Realpolitik Relegates Human Rights to the Background

It is essential to create a non-militarized, non-militant and humane environment to ensure the rights of citizens to peacefully protest and to be heard by their political representatives. To that end, an environment that ensures all citizens that they have a voice and that their voices will not go unheard must be created.

In any society, when the people are in survival mode and trying to avoid being criminalized, to the extent that they are unable to participate in their governments, forces of power, greed and special interests take over. Bigotry and hate are at the root of this violence. 

Human Rights Violations during the Insurgency

The insurgency in Jammu and Kashmir, which has extracted an enormous price from the people of the state, was generated by the systemic erosion of democratic and human rights, discrimination against the Muslims of the Valley, socioeconomic marginalization, relegation of the right to self-determination to the background, etc. While the rebellion may have been incited by India’s political, social and economic tactlessness, it has been sustained by military, political, and economic support from Pakistan. Proponents of the independence of the state of J & K are just as stridently opposed to Pakistan’s administration of “Azad” Kashmir as they are to India’s administration of J & K.

A decree, the current interpretation of which has rendered it draconian is the Jammu and Kashmir Public Safety Act (1978). This Act permits law-enforcing agencies to detain a person for up to a period of two years on grounds of vaguely defined suspicion. The Act originally stipulated that a detainee could be kept in custody for up to a year without being formally charged if public order was in jeopardy, and for upto two years if the security of the state was jeopardized. A modification to the Act in 1990 made it non-obligatory for the authorities to provide the detainee with reasons for his/her arrest. The International Commission of Jurists, in its report, has drawn the inference that victims of the aforementioned Act have undergone terrible trauma. The discriminatory nature of this Act undermines efforts to discover the whereabouts of such persons (Human Rights in Kashmir 1994).

Another equally stringent measure was the Terrorist and Disruptive Activities (Prevention) Act 1987, which was designed to forbid terrorist acts. In the zeal of the moment, the Act defined disruptive activities in the following words:

“any action, whether by act or by speech or through any other media or in any other manner, which questions, disrupts the sovereignty or territorial integrity of India, or which is intended to bring about or supports any claim for the cession of any part of India or the secession of any part of India from the Union.” (Section 4, as quoted in Human Rights in Kashmir 1994)

This rather high-handed definition was a violation of the freedom of speech. Under the Act, two special courts were established, in Srinagar and Jammu, to try arrested persons.

The Armed Forces (Jammu and Kashmir) Special Powers Act was enacted in 1990, giving the Union government in New Delhi and its representative in the state, the Governor, the authority to arbitrarily declare parts of J & K “disturbed area” in which the military could be willfully deployed to quell legitimate political activity. The military was entitled to shoot to kill, which involved “a potential infringement of the right to life” (ibid.). The introduction of other severe laws by the Government of India has made it further non-obligatory to provide for any measure of accountability in the military and political proceedings in the state. Despite these highly discriminatory and unpopular measures, the support enjoyed by some of the militant organizations in the early 1990s abated by the mid-90s. Balraj Puri (1995: 78) points out that the mushrooming of militant organizations, the disarray within their ranks, disagreements regarding their ultimate objective, and Pakistan’s vacillating attitude toward the insurgents contributed to the steady decrease in their verve and influence.

Human Rights Violations in Areas under Pakistani Control

While strongly conveying its disapprobation of the treatment meted out to the Northern Areas by the Government of Pakistan, the Human Rights Commission of Pakistan reported, in its monthly newsletter in January 1994, that:

“The government of Pakistan governs the Northern Areas (NA) through the Kashmir and Northern Areas Division (KANA). Authority behind KANA has remained vague. The executive head is the chief commissioner appointed by KANA and only answerable to it. The place is totally under bureaucratic rule. There is no industry in NA. The Judicial Commissioner does not have writ jurisdiction and, as the people of the NA do not have any fundamental rights, the Judicial Commissioner does not have jurisdiction to enforce them. The Judicial Commissioner has no say in the appointments and the transfers of subordinate court judges, which are done by the KANA division. The people of the NA have no say in what laws should govern them. The KANA exercises the powers of the provincial government for the NA, and by notification extends laws of Pakistan and such amendments as it thinks fit to the NA. Entrusting such absolute legislative powers to a government functionary is not without its share of hardships. By a notification, Order 39 of the Civil Procedure Code was amended, taking away the powers of the civil courts to grant temporary injunctions against the government. By another notification, the Speedy Trial Courts Act, 1992 was made applicable to the NA with the amendment that in appeals from the trial court, any differences of opinion between the two judges of the Appellate court will be settled by the chairman of the court. Such arbitrary application of laws is particularly unfair because not only do the people have no forum to protest against or amend these laws, but also because the courts have no writ jurisdiction, nor do the people have any fundamental rights. Thus such laws cannot be tested for their legality and reasonableness for violation of fundamental rights. The Northern Areas Council is headed by the minister of KANA and meets whenever called by the minister. The members cannot convene a meeting. The orders require that a meeting of a Council should be called every two and half months, but in practice the minister does not convene one for months. The Council in any case has no power. It cannot form a government, cannot legislate, and has no say in the administration. It cannot suggest development schemes. The main function of the Councilors, as a cynic said, is receiving dignitaries from Pakistan. The police in the NA has no prosecution of crime branch nor a forensic laboratory. No newspaper is published within the NA. There are few local language weeklies and monthlies, but they are printed elsewhere. It has even given rise to the occasional rumor that the government itself pays the Ulema [Islamic clergy] to start the clashes. With very low literacy, extreme poverty and no organized political activity, it is not surprising that the Ulema have acquired such a strong hold over the people. No judicial enquiry has been held into the clashes in 1992, and no compensation paid to the heirs of the person killed or for properties damaged.”

The remorseless militarization of the region, ecological and economic plunder, negation of legal procedures, lack of infrastructure, and virtual erasure has fuelled the hitherto restrained resentment and anger in the Northern Areas. It is ironic that pro-Pakistan separatist groups in the Kashmir Valley gloss over the arbitrary exercise of authority in the NA, and glibly declare that these areas chose their geographical and political affiliation, legitimizing the lack of fundamental rights and the unaccountable authority of the KANA.

It is more necessary than ever that demands for selfhood and autonomy in Kashmir, which have become misshapen but remain irrepressible, are taken seriously by the two nation-states. In Kashmir the current state of affairs is challenging, so it is crucial to have spaces of inclusion and pluralism within which citizens of all ages, but especially young people, can productively contribute to the re-building of their society through dialog. Young people must have an assurance that their voices will be heard by those in power at all levels of government.

Nyla Ali Khan is the author of Fiction of Nationality in an Era of Transnationalism, Islam, Women, and Violence in Kashmir, The Life of a Kashmiri Woman, and the editor of The Parchment of Kashmir. Nyla Ali Khan has also served as an guest editor working on articles from the Jammu and Kashmir region for Oxford University Press (New York), helping to identify, commission, and review articles. She can be reached at nylakhan@aol.com.

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