ARTICLE 370 AND HUMAN RIGHTS IN JAMMU AND KASHMIR

Authors:

Shrey Goyal, NLUJAA

Parul Agarwal, GNLU

Sakshi Mehta, OP Jindal Global University


Editor:

Meghaa G., TNNLU


The Pre-Abrogation Status:

The continuing conflict between India and Pakistan has led to major human rights violations in Jammu and Kashmir (Henceforth J&K), ever since the Instrument of Accession was signed, perhaps even earlier. This region has witnessed bloodbath and ethnic cleansing for decades. From mass killings, arbitrary arrests, forced vanishings, torment, rape, torture, extrajudicial executions and sexual abuse to suppression of freedom of speech and political domination, the region has fairly witnessed everything, which has constantly gone unpunished and investigated.[1] The lack of accountability and transparency on the part of the Government and abusive security laws make it worse for the victims and survivors to get access to proper and impartial justice.

Moreover, the Authorities in J&K regularly interrupt other rights in the form of continued curfews to curb public movement, internet shutdowns to limit people’s free expression, and the routine use of offensive weapons such as pellet-firing shotguns against the protestors to frighten and silence the already oppressed civilians. To add fuel to the fire, the Central Reserve Police Force, Indian Army, BSF have all been accused and held accountable along with the numerous militant groups for committing grave HR’s violations against the Kashmiri citizens.[2] A recent report released by OHCHR advances alarms about exploitations by the State security forces and armed groups in Indian and Pakistan seizing portions of Kashmir through extreme use of power using barricades and search procedures, even leading to deaths. [3]

Another pertinent issue can be seen in the form of atrocities on Kashmiri Pandits. All through the outbreak of militancy in the Kashmir valley, violence by majority group has explicitly taken by target the Kashmiri Pandits minority and desecrated their human rights resulting in a large number of casualties and migrations, the numbers of which are still debated.[4]

While there were many harsh violations, it cannot be said that there were no safeguards for human rights as well due to Art.370. The exclusive property rights in the area and the economic advantages all favoured the locals according to this provision, and we see a trend in local opinion that favours the presence of legislation upholding J&K special status.

The Post-Abrogation Status:

Having discussed the pre-abrogation realities in J&K, let us now focus on the post-abrogation scenario i.e. after the Indian Government, on 5th August, revoked the special status of J&K.

We increasingly observe almost no safeguards for the protection of human rights but rather a mounting disregard for these rights. Indeed, while we have observed the terrible and desperate condition of J&K was, an India without Art.370 and the autonomy and special constitutional powers of J&K, looks even worse. The United Nations Human Rights Office of the High Commissioner raised various concerns regarding this move.[5] Moreover, a huge chunk of the Indian populace, aggravated by these brazen actions, carried out massive protests against the move. Lakhs came out onto the streets to stand in solidarity with their brothers and sisters of J&K.

What does a post-abrogation J&K look like? Sure, it is now splintered and shattered from within but let’s take a closer look at the plethora of human rights that have been systematically denied to these people.

First, the fundamental question arises: How could the Centre make such a monumental decision, without the consent, deliberation and active participation of the affected people? India, which prides itself on being the largest democracy in the world, must recall what the word democracy actually entails. Even, if we were to believe the Government’s own narrative, i.e. “benefit the residents of Jammu and Kashmir” (awfully similar to the justifications of the British Imperials for their continual exploitation of India), the question remains – In a country where the rule of law is supreme and justice is to be swift, why has the Apex Court been exceptionally slow in dealing with various petitions of habeas corpus, torture, sexual violence and more in Kashmir? Thousands, including children have reportedly been arrested or detained unjustly.[6] Even members of Parliament and Ministers such as Mehbooba Mufti, Farooq and Omar Abdullah have not been spared. The State has now begun to release these prisoners (after more than six-months), but it needs to be held accountable for this widespread preventive detention

The Indian Government, seemingly afraid of any dissenting opinion, functionally cut off the Kashmir Valley from the rest of India and indeed the whole world. Relatives of Kashmiris had no way of contacting or travelling to their loved ones. In a deplorable move, the Centre even shut down internet services state-wide without impunity (for as long as five-months until January wherein the Supreme Court finally recognized the right to internet[7]). As a result, education was hampered, health services were halted, and survival became a daily task.

As if that were not enough, the regional extremist groups continued to wreak havoc, while the Indian military was busy firing pellets at protesters, as a form of extra-judicial executions.[8]

Additionally, the neighbourhood markets run by the National Agricultural Cooperative Marketing Federation of India Ltd (NAFED) highlighted the hopelessness the farmers encountered in selling their produce. The two primary reasons being the unseasonal snowfall and the menacing by the militants. For instance, post-abrogation, a few truck-drivers were shot dead by the militants, daunting other transporters from resuming work, prompting a sharp ascent in the cost of transportation.[9] Inactivity from the Centre during this cataclysmic event further catalysed the betrayal felt by the farmers and perpetuated their discernment that they were now “second-class citizens”. Several farmers before the intervention by the NAFED already sold their produce at expendable costs or simply had to watch their produce decay. Students were also severely affected by the incessant internet shutdown, making it impossible to fill online forms for exams or apply for scholarship grants or conduct research. This further perpetuated their anxiety and extinguished their dreams and hopes for a productive future.

Living with the constant fear of an incessant lockdown with your political leaders detained, your children disappearing out of nowhere, locals being shot just by conducting their business with no internet access or any connection to the outside world and constantly slammed by draconian laws stifling any dissenting opinion- is what gives a reason to not normalise the atrocities taking place in Kashmir. Draconian laws like AFSPA results in violation of human rights through its very structure and acts as a hindrance to attain justice, yet the state invocates laws like these to stifle any unpopular expression.

The Path Forward:

For better or for worse, we now invariably live in a world wherein Kashmiris no longer have even an ounce of autonomy. Moving forward, us and them certainly need to adapt to this new reality as soon as we can. Reform is still required, even without Art.370, the fundamental problems have not disappeared overnight.

We can begin with giving more seats to J&K in the Parliament to ensure equity and equal representation. Leaders, elected through thoroughly democratic elections should take up the cause of the locals nationally. The Kashmiris have been unheard for far too long.

There is also a mounting need to abolish some laws and statutes that go against the very essence of our Constitution, which envisioned a wholly different India. These include laws like Public Safety Act (PSA) and Armed Forces Special Powers Act (AFSPA) which have been repeatedly imposed to curb freedom of speech and as a gateway for the Armed forces after committing atrocious acts in Kashmir.

Furthermore, we need to pay serious attention to the youth, the future of J&K. Young children have been detained and persecuted, increasing the number of people suffering from PTSD, OCD, drug abuse and other mental health illnesses. Hence, the State should conduct mental health campaigns and make mental health aid accessible to everyone in Kashmir.

The Government should also compensate and establish educational institutions and provide internet/communication services to all. Scholarships should be granted to incentive students to actively actively participate towards the economic growth of Kashmir, while focusing on providing the youth with updated means for a better educational experience.

Conclusion:

Heads of states, countries, international organisations, NGOs, and scholars around the world have repeatedly condemned the Government’s actions in J&K and their rampant disregard for the internationally recognized human rights. From the United Nations Human Rights Council to Amnesty International, people across the globe have their eyes fixed on Kashmir. With each passing second, India cements its reputation as a human rights abuser, defying its obligations under various international charters and conventions including but not limited to the ICCPR, ICESCR, the Universal Declaration of Human Rights, etc. India is now being likened to an authoritarian regime like China, who has in the past used similar blanket crackdown measures.

Hence, the question remains – which path will India take? Will it continue down this destructive path towards a dictatorial state or will it finally listen to dissenting voices at home and abroad and perform its obligations, finally providing relief to the people of Jammu & Kashmir?

[1] "Everyone Lives in Fear" Patterns of Impunity in Jammu and Kashmir, Human Rights Watch (Sep. 12, 2006), https://www.hrw.org/report/2006/09/11/everyone-lives-fear/patterns-impunity-jammu-and-kashmir. [2] India’s secret army in Kashmir - new patterns of abuse emerge in the conflict, Human Rights Watch (May, 1996), https://www.hrw.org/reports/1996/India2.htm. [3] Update of the Situation of Human Rights in Indian-Administered Kashmir and Pakistan-Administered Kashmir from May 2018 to April 2019, OHCHR (July 8, 2019), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24799&LangID=E. [4] Aliza Noor, How, 30 Yrs. Ago, Kashmiri Pandits Became Refugees in Their Country, The Quint (Jan. 19, 2020, 12:21 PM),https://www.thequint.com/news/india/exodus-of-kashmiri-pandits-january-1990-refugees-in-their-country-valley-pain-separation-trauma-jammu-delhi-camps. [5] Rupert Colville, Press briefing note on Indian-Administered Kashmir, OHCHR, (Oct. 29, 2019), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25219&LangID=E. [6] Meenakshi Ganguly, India Failing on Kashmiri Human Rights, Human Rights Watch, (Jan. 17, 2020), https://www.hrw.org/news/2020/01/17/india-failing-kashmiri-human-rights. [7] Prabash K Dutta, Internet access a fundamental right, Supreme Court makes it official: Article 19 explained, India Today, (Jan. 10, 2020), https://www.indiatoday.in/news-analysis/story/internet-access-fundamental-right-supreme-court-makes-official-article-19-explained-1635662-2020-01-10. [8] Annual Human Rights Review 2019, Jammu Kashmir Coalition of Civil Society, (June, 2020), https://jkccs.net/annual-human-rights-review-2019-2/. [9] Jitendra, Jammu and Kashmir farmers suffering due to rain, snow and lockdown, Down to Earth (Nov. 26, 2019), https://www.downtoearth.org.in/news/agriculture/jammu-and-kashmir-farmers-suffering-due-to-rain-snow-and-lockdown-67950.

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