The ministry of external affairs has put out a strongly worded statement in response to the report on Jammu and Kashmir published by the Office of the United Nations High Commissioner for Human Rights. The report, the first of its kind by the United Nations, looks into human rights violations in the region between June 2016 and April 2018 and calls for an international probe. According to the ministry, it is “fallacious, tendentious and motivated”. It also questioned the “intent in bringing out such a report”.
Since India did not allow the international watchdog unconditional access to Kashmir, the report, by its own admission, “largely draws on information that is mostly available in the public domain”. Some of the information was obtained through right to information applications, which means it is the government’s own data. Other material was gathered from reports by national and international non-governmental organisations and human rights defenders, most of which is also in the public domain. Besides, almost all incidents have been reported in the national or local Kashmiri press.
Given the circumstances, it must be asked which parts of the United Nations report the government finds fallacious.
‘Unlawful laws, excessive force, curbs on free speech’
The United Nations report has several broad charges against the Indian government and security forces.
First, it points to the lack of access to justice for the people of Jammu and Kashmir and the virtual impunity granted to the armed forces operating in the state. The substance of this charge is the Armed Forces (Special Powers) Act, 1990, brought into being especially to tackle militancy in Kashmir. The provisions of the act, widely available online, are no secret. It is known that armed forces are empowered to open fire in order to ensure the “maintenance of public order” in a disturbed area. It is also known that forces acting in the “line of duty” in disturbed areas cannot be prosecuted in civilian courts unless the Centre gives permission.
Early this year, it was reported that the Centre had not given sanction for any one of the 50 cases referred to it. This was revealed by the defence ministry itself. The United Nations report also takes note of the Supreme Court’s 2005 observation that the law had become a “symbol of oppression, an object of hate”. It mentions various government-appointed committees that recommend repealing the law.
Second, the United Nations report claims military courts and tribunal impede the course of justice. While army officers claim military courts are open to the public, the processes involved are less than transparent. The United Nations cites the Machil case, where the life sentences awarded by a military court to five army men for extrajudicial killings were suspended by the Armed Forces Tribunal. Not only was this development widely reported, the struggles of the victims’ families, who did the rounds of the military court and continue to fight for justice in civil courts, have also been recorded.
The United Nations report also seems to refer to the famous Pathribal case, where the court gave the armed forces the option to prosecute the accused soldiers in military courts. The army subsequently gave itself a clean chit in the case, involving an alleged staged encounter. The United Nations report mentions that the Border Security Forces used this precedent to clear itself of charges in the killing of Zahid Farooq Sheikh. The BSF’s acquittal of its commandant was reported in the Kashmiri media.
Third, the United Nations report takes up the Public Safety Act, a preventive detention law originally introduced for timber smugglers in 1978 and subsequently used to keep alleged troublemakers out of circulation. The provisions of the law, once again, are no secret. Neither is the fact that it is used against juveniles. The Indian press has also criticised the act, claiming it has been used as a political weapon. Right To Information applications, reported in the press, also revealed that there were no rules or procedures for detention under the Public Safety Act. The Supreme Court itself has called it “ a lawless law”.
Fourth, the United Nations report claims the use of excessive force against civilians. The number of protestors killed in 2016 varies according to the source. The government figures are lower than those of civil society organisations and media reports. Reports keeping a tally of the killings that summer will testify that there were over 90 casualties. The lack of inquiries on civilian deaths and the allegations of civilians being targeted during gunfights between militants and security forces have frequently cropped up in reports. The report also flags the civilian killings in Shopian in January and in April 2018, where residents refuted the army version. It also records widely reported gun battles that took place on April 1, extracting a heavy toll and giving rise to days of protest.
Fifth, the United Nations report files away several well-recorded incidents as “torture”. This includes the death of a lecturer in an army raid in South Kashmir in 2016 and an army major’s use of a Kashmiri civilian as a “human shield”, both of which led to widespread outrage in the Kashmir Valley. The injuries suffered by a daily labourer, Nasrullah Khan, after he was detained at an army camp and the disappearance of Manzoor Ahmad Khan, who was held with him, has been reported by this publication and several other dailies. It was also reported that the government had set up a special investigation team to probe Manzoor Ahmad Khan’s disappearance.
Other charges, such as the use of 12-gauge pellet-firing shotguns and the devastating effects they have had on the bodies and minds of the Valley’s youth, and the death of Riyaz Ahmad Shah, pumped with more than 300 pellets at close quarters in 2016, are now common knowledge, both in Kashmir and outside. So are the curbs on free speech, including internet shutdowns, the suspension of local dailies in 2016 and the blocking of mobile phone networks during the protests that year. The closing of schools for months during the 2016 unrest, the arson attacks on several school buildings – though it remains a mystery who was behind them – and the occupation of such buildings by security forces are filed away as violations of the right to education. The attacks on ambulances and hospitals are recorded as violations of the right to health.
Speaking of the crackdown on journalists and human rights defenders, the United Nations report touches on the well-known arrest of photojournalist Kamran Yousuf and the detention of activist Khurram Parvez under the Public Safety Act, both of which were criticised in the Indian press.
On the old charge of sexual violence by armed forces, the United Nations report cautiously says it could not verify any of the fresh allegations made during the period under review. But it does mention developments in the 1991 Kunan Poshpora case, where security forces allegedly committed mass rapes in two Kashmiri villages. It also takes note of violence by militant organisations. Then there is a section, albeit shorter, on violations and lapses in Pakistan-occupied-Kashmir.
None of this is news. By rejecting the report, the ministry of external affairs discounts facts and observations made primarily by the domestic press, by Indian courts and commissions, by government-appointed committees.
Indeed, its rejoinder seemed to concentrate on the terms used by the United Nations rather than the substance of the report – it objected to the use of “Azad Jammu and Kashmir” and Gilgit Baltistan to describe territories on the other side of the Line of Control and to the phrase “armed groups” for what it calls “terrorist entities”. The description of the human shield incident as one of “torture”, when the soldier concerned was commended by the army and government, would not have gone down well either.
But look beyond the terms and the report mostly echoes suggestions made by individuals and institutions within India’s democratic polity: respect obligations to international human rights treaties, repeal the Armed Forces Special Powers Act, institute an impartial probe into civilian killings in Kashmir, investigate all the deaths that have occurred during security operations according guidelines laid down by the Supreme Court of India, investigate all cases of abuses committed by armed groups, provide reparations to those injured during security operations, investigate cases of sexual violence, modify Indian laws to bring them up to par with international human rights standards and so on. These measures should come naturally to India, without the prompting of an external party.
Only the last suggestion has been an idea that the Indian state has abandoned for decades now and few within the country will articulate: respect the right of self-determination of the people of Kashmir. Other than this and the demand for an international probe, the Indian establishment should have no problem in addressing the concerns that are not only doable but need to be handled with more than a measure of urgency.