Chapter 8: Human Rights in Jammu and Kashmir

The first and foremost Human Right is the right to life, And it is the bounden duty of any State to take necessary action to safeguard the life, property and dignity of its people. In the context of Kashmir it is essential to examine who is responsible for the creation of an environment where human rights can be violated. After all the Indian security forces have been present in the State of Jammu and Kashmir since 1947 and never was any hint of any human rights violations of the people voiced. On the contrary the presence of the Indian security forces state has been a source of assurance to the people of a state that has been subjected to repeated aggression by Pakistan. The people of Jammu and Kashmir, including those of the Valley refused to be duped by Pakistan's blandishments in the three wars with Pakistan- eloquent testimony to the people's faith in the Indian security forces and the Indian polity.

What then is the new element that has been introduced that has triggered off the whole debate on the question of Human Rights in Jammu and Kashmir? The answer has been given by International Human Rights organizations such as Amnesty International and Asia Watch who have had to acknowledge the pervasive presence of terrorism in the Valley and have documented the depredations of the terrorists.

The Vienna Declaration passed at the end of the World Human Rights Conference in 1993, the resolution adopted by the Third Committee of the UN General Assembly also in 1993, the Resolution 1993/48 adopted by the Commission on Human Rights, all stress the need for the international community to combat terrorism and condemn terrorist activities as a gross violation of Human Rights.

The real question that needs addressing is the continuous assault on democratic institutions perpetrated by the armed terrorists in Jammu and Kashmir acting at the behest of Pakistan.

In his book "Future of political violence" General Richard Clutterbuck states ".. The ultimate civil right, however, is the right to live. A violent minority, whatever its politics, has no right to kill, and no claim to such a right must ever be allowed to override the right of the majority to live in peace.. ". It is precisely this right that the a violent minority has arrogated to itself in the State of Jammu and Kashmir.

The pillars of a free democratic society are the judiciary, the press and free political activity.

The Indian press has been lauded internationally for its freedom. Freedom of expression is a norm in Indian society, jealously guarded by the representatives of the Fourth estate. In fact Amnesty itself has acknowledged that a great deal of its information has been culled from the Indian media. But muzzling and manipulating the press has been a regular practice followed by the terrorists in the Valley. Prominent media personalities have been killed. Details of the repression of the media by the terrorists are given in a separate chapter.

An independent judiciary has been one of the hallmarks of Indian democracy. It has been a champion of Human Rights. At the height of the forcible armed occupation of the Hazratbal Shrine by armed militants in late 1993, it was the Indian Supreme Court that ordered the Government to provide sustenance to the people inside the shrine. The independence of the Indian judiciary has been lauded world wide ... and it is the representatives of this institution who have been targeted by the terrorists.

There has been targeted killing of political leaders and workers, including former legislators of the State. Three top political leaders, Maulvi Mohd. Farooq, Chairman of the Awami Action Committee, (May 21, 1990), Abdul Jabbar, a former Minister (April 18, 1990) and Maulana Masoodi, State level National Conference leader (December 1990) were gunned down by terrorists. Many former legislators of the Congress and the National Conference have fallen victims to militants' bullets. Prominent citizens and opinion makers have been selectively eliminated to prevent any scope for dissent against the activities of the terrorists.

The minority community of Hindus has been selectively targeted leading to an exodus from the Valley.

Countless civilians, including Muslims, have been raped tortured and killed for being " informers" or for refusing to join the ranks of the militants or to assist them. The oppression of civilians by the terrorists has heightened as disenchantment with the latter's activities has increased.

A sustained effort has been made by the terrorists to change the very tolerant character of Islam practiced for centuries in the Valley. The Islam being introduced by the terrorists throws acid on women who do not wear the "burqa", an all encompassing robe. 400 schools have been destroyed and education disrupted so that children are "freed" from the mainstream and turned into rabid fundamentalists, particularly by the pro-Pakistan groups like the Hezb-ul-Mujaheddin.

As disenchantment with militancy grows in the Valley and on occasion the people of the Valley have voiced their opposition to acts of terrorism, Pakistan has begun to send in armed foreign mercenaries to re-inforce the "Jehad".

Humanitarian institutions such as hospitals in the Valley have been subjected to intimidation with doctors being threatened; hospital premises being used to hide weapons; doctors and nurses being kidnapped and killed in order to compel obedience to the terrorists' diktats. The situation has forced many reputable medical practitioners to leave the Valley and to seek employment elsewhere.

SUBVERSION OF DEMOCRACY

An assessment of the Human Rights situation in the State of Jammu and Kashmir must take the involvement of Pakistan in providing sanctuary, arms and training and finance to terrorists to operate in Indian territory as its starting point since, having created a situation of armed terrorism and subversion of the democratic polity, Pakistan now seeks to exploit the resulting situation by raising the bogey of Human Rights.

Lord Howe speaking in the British House of Lords on the question of human rights observed "... the important question of human rights ... is an inevitable and legitimate question for societies such as our own that are struggling with the uneven balance between, on the one hand, the forces and agencies of Government charged with the uncomfortable duty of upholding the rule of law- all of whose decisions are open to challenge, open to appeal, open to debate . . . and on the other hand terrorists who are subject to no such constraints; they act as self appointed prosecutors, self appointed judges, self appointed jury and self appointed executioners.."

Democracy, with its concomitant principles of freedom of expression and faith is the surest protector of human rights. Dwelling on human rights, when the very institutions which can guarantee human rights are the target of terrorism spawned and supported from across a State's borders, is self destructive. It diverts attention from what should be the primary focus - the preservation of the human rights of all citizens, not only a gun wielding minority.

The Government of India is extremely conscious of the need to protect the human rights of all its citizens.

When India became free in August 1947 it gave itself a representative Government, chosen on the basis of adult suffrage. Its Constitution drew inspiration from the French and American Constitutions while retaining the best of British Conventions which ensure the rights to Freedom and Liberty. It inherited a judicial system from the British, which is based on natural justice and the principles of jurisprudence.

India, has been in the forefront of the struggle against colonialism and apartheid. It is a signatory to the Universal Declaration on Human Rights, and has acceded to the two International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights in 1979. In fact the Indian constitution guarantees almost the entire gamut of Civil and Political Rights, and the Directive Principles of State Policy, which form a part of the Constitution, require the Government to promote social and economic rights.

Strange then that India should come under criticism for alleged violations of Human Rights.

No one disputes the fact that at times, faced with the violence perpetrated by the terrorists, some violations have been caused by the security forces also. The question arises have the excesses been condoned? What are the safety valves? The institutions of democracy - the legislature, the judiciary and the press - have played a vital role, in putting a break on the executive and ensuring the Human Rights are not violated with impunity. The Parliament of India and the State Legislatures keep the Executive under close scrutiny. India has an independent Judiciary and a free Press. Alleged excesses have been exposed in the Press, and taken up by the Legislatures and in some cases followed up suo-moto by the Judiciary. In the recent past, the country has also seen the emergence of many non-Government organizations, which have taken up the cause of Human Rights. And more importantly a National Human Right Commission was set up recently.

The Indian Security Forces have had to fight the terrorists, particularly in Jammu and Kashmir, under very difficult conditions with grave danger to their lives. Whenever they are under pressure, the terrorists resort to a deliberate disinformation campaign making all types of wild allegations against the Security Forces, to demoralize them and deflect the thrust of their operations.

One of the allegations leveled against India is that the Armed Forces (Special Powers) Act and the Terrorists and Disruptive Activities (Prevention) Act confers immunity on the Security Forces for "anything done or purported to be done" under the Act. Such conclusions are grossly irrational. The special powers conferred on the members of the Armed Forces do not keep them out of the purview of the law of the land. They are accountable for their actions.

All allegations against the security forces are investigated fully and pursued vigorously. Most of the allegations made against the Security Forces have been found to be inaccurate, highly exaggerated and fallacious. Punitive action has been taken whenever proved to be true. Despite the fact that over 700 security force personnel have lost their lives in encounters, grenade attacks and mine explosions, action has been taken against 174 personnel of the Security Forces. The punishment ranged from imprisonment upto 10 years, dismissal from service, suspension and forfeiture of seniority.

Because of orchestrated propaganda, an impression has gained currency that the Government of India is not seriously concerned about the violation of Human Rights. This is not true, and the impression needs to be dispelled. A National Human Rights Commission was established through an ordinance, and later confirmed by an Act of Parliament in 1993. The Human Rights Bill provides for the setting up of Human Rights Commission at State levels too.

The National Human Rights Commission has come into being with a former Chief Justice of the Supreme Court of India as its Chairman. The Commission has also taken cognizance of the recent events in the Valley, and has invited information about the violent incidents in such sensitive spots like Bijbehara.

Allegations of Human Rights violations have been leveled against India by Pakistan to gain international support in its proxy war against India. The method followed is simple. Whenever they are under pressure, the terrorists in Jammu & Kashmir resort to a deliberate disinformation campaign, making all types of wild allegations against the Security Forces. Besides the threats of killing, extortion and kidnapping, the terrorists often browbeat the ordinary citizens, into making bizarre allegations. Based on the stories inspired by the terrorists and also on a few occasions when Security Forces may have overstepped their limits many Human Rights organizations have published exaggerated reports of alleged excesses. The reports published in the local Press in the Valley under threat of militants are fed to agencies across the border who use it in their anti-India campaign. They are also used by international Human Rights organizations.

In Kashmir alone action has been taken against 174 officers and men of the Security Forces. They include imprisonment upto 10 years for 67 members of the Security Forces, (ii) dismissals, removal from service, or compulsory retirement for 16 personnel (iii) reduction in rank or loss of seniority for 7, (iv) other departmental penalties for 44 personnel and (v) suspensions and arrests pending enquiry for 36 personnel.

But while the institutions of Indian democracy make the government apparatus answerable for human rights violations, is there any similar mechanism for controlling the terrorists? Debating the human rights issue without answering this pertinent question will remain a futile exercise devoid of any relevance to the conditions in Jammu and Kashmir.