The dual impact of brutal lockdown for more than 18 months and COVID-19 pandemic has resulted in extreme human suffering and near-total alienation of the people in the Kashmir valley from the Indian state.
This is the conclusion drawn in “Human Rights in Jammu and Kashmir: Mid-Term Report, August 2020-January 2021, by The Forum for Human Rights in Jammu and Kashmir, an informal group of concerned citizens comprising of retired Indian judges, public servants, journalists and military leaders.
This is the second report comprising of 57 pages issued by the Forum, 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.
Most of the violations described in the Forum’s first report remain, even 18 months after the imposition of a lockdown on Jammu and Kashmir, where arbitrary detentions continue, public assembly is still prohibited and hundreds, including minors and several elected legislators of Jammu and Kashmir, remain under preventive detention.
The Forum regrets that the Ministry of Home Affairs and Jammu and Kashmir administration did not responded to the first report issued in August 2020 covering the period of one year since Kashmir went into military lockdown in August 2019.
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 August 2020 report.
Two new developments – elections for District Development Councils (DDC) in December 2020 and further changes to land laws – combined violation of human rights with further erosion of political and economic rights.
Moreover, implementation of the much-criticised new media policy has led to the dis-empanelment of about 20 media outlets.
There is great concern amongst Kashmiris over economic and educational losses as well as policies such as the new domicile rules and reversed land laws.
Counter-insurgency concerns continue to be prioritized over public, civilian and human security, leading to the vitiation of protections such as habeas corpus, prevention of illegal detention and strict restrictions on arrest and detention of children.
Denials of the right to bail and fair and speedy trial remain, coupled with misuse of draconian legislation, such as the Public Safety Act (PSA) and the Unlawful Activities Prevention Act (UAPA), to stifle dissent.
Civilian fatalities in cross-border shelling and armed encounters between militants and security forces continue; arrests and detentions of political leaders continue, with the latest victim being PDP youth president Waheed ur Rehman Para.
The recent pellet firing, lathi-charge and tear-gassing of Muharram processions was entirely avoidable. The arrest of over 50 participants in the processions was, by any measure, excessive.
The 18-month ban on 4G connectivity continued to impact public health, causing trauma and stress amongst the people of Jammu and Kashmir and violating the rights to health and medical care under the Indian, and Jammu and Kashmir, constitutions. Assault and mistreatment of media professionals has continued, while media houses have faced economic, administrative and logistical problems.
Further changes in land rights have impacted ever-widening groups of people. Recent contraventions of the national Forest Rights Act of 2006, allowed for the demolition of hundreds of Gujjar and Bakerwal homes with no alternative housing provided.
The repeal of the former state’s Roshni Act, applied with retrospective effect, has lumped lawful owners in with land-expropriators.
The rights of children to a trauma-free environment continue to be arbitrarily ignored. Local and regional industries continue to suffer large losses in every sector. The tourism industry continues to languish and the iconic houseboat industry is on the verge of collapse.
None of the Forum’s August 2020 recommendations have been acted upon and are therefore reiterated below, with new additions.
1. Release all remaining political detainees who were taken into preventive detention on orafter August 4, 2019. Strictly follow jurisprudence on the rights to bail and speedy trial. Repeal the Public Safety Act (PSA) and any other preventive detention legislation, so that they cannot be misused against political opposition, or amend them to bring them in line with our constitutional ethos. Remove all restrictions on freedom of representation and expression. Strictly implement juvenile protection legislation in letter and in spirit. Release all detained juveniles and withdraw charges against them. Withdraw unsubstantiated charges under the PSA/Unlawful Activities Prevention Act (UAPA) against political leaders, journalists and activists.
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 recent instances of attacks on journalists. Moreover, the details now revealed by the Jammu and Kashmir police on the July 2020 extra-judicial killing of three Rajouri youth in Shopian indicate that this is a fit case for criminal charges in place of the army’s court martial procedure. The Forum recommends that the Ministry of Home Affairs grant permission for a criminal trial of Captain Bhoopendra Singh and his two accomplices.
3. Ensure the army’s additional directorate for human rights (a very welcome development), is given full freedom in the role it can play in investigating alleged human rights abuses, including the recent Hokersar deaths, 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 the use of Section 144. Such incidents as the August 2020 pellet firing, lathicharge and tear-gassing of Muharram processions could have been and should be avoided.
5. Adequately compensate innocent citizens whose houses have been destroyed in CASO or the recent land reclamation drive. Ensure that Gujjars and Bakerwals are extended the rights that they are entitled to under the Forest Rights Act of 2006.
6. Ensure that police and paramilitary forces at checkpoints allow smooth passage for medical personnel and patients. Where patients lack transport to hospital, provide aid by making vehicles available. Hold police and paramilitary personnel who harass civilians at checkpoints accountable and initiate appropriate disciplinary action.
7. Now that the 4G restriction on internet and mobile services has been revoked, put all reports of the Special Committee extending the ban in the public domain, and ensure that stringent criteria are applied to curtail imposition of any further bans.
8. 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.
9. 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.
10. Rollback the new media policy and encourage all shades of opinion to be freely and peacefully expressed. Review the empanelment policy to ensure media outlets are not being punished for dissent.
Members of the Forum
Justice Madan B. Lokur, former judge of the Supreme Court of India
Radha Kumar, former member, Group of Interlocutors for Jammu and Kashmir
Justice Ruma Pal, former judge of the Supreme Court of India
Justice AP Shah, former Chief Justice of the Madras and Delhi High Courts
Justice Bilal Nazki, former Chief Justice of the Orissa High Court
Justice Hasnain Masoodi, former judge of the Jammu and Kashmir High Court
Justice Anjana Prakash, former judge of the Patna High Court
Gopal Pillai, former Home Secretary, Government of India
Nirupama Rao, former Foreign Secretary, Government of India
Probir Sen, former Secretary-General, National Human Rights Commission
Amitabha Pande, former Secretary, Inter-State Council, Government of India
Moosa Raza, former Chief Secretary, Government of Jammu and Kashmir
Hindal Haidar Tyabji, former Chief Secretary, Government of Jammu and Kashmir
Shantha Sinha, former chairperson, National Commission for the Protection of Child Rights
Major-General Ashok Mehta (retd)
Air Vice-Marshal Kapil Kak (retd)
Lieutenant-General H S Panag (retd)
RD Sharma, former Vice Chancellor of Jammu University
Enakshi Ganguly, Co-founder and former Co-director, HAQ Centre for Child Rights
Ramachandra Guha, writer and historian
Anand Sahay, columnist