Two Years Since Abrogation of Article 370: Human Rights in Jammu and Kashmir

The Forum for Human Rights in Jammu and Kashmir comprises an informal group of concerned citizens who believe that, in the prevailing situation in the former state, an independent initiative is required so that continuing human rights violations do not go unnoticed.

This is the third report issued by the Forum. It has largely been compiled from government sources, media accounts (carried in well-established and reputed newspapers or television), NGO fact-finding reports, interviews, and information garnered through legal petitions. The first report was released in July 2020, followed by a second one in February 2021. This report details several issues from civilian security to freedom of media, speech and information as well as health, employment, land, demography and identity rights. The following is the executive summary of the report. Read full report here.

On August 4, 2019, the union government arrested close to 6,000 Kashmiri politicians, dissidents, intellectuals, journalists and youth, snapped tele and internet communications across the state, imposed a blanket curfew, and stationed an additional 40,000 troops at the valley’s towns. The next day, the President of India removed the special status granted to Jammu and Kashmir under Article 370 of the Indian constitution, and on August 9, Indian parliament passed the Jammu and Kashmir Reorganization Act, dividing the state into two union territories, Jammu and Kashmir, and Ladakh.

The combined military, police and communications lockdown continued for the next six months, only to be replaced by a pandemic-related lockdown that lifted only intermittently. In the meantime, the union government took a series of deeply controversial steps that invalidated the state’s residency laws and privileges, removed restrictions on land use and transfer, and denied legal rights to habeas corpus, bail and speedy trial. 

While there was some improvement in the second half of 2020, it was only marginal. Most of the political leaders, intellectuals, journalists and youth were released in small batches through the year, though close to 1,000 remain in prison. The courts continued to ignore habeas corpus and freedom of speech protections, curfews were routinely extended, the internet was only partially restored and snapped every time the Indian army conducted counter-insurgency operations, and new media policies further fettered the local media. Jammu and Kashmir’s economy, too, continued its sharp decline, with several industries forced into bankruptcy. Chinese military incursion along the Ladakh border in the spring- summer of 2020, leading to Indian counters in the autumn, further impacted an already fragile security situation. (The Forum’s reports, covering the period August 2019-January 2021, can be accessed here and here).

A small ray of light appeared in February 2021, when the Indian and Pakistani directors- general of military operations (DGMOs) agreed to a cease-fire along the international border between India and Pakistan and the Line of Control (LoC) between the two parts of divided Kashmir. The cease-fire helped restrict infiltration by armed groups and raised hopes that a wider peace process might follow, accompanied by the restoration of political and human rights. Though the cease-fire has held, it is now beginning to fray, as is suggested by the sudden low-cost drone attacks of June.

In June, hopes were raised again when Prime Minister Narendra Modi invited Jammu and Kashmir’s political leaders to a meeting. The meeting had an open agenda and it seemed as if the Prime Minister wanted to consult regional representatives on how to restore a political process. It has been three years since the last elected administration, led by Chief Minister Mehbooba Mufti, was toppled. On the ground, most residents believe that an elected administration will be far more receptive to civil and human rights than the governor and lieutenant-governor’s rule that they have had to subsist under.

The Prime Minister’s offer, however, fell far short of expectations. The Reorganization Act, he said, would continue to be implemented, and elections would be held for a Union Territory assembly. Statehood would be restored only at an unspecified “appropriate time”, as Home Minister Amit Shah said in parliament in February 2021 while piloting a bill to dissolve a key function of statehood, the Jammu and Kashmir administrative service¹.

These pre-conditions put regional parties in an awkward position, since the largest and most popular of them are in the Supreme Court of India, challenging both the hollowing out of Article 370 and the Reorganization Act. If they participate in assembly elections under these conditions, their challenges in court may be rendered infructuous. If they do not, there is a high risk that human rights abuses will continue unchecked.

Today, on the second anniversary of the military lockdown and loss of statehood combined with division of the state, the Forum is constrained to say that most of the violations described in the first two reports remain valid. Arbitrary detentions continue, public assembly is still prohibited under Section 144 of the Code of Criminal Procedure 1973 (CrPC), and close to 1,000 people are still in prison, including minors and elected legislators. Indeed, the Jammu and Kashmir administration appears to have added a new vigilantism against government employees, whose social media content is now subject to police scrutiny for ‘anti-national activities’, potentially leading to dismissal. Eighteen government employees have already been dismissed.

The former state’s industries still reel under the dual impact of the lockdown and the Covid- 19 pandemic. While the tourist industry showed signs of a recovery earlier in 2021, the second Covid-19 wave again halted recovery. Unemployment in Jammu and Kashmir has fallen somewhat but is still 11.56 percent; there is a media gag on healthcare workers; and the local and regional media have not regained what little independence they had.

Statutory bodies to which citizens could go to seek redress – for human rights, women and child rights, anti-corruption and the right to information – have not been reinstated, even though union territories too are entitled to independent statutory bodies for oversight, as pointed out in the Forum’s earlier reports.

As with the Forum’s previous reports, this report seeks to document the numerous human rights violations in Jammu and Kashmir under five broad heads: civilian security, health, children and youth, industry, and media. Its findings are as follows:

1. The security situation has not improved; on the contrary, it has worsened. Figures for fatalities remain much higher than they were in 2012-2016; moreover, the figures for ‘terrorists killed’ include child fighters, an issue that has not been flagged by either the union or the Jammu and Kashmir administration, though it is of serious concern.
2. Counter-insurgency concerns continue to be given priority over public, civilian and human security, leading to an across-the-board vitiation of human and civil rights protections. Notably, the Jammu and Kashmir High Court has shown renewed commitment to the rights to bail and fair and speedy trial, coupled with scrutiny of the possible misuse of draconian legislation, such as the Public Safety Act (PSA) and the Unlawful Activities Prevention Act (UAPA). Nevertheless, the Jammu and Kashmir administration continues to oppose bail and stifle dissent on increasingly bizarre grounds, such as the arrest of a political activist for saying he preferred local officers to outsiders.
3. Indeed, a new vigilantism has been introduced by measures such as a Special Task Force (STF), and recruitment of cyber volunteers, to monitor social media accounts, including of public servants, for ‘anti-national’ content.
4. The impact on children, youth and women has been particularly severe. Schools have functioned for barely 250 days between August 2019 and July 2021, due to repeated lockdowns. 2G limits as well as low internet spread have made it impossible for online classes to function adequately until February 2021, when 4G was restored. The continuing heavy security presence in towns and neighbourhoods has intensified trauma. Rates of suicide have gone up.
5. Rates of domestic abuse, too, have increased drastically. Incidents of dowry – and/or wife-burning, rarely heard of before, have surfaced. Though the Jammu and Kashmir police have set up woman-only help desks at police stations, the lack of a women’s commission for complainants is sorely felt.
6. Local and regional industries continue to suffer large losses, especially the discom, houseboat and animal husbandry industries. New land transfer policies have allowed widespread discrepancies in compensation. There are fresh complaints of illegal land occupation. New domicile rules, moreover, have eroded prior land ownership and employment protections for local citizens. Nomadic tribes continue to be forcibly evicted by forestry officers.
7. The local media has been one of the worst sufferers. Journalists have been harassed, assaulted and charged under the UAPA. Recent security directions bar journalists from being present near counter-insurgency operations, removing scrutiny of potential human rights violations. Measures to implement the 2020 media policy allow the police forces opportunities to intimidate media outlets. Censorship by the Directorate of Information and Public Relations (DIPR) in coordination with security agencies has been institutionalized; the new policy of recruiting cyber volunteers adds further threat of both censorship and intimidation. A media gag on health workers has allowed rumours of the adverse impact of vaccines to spread unchecked.

Judging from the announcement that the delimitation commission, appointed under the 2019 Reorganization Act to add seven new assembly constituencies, will only complete its work by March 2022, and elections will only be held after that, the Forum is concerned that the current situation of continuing human rights abuses will continue unchecked, since Jammu and Kashmir will remain under the administration of a lieutenant-governor for at least another year, possibly much longer.

The Forum urges, therefore, that the recommendations made in this third report be implemented without further delay. Many of them have been repeated over the past two years, surely an unconscionable time for citizens to wait for their fundamental rights to be restored.

Recommendations

1. Release all remaining political detainees who were taken into preventive detention on or after August 4, 2019. Strictly implement the rights to bail and speedy trial. Repeal the PSA and other preventive detention legislation or amend them to bring them in line with our constitutional ethos. Strictly implement juvenile protection legislation in letter and in spirit, including with regard to child fighters. Release all detained juveniles and withdraw charges against them. Withdraw unsubstantiated charges under the PSA/ UAPA against political leaders, journalists and activists, and institute time-bound enquiries into allegations of torture in detention, such as those made in regard to the People’s Democratic Party (PDP) leader Waheed Para.
2. Initiate criminal and civil actions against personnel of police, armed forces and paramilitary forces found guilty of violation of human rights, especially with regard to attacks on journalists. Release action-taken reports on the July 2020 extra-judicial killing of three Rajouri youth in Shopian, the December 2020 Hokersar deaths and the alleged custodial death of Irfan Ahmed Dar of Sopore, and the status of subsequent prosecutions.
3. Ensure that the army’s additional directorate for human rights is given full freedom in the role it can play in investigating alleged human rights abuses, and monitoring adherence to the humanitarian guidelines to be followed when conducting Cordon and Search Operations (CASO), to prevent civilian deaths, injuries or any other damage or loss.
4. Curb the application of Section 144 to only those instances in which there is clear and present danger and ensure that District Magistrates strictly follow judicial guidelines restricting its use. Attacks on journalists and courier companies that have free passage during curfew can and must be avoided. Hold police and paramilitary personnel who harass civilians at checkpoints accountable and initiate appropriate disciplinary action.
5. Adequately compensate innocent citizens whose houses have been destroyed in CASO or land reclamation drives. Ensure that nomadic tribes are extended the rights that they are entitled to under the Forest Rights Act of 2006.
6. Reinstate all the former state’s statutory oversight bodies, especially those monitoring human rights, such as the Jammu and Kashmir Human Rights Commission and the Jammu and Kashmir Women and Child Rights Commissions. In the interim, their national counterparts under whose purview these rights fall, such as the National Human Rights or Women’s Commissions, should set up branches in Jammu and Srinagar cities.
7. Compensate local businesses that were forced to shut down due to the government lockdown between August 2019 and March 2020 and ensure that they are given the government aid they require to the fullest extent possible. Provide immediate economic and anti-pollution aid to the houseboat industry.
8. Rollback the new media policy, including police checks and/or raids on media outlets, bans on drones used by video-journalists and the bar on reporting from counter-insurgency sites. Review the empanelment policy to ensure media outlets are not punished for dissent. Withdraw the case against the Kashmir Walla and ensure that no such cases, that are clearly intended to stifle reports adverse to the government, are filed.
9. Reconsider the establishment of village defence committees (VDCs) and the reinstatement of the Special Operations Group (SOG) and special police officers. In each case, these initiatives have been found to increase the vulnerability of employees as well as the public to acts of violence.
10. Ensure that local communities are involved in facilitating the return of Kashmiri Pandits. Without local support, returnees will not be safe, and their reintegration will prove extremely difficult.
11. Investigate allegations that there are twenty-five Kashmiris on the leaked Pegasus spyware list and rescind any orders that might have been given for its use, and put any justification in the public domain.

1. Bureau report, The Hindu, 13 February 2021. Note the anomaly: while Home Minister Shah reassured parliament that statehood would be restored, his ministry continued to dismantle the apparatus of statehood, including its governance services. Shamefully, the Bill was passed by MPs on a voice vote.

Courtesy: Indian Cultural Forum