Written by : Dr. Ghulam Nabi Fai
Kashmir is a natural paradise, surrounded by India, Pakistan, China, Afghanistan, and with a narrow Wakhan stripe, separating it from Tajikistan and Kyrgyzstan. Compared to existing 193 countries in the world taken individually, Kashmir is larger than103 and more populous than 129. It is also more than three times the size of Belgium, the Netherlands and Luxemburg combined.
The people of Jammu & Kashmir have not forgotten that it was on April 21, 1948, that the United Nations Security Council adopted resolution # 47 which states that the future of Kashmir shall be decided by its inhabitants. There have been successive United Nations security Council resolutions that pledged to the people of Kashmir their right to self-determination. The Indian Government has barred the exercise of this right and has waged a campaign of terror against the people of Kashmir. The Kashmiris have become victims of systematic and extreme brutalities, and nothing has been done by the world powers or any organ of the United Nations including the Secretary General to permit them any relief or redress. Each time the people of Kashmir have demanded the right to self-determination, Indian authorities have responded with extreme repression.
India is a signatory to the ‘Universal Declaration of Human Rights,’ which guarantees that ‘everyone has the right to life, liberty, and security of person,’ that ‘no one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment,’ and that ‘no one shall be subjected to arbitrary arrest, detention or exile.’ These rights are being violated by the Indian army and its paramilitary forces, day in, day out.
Since 1989, the Indian Government has embarked upon a campaign of mass slaughter, rape and robbery against the people of Kashmir. It is estimated that since January 1990, more than 100,000 people have been killed in Kashmir at the hands of the Indian forces of occupation. More than 10,000 persons have involuntarily disappeared. Their wives are called “Half-widows” because no one knows whether they are dead or alive. Further, it is estimated that hundreds of Kashmiris are held as political prisoners by the government of India.
Very recently, on November 15, 2021, the killing of three innocent Kashmiris, Dr. Mudasir Gul, Altaf Butt and Mohammad Amir in Hyderpora, Srinagar, Kashmir in a fake encounter has once again shaken the conscience of the global civil society. This act of barbarism by occupation army signifies the death of so-called Indian democracy. This latest killing of innocent civilians needs a transparent investigation by a neutral outside agency, like the United Nations.
And, now the Arrest of World-renowned Human Rights Activist Khurram Parvez by NIA of India on November 21, 2021 is obviously travesty of justice. Mary Lawlor, the UN Special Rapporteur on Human Rights Defender tweeted: Khurram Parvez is not a terrorist. He is a Human Rights Defender.
India has legalized torture, arbitrary arrest, wanton destruction of property and has given its soldiers the right to kill at sight, and to conduct searches without warrant.
Here are few black laws authorized by the Government of India which clearly violate international standards.
The Jammu and Kashmir Public Safety Act (PSA). This law enables the Indian armed forces in Kashmir to detain civilians for up to one year without trial or due process for a wide variety of reasons, including the exercise of free speech. Under this law, an individual who prints pamphlets and newsletters that advocate the implementation of the United Nations resolutions calling for a plebiscite in Kashmir can also be arrested and detailed without formal charge or due process.
That is why the Amnesty International calls the Jammu and Kashmir Public Safety Act, ‘Lawless Law. In 2011, Amnesty International’s ‘Lawless Law’ report revealed that, given the political context in J&K, the PSA was used to detain, among others, political leaders, lawyers, and individuals who challenged the state through political action or peaceful dissent. The report found that the PSA provides for arbitrary detention, which violates the right to liberty under human rights law binding on India. Furthermore, the report found that state authorities also used the PSA to facilitate other human rights violations, including incommunicado detentions, torture and other cruel, inhuman or degrading treatment or punishment (other ill-treatment) in custody, and detention on vague grounds. Based on these findings, the report called on the Government of J&K to repeal the PSA, abolish the administrative detention system, either release those held under the PSA or charge them with a recognised criminal offence, and to try them in a regular court in proceedings which meet international standards of fairness.
The Terrorist and Disruptive Act (TADA). This act allows Indian forces to round up and detain citizens for up to one year without formal charges, due process of law or formal trial. When and if court hearings are held, they are held in secret. Victims are not allowed to confront their accusers, and witnesses can keep their identities secret.
The Unlawful Activities (Prevention) Act 1967 (UAPA). Under UAPA a person can be incarcerated up to 180 days without a charge sheet being filed. It does not allow right to dissent. The Amnesty International Executive Director has said that UAPA has been used to “target journalists and human rights defenders who criticize government policies.”
The National Security Act. Under this law, the Indian armed forces can detain individuals for up to one year without charges or trial to prevent them from ‘acting in a manner prejudicial to state security.’ Under his law, an individual does not even have to take a specific action to be detained. If the Indian authorities believe that he is about to do something, they can detain him without charge to prevent him from acting/.
The Armed Forces Special Powers Act (AFSPA) [Jammu and Kashmir]. This law was passed on September 10, 1990. It allows the Governor of the State of Jammu and Kashmir to unilaterally ‘declare the whole or any part f the state to be a disturbed area.’ By identifying Kashmir as a disturbed area, this act empowers the armed forces to search homes without warrant, arrest Kashmiri people without warrant, destroy entire home and villages and shoot innocent civilians in the streets with intent to kill.
The United Nations High Commissioner for Human Rights in her report issued on July8, 2019 states, “The Armed Forces (Jammu and Kashmir) Special Powers Act 1990 (AFSPA) remains a key obstacle to accountability. As described in the June 2018 OHCHR report, this Act grants broad powers to the security forces operating in Jammu and Kashmir and effectively bestows immunity on security forces from prosecution in civilian courts for their conduct, by requiring the Central Government to sanction all prospective prosecutions against such personnel.”
Justice Rajinder Sachar, former Chief Justice of Delhi High Court, during an event organized by ‘People’s Union for Civil Liberties’ on May 7, 2016, urged all to unite to pressurise the government to repeal sedition laws and Armed Forces Special Power Act (AFSPA)
Dr. Syed Nazir Gilani, President, Jammu Kashmir Council for Human Rights submitted a written statement to the UN Human Rights Council on August 30, 2019. He elaborated that there was a war going on between the people of Kashmir and the Indian Security forces. The June 2018 and July 2019 reports by OHCHR have detailed the situation. According to these reports “The Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA) grants broad powers to the security forces in Jammu and Kashmir and effectively bestows immunity on security forces from prosecution in civilian courts for their conduct, by requiring the Central Government to sanction all prospective prosecutions against such personnel”.
For any of the above actions, article 7 of the act, titled ‘protection of persons acting in good faith under this act’ holds that ‘no prosecutions, suit or other legal proceeding shall be instituted…against any person in respect to anything done or purported to be done in exercise of the powers conferred by this act. This means that any member of the armed forces who conducts the above-described human rights violations – torture, summary executions of civilians, burning down homes and villages, and arbitrary arrest – can do so with total immunity from prosecution. These draconian laws violate articles 9 and 14 of the International Covenant on Civil and Political rights (ICCPR).
Currently, two dangerous misunderstandings exist about the Kashmir issue. If allowed to continue, they can destroy the potential of peace making in the subcontinent: These are:
(a) Kashmiris have been battered into submission by Indian forces through these draconian laws.
(b) India is unbendingly opposed to giving up her occupation of Kashmir; so it is futile to bring any pressure on her.
As regards the first, one need only to recall what happened to a nation as great as France under the 5-year Nazi occupation. That so many prominent Frenchmen and sections of French society refused to offer any resistance to German forces; that men of standing like Petain and Laval collaborated with the Nazis are undeniable facts. Did they betoken even a limited popularity of the Nazis? Certainly not. All they brought out was the opportunism of a few individuals or groups and the weakness inherent in human nature when confronted with life’s necessities. The thinking runs along these lines: life is to be lived; if an overarching issue is remaining undecided, one has still to face relatively minor but pressing day-to-day matters and one has to try to tackle them. If this happened in France in four or five years of alien occupation, is it any wonder that it should happen in Kashmir after seventy-four years of unremittingly suppressive alien rule.
The second misunderstanding arises from a superficial reading of realities. It is true that successive governments in India have persistently presented a completely intransigent front on the Kashmir issue. But if no cracks are visible in that front, it is because no pressure whatsoever has been applied which would expose the realities under the surface. During the last two years or so, particularly since August 5, 2019, when Article 370 and 35A were abrogated, several articles have appeared in the international press and even in mainstream India press written by thoughtful Indians opposed to the official policy on the issue. They take their stand not on morality but realistically on India’ own long-term interest. That an unresolved Kashmir issue, the occupation of Kashmir in defiance of the people’s wishes, has damaged India’s democratic credentials and hence her standing and aspiration for an enhanced status in the United Nations is a point of emphasis in their pleadings. Only shallow thinking will regard this current of Indian opinion as inconsequential.
If world powers want to help bring about a peaceful settlement of the Kashmir dispute, it must demand from India as a first step, the immediate repeal of these black laws. The world powers and particularly, the United Nations Human Rights Council is in a position to arrest the course of brutalities by examining and exposing the situation and persuading both India and Pakistan that the way to bring peace and stability to the region of South Asia is by resolving the Kashmir dispute to the satisfaction of all parties concerned.
Dr. Fai is the Secretary General of Washington-based World Kashmir Awareness Forum.
He can be reached at: 1-202-607-6435. Or firstname.lastname@example.org