Inside Jammu Kashmir Law (IJKL) – Jalal Uddin Ahmed

Eighteen-year-old Bollywood actress Zaira Wasim, who starred in India’s highest-grossing movie Dangal with Amir Khan, quitted the Indian film industry on June 30 because the tinsel town is incompatible with her Islamic faith. Just inside 36 days of her divorce with Indian film industry Hindu nationalist Bharatiya Janata Party (BJP) govt scrapped Article 370 of the Indian Constitution which not only gave special status to Kashmir but also to some extent certain degrees of autonomy. Abrogation of the law seemed to be marriage as Kashmiris’ demand for independence sounds like divorce or separation. Kashmiris want exit when India forcibly want enter into union. As Zaira Wasim’s belief, national aspiration and self-determination are not compatible with the Indian Hindutva so UN mandates plebiscite for the Kashmiris.
Although in paper Kashmir enjoyed a special status, in reality it has faced one of the worst violations of human rights in the world, especially since the 1980s. With the enactment of the Armed Forces Special Powers Act (AFSPA) for Jammu and Kashmir in the 1990s, the area has been a zone of human rights abuse and commission of crimes against humanity by the Indian forces and also to some extent militant groups operating there under the auspices of the Pakistani state.
The right to kill – enforced by the judiciary
Laws such as the Armed Forces (Special Powers) Act (AFSPA) gives Indian military and paramilitary forces wide-ranging powers to search, arrest and kill, while shield¬ing army personnel accused of human rights violations from prosecution. A hall¬mark of the military presence has been the persistence of large-scale abuses against the civilian population, on a scale that meets the legal definition of crimes against humanity.[1] Zahir-ud-din, the associate editor of Greater Kashmir, a daily newspaper based in Srinagar comments, “The most condemnable thing about this is that they throw the dead bodies right outside the homes.., as if to teach the family a lesson.”[2] The custodial deaths are the biggest bone of contention between the Kashmiris and the Indian army because these afflicted families are clueless as to the fate of their loved ones, and helpless because of the incompetent legal and administrative system in India.[3]

Bollywood actress Zaira Wasim

The symmetry of the claim to total power is upheld in the affirmation of the right to kill. This right was clearly expressed and upheld in the judgment delivered by the Supreme Court of India in the case of Masooda Parveen vs. Union of India in 2007.[4] The plaintiff was the widow of Ghulam Mohi-ud-din Regoo, a Kashmiri businessman and advocate in the Jammu and Kashmir High Court. In 1998, he was arrested by the Indian army, tortured and killed in custody. His broken body was left at the front door of his house. Masooda Parveen’s petition, which asked for compensation for the wrongful death of her husband. The army’s response, also summarised in the Supreme Court judgment, is remarkable for its callousness: the best interpretation that can be applied to its version of events is that Regoo was used as a human shield.[5]
In delivering the judgment, the Indian Supreme Court basically approved the right to kill of the Indian military by claiming that “some Kashmiris have gone astray” and in such a situation “certain incidents like these are bound to happen.”[6] The court also stated since such a case was based on affidavits only, “the search for the truth is decidedly unequal and the court must therefore tilt just a little in favour of the victims.”[7]
Having proclaimed the need to ‘tilt just a little in favour of the victims’, the Supreme Court did so by finding that there was no need for the army to account for the death of Ghulam Mohiuddin Regoo in custody and that the army’s assertion that he was a militant did not require proof and that the plaintiff had failed to establish Regoo’s innocence[8]. Masooda’s petition was dismissed: ‘We have the army and police record pertaining to the incident which clearly shows that Regoo was indeed a militant and that the circumstances leading to his death were as put on record by the respondents. We thus find no merit in the petition. It is accordingly dismissed with order as to costs’[9]. She filed a review petition, but that too was dismissed.
AFSPA is only part of an arsenal of laws giving the military unlimited powers of search, arrest, seizure, destruction of houses and the right to shoot to kill to maintain public order, without civilian or judicial oversight. Similar laws, such as the Disturbed Areas Act, the Public Safety Act and anti-terrorism laws like the Terrorist and Disruptive Activities (Prevention) Act (the infamous TADA, in effect from 1985–1995) and the Prevention of Terrorism Act (POTA, in effect from 2002–2004), have also been used for detention without trial, closed trials, evidence given in police custody admissible, and so on.11 AFSPA is closely modelled on the Armed Forces (Special Powers) Ordinance promulgated by the British colonial government in 1942 to suppress the Quit India movement, a mass uprising that sought to throw off British rule through a series of popular protests. AFSPA was first used by the Indian government in 1958 to suppress the incipient Naga movement for independence and has, since then, been enforced in all the states of the northeast, Punjab and Kashmir.[10]

Other abuses

Other abuses such as rape, torture, enforced disappearances are conducted by the Indian forces as well as to some extents by militants. Militants and security forces alike have not only abused the Kashmiri women for their personal avarice but also as a means for settling religious and political differences. Innumerable cases of rape have been registered by various national as well as international human rights organizations. The army and police chiefs when questioned reply matter-of-factly that this is an expected as well as an inevitable casualty in an insurgency- situation. Dr. Ashok Bhan, the Head of Police in Srinagar, Kashmir, said, “You have to understand the psychology of the soldier. He has been away from home for 2-3 years. If he sees a young woman in a house he might try to have a chance with her”[11]. Even when in documented cases, security personnel are charge sheeted and found guilty, they are either demoted or transferred out of the state as punishment, instead of the ten year imprisonment provision in the Indian Penal Code, due to the immunity given to them. [12] However, it is interesting to note that an overwhelming number of Kashmiris firmly maintain that the militants rarely ever indulge in rape against their own women.[13]

Farooq Abdullah

Ban on political leaders in visiting Kashmir

A delegation of Indian opposition leaders, including Rahul Gandhi, which wanted to visit Kashmir Valley to take stock of the situation there after the abrogation of Article 370 provisions, was not allowed to leave Srinagar airport on 24th August by the state administration and had to return to the national capital. The development came a day after the Jammu and Kashmir government issued a statement asking political leaders not to visit the Valley as it would disturb the gradual restoration of peace and normal life. The leaders from nine political parties —Congress’ Ghulam Nabi Azad, Anand Sharma and KC Venugopal, CPI(M) leader Sitaram Yechury, Tiruchi Siva (DMK), Sharad Yadav (LJD), Dinesh Trivedi (TMC), D Raja (CPI), Majeed Menon (NCP), Manoj Jha (RJD) and D Kupendra Reddy JD(S)— who had flown to Srinagar this afternoon but returned within hours, lashed out at the government, questioning its claim of “normalcy” in the Valley.
“The government has invited me. The governor has said that I am invited. Now that I have come, they are saying you can’t come. The government is saying that everything is normal here, so if everything is normal then why are we not allowed to go in. It is surprising,” Congress leader Rahul Gandhi told reporters at the Srinagar airport. [14]
Moreover former Jammu and Kashmir chief minister Farooq Abdullah September 15 charged under the Public Safety Act (PSA) — a stringent law that enables detention without trial for two years—on a day the Supreme Court took up a petition against his “illegal detention”. The politician, 81, been charged with “disturbing public order” under the law, which means shorter detention of three months. He had so far been under “unofficial” house arrest at his home in Srinagar, which will now be designated his “jail”. Hundreds of politicians including former chief ministers Omar Abdullah (Abdullah’s son) and Peoples Democratic Party (PDP) leader and former chief minister Mehbooba Mufti were detained or arrested last month as part of the centre’s attempts to prevent trouble over its decision to end special status to Jammu and Kashmir under Article 370. Abdullah’s detention has been made official over a month later. [15]
Shah Faesal, the first bureaucrat-turned-politician from Indian-administered Kashmir has been arrested in Delhi and sent back to the region on August 14. Faesal was detained at Delhi airport as he tried to board a flight. He joins the hundreds of Kashmiri leaders who have been detained across the region. Most of the arrests were made ahead of India’s decision to revoke Kashmir’s special status last week.[16]
 

Shah Faesal

Conclusion

Despite Kashmir having a special status under the Indian constitution till 2019, it has faced major human rights violation by both the Indian security forces and in certain cases militants.  The only way such violations can be ended is if all three stakeholders in the conflict – the Kashmiris, the Indians and the Pakistanis — sit at the table and find a way forward. The most acceptable solution would be an open border, re-enactment of the special status, withdrawal of Indian security forces and bringing justice to the hundreds of thousands of Kashmiris, who have been subjected to abuses by the security forces and also militants. For these, institutions need to be developed and the Indian state must abide by the aspirations laid down in its constitution for a democratic society.

References
1. A. Agrwaal, In Search of Vanished Blood, Kathmandu, South Asia Forum for Human Rights, 2008
2. Shakti Bhatt, State Terrorism vs. Jihad in Kashmir, Journal of Contemporary Asia, Vol. 33, No.2,2003
3. Ibid
4. People’s Union for Democratic Rights (PUDR) and Public Commission on Human Rights (J and K), ‘Missing in action: a report on the judiciary, justice and army impunity in Kashmir’ (2007)
5. Life and death in the borderlands: Indian sovereignty and military impunity, Shubh Mathur, Race Class 2012 54: 33
6. Ibid
7. Masooda Parveen vs. Union of India and Ors, Writ Petition (civil)  275 of 1999
8. Supra note 5
9. Supra note 7
10. Supra note 5,8
11. Supra note 2
12. Ibid
13. Ibid
14. Press Trust of India
15. British Broadcasting Corporation
16. NDTV