective, especially given the dogmatic positions that are being taken by the Indian government and to a large extent, mainstream media, this four-part series on Constitutional Blawg will examine Kashmir from an international law perspective. In this first part, I intend to summarise the main findings of the United Nations Report of 2019[2], in order to highlight the massive human rights violations that have been perpetrated by the Indian government in Kashmir over decades and are still being perpetrated.

The use of torture by the Indian Armed Forces and paramilitary groups as an instrument to break the will of the people will be the focus of the second part.

In the third part, I will point out the international obligations that India is subject to, those treaties which it has not signed or ratified and finally examine those international obligations arising out of customary international law, to which every country is bound to, regardless of whether it has signed up to a particular international treaty or not.

In the fourth part, I will examine the legal and constitutional issues associated with the Armed Forces Special Powers Act, which basically allows the Indian armed forces and paramilitary operatives to operate with no accountability and absolute impunity in Kashmir.

Part I: Human Rights Violations in Kashmir

The Human Rights Council began its 42^ndsession last week, 9 September 2019, in Geneva with an opening statement by Michelle Bachelet, the UN High Commissioner for Human Rights. While paying emphasis to the issue of climate change in her opening statement, Bachelet also referred to current human rights challenges in various countries including the situation in Kashmir. She called upon the Governments of India and Pakistan to respect and protect human rights and the Indian Government to ease lockdowns or curfews, ensure people’s access to basic services and respect of due process rights for all those who have been detained. Following this, the governments of India and Pakistan have been accusing each other of human rights violations, of violation of sovereignty and talking of interference into internal matters. Neither country is willing to own its failure to respect, protect and fulfil human rights. India especially seems to have forgotten that the Universal Declaration of Human Rights and several other international conventions apply to India and that human rights are no longer a purely “domestic matter”. This, notwithstanding that it is quite debatable if Kashmir can ever be termed a purely “domestic matter”, given the international treaty (Instrument of Accession) that applies, the disputes between India and Pakistan and last but not least, the ambiguous nature of the long-standing status of Kashmir.

This is not the first time that the United Nations bodies have been calling upon the respective governments of India and Pakistan to desist from carrying out human rights violations and to respect, protect and fulfil human rights and the use of human shields, like the case of Farooq Ahmad Dar, is just one of the several methods of torture used by the Indian military and paramilitary forces in Kashmir, which has been well-documented in reports of the United Nations and several NGOs.

In the following paragraphs I will outline the main findings of the second UN Report on the Situation of Human Rights in Kashmir and will focus only on the situation in Indian-administered Kashmir. This mainly because of the intensity of political developments over the last few months in Indian-administered Kashmir. The first glaring point that strikes out when reading the report is the lack of access to independent fact-finding by the United Nations.[3]Neither India nor Pakistan, found it necessary to allow the United Nations representatives to access areas in Kashmir. Thus, since the UN is not allowed to assess the situation on the ground directly the second report was based on information from third sources.

Before going into the report, it is important to highlight one of the underlying and fundamental principles of human rights law, that all human beings are born free and equal in dignity and rights. This means that in any situation a human being retains his rights, therefore, it is upon the state to justify, why in a certain situation, a violation of the inherent right is carried out and the reasons for this. As we shall see in the following paragraphs the use of force in Kashmir is indiscriminate, disproportional and carried out without any regard to the inherent rights of the people in Kashmir.

Lack of investigations into killings of civilians:Between 2008 and 2018, 1’081 civilians were reportedly killed by security forces extrajudicially. Extrajudicial killing means killing a person without this having been sanctioned by a court of law after criminal proceedings with due process. Of the 160 civilians killed in 2018, almost half have been killed by the Indian army. Despite this high number, there has been no investigation into civilian killings and no information about investigations that were started in 2016 into civilian killings is available. In the first three months of 2019 alone, 21 persons are reported to have been killed, including by the Indian army, other armed groups, as well as firing from Pakistan’s line of control.

Use of techniques that lead to widespread injuries: Hiba Jan was a 20-month-old baby, when she was hit by pellets fired from a 12-gauge pump action shotgun. The Indian security forces use these shot guns to fire metal pellets, which reportedly spew 600 metal shards at high velocity at a time, even though these are known to cause grave injuries, including blindness. Between 2016 and 2018, 1’253 persons have been blinded by the use of these pellet guns. According to one report[4], the Central Reserve Police Force (CRPF) informed a court in 2016 that 1.3 million pellets were fired within 32 days. While India claims that these shot guns are not lethal, fact is, that at short range, these are lethal.

Cordon and Search Operations: Used widely in Kashmir in the 1990s and then reintroduced again in 2017, cordon and search operations involve cordoning off an area and then searching either for weapons or for people. According to national and international human rights organisation, cordon and search operations enable a wide range of human rights violations, including physical intimidation and assault, invasion of privacy, arbitrary and unlawful detention, collective punishment and destruction of private property. During the 1990s, most extrajudicial killings were carried out during cordon and search operations.

Arbitrary Detention:Authorities use arbitrary detention to target protesters, political dissidents and other civil society actors. For non-lawyers, arbitrary detention is where the detaining authorities (police, security forces) do not provide the reasons for detention and access to a magistrate or a judge within 24 hours of arrest (which is normal procedure) is not guaranteed. Arbitrary detention can be used not only as a means to stifle protests and political dissent, but also to intimidate future protestors and political dissenters. The legal basis for detention is provided by the Kashmir Public Safety Act (PSA) 1978, which does not allow for judicial review of detentions. People have been kept under continuous detention by issuing consecutive detention orders, even though this practice has been criticised by the High Court of Jammu and Kashmir. Despite the Supreme Court of India having denoted the system of administrative detention and legislation as “lawless law” as early as 1982[5], the law continues to be in use.

That’s not all, the PSA was amended in July 2018 in order to allow detainees (permanent residents of Kashmir) to be removed to other parts of India, a very convenient way to get rid of political dissidents. In 2018, 40 persons, mostly political opponents were removed to other parts of India. Not only does this have wide-ranging consequences for the families of the detainees, this also has consequences for legal representation and access to courts, as lawyers working in Kashmir will not be able to travel easily to where the detainees are being kept. Legally dubious is the appeal process, where only a PSA Advisory Board reviews detention and approves of a record of 99% of the detentions. The Jammu and Kashmir High Court has however reversed over 81% of these detention orders. Earlier, the Advisory Board required consultation with the Chief Justice of the High Court, the law’s checks and balances have been further weakened by an amendment which removes the need for such consultation.

Restrictions on freedom of expression, censorship and attacks on press freedom: As has been widely reported after the events of 5^thAugust 2019, internet shutdowns, censorships and attacks on press freedoms have been continuously part of the Indian government’s modus operandi in Kashmir. According to a United Nations Educational, Scientific and Cultural Organization (UNESCO) report[6], South Asia reported the highest number of internet shutdowns in the world between April 2017 and May 2018 with India accounting for the highest level of shutdowns in the world. Of these internet shutdowns, half were reported in the Kashmir Valley. Accounts of journalists and activists on social media have been either restricted or deleted for Kashmir related posts. Deaths and detention of journalists take place on a very high rate. In addition to several restrictions that Kashmiri journalists face, foreign journalists are increasingly being refused access to Kashmir by denial of visas and permission to enter so-called “restricted areas”. The UN report highlights also violations on the right to peaceful assembly and associations as well as details the use of torture in the Kashmir Valley, which will be taken up in the next part of this series.

To sum it up, the UN Report makes for very grim reading, from wide ranging violations of fundamental and human rights to absolute impunity for actors of the state carrying out these violations, it is hard to envisage a future where there is peace in the Kashmir Valley. The government of India is engaged in egregious violation of human rights guaranteed under international law and fundamental rights guaranteed under the Indian constitution.

To be continued.

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[1]Hannah Arendt, Collective Responsibility, in “Responsibility and Judgement”, Schocken Books New York, 147-158 (1968).

[2]Office of the United Nations High Commissioner for Human Rights, Update of the Situation of Human Rights in Indian-Administered Kashmir and Pakistan-Administered Kashmir from May 2018 to April 2019, 8 July 2019, https://www.ohchr.org/Documents/Countries/IN/KashmirUpdateReport_8July2019.pdf.

[3]The first report by the Office of United Nations High Commissioner for Human Rights (OCHCR) was released in June 2018, subsequently in September 2018, the High Commissioner stated that no meaningful improvements or even serious discussions on how to address the findings were taken by either India or Pakistan.

[4]France 24, Indian pellet guns in Kashmir kill, blind and enrage, 30 November 2018, https://www.france24.com/en/20181130-indian-pellet-guns-kashmir-kill-blind-enrage

[5]Supreme Court of India, Jaya Mala v. Home Secretary, Government of Jammu & Kashmir (29 July 1982). Available from https://indiankanoon.org/doc/203168/.

[6]UNESCO, “Clampdowns and Courage: South Asia Press Freedom Report 2017-2018”, 11 May 2018, p. 32.