Kashmir Troubles 2010

First published on: August 1, 2010

 
It is now or never in Kashmir

“Kashmir may be conquered by the force of spiritual merit but not by the force of soldiers.” – Kalhana Pandit

So total has been the loss of hegemony of Kashmir’s elected representatives, in government and in the legislature, over the last two months, and so desperately brutal the recourse to coercive subjugation of fearless young anger on the streets of the valley, that if ever there was a time to say resistance to authority (sic) deserves to be rewarded with what it seeks, it is now. If the prospect, that is, of the secession of the valley – since other parts of the state of Jammu and Kashmir desire, contrarily, not secession but more complete integration with the union of India – were not fraught with incalculable negative consequences not just for India and Pakistan but for the inhabitants of the valley itself. 

To that I shall return. 

Just the other day the home minister of India made two significant averments in Parliament. One, that the union recognises that the accession of the state of Jammu and Kashmir was a “unique one”; and two, that apart from all else, the republic and its successive governments had failed to keep promises made to the people of Jammu and Kashmir.

 Since the time for pussyfooting about Kashmir is conclusively at an end, it would help to flesh out these two averments beyond the minister’s en passant mention.

 A unique accession

It will be recalled that the two conditions agreed upon as the signposts for India’s pre-independence princely states, as determinants of whether they would accede to India or to Pakistan were the religion of the majority within the states and the contiguity of the states to either dominion. 

In this context, the three states of Hyderabad, Junagadh and Jammu and Kashmir offered interesting paradigms. Where the first two had Muslim rulers but majority Hindu populations, Jammu and Kashmir had a Dogra-Hindu ruler but a majority Muslim population. Of the three, Jammu and Kashmir, being also contiguous to Pakistan, had the clearest case for accession to Pakistan. 

But the ruler of Kashmir, Maharaja Hari Singh, desired accession to neither of the two new countries and wished to remain independent. Having succeeded in signing what was called a “Standstill Agreement” with Pakistan, it was his hope to do the same with India. Except that the fates intervened in the shape of a precipitate invasion of the state he ruled by tribal warriors from the North-West Frontier Province of Pakistan, with that state’s active support and involvement, in late October 1947.

With next to no means of his own to meet, let alone defeat the invasion, he found himself constrained to appeal to India for military help and thus sought accession to the Indian dominion. In a letter dated October 26, 1947 addressed to the then governor general of India, Lord Mountbatten of Burma, the maharaja wrote:

“The mass infiltration of tribesmen drawn from distant areas of the North-West Frontier… cannot possibly be done without the knowledge of the provincial government of the North-West Frontier Province and the government of Pakistan. In spite of repeated requests made by my government, no attempt has been made to check these raiders or stop them from coming into my state... I have no option but to ask for help from the Indian dominion. Naturally they cannot send the help asked for by me without my state acceding to the dominion of India. I have accordingly decided to do so and I attach the Instrument of Accession for acceptance by your government.”  

This much from a Hindu ruler who was reluctant to join even a Hindu-majority India but for the fact that circumstances had forced such a decision upon him. And yet, even on acceding, the Instrument of Accession that he signed stated that the accession in no way bound him to “acceptance of any future Constitution of India” (Clause 7) and that “Nothing in this instrument affects the continuance of my sovereignty in and over this state” (Clause 8). Stipulations that to this day continue to colour the fraught history of tensions between the union and the state.

As a result, Article 306A was adopted in the Draft Constitution and in course of time became the much-talked-about Article 370 in the final Constitution of India. Most significantly, the “special status” thus accorded to the state of Jammu and Kashmir, backed by the then home minister of India, Sardar Vallabhbhai Patel (who said to the Constituent Assembly that “in view of the special problems with which the government of Jammu and Kashmir is faced, we have made a special provision for the constitutional relationship of the state with the union”), was accepted without demur also by Syama Prasad Mookerjee, a member of Jawaharlal Nehru’s cabinet who was later to become the most vociferous and disruptive voice of the Hindu right wing. We will come back to this later. 

But the best part of the “uniqueness” lay elsewhere, namely in the heroically principled declaration of allegiance to a prospectively secular and democratic Hindu-majority India by a Muslim Kashmiri leader of a Muslim-majority state, Sheikh Abdullah. 

Internally, within the princely state of Jammu and Kashmir, a popular movement for the overthrow of the maharaja’s rule had been underway for two decades before 1947, precipitated by the events of July 1931 when some 21 popular resisters were gunned down by the maharaja’s police force in front of a courthouse. The incident marked a watershed in the state’s political affairs and led to the formation of the “Muslim Conference” which came to be led by Sheikh Mohammad Abdullah, a postgraduate from the Aligarh Muslim University who was denied a teaching post in the state by the maharaja’s regime at a time when the number of educated Kashmiri Muslims could be counted on one’s fingertips. 

Within mainland India, although the Muslim League had come a cropper in the 1936 elections to the provincial assemblies (held under the Government of India Act of 1935), between that loss and 1946 the party under Mohammad Ali Jinnah made huge strides among Muslims in the states of Punjab and Bengal. It was during this time that Jinnah was to make fervent arguments to Abdullah urging that the Kashmir Muslim Conference join forces with Jinnah’s League and support the Pakistan resolution which the League had passed in 1940. 

By then Sheikh Abdullah was undisputedly the tallest leader of the valley and indeed the entire state. Remarkably however, despite the Kashmiri maharaja’s decidedly anti-Muslim regime, and though Abdullah had himself forged the “Muslim Conference”, and despite the fact that Jammu and Kashmir was a Muslim-majority state, he came to reject the two-nation communal thesis of the Muslim League and instead declared his preference for the secular-democratic struggle that the Indian National Congress under Gandhi and Nehru had been waging against colonial rule as he converted the “Muslim Conference” into the “National Conference” in 1938. This was done some nine years before the partition of India and the tribal invasion of Kashmir. 

‘What the Muslim intelligentsia in Kashmir is trying to look for is a definite and concrete stake in India’ – Sheikh Abdullah

In these years Abdullah repeatedly gave voice to his convictions. Arguing that the matter of accession could not be left to the whims and fancies of rulers but must reflect the voice of the people, he gave public expression to the popular Kashmiri view in a speech at a historic rally (some three weeks before the tribal invasion) on October 4, 1947:

 “We shall not believe in the two-nation theory which has spread so much poison [referring to the communal killings that had been underway in the Punjab and in Bengal]. Kashmir showed the light at this juncture [Gandhi was famously to say that the only light he saw amidst the darkness of communal killings was in Kashmir where not a single incident took place]. When brother kills brother in the whole of Hindustan, Kashmir raised its voice for Hindu-Muslim unity. I can assure the Hindu and Sikh minorities that as long as I am alive, their life and honour will be quite safe.”

Following the maharaja’s proclamation of March 5, 1948 announcing the formation of a popular interim government, Sheikh Abdullah took over as prime minister of the state. The very next day he told a press conference:

“We have decided to work with and die for India… We made our decision not in October last but in 1944 when we resisted the advances of Mr Jinnah. Our refusal was categorical. Ever since, the National Conference has attempted to keep the state clear of the pernicious two-nation theory while fighting the world’s worst autocracy” (The Statesman, March 7, 1948).

On December 3, he spoke at a function held by the Gandhi Memorial College in Jammu: “Kashmiris would rather die following the footsteps of Gandhiji than accept the two-nation theory. We want to link the destiny of Kashmir with India because we feel that the ideal before India and Kashmir is one and the same.” 

These ideals – secularism, democracy, an end to feudal land lordship – were the basis for the adoption of the “provisional accession of the state to India” by the National Conference in the month of October 1948. 

The betrayal

Although the accession and Article 370 of the Indian Constitution which conferred a “special status” on Jammu and Kashmir had, as stated above, received approval from both Patel and Syama Prasad Mookerjee, a new situation was to develop as the Abdullah government launched its ‘New Kashmir’ manifesto which was founded – among other extraordinarily progressive pronouncements, equal status of women in education and employment being but one – on the promise of giving land to those who tilled it. 

Thus disregarding Clause 6 of the Instrument of Accession (“Nothing in this instrument shall empower the dominion legislature to make any law for this state authorising the compulsory acquisition of land for any purpose” and should land be thus needed, “I will at their request acquire the land”), Abdullah declared a maximum land ceiling of 22.75 acres, set up a land reform committee and set about distributing surplus land thus acquired to those who were the actual tillers of the soil. Abdullah was to rub home the point that such land reforms would never have been possible in a feudal Pakistan. 

This was trouble royal. 

Most of the land was then in the possession of Hindu Dogras and most of the tillers were Muslim Kashmiris. 

Thus it came to be that the material loss of land holdings was sought to be converted into a communal question through the opposition now to Article 370 by a newly organised forum called the Praja Parishad which came to be led by the very Mookerjee who had been a willing party to the adoption of the article as a member of the union cabinet.

 According to the provisions granting “special status” to Jammu and Kashmir, the state was to have its own Constitution for which it would form its own Constituent Assembly. When elections to the Constituent Assembly took place in 1951, candidates picked by Abdullah’s National Conference won all 75 seats. The assembly met on October 31, 1951. In his address to the assembly on November 5, Abdullah outlined the major items on its agenda: 

• To frame a Constitution for the governance of Jammu and Kashmir; 
• To decide on the fate of the royal dynasty; 
• To decide whether any compensation should be paid to those who had lost their land through the Big Landed Estates Abolition Act; 
• To “declare its reasoned conclusion regarding accession”. 

Abdullah noted: “The real character of a state is revealed in its Constitution. The Indian Constitution has set before the country the goal of a secular democracy based upon justice, freedom and equality for all without distinction. This is the bedrock of modern democracy. This should meet the argument that the Muslims of Kashmir cannot have security in India where the large majority of the population are Hindus. Any unnatural cleavage between religious groups is the legacy of imperialism… The Indian Constitution has amply and finally repudiated the concept of a religious state which is a throwback to medievalism… The national movement in our state naturally gravitates towards these principles of secular democracy.”

Security forces in Kashmir: Bloodthirst unquenched

And, of Pakistan, he said:

“The most powerful argument which can be advanced in her favour is that Pakistan is a Muslim state and, a big majority of our people being Muslims, the state must accede to Pakistan. This claim of being a Muslim state is, of course, only a camouflage. It is a screen to dupe the common man so that he may not see clearly that Pakistan is a feudal state in which a clique is trying by these methods to maintain itself in power… Right-thinking men would point out that Pakistan is not an organic unity of all the Muslims in this subcontinent. It has, on the contrary, caused the dispersion of the Indian Muslims for whose benefit it was claimed to have been created [a prescient observation that is said to have been earlier voiced by Maulana Azad in an interview given to the Urdu magazine Chattan in 1946, a year before partition].” 

Abdullah considered the third option of independence (Kashmir as an “Eastern Switzerland”) and concluded as follows: 

“I would like to remind you that from August 15 (the day of Indian independence) to October 22, 1947 (when the tribal invasion began) our state was independent and the result was that our weakness was exploited by the neighbour with invasion. What is the guarantee that in future too we may not be victims of a singular aggression?” 

All this notwithstanding, the Hindu right-wing assault also began to gather force as it launched the Jan Sangh (precursor of today’s Bharatiya Janata Party, the BJP) in 1951 – the year that the Jammu and Kashmir Constituent Assembly was established. The newly formed Jan Sangh was headed by none other than Syama Prasad Mookerjee with the Rashtriya Swayamsevak Sangh lending its leaders Atal Bihari Vajpayee and LK Advani in support. 

As stated earlier, stung by the redistribution of land holdings, the Hindu right wing sought to make the terms of the accession the issue and, defying the democratic-federal principles enshrined both in the Constitution of India and in their reflection in the trust reposed therein by Abdullah, it announced a programme ostensibly aimed at strengthening national unity. At its first session the Jan Sangh called for: 

• An education system based on “Bharatiya culture” (read Hinduism); 
• The use of Hindi in schools (in the knowledge that other than Kashmiri, Urdu was the language predominantly used by educated Kashmiri Muslims. Indeed from about the first decade of the 20th century, the wholly artificial cleavage between Hindi and Urdu had begun to be deployed by communalists on either side to press their claims to “true” national allegiance);
• The denial of any special privileges to minorities;
• Full integration of Jammu and Kashmir into the Indian union.

On the other side, in letters exchanged over a period of time between Abdullah and Nehru, an agreement between the state and the union was taking shape. This contract, which came to be called the Delhi Agreement 1952, stated: 

• Commitment to Article 370; 
• That the state legislature would be empowered to confer special rights on “state subjects” (a right that had been won through the anti-maharaja struggles of 1927 and 1932 – a form of privilege restricted to permanent residents of the state in property ownership and jobs); 
• That Kashmir would have its own flag although subordinate to the union tricolour; 
• That the sadar-e-riyasat (later, the governor of the state) would be elected by the state assembly but would take office with the concurrence of the president of India; 
• That the Supreme Court of India would “for the time being” only have appellate jurisdiction in Jammu and Kashmir; 
• That an internal emergency could only be applied with the concurrence of the state legislature. 

The Hindu right wing’s riposte to this took the form of a slogan around which the Jan Sangh sought to mount its attack on the terms of accession later that year:

“Ek desh mein do vidhan,

Ek desh mein do nishan,

Ek desh mein do pradhan,

Nahin chalengein, nahin chalengein”

(We will not accept two Constitutions, two flags, two prime ministers in one and the same country).

This communalist right-wing putsch against the principles on which the state had agreed to accede to India began to find resonance within sections of the Congress party as well. Much to Nehru’s chagrin, his candidate for the first president of India, C. Rajagopalachari, was rejected in favour of Rajendra Prasad (who was soon to lock horns with Nehru on the Hindu Code Bill and go to the Somnath temple, once ravaged by Ghaznavi and other chieftains of old, to effect renovations at state expense – a move wholly in conflict with the secular foundations of the republic). 

When the Indian home minister speaks of keeping promises to the Kashmiris, these promises have a much wider ambit than the question merely of amending the vile Armed Forces (Special Powers) Act which allows even the lowest-ranking army man to shoot to kill without accountability

Other collateral tendencies also began to surface, such as bespoke scant regard on the part of the union of India for the federative principles. In his despondent letter to Maulana Azad dated July 16, 1953, Abdullah complained about the usurpations underway in contravention of the terms that had been agreed upon: 

“We the people of Kashmir regard the promises and assurances of the representatives of the government of India, such as Lord Mountbatten and Sardar Patel, as surety for the assistance rendered by us in securing the signatures of the maharaja of Kashmir on the Instrument of Accession which made it clear that the internal autonomy and sovereignty of the acceding states shall be maintained except in regard to three subjects which will be under the central government [namely Defence, Communications and External affairs].” 

And: “When the Constituent Assembly of India proceeded to frame the union Constitution, there arose before it the question of the state. Our representatives took part in the last sessions of the assembly and presented their point of view in the light of the basic principles on which the National Conference had supported the state’s accession to India. Our viewpoint drew appreciation and Article 370 of the Constitution came into being, determining our position under the new Constitution.” 

Abdullah pointed out that although it had been agreed that the “accession involves no financial obligations on the states”, such demands were being made and that “the changes effected on several occasions in the relationship between India and Kashmir greatly agitated the public opinion”. 

And on the other source of perceived menace: “A big party in India [the Jan Sangh] still forcefully demands merger of the state with India. In the state itself, the Praja Parishad is threatening to resort to direct action if the demand for the states’ complete merger with India is not conceded.” 

Abdullah’s anguish at what appeared to be gathering storms on two fronts – the subversion by the union of the terms of accession and a Hindu communalist putsch to undo Article 370 – found poignant expression in a speech he was meant to deliver to an Id gathering on August 21, 1953 (12 days after his government was dismissed and Abdullah was arrested and incarcerated). In it, he wrote: 

“[T]here is the suggestion that the accession should be finalised by a vote of the Constituent Assembly… It is the Muslims who have to decide accession with India and not the non-Muslims… The question is: must I not carry the support of the majority community with me? If I must then it becomes necessary that I should satisfy them to the same extent that a non-Muslim is satisfied that his future hopes and aspirations are safe in India. Unfortunately, apart from the disastrous effects which the pro-merger agitation in Jammu produced in Kashmir [the valley]… the Muslim middle class in Kashmir has been greatly perturbed to see that while the present relationship of the state with India has opened new opportunities for their Hindu and Sikh brothers to ameliorate their lot, they have been assigned the position of a frog in the well… What the Muslim intelligentsia in Kashmir is trying to look for is a definite and concrete stake in India” (emphasis added). 

As I mentioned earlier, the die had been cast and his great friend Nehru had him arrested on suspicion that he had been hobnobbing with the Americans to garner support for Jammu and Kashmir’s secession from the union and its declaration of independence. And though there may have been grounds for such a suspicion, no evidence has so far been forthcoming. 

But read Abdullah’s lament quoted above and hear it exactly echoed in Kashmir today, there is in it nothing more or different than what informs the frustrated Kashmiri youth who are at this minute agitating in the valley, willing to confront police bullets for their cause. 

It is another matter that long years later, in 1974, Abdullah signed an accord with Indira Gandhi, the then prime minister of India, which stipulated among other things that: “Parliament will continue to have power to make laws relating to the prevention of activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about secession of a part of the territory of India from the union…” 

Thus when the Indian home minister speaks of keeping promises to the Kashmiris, these promises have a much wider ambit than the question merely of amending the vile Armed Forces (Special Powers) Act which allows even the lowest-ranking army man to shoot to kill without accountability. 

Throughout these turbulent years of conflict never once has any government of India sought to formulate schemes whereby talented Kashmiri Muslims, products of an educational explosion – all thanks to Abdullah’s New Kashmir programme – could be made to feel not just safe in the heartland but like valued assets in the ongoing narrative of national “development”. Not to mention the communal lens through which Kashmiri Muslims continue to be viewed by Indian society at large, an old malaise made dangerously trenchant in the era of “terrorism”. 

And paradoxically, the more that strong-arm methods and vicious prejudices fail to deliver the desired results, the more the state means to persist with them. And now that a glimmer of recognition appears to have dawned within policy establishments, the present-day incarnation of the old Praja Parishad and Jan Sangh are back to the same old perfidy, robbing the secular democratic sections within the Congress chiefly of any will or courage to disregard Hindu right-wing communalism and do right by Kashmir.

Azadi – Cry for freedom

Over the last two months some 51 teenage Kashmiris screaming for secession have been killed by police bullets in the valley. 

Let us for the moment ignore the legalities of the question (in respect of the Sheikh Abdullah/Indira Gandhi accord, for instance) and the hard reality that such secession will never be approved by any political establishment in India or any government of the day or be accepted by Indians at large. Let us assume for the moment that the parts of Jammu and Kashmir that do not want secession can be persuaded that the valley of Kashmir be granted independence and sovereignty and let us consider the possible consequences of such secession: 

• Following such a declaration, demands for azadi could gain legitimacy in other states, Manipur, Nagaland and Assam, to name a few, and would be hard to deny once a precedent has been set;
• A Hindu communalist backlash could possibly engulf India, rendering the lives of Indian Muslims vulnerable and leading to demands that India be declared a Hindu state, since the secession of the valley would have proved that the two-nation theory was correct after all; 
• Within Pakistan, first the Baloch and then the Sindhis might take heart and set themselves the objective of freedom from Punjabi ethnic dominance through secession; 
• Within the valley, a Bangladesh-like situation might well emerge, namely a struggle among those who will wish to retain a secular democratic state and those who might argue for an Islamic state. It is well to remember that of Bangladesh’s 40-odd years of independent nationhood, brought about under the leadership of the Awami League on secular principles, some 30 years were to see the communalists in power. It is only recently that the Supreme Court of Bangladesh has struck down the controversial fifth amendment to the Constitution and thereby reverted to disallowing any religion-based party formations. But this welcome move comes after much blood has been spilt. 

I have often been accused of exaggerating the Sufi-secular orientation of Kashmiri Muslims and of sentimentally misreading acts of personal and individual camaraderie and brotherhood displayed by Kashmir Muslims towards visiting Pandits as representative of the totality. I have once been kindly described as a “jihadi lapdog” (see Google). But all this notwithstanding, it remains a fact that at the time of the exodus of the Kashmiri Pandits from the valley in 1990, a strident campaign was in evidence as loudspeakers in mosques blared calls that the “Nizam-e-Mustafa” (Islamic statehood) was at hand, that the Pandits must hasten their exodus from the valley but take care to leave their women behind. You will also hear people speculate that one of the reasons why elements within the valley do not at bottom wish the Pandits to return home en masse is that they do not wish an Indian “fifth column” to be reinstated there; with them gone, the idea of an Islamic state is more closely approximated. Much as the Jews in Israel, for instance, who fear the return of Palestinian refugees into what was once their homeland. 

I must confess to having another sort of experience during recent visits to the valley, namely the chagrin with which any mention of “Kashmiriyat” (denoting the good old syncretic ways of Kashmiris) now tends to be received there. Indeed I recall being at a seminar at the university in Srinagar where a senior academic read a short “paper” titled ‘Kashmiriyat’ only to rubbish the concept – albeit without much substance. “Kashmiriyat” is now seen as something of a trick used to deny the fact that Kashmir is in essence Islamic, a notion that finds increasing expression in textbooks on history and culture as the pre-Islamic period (roughly up to the 14th century AD) is sought to be erased. 

Other disturbing trends appear to be surfacing as evidenced by an incident in Pulwama not so long ago when a Sikh Kashmiri was surrounded and asked to recite the Islamic Kalima, failing which some of his hair was cut off. It must be said however that the incident, uncharacteristic in the extreme, drew condemnation from all sections of the Kashmiri leadership. 

Thus while some residual Kashmiri Pandits who have never left the valley continue to be protected by their Muslim neighbours, and their weddings and funerals are organised with customary syncretic brotherhood, and although periodic visits by Pandits living in camps outside the valley to age-old Hindu shrines in the valley are greeted with warmth, after the near total evacuation of the Pandits, it would be wrong to aver that the impulse to forge a sovereign and independent valley into a theocratic state was no more than a baseless surmise. 

Be that as it may, what would the security logistics of the new state be, bordering as it does Russia, China, Pakistan, Afghanistan and, following its proposed secession, India as well? To return to what Sheikh Abdullah had said with regard to this option (of Kashmir as an “Eastern Switzerland”), how would the new state tackle these vulnerabilities? 

And can it be said that the imperialist from you-know-where, already stationed in countries nearby, would not then presume that at long last the valley was his for the taking, with all the Afghanistan-like consequences that could follow, both in terms of turmoil and cultural defilement?

Not to mention the kind souls from Pakistan’s wild western provinces, many in fact now resident in the country’s main city centres? How might the Kashmiris resist their call to a jihadist embrace, in disregard of the time-honoured ethnic Kashmiri prizing of exclusivity and identity? And if they were to become more insistent even after a polite “no”, who would come to the aid of the Kashmiris? 

Kashmiris grow more insistent every day as the current imbroglio continues that jobs, development, opportunities, are not the real issues. Yet in time these might indeed become issues of great magnitude for a prospectively landlocked valley lacking both monetary and infrastructural resources. These resources may then have to come from other places with all the attendant implications, whether the donors are the Saudis, the Yankees or the Chinese. Altogether, a pickle in the making.

The road ahead

If these be not unfounded considerations, what is to be done?

It is time that the question was addressed with some candid concern. 

A good beginning would, I think, be made if all the contending parties recognised that Kashmir is a problem that may never be resolved to the satisfaction of all parties. And it would be wrong to think that this avowal is merely a pre-emptive ploy. I doubt that time will prove me wrong. 

Let me say at once that the two options which seem closest to the heart of the contending parties – the union and the agitators – I see as non-starters. On the one hand there is the Indian state’s wish that things will drag on as before until exhaustion seals a fait accompli and on the other hand there is the desire, however fervent, of the young agitators for a country of their own in the valley. 

The first is bad not only because such a fait accompli is unlikely in the extreme but also because it belies the founding pretensions of the republic of India – chiefly its claim of “unity in diversity”. And it reinforces a sentiment widely felt even beyond the valley, that the Indian state, especially after the beginning of the neo-liberal era in the 1990s, has become increasingly impatient of both secularism and democracy and wholly inimical to the rights of the majority of Indians who to this day feel they have, in Abdullah’s words, no “definite and concrete stake in India”. This applies to the lives of India’s tribal populations, to Dalits and to minorities of varying description on a differentiated scale of neglect. In this context, if the Indian state believes that sooner or later the Kashmiris will tire and turn around, it is only fooling itself. 

And the second is a bad option because, as suggested earlier, secession of the valley would be fraught with negative consequences for all parties in the dispute and for the subcontinent as a whole. 

These recognitions return us willy-nilly to salutary reflections on the possibility of recuperating and refurbishing the covenant of the federative promise and principle – something on which the state’s accession to the union had been based in the first place, setting a uniquely outstanding example both in terms of plurality of citizenship and of political partnership in opposition to totalitarian impulses in both areas. 

This Kashmiri still thinks that the aforementioned Delhi Agreement of 1952 still offers the most workable and fair point of engagement. With the caveat – which with the advantage of hindsight any cool Kashmiri would recognise – that extending the jurisdiction of the Supreme Court of India and the Election Commission of India to Jammu and Kashmir, far from impinging on the state’s autonomy, would in fact be credible guarantee of protection from excesses and denials. 

As for the majoritarian nationalists, they are as much a menace to the rest of India as they are to any attempt at a fair solution in Kashmir. That being so, the Indian state and civil society must needs muster the strength and the will to defy and overcome their shenanigans if the nation is to be saved not so much from the Kashmiris as, first of all, from them. 

It is good, better late than never, that the prime minister has made some moves of the sort suggested here. Let his government and society at large understand fully that it is now or never in Kashmir, and thus avoid slipping into another decade-long siesta after the ongoing violence inevitably lulls. 

As for Pakistan, I am tempted to simply nod in assent to the words of Sheikh Abdullah before the UN Security Council when he went there to plead India’s case in February 1948: “I refuse to accept Pakistan as a party in the affairs of Jammu and Kashmir state. I refuse this point blank.”

After what Pakistan has done to its own people over the decades, this refusal seems entirely appropriate. What the people in Pakistan-occupied Kashmir choose to do, how they decide their fate, is best left to them. Significantly, a 2009 Chatham House poll showed that some 58 per cent of Kashmiris favoured the formalisation of the Line of Control between the two parts of Kashmir as the international border between India and Pakistan. This is as it should be. And once that happens, human and other commerce between the two Kashmirs can be put on a sound international footing, all ambiguities and hassles removed. 

If initiatives along the lines of those mentioned above are not undertaken soon, it may be pointless to write anything further on the subject of the Kashmir problem. Neither reason nor analysis nor conjoint effort will then sort it out, only a conflagration that could lead who knows where.

Note

Literature on Kashmir is mind-bogglingly plentiful and I have sought to look into as much as time and tide allow. But, for purposes of this piece, I wish to record my indebtedness to three authors on Kashmir, chiefly – Prem Nath Bazaz, Balraj Puri and MJ Akbar, on whose work I have drawn with abandon. The interpretations thereof being entirely my responsibility.

Archived from Communalism Combat, July-August 2010, Anniversary Issue (17th).Year 17, No.153 - Cover Story 1

Women are everywhere in these troubled times in Kashmir, and not in the places traditionally assigned to them

On a summer morning this July in Srinagar, tear gas from the troubled streets of Batmaloo began to roll into the first-floor home of Fancy Jan. The 24-year-old went to draw the curtains to screen the room from the acrid smoke, her mother told a reporter later, then turned away from the window and said: “Mummy, maey aaw heartas fire (my heart’s taken fire, mummy)”. Then she dropped dead, a bullet in her chest, the casual target of an anonymous soldier’s rifle. Fancy Jan was not a ‘stone-pelter’. She was a bystander, like many of the 50 people killed in the last two months. She is not the first woman to be shot by the security forces in 20 years of the troubles. But her random death, almost incomprehensible in the presumed safety of her family’s modest home, coincides with a vigorous unsettling of the way women have been represented in this conflict.

Until the other day, Kashmiri women were little more than a convenient set of clichés, shown as perpetual bystanders in houses that overlook the streets of protest. When seen outside of that protected zone, they were cast as victims, wailing mourners, keening at the endless funeral processions. For an occasional frisson there is the daunting image of the severely veiled Asiya Andrabi, chief of the Dukhtaran-e-Millat, a women’s group whose high media visibility seems inversely proportional to the modest numbers who adhere to their militant Islamic sisterhood. In black from head to toe, Andrabi always makes for good television, her arms and hands concealed in immaculate gloves, only her eyes showing through a slit. For the Indian media her persona insinuates the dark penumbra of Kashmiri protest, signalling the threat of ‘hard-line’ Islam, a ready metaphor for ‘what-awaits-Kashmir-if…’

But now an unfamiliar new photograph of the Kashmiri woman has begun to take its place on newspaper front pages. She is dressed in ordinary shalwar kameez, pastel pink, baby blue, purple and yellow. Her head is casually covered with a dupatta and she seems unconcerned about being recognised. She is often middle-aged and could even be middle-class. And she is carrying a stone. A weapon directed at the security forces. Last week, in a vastly underreported story, a massive crowd stopped two Indian Air Force vehicles on the highway near Srinagar. At the forefront were hundreds of women. The airmen and their families were asked to dismount and move to the safety of a nearby building. Then the buses were torched. This is not a rare incident: women are everywhere in these troubled times in Kashmir, and not in the places traditionally assigned to them. They are collecting stones and throwing them and assisting the young men in the front ranks of the protesters to disguise themselves, even helping them escape when the situation gets tough.

The government’s narrative of ‘miscreants’, of anomie and drug-fuelled teenagers working as Rs 200 mercenaries for the Lashkar-e-Tayyaba, has meanwhile started to appear faintly ridiculous. A more reasonable explanation is being proffered to us now: it is anger, we are told, the people of Kashmir are angry at the recent killings and that’s why the women are being drawn in. That is true but only partially. For this is no ordinary anger but an old, bottled-up rage, gathered over so many years that it has settled and turned rock-hard. That accumulated fury is the stone in her hand. To not understand this, to fail to reach its source – or fathom its depth – is to be doomed to not understand the character of Kashmir’s troubles.

Two events will provide useful bookends for this exercise. In February 1991 there was an assault on Kunan Poshpora village in North Kashmir, where a unit of the Indian army was accused of raping somewhere between 23 and a hundred women. And then, a troubled 18 years later, the June 2009 rape and murder of two young women in Shopian, South Kashmir. In the case of Kunan Poshpora, bypassing a judicial inquiry, the government called in the Press Council of India to whitewash the incident, allowing its inadequate and ill equipped two-member team to summarily conclude that the charges against the army were “a massive hoax orchestrated by militant groups and their sympathisers and mentors in Kashmir and abroad”.

The travesty of the investigations into last year’s Shopian incident involved innumerable bungled procedures and threw up many glaring contradictions till the government of India roped in the Central Bureau of Investigation to put a lid on it. They promptly concluded that it was a case of death by drowning. (In a stream with less than a foot of water.) The case remains stuck in an extraordinary place: charges have been filed against the doctors who performed the post-mortems, against the lawyers who filed cases against the state, against everybody except a possible suspect for the rape and murder, or the many officials who had visibly botched up the investigations.

In the absence of justice, the space between Kunan Poshpora and Shopian can only be filled with the stories of nearly 7,000 people gone missing, of the 60,000 killed and the several-hundred-thousand injured and maimed and tortured and psychologically damaged. The men of this society took the brunt of this brutalisation. What of the price paid by the women? It is when we begin to come to terms with their decades-long accretion of grief and sorrow, of fear and shame, that we will begin to understand the anger of that woman with the stone in her hand.

The current round of protests will probably die down soon. The mandarins of New Delhi will heave a sigh of relief, tell us that everything is normal and turn their attentions to something else. But only their hubris could blind them from noticing what we have all seen this summer in Kashmir. This is not ordinary anger. It is an incandescent fury that effaces fear. That should worry those who seek to control Kashmir. 

 This article was published in The Times of India on August 8, 2010; http://timesofindia.indiatimes.com

Archived from Communalism Combat. July-August 2010, Anniversary Issue (17th).Year 17, No.153 - Cover Story 2

As unrest continues to brew in the Kashmir valley, and more and more innocent people lose their lives at the hands of the police or security forces, it is increasingly apparent that the Indian state urgently needs to re-examine its position and dramatically alter its tactics in Jammu and Kashmir. The Indian polity must insist on this. The strategy employed by the Indian government over the years has denied a sizeable section of the people basic human rights and estranged them from the mainstream. The wrongs that are still being inflicted on them by state forces and militant groups, the Kashmiri people’s burgeoning anger and continuing alienation feeds a conflagration that will not be extinguished unless corrective action is taken, and taken without delay. This is not a grave matter for Kashmir alone; it is a perilous situation for India as a whole. It is a blot on India’s conscience as a nation, a distressing account of systemic cruelty and studied indifference to the sorry plight of an ever-growing multitude of its citizens. And even as we urge for fundamental changes in the status quo, we must do all we can towards reparation and to ensure that the average Kashmiri’s valiant and ceaseless quest for justice yields positive results.

A report of the Independent People’s Tribunal on Human Rights Violations in Kashmir reveals the extent of deprivation of basic human rights and the depth of alienation felt by the Kashmiri people. Excerpts from the report:

Aims

There is a general perception that the human rights situation in Jammu and Kashmir is bad and largely unaddressed. The various official human rights mechanisms, including the judiciary and the State Human Rights Commission, are unable to act proactively and rein in human rights violators, including the army, paramilitary forces, police and surrendered militants. In this context, it was felt that a civil society initiative, including retired members of the judiciary, was imperative to clarify the situation and the reasons for the continued deaths and suffering.

The practice of human rights abuse is protected, if not encouraged, by legislation like the Armed Forces (Special Powers) Act, the Jammu and Kashmir Public Safety Act and the Disturbed Areas Act – where security forces are given sweeping powers to shoot, kill, arrest and detain along with blanket immunity from prosecution for such heinous acts. These powers are in complete disregard of the most fundamental postulates of international law enshrined in the UDHR (Universal Declaration of Human Rights 1948), the ICCPR (International Covenant on Civil and Political Rights), the ICESCR (International Covenant on Economic, Social and Cultural Rights), the UNCAT (UN Convention Against Torture) and the UN Convention on the Elimination of Enforced Disappearances, among others. The latter two have been signed but not ratified by India.

Keeping in view the basic principles of human rights as enshrined under the Constitution of India and various international covenants, and in order to highlight the forms and extent of human rights abuse suffered by civilians in Kashmir, the Human Rights Law Network, in collaboration with ANHAD, organised an Independent People’s Tribunal on February 20 and 21, 2010 at Srinagar, Kashmir.

The tribunal was organised with an aim to provide a platform to the victims of the ongoing armed conflict. The tribunal witnessed testimonies from all sections of Kashmiri society, including victims, their family members, social activists, journalists and academicians. In all, 37 testimonies came to be recorded during the two-day-long tribunal. Victims and their family members narrated their stories of suffering which they have experienced for the past two decades. The idea behind conducting such an event was to highlight the sufferings of all such victims and to formulate certain suggestions/ recommendations in order to minimise the use of force against the common man in the name of national security by the security agencies.

Summary

The tribunal heard testimonies from about 37 victims and their kin and we have also had testimonies/statements from journalists and members of civil society.

It is clear that there is a sense of suffering and injustice writ large on the faces of everyone who made their statements before the tribunal. We had made it clear that we are not in any way linked with the official institutions or authority and yet so many of them gave vent to their feelings in their physical and emotional state, which only strengthens our opinion that there is substantial truth in those allegations.

It cannot be gainsaid that the Armed Forces (Special Powers) Act 1958 has been in force for nearly two decades in this state. This act has been misused and is being misused wherever it is made applicable (Manipur, for example). Therefore if we take this situation into account, this draconian law has undoubtedly facilitated grave human rights abuses including “disappearances” by the very nature of the power bestowed on the armed forces.

Any abuse of powers by the armed forces is a criminal offence. It should promptly be investigated by an agency independent of the armed forces, followed by impartial prosecution. The testimonies of all witnesses clearly establish that there has been no satisfactory investigation by any agency or authority in the state, leave alone any prosecution. On the other hand, we get an impression that all institutions of the state, the executive, the legislature, the human rights commission and to a certain extent even the judiciary have failed to do justice to the victims of “disappearances” and other human rights violations.

The United Nations General Assembly in 2006 has unanimously adopted the International Convention for the Protection of All Persons from Enforced Disappearance. Earlier, there was the UN declaration to the above effect (December 1992). Article 2 of the declaration says that, “the prohibition” of “disappearances” is absolute and no state can find an excuse. Article 7 says: “no circumstances, whether a threat of war, internal political instability or any other public emergency, may be invoked to justify” these acts of violation. Hence it is not open to the state to resort to enforced disappearances, which would include all custodial deaths, on the ground of any threat to internal security or external safety and stability. It is here the state’s liability becomes absolute and we should have no hesitation in making these observations.

We have the testimony of Ms Parveena Ahangar, who is the chairperson of the Association of Parents of Disappeared Persons (APDP), which clearly establishes that 8-10,000 persons have disappeared from about 1989. Incidentally, we may point out that during the period 1984-1994, during the agitation for Khalistan in Punjab, there had been similar disappearances and recently a report based on the State’s Human Rights Commission shows that over 2,059 bodies were identified in Amritsar district and still over 1,000 bodies are lying there in the district and there are a large number of skeletons in other districts. Moreover, internationally, disappearances and “custodial deaths” fall within the definition of “torture”. Prohibition of torture and ill treatment is underlined by its non-derogable status in human rights laws. No state can justify such an act.

General findings

1. Various instances of the security forces’ crimes have been brought to our notice. These are violations against the Geneva Conventions (Common Articles 2/3), the International Covenant on Civil and Political Rights, the Indian Penal Code and the civil law of the country. The police/paramilitary and surrendered militants have flouted Indian laws and the rules of war. As a consequence, large numbers of civilians have died, including women and children. Women, including young girls, have been harassed, raped and gang-raped and children in their early teens shot.
2. The judicial machinery has barely functioned. Despite the stern report of the Bijbehara magisterial inquiry, recommending the severest action against the BSF (Border Security Force) officers and jawans, nothing was done. A number of cases filed in the district and high courts have been pending for years and there are numerous cases of lack of judicial action taken in terms of awarding compensation and instructing the security forces to produce the disappeared and so forth.The tribunal heard repeated examples of FIRs (first information reports) filed by the families that were distorted by the police to accuse the victims. Counter-FIRs have also been lodged by the police… Under the pretext of translating FIRs from Urdu into English, the police have completely distorted the complaints made in the original FIR. One such case with evidence was produced before the Independent People’s Tribunal.
3. The State Human Rights Commission has no power to investigate paramilitary and military excesses though it does have the power to request investigation reports of the inquiry by the paramilitary and the military forces. The SHRC seems to have failed to exercise its powers proactively to provide justice to the victims. The general trend is that the state as well as the central government ignores the recommendations made by this commission.
4. Rape: The worst case of mass rape was heard by the women jurists from the testimonies of women from Kunan Poshpora, who talked about the night of February 23, 1991 when the army came to their village, isolated the men and gang-raped at least 23 women of all ages from 14 to even a 100-year-old woman. The rape took place in front of their young children. There was brutal impact on their bodies and since then, they have suffered physical and mental trauma for years. They have been socially discriminated and ostracised, landing them into a traumatic state of mind that has been permanent. This is the grossest of human rights violations.
5. Throughout the conflict people have been maimed and disabled due to the indiscriminate firing by security forces during even non-violent protests. People have also been disabled during interrogations where torture was used. We heard the testimonies from Bijbehara where forces had indiscriminately opened fire on peaceful demonstrators in 1993. Many injured persons have been disabled for life and have suffered mentally, physically and financially. Hardly any steps have been taken for their rehabilitation.

The testimonies we heard from disabled persons revealed that they were totally shocked and shattered. The disabled deposed before us to say that they could bear with the aftermath of physical injury but not with the mental pain, agony and trauma that make them feel that they die several deaths every day rather than living even once…

Custodial killings

There have been a large number of custodial killings since the conflict began. The pattern in most cases is similar even though the perpetrators may be from different forces serving the Indian state. The cases cited represent the dominant form of this method of violation of human rights. We are citing illustrative testimonies of victims, relatives of victims and others with first-hand information to illustrate our findings.

Testimonies

Masooda Parveen, representing the late Advocate Ghulam Mohiddin Regoo

Relation with victim: Wife

Resident: Pampore

District: Pulwama

“I am a mother of two. At the time of the incident my husband was a practising lawyer. On February 1, 1998, at around 9 o’clock, my husband had just returned from the mosque after offering the last prayer of the day. Two renegade militants – Bashir Ahmad and Abdul Khaliq – entered our house. Bashir’s face was partially covered with a handkerchief. He caught hold of my husband’s collar and alleged that a militant – Arshid Ahmad Ganaie – was hiding in our house. In fact, Arshid was already in their custody, in a car parked outside our house. The two people took my husband with them and a few days later his mauled dead body was returned to us. Major Poniyal of the Jat Regiment stationed at Laidpora, Pulwama, was involved in bringing all of this about. At the time of handing his body over to me they also gave me the relevant documents and the copy of the FIR.

“I approached the government authorities in order that the culprits are brought to book but to no avail. The district administration had offered me a job but later declined to acknowledge they had ever done that. When I contacted the local MLA regarding the matter, he avoided me. I approached the then chief minister, Mr Farooq Abdullah, but he shooed me away, stating that I was the wife of a ‘traitor’. My son, who is an agriculture graduate, has been constantly denied a passport by the state. I myself wanted to take the case of my husband’s gruesome murder to a UN body but was also denied a passport. I am now contesting my case in the Supreme Court with the hope that we get justice and my sons can travel abroad for their advanced studies. When the Supreme Court called for the records of our case from the police, they stated that they had lost the file. In the meantime, our harassment by the state continues as has been the case since my husband’s brutal murder.”

Gh Qadir Pandit

The case of Gh Qadir Pandit is a striking instance of the state of the judiciary and police. Even after the sessions court concluded the “custodial death”, which was reported to the Jammu and Kashmir high court, the high court directed the concerned sessions court to start investigations after three years of their filing the case. The police refused to file an FIR on the ground of jurisdictional ambiguity. The victim’s family then filed an application in the high court seeking directions to specify the police station under whose jurisdiction the case fell but no orders were passed. Mr Pandit’s brother’s comment that he was “…so disillusioned with the justice delivery system in Kashmir that I thought it best not to follow up on the case any further” sums up a common criticism of the judicial system, the SHRC and the police.

Gh Qadir Teli

Gh Qadir Teli, whose son was a victim, was himself severely tortured and stripped naked by the 21 RR (21 Rashtriya Rifles). He also filed petitions in the Jammu and Kashmir high court and SHRC about his missing son but nothing concrete happened.

“My son was a 17-year-old school dropout and had started working on our farm. He had three elder sisters and was the only substantial source of income for our family. I got him married in 2006, in district Baramulla. On the fateful day of November 25, 2006 he was not feeling well and had gone to see a doctor, Dr Habibullah Mattoo, in Sopore. While he had been waiting for his turn at the clinic, a fellow villager had called him on his mobile phone, which is when he had confirmed his location. At around 1 o’clock in the afternoon I saw a huge crowd outside my house. Some people standing close by advised me against going home at that time, as there the army had raided my house and were searching it. Disturbed by the gravity of the situation, I thought of calling my son. I went to a phone booth to make the call but his cellphone was switched off.

“During this time the rest of my family inside the house was being harassed by the army. Finally, I reached home at around 9:30 in the evening but my son was nowhere to be seen. For the next three days there was no news of him. I registered a missing report at the police station on December 8, 2006. However, the army – led by some DSP (deputy superintendent of police) Tickoo – raided my house soon after and asked for the original copy of the report, which I had to hand him out of fear. Fortunately enough, I had already made photocopies. I then returned to the concerned police station and lodged a fresh complaint.

“A few days following this the army came looking for me but somehow I managed to get away. But on another occasion the 21 RR raided my house again and took me into custody. They then took me to Handwara where I was severely tortured while being stripped naked. You can imagine what I might have gone through considering it was the body of an old man they were inflicting inhuman treatment on. They were trying to coerce me to accept that my son was a militant and that I had ammunition in my possession but I didn’t succumb. When they released me, I filed an application with the district magistrate reiterating that I had been subjected to illegal detention and torture and that the whereabouts of my son were unknown. I also filed petitions in the Jammu and Kashmir high court and the SHRC but nothing has come out of them.”

Enforced disappearance

One of the most harrowing consequences of the armed conflict in Kashmir is that people in detention go missing. The majority of missing persons are men, which leaves a large number of women awaiting news that would decide their fate, living lives of half-widows. A state like this results in a severe identity crisis amongst the women – with the immense agony of not being sure whether they are still married or widowed.

Enforced disappearances in Kashmir started in 1989 following the outbreak of armed conflict. The state has seen heavy deployment of security forces (more than 6,00,000 – the highest number of army personnel during peacetime anywhere in the world) since.

In international human rights law, disappearances at the hands of the state have been codified as enforced or forced disappearances. The Rome Statute establishing the International Criminal Court defines enforced disappearance as a crime against humanity. However, the police do not entertain missing reports with regard to these persons.

The Association of Parents of Disappeared Persons, an organisation founded by concerned persons in Kashmir, has been demanding the whereabouts of people who have been subjected to enforced custodial disappearance by various security agencies, troops and police – mostly since the break out of armed rebellion in 1988. Even though the association continues to highlight their sufferings and their demands, their genuine pleas and grievances are yet to strike the conscience of the so-called elected representatives of the people.

According to the International Convention on Enforced Disappearances, no exceptional circumstances whatsoever – whether a state of war, a threat of war, internal political instability or any other public emergency – may be invoked as a justification for enforced disappearance and the state is under an obligation to investigate acts of enforced disappearance.

Testimonies

Zahoor Ahmad Mir, representing Ali Mohd Mir

Relation with victim: Son

Resident: Nishat

District: Srinagar

“My father, namely Ali Muhammad, was killed by Ghulam Ahmad alias Papa Kishtwari on June 26, 1996. I filed a case in the high court in the year 2006. I also filed a case in the SHRC in the year 2007. After I got the case registered, it pressurised the police and only then could I get an FIR lodged against Papa Kishtwari in the concerned police station. Papa Kishtwari is a surrendered militant and is now a government-sponsored person. He even won uncontested elections. Papa Kishtwari is believed to have committed 150 murders but only 26 are registered against him. His accomplices have been left free. I want my father’s dead body. Papa Kishtwari is in jail because of me but he is not being punished. I want justice.”

Abdul Rashid Beigh, representing Fayaz Ahmad Beigh

Relation with victim: Father

Resident: Khajapora, Nowshera

District: Srinagar

“My son, namely Fayaz Ahmad Beigh, was working as a photographer in the department of Central Asian studies at the University of Kashmir. He was arrested during his duty hours by HR Parihar, SP (superintendent of police), STF (Special Task Force), at Awantipora on September 6, 1997 and was taken to some unknown destination along with his motorcycle. When my son didn’t return, I set to locate his whereabouts. I approached STF and SOG (Special Operations Group) officials through the SP, operations, Awantipora, who, after taking a lot of time, admitted my son’s detention. But my efforts brought no results. I haven’t seen my son till date. The STF agency concocted a baseless story that my son had escaped from custody.

“The SHO (station house officer), Soura, namely Abdul Rashid Khan alias Rashid Billa, is hand in glove with the criminals. He has given a legal cover to my son’s disappearance and has created false evidence by registering a false case against him. I approached the then home minister, Ali Mohammad Sagar, to seek his help in order to locate my son. He ordered a CID inquiry. The IG (inspector-general), CID, submitted its report stating that Fayaz Ahmad Beigh was arrested from the university campus and the story put forth by the STF was proved false.

“I approached the SHRC and registered a complaint (File No. SHRC /2008/09) in December 1997. The complaint was disposed of on April 3, 2000. The SHRC in its order rejected the STF/police story of Fayaz Ahmad’s escape from custody as ridiculous and recommended a compensation of Rs five lakh. The SHRC also directed the registration of a criminal case against SP Parihar and his subordinates. Unfortunately, the then state government did not pay any heed to the recommendations of the SHRC and left the case virtually unattended for years together. In the meanwhile, we also filed a habeas corpus petition (HCP No. 1411/97) in the high court wherein we prayed to show the case of detention of my son and the authority and law under which my son was detained. However, we were made to withdraw the writ petition on the ground that the case was already pending with the SHRC.

“Later on, in order to get the recommendations of the SHRC implemented, I filed a writ petition in the high court (OWP No. 263/OWP-2002). The hon’ble high court in its subsequent decision upheld the recommendations of the SHRC and directed the state government to execute the recommendations given by the SHRC. It is painful to note that the government has slept over the matter and shown no response even to the high court’s decision. In January 2004 the home department and SP, operations, HR Parihar, filed an appeal against the order passed by the high court division bench, Srinagar, on admission of the LPA (182/03). The hon’ble chief justice directed the trial court to pass an appropriate order in session of challan (239/97). On our application, the trial court, Srinagar, passed an order on December 12, 2007 that criminal proceedings cannot be started against a dead person; therefore the challan has been consigned to records after due compliance.

“The case is still pending before the division bench.”

Rape cases

Rape is a particularly heinous crime. It has been used as a method of humiliating an individual and community and destroying their honour. Since the stigma never goes away, the victim is shunned and shamed for life.

Testimonies from Kunan Poshpora village

Kunan Poshpora mass rape: On the intervening night of February 23 and 24, 1991 about 23 women from Kunan Poshpora village in the border district of Kupwara were raped by the troops of the 4 Rajputana Rifles during a search operation. As per reports, at around 11:00 p.m. army personnel in large numbers entered the village. This was followed by the segregation of women from men. While the men were asked to assemble in a village field, the women were ordered to stay put inside the houses. This is when the army men barged into the households and gang rapes followed. Reportedly, women from ages 13-80 were raped. One such woman, who is now 120 years of age, stated that she was stripped naked, dragged out of her house into the snow-filled front yard and gang-raped. A police investigation into the incident never occurred.

Bakthi (victim)

Wife of Mohd Siddiq

Resident: Kunan Poshpora

District: Kupwara

“On the night of February 23, 1991 our village was cordoned off by a large group of drunken army personnel. The next morning I came to know that other women from the village had similarly suffered. At this point the menfolk who had been assembled in the village field during the search operation the preceding night were being asked by the army to raise their hands in agreement and say aloud that no excesses had been committed in the village, and were being filmed while doing so. This is when we womenfolk went over to the field in half-naked condition to make it known to the men what had happened to us. On seeing us, the men lost their cool and refused to accept what they were being ordered to say.

“On getting home, the men too shared their stories of torture that had been inflicted on them by the army. Learning of the brutality that had been meted out to the women in the village, the men tried to file FIRs, which was a daunting task in context of the fear of reprisal by the concerned army men. There was no primary health centre nearby where we womenfolk could have got ourselves examined in order to collect medical evidence.

“At the time of the incident I was 30 years old. Within a year of the incident four women from our village – Saja, Mehtaba, Zarifa and Jana – succumbed to death stemming from the mental trauma and disgrace they had to put up with. These women had also been struggling with physical ailments subsequent to the incident. The self-humiliation resulting from our traumatic experience didn’t allow us to visit any of our relatives from other villages, nor did they pay us a visit. We also had to take our children out of school for fear of their being apprehended and tortured by the army. My son and many young men from the village grew up harbouring vengeance in their hearts for what had been done to the women in their families.

“Following the incident of mass rape in the village, proposals of marriage stopped coming from outside our village, since the news of the rapes had become common knowledge all around the valley. As a consequence, marriages between victim relatives from within our village started to take place. Many people came to our village for documenting or reporting the wrong that was done to us and we shared our stories with them yet justice has eluded us to date. Now we are disillusioned and personally I find it despairing and difficult to revisit that harrowing ordeal of ours by narrating it to people time and again. At the same time, the mental and physical pain suffered that night and after continues to haunt me. My old husband has died and now it is my last wish that the guilty army personnel be punished. I had lodged an FIR bearing No. RI/1387/83 under the Ranbir Penal Code, Sections 376, 452 and 342, at the Trehgam police station on March 2, 1991. However, nothing came of it.”

Faba (victim)

Resident: Kunan Poshpora

District: Kupwara

“I was approximately 25 years old and a mother of two at the time of the incident. At around 11:00 p.m. on February 23, army personnel barged into our house. They caught hold of my husband and were taking him away when I insisted on accompanying him. My husband stopped me by saying that I should wait for him at home, as he would be back in some time and there was nothing to worry. Therefore I stayed back and bolted the doors of my house. After a while, there was a loud knock at the door. On noticing that my house had been surrounded by the army, I did not unlock the door. At this, eight to 10 army men broke the door open, barged in and raped me and my unmarried sister. My sister is now suffering from post-traumatic stress disorder. With great difficulty we were eventually able to get my sister married to someone from the same village, whose family had suffered likewise. Post-rape, she even delivered a baby who did not survive. Within two to three months of the incident, a lady doctor was called into the village for conducting abortions on women who had conceived as a result of the rapes. My son was five to six years old at the time of the incident and he now faintly remembers what had happened to me and his aunt that night.

“The women from the village tried to preserve their clothes for some time in order to substantiate rape and showed them to the media or any other authorities who came to the village for investigating/reporting rape. Currently those clothes are in police custody.”

The judges asked the victims if any magisterial inquiry had taken place after the incident, as reports have suggested. The victims replied by saying that there were many people who came and asked questions after the incident; however, they do not know of their identities. In an aside, the victims collectively testified that they refrained from discussing the rapes with or in presence of their sons, apprehensive that they might take matters into their own hands. They added that on the next morning after the rapes a local resident, Abdul Ghani Dar, who was also a police constable, called a lady doctor to conduct check-ups of the victim women. (The said police constable’s cousin was also a victim and she had later conceived as a result of the rape. The foetus was later aborted.)

The said doctor conducted a medical check-up of all the women who had been raped and their clothes were taken to Trehgam police station later on. The doctor medically cleansed all of the raped women in order to prevent pregnancies. The victims stated that the police constable had taken the initiative of getting this done in order to save the village from humiliation. On February 17, 1993 an unidentified person killed the said policeman. His parents are still alive but his mother lost mobility and his father became a patient of depression after their son died.

The victims reported that women from Kunan Poshpora faced social rejection for many years after the incident; to the extent that they were not allowed seats in public transport by fellow passengers. Instead, they were made to sit on the floor, away from the others. On being asked by the judges what they expected from the tribunal, the victims replied in unison that they wanted the perpetrators to be punished.

The then chief justice of the Jammu and Kashmir high court, Justice Mufti Baha-ud-din, led a fact-finding mission to the village and concluded that normal investigative procedures were blatantly disregarded in this case. A Press Council of India investigation followed, which called the allegations of these women “a well-fabricated bundle of lies”. No further investigations were conducted and the matter remains unredressed till date. The government’s handling of the case was widely criticised in national and international circles, including international human rights organisations like Human Rights Watch and Amnesty International.

If such an incident had occurred in the rest of India, there would have been a sustained public outcry and agitation. The judiciary would also have responded.

Conclusion

It is clear that the rule of law does not operate as laid down in the statute books. Talks between Kashmiri leaders, including the separatists and the central government, have not led to any positive outcome. In fact, it would appear that the real mass discourse is a reflection of the mass alienation in the Kashmir valley. Demonstrations and street protests often resulting in clashes and stone-throwing have regularly led to civilian deaths fuelling another cycle of protest. The government’s focus is on containing the armed militants but not on having a sustained dialogue with the population and its leaders. The numbers of militants killed as indices of peace in the valley is misleading. The crucial indicator of mass alienation is not the infiltration of militants but resistance by the people.

Any path for a solution of the Jammu and Kashmir problem must squarely and frontally deal with this mass alienation of the people and directly confront its causes.

Recommendations

1. The controversial Armed Forces (Special Powers) Act 1958 should be withdrawn from Jammu and Kashmir. The Jammu and Kashmir Public Safety Act 1978 and other anti-terror laws should correspond to the provisions of the International Covenant on Civil and Political Rights which India has ratified. It should be noted that India has been repeatedly criticised in the UN Human Rights Committee for the existence of the Armed Forces (Special Powers) Act which violates, crucially, several articles of the ICCPR.
2. Keeping in view the large concentration of military and paramilitary forces in the state of Jammu and Kashmir, which is disproportionate to the civilian population and is also making civil administration ineffective in many matters, the government of India should take immediate steps to minimise the number of these forces in order to bring relief to the civilian population.
3. We recommend the establishment of a special judicial authority making an independent and thorough inquiry into all allegations of human rights violations, including disappearances, custodial killings, rape, torture, including torture of prisoners, fake encounters, and all other cases related to excesses by security forces.
4. Every case of killing by police and security forces in situations like protests, demonstrations, riots, etc should be followed by a judicial inquiry into the police/security forces firing/actions, followed by proper, time-bound administrative action. It is made clear that the police have no licence to kill anyone in any situation unless they can justify this action under Section 100 of the Indian Penal Code, which has to be done in a judicial procedure.
5. Provide proper rehabilitation to families of deceased, injured and traumatised victims, especially the raped.
6. Compensation as interim relief should be arranged promptly. Compensation should be adequate and purposeful. Compensation should be for both injury to person as well as for damage to property i.e. houses, etc.
7. The state should immediately establish fast track courts for the purpose of trying the large number of cases which are pending.
8. Both state as well as central governments should take immediate steps to address the sufferings of detainees who are languishing in various jails and interrogation centres in and outside the state of Jammu and Kashmir and have been complaining of torture and inhuman treatment inside the jails.
9. The state should provide witness protection, since many of the witnesses are being threatened.
10. It is necessary that the government should first establish a “Grievance Cell” in every town where armed forces are deployed. These cells will receive complaints regarding allegations of missing persons or abuse of law by security/armed forces, make prompt inquiries and furnish information to the complainants. The cell should have the full authority to inspect and call for every record maintained by the security forces or by the local authorities.
11. As a confidence building measure, the government should hold talks with the Jammu and Kashmir representatives, organisations of men and women, in Srinagar. Currently talks on these matters are held in Delhi, including talks with Pakistan. The Kashmiris find themselves out of the dialogue process, as no talks are held in Srinagar.

• Justice H. Suresh, former Judge, Bombay High Court
• Justice Malay Sengupta, former Chief Justice, Sikkim High Court
• Justice A. Barua, former Judge, Calcutta High Court
• Professor Kamal Mitra Chenoy, Jawaharlal Nehru University, Delhi
• Dr Nusrat Andrabi, former Principal, Government Women’s College, Srinagar
• Professor Anuradha Chenoy, Jawaharlal Nehru University, Delhi
• Shujaat Bukhari, senior Journalist, Srinagar n

The Independent People’s Tribunal on Human Rights Violations in Kashmir, organised by the Human Rights Law Network, HRLN, and ANHAD, was held in Srinagar on February 20-21, 2010.

Archived from Communalism Combat, July-August 2010, Anniversary Issue (17th).Year 17, No.153 - Cover Story 3