Image: Dar Yasin, AP
Image: Dar Yasin, AP
It has been 120 days to the state-sponsored siege in Kashmir. The revocation of Article 370 on August 5 had thrown Jammu and Kashmir, now a Union Territory, into the deep end. People were allegedly illegally detained, media services were hit, communication avenues were cut off, health services crashed, education came to a halt, religious freedom was curbed, trade dwindled and life as Kashmiris knew it, changed forever. Without consulting with those who mattered most – the people – Kashmir was under lockdown with military rushing in to ensure that nobody opposed the fate that was now imposed on them.
The Association of Parents of Disappeared Persons (APDP), a collective of relatives of victims of enforced and involuntary disappearances in Kashmir, have come out with a report that states the facts as they are.
The APDP was formed in 1944 by Parveena Ahangar and has always actively campaigned for an end to the practice and crime of arbitrary and enforced disappearances at the local, national and international platforms. In wake of the human rights violations that have ensued since the abrogation of Article 370, the report takes the reader through the political history of the state of Jammu and Kashmir, the history of Article 370 and its incorporation in the Indian Constitution and the impact on the human rights in Kashmir since August 5.
Article 370 and constant efforts at its abrogation
Since its origin in 1950, the Indian government has constantly tried to weaken Article 370 through amendments, with first steps taken in 1954. After J&K had acceded to the Dominion of India in 1947 through the Instrument of Accession, the power of the Indian Parliament in J&K was restricted to only three spheres – defense, communications and foreign relations.
The Constituent Assembly was convened in October 1951 and before the work of defining the future relationship between the Centre and the state began, a set of minimum principles for working out future relations between the two were discussed and the Delhi Agreement of 1952 came about.
The Delhi Agreement, between Sheikh Abdullah and Jawaharlal Nehru focused on ten subject matters mostly including the residuary powers of the state, the issue of citizenship, jurisdiction of Supreme Court, the question of fundamental rights, national flag of the state, powers of President and the issue of emergency powers. It was decided that all these would fall within the jurisdiction of the state government. The relation of Jammu and Kashmir with the Dominion of India was to be based upon the principle of “asymmetrical federalism” which in turn was based on the principle of “autonomy, popular consent and negotiability”.
But the Centre and the State had a fall out, and soon Sheikh Abdullah was detained. The idea of ‘asymmetrical federalism’ was hampered. The Rashtriya Swayamsevak Sangh and Bhartiya Jana Sangh put forth nationalistic narratives that further created hurdles for the autonomy of the state.
While the Delhi Agreement, 1952 said that the sovereignty in all matters other than those specified in the Instrument of Accession would reside with the state, the state was to have a Prime Minister instead of a Chief Minister and it would have its own union flag and while it agreed to the modification of Article 352 (emergency powers), it stated that “no proclamation of Emergency made on grounds of internal disturbance” shall have effect in relation to the State of Jammu and Kashmir; among other provisions.
However, the with the Constitutional Order of 1954 being passed, the power of the Parliament was extended to make laws on almost all matters and the jurisdiction of the Union Parliament from three subjects of defense, communications and foreign relations was extended to almost all subjects on the Union List. This was a significant change from the Constitutional Order of 1950 which limited the power of the Indian Parliament to only three subject matters.
In 1986, another Constitutional order saw the extension of Article 249 of the Indian Constitution to J&K, which allowed the Centre to legislate on matters mentioned in the State list as well. This order was passed without the concurrence of the state government, a flouting of terms under Article 370 that made it imperative that the Centre seek the consensus of the State Legislature to pass a Constitutional Order such as the one in 1986.
In 2019, the Centre abrogated Article 370 on August 5 amending the Indian Constitution (Article 367) in order to do so. Clause 3 of the Article 370 provides the provision of abrogation of Article 370 by a Presidential Order, with the consensus of the Constituent Assembly. It is pertinent to mention here that the Constituent Assembly was dissolved in 1956 itself after the enactment of the constitution. At the time of passing this order, the state of Jammu and Kashmir did not have a legislature. The State legislature was dissolved in 2018, when the state was put under Governor’s rule and later President’s rule.
This amendment is also in conflict with the Jammu and Kashmir Constitution’s Article 147 that bars the Legislative Assembly from excising the powers of the Constituent Assembly with respect to the provisions of the Indian Constitution relating to the state of Jammu and Kashmir.
The APDP reports states that the Indian Parliament abrogated Article 370 relying on the circuitous and malafide reasoning that since the state was under President’s rule, and there was no legislative assembly, the power to make laws rested with the Indian Parliament, thus substituting the concurrence of the State (as mandated in the constitution) with that of the Centre.
The Article 370 that protected the cultural and political integrity of Jammu and Kashmir had been eroded over the years through Presidential Orders almost 56 times.
Torture and Detentions in the wake of the abrogation
Human rights violations have been widely reported since the revocation of J&K’s special status in 2019. People have been detained under the mechanisms of existing laws and some are held allegedly outside the purview of law, all in a bid to suppress any political opposition by the people.
There have been numerous reports of the Centre detaining people under the Public Safety Act (PSA) – civilians, politicians and even children. The PSA allows for administrative detention of up to two years “in the case of persons acting in any manner prejudicial to the security of the State,” and for administrative detention of up to one year where “any person is acting in any manner prejudicial to the maintenance of public order”.
How the PSA works
Under the PSA, the police make a dossier which contains details about the person and the grounds on which the detention is being done. The dossier is then communicated by the police to the administrative officials i.e. the Divisional Commissioner or the District Magistrate for the approval of his detention. The administration, allegedly with little or no application of mind, decides on the detention. Once a person is detained, the reasons for detention must be communicated to him within 5 days or a maximum of 10 days. If the grounds of detention are in “public or national interest”, the grounds need not be communicated at all. The authorities are required to place on record all the detentions in front of an Advisory Committee within a period of four weeks from the date of such detention. It is the Advisory Committee’s responsibility to review the detention orders and to scrutinize them and their validity. Upon scrutiny, the Advisory Committee may either uphold the Detention Order or quash it. The decision of the Advisory Committee is binding on the administration. The only legal remedy to appeal against detention under the PSA is to file a writ of Habeas Corpus before the High Court or the Supreme Court.
Reports of torture, cruel and inhumane treatment in detention have come forth. A report from Reuters shows that more than 3000 people have been detained under the PSA. Politicians like Farooq Abdullah, Omar Abdullah and Mehbooba Mufti; apart from youth leaders like Shah Faesal were placed under house arrest.
The APDP reports states that civilians detained pre and post the abrogation have been tortured and even shifted to prisons outside J&K. They have not only been detained under the PSA, but have also arbitrarily been booked under offences of rioting and attempt to murder.
The State Police itself has admitted to detaining 144 children since August 5, but also claims that most of them were released on the same day.33 .But the number cited by the police cannot be treated as authoritative, as reports indicate that there have been many occasions where the police have treated children as adults and detained them accordingly, using the PSA.
The report also highlights the arbitrary detention practices of the Army which has raided people’s homes or summoned people to police stations. People are picked up from their homes in nocturnal raids carried out regularly by these forces. The forces are also summoning people to the police station or army camps, usually by confiscating their mobiles or identity cards, and asking them to collect it from the camps or police stations. Once the person reports to the camp, the authorities either detain them indefinitely, torture them or treat them in a manner that constitutes cruel, inhumane or degrading treatment.
India has ratified the International Covenant on Civil and Political Rights (ICCPR) and several provisions of the PSA are inconsistent with the Indian government’s obligation under the Treaty. For example, according to Article 9(2) of the ICCPR “[a]nyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.” However, Section 13 of the PSA allows the detaining authority to not communicate grounds of detention for up to 10 days of detention, and also to withhold any information that it considers “to be against the public interest to disclose”.
India is yet to ratify the Convention against Torture (CAT) even after 22 years of signing it in 1977. But it is still a part of several other international law instruments, the ICCPR being one of them, the Article 7 of which states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
The CAT requires state parties to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under their jurisdiction. However, not being a part of CAT and having no domestic anti-torture laws in place, the impunity to the imposers has increased and the accountability for their acts has been reduced to the ground.
Media blackout
The autonomy of the Press in Kashmir has always been allegedly restricted and violated. There has been a visible absence of news from Kashmir in the Indian media barring few over the past few years. Where these exist, they were usually concocted stories in line with the majoritarian and communal propaganda.
Misreporting by news channels has factored out the self-determination angle and changed the narrative of Kashmir in people’s minds. For example, the fake encounter of Junaid Ahmed Khuroo, in2001, was reported in The Hindu as “a militant committing suicide inside a mosque”. It failed to show the truth, later, proceedings of the SHRC (State Human Rights Commission), found the case to be “cold blooded murder”. Although Greater Kashmir followed up the story, a Kashmir based paper, it has hardly any readership in Indian mainland.
The murder of a renowned journalist Sujhat Bukhari, who was a regular contributor to The Hindu and the Editor of Rising Kashmir in 2018, did not lead to extensive coverage by the Indian media. They did not raise the issue, and his murder remains unresolved, like many other killings in Kashmir.
The APDP report asserts that since the change of government in 2014, Kashmiri journalists have been stifled time and again. Aasif Sultan, a journalist with the Kashmiri Narrator, who recently won the John Aubuchon Press Freedom Award 2019, has now been jailed for over one year. He has not been charged for any crime or tried by a court. The police only said that his laptop contained ‘incriminating’ evidence. The local journalist association protested against Aasif’s arrest and his editor went on record that the crackdown was because of a well-reported article he wrote on slain militant commander Burhan Wani. The report traced the life story of Burhan Wani and some of his fellow mates; it was published on his death anniversary.
Kashmir was placed under a virtual curfew post abrogation on August 5. National and international media agencies came out with many contradicting reports, with the mainstream media being heavily in favour of the government. The international news media presented its concern regarding the abrogation, but there was no on-ground report for the Kashmiri media had been completely silenced. The internet shutdown too meant that whatever rare reports were coming out could not be accessed by the public.
International human rights law guarantees the freedom of expression. Article 19 of the ICCPR states that everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
But the government has scrapped the advertising avenues of non-conformist newspapers and has arbitrarily detained journalists apart from continuously forcing them to disseminate pro-state propaganda.
Healthcare services hit
The valley has been under a total curfew for more than two months, critically affecting the medical and health care system in the region. This massive siege continuing for such a long period has severely impacted peoples’ right to access to health care and medical facilities, as guaranteed under international human rights law, reports the APDP.
The link between drug stores, stockists and depots has been broken due to the clampdown. There has been a reduction in patient admissions in hospitals, with patients not being able to visit the facilities due to a curfew and lack of public transport. Doctors had routinely raised concerns about the situation, especially regarding patients needing dialysis and chemotherapy, pregnant women and those in need of emergency surgeries. With the internet and landline services being hit, there were no means to call for ambulances and more than 8 million people have been denied the fundamental right to healthcare in light of the abrogation.
No government facility like mobile medical vans for patients had been provided and senior consultancies required to discuss critical cases couldn’t take place due to the internet restrictions.
Most importantly, the mental health of the people of Kashmir has been toyed with. Nobody can put a number to the casualties that have ensued due to the healthcare services being destroyed due to the abrogation.
Children’s rights and education
The APDP reports that various human rights organisations have emphasised the negative impact of conflict on children. There are various forms to it such as structural, social and psychological. In general, the situation in Kashmir has gravely impacted children: many children have been detained under the PSA for “stone-pelting”, many have lost their vision due to pellet firing on their eyes by security forces, some have died due to tear gas shelling, and many experience post-traumatic stress disorder.
The security forces have conducted many night raids in which children were picked up owing to a significant negative impact on their mental health.
It also reports that through board exams have been held in the Valley, the schools have been shut for the past four months. Though some schools have been reopened, the attendance still remains low due to the fear post the lockdown. The close proximity of security camps to schools makes students victims of surveillance and sexual violence. Schools in Kashmir in the past were occupied by armed forces. They often became sites of interrogation, and encounters with militants.
The security of students in Kashmir has always been at stake with 162 student killings taking place from 2003 to 2017. Holistic learning has been disturbed and there even e-learning cannot be resorted to due to the internet services being shut. Where does this leave them? Without an education what jobs are they going to aim for in the future?
Trade plummets
The abrogation of Article 370 has had a tremendous impact on the trade in the Valley. The availability of essential commodities has dwindled and the lockdown has affected the ability of the people to access food and conduct trade.
Trade bodies in Kashmir have pegged that the people have suffered a collective loss of over Rs. 10,000 crore with apple traders and weavers being hit the worst. More than 60,000 weavers have been rendered jobless because of the dearth of online orders and the militants have increased attacks against apple traders, mostly non-locals, post the abrogation.
Warehouse management has failed and stocks meant for exports are now sitting stuck in warehouses. According to the latest reports, the security restrictions and communication blockade have resulted in empty markets. The Sopore Market, 2nd-largest fruit market in Asia, was seen to be completely empty during this time, with growers selling Rs 750-apple-crates at a nearly 80% reduced price. The government has set up a National Cooperative to help the farmers sell their produce but till now 80% of the produce has been rejected on the basis of quality restrictions. With the increasing restrictions in the movement of vehicles and the communications blockade, apple traders have been unable to get in touch with growers in Kashmir and saw a fall in 50-60% of the arrival of produce in the beginning of the season in august. This is particularly significant since the apple industry in Kashmir employs over 3.5 million people.
The walnut trade is considered to be the backbone of the economy in Uri district, those associated with it are saying that this year they had to bear losses worth crores due to the situation that has arisen post August 5.
Supply of perishable items has been hit and people haven’t been able to meet their daily nutritional requirements because of not being able to access government stores and other shops.
Due to the curfew-like situation imposed, even as the situation looked like it was improving (before the militant attacks on traders), the shop owners observed a self-imposed civil disobedience and did not keep their shops open all day. Shops opened for a few hours each morning and evening, but remained largely shut, also due to the fear of being attacked.
Religious freedom curbed
APDP reports that mosques in Kashmir, as critical sites of community mobilization and participation, have been continuously barricaded/put under indefinite curfew in a move that separatist leaders have identified as an effort to suppress religious practice. Several reports have been published since at least 2009, highlighting the severe crackdown on mosques, religious processions, and even weddings and funerals. In other words, the Indian State has deliberately put an end to large assemblies of people, and prevented community gathering.
In 2019, after the entire Valley was shut down following the abrogation of Article 370, Muharram processions were once again banned in several regions. According to reports by Greater Kashmir and Scroll, the J&K police in July 2019 (some days before the communications blockade and before Article 370 was abrogated in Parliament) ordered the zonal superintendents to submit details of all the mosques within their jurisdiction.
Despite some reports that Eid passed peacefully, residents of the Valley actually spent the day in complete lockdown, unable to contact their loved ones or gather for their prayers. Safwat Zargar also documents instances of intimidation by the security forces where clerics have been summoned to army camps and “counselled” and threatened not to speak out against the removal of Article 370.
The ban on religious gatherings and the ability to commemorate holy days has been severely curtailed especially since August 5 with curbs on movement at religious places and congregational prayers, the arrest of religious preachers and the constant surveillance of religious institutions instilling a sense of fear in the public.
Justice denied
Unfortunately, Kashmir has always been the place where law has been constantly used to suppress and oppress the people. Access to justice, as per Indian Constitution is a fundamental right of every citizen and is one of the facets of life under Article 21 and equality under Article 14. Since the Indian Government used Art. 370 to abrogate Art.370 itself, the Indian Constitution apply to Kashmir now in too. However, under the same constitution, the residents of Kashmir are being deprived of their basic fundamental rights which are a clear violation of Part III of the Constitution of India.
Post the abrogation in 2019, High Courts and lower courts have been out of order due to the blockade. Legal aid is a constitutional right guaranteed by Articles 21 and 39-A of the Constitution of India. “Access to Justice” is a basic human right recognized by the Indian Constitution as well as various international covenants. However, it is pertinent to mention here the fact that despite so many detentions (nearly 16000 detentions) made by the concerned authorities, only few judges are present to hear and adjudicate the Habeas Corpus writ petitions. At present, only two benches are present in the High Court to dispose of the said petitions, the APDP reports.
The former President of the Jammu and Kashmir Bar Association – Nazir Ahmad Ronga had been held in preventive detention since August 9, 2019 under the PSA. Also, the present Presidents of the JK Bar Association-Mr. Mia Abdul Qayoom has been held in preventive detention under the Public Safety Act (which the Amnesty International has termed as “Repressive and Draconic”) even before the passing of the bill and lodged at Agra jail of state of Uttar Pradesh which is approximately 1000 kms away from the city of Srinagar. Even the President of Baramullah (Abdul Salam Rather) and Anantnag (Fayaz Sodagar) District Bar Association have been detained. The High Court Bar Association filed a petition before the HC of Jammu & Kashmir to allow two of its members to meet the Bar President. However, the same was rejected by the Court.
This has just proved that apart from denying justice and twisting the law to suit their agenda, the government has now taken the law in their own hands and turned a blind eye to the citizens of Kashmir and their plight.
The de-facto emergency and the issue of normalcy
The Central Government of India has plunged Jammu and Kashmir in a de-facto state of emergency starting August 5. The fundamental rights of the people have been trampled upon and the indefinite curfew still goes on today. Every aspect of normal life has been hit – healthcare, education, freedom of movement, right to information, right to the internet and most importantly fear reigns in the mind of every Kashmiri.
Yet, in a pitiful and shameful manner, the government and mainstream media, its accomplice has painted the picture that ‘all is well’ in Kashmir. Nobody can access justice because the judiciary in Kashmir itself is under siege. So who will rescue Kashmiris from this ‘collective punishment’ asks the APDP.
The outright falsehood that everything is normal in Kashmir, is a shame. Losses have mounted, of lives and livelihoods, but will the Centre ever acknowledge that fact?
The entire report by APDP may be read here.
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