Scathing report

India summarily rejects a U.N. Special Rapporteurs’ letter seeking progress on administering justice in cases of alleged human rights violation in Jammu and Kashmir, but independent rights groups and journalists say the U.N. observations are more fact than fiction.

A person injured by a pellet gun in Kulgam being treated in SMHS Hospital, Srinagar.

ON March 18, three Special Rapporteurs of the United Nations wrote a letter to the Indian government inquiring about the progress made in administering justice in the cases of alleged rights violations in Jammu and Kashmir as delineated in the U.N. report of June 2018. The letter brought to focus an additional “13 cases of concern”, accusing the security forces of killing eight civilians, including four children, in 2018. India’s response was on expected lines; it dismissed the charges outright and announced that it would not engage with any “mandate holders” on the issue.

Last year, the Office of the U.N. High Commissioner for Human Rights (OHCHR) published a 49-page report titled “Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 and April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan”, alleging extrajudicial killings, high-handed quelling of civilian protests, and illegal detention of dissenters, including minors, in Kashmir. India rejected the findings summarily and alleged that the report sought to build a false narrative. “India rejects the report. It is fallacious, tendentious and motivated. We question the intent in bringing out such a report,” the Ministry of External Affairs (MEA) stated at the time. “The report violates India’s sovereignty and territorial integrity. The entire State of Jammu and Kashmir is an integral part of India. Pakistan is in illegal and forcible occupation of a part of the Indian State through aggression,” the MEA said.

This time India’s response was sterner than before. On April 23, the Indian Permanent Mission to the U.N. in Geneva replied to the OHCHR, dismissing all accusations levelled against its forces. The government questioned not only the credibility of the report but also its objective and said “individual prejudice” guided it. “India rejects any reference whether implicit or explicit or any quote by any human rights mechanisms or bodies from the remote report published by the OHCHR on the situation of human rights in Kashmir in June 2018. India rejects the remote report and doubts on its credibility and objectivity. The Report begets the question whether individual prejudices should be allowed to undermine the dignity and standing of the high office,” the Permanent Mission of India to U.N. offices in Geneva stated in its official reply. It further said that the 2018 report was now a “closed chapter”. “India... does not intend to engage further with these mandate-holders or any other mandate-holders on the issue,” it said.

The March 2019 letter was written by Agnes Callamard, Nils Melzer and Dainius Puras, the three Special Rapporteurs on Extrajudicial Executions, Torture, and Right to Health, respectively. After a period of 60 days, the letter was made public along with India’s official response.

First-of-its-kind report

The June 2018 report, which formed the premise of the March 2019 letter by the three Special Rapporteurs, was a first-of-its-kind report that directed the blame at India for its alleged excesses in Jammu and Kashmir. The 49-page report, among other things, highlighted “the impunity” with which the forces use coercion to stifle political dissent and strip political prisoners as well as civilians of their civil liberties in the strife-torn valley of Kashmir, deriving sweeping power from contentious laws such as the Armed Forces Special Powers Act (AFSPA). “The political dimensions of the dispute between India and Pakistan have long been centre stage, but this is not a conflict frozen in time. It is a conflict that has robbed millions of their basic human rights, and continues to this day to inflict untold suffering,” Zeid Ra’ad Al Hussein, the U.N. High Commissioner for Human Rights, said at the time. 

Al Hussein referred to the post-Burhan Wani civilian uprising in Kashmir Valley and pointed out numerous examples of excessive use of force on unarmed protesters, including women and children. He further revealed that his team had been denied access to Kashmir, forcing them to depend on remote monitoring of the situation there. “The U.N. Human Rights Office—which, despite repeated requests to both India and Pakistan over the past two years, has not been given unconditional access to either side of the Line of Control—undertook remote monitoring to produce the report, which covers both Indian-Administered Kashmir and Pakistan-Administered Kashmir,” a statement said.

The focus of the 2018 report was from July 2016, when the 21-year-old militant, Burhan Wani, was felled by the Indian security forces in Kokernag, provoking unprecedented protests by the masses, to April 2018. Citing civil society estimates of 145 civilians being killed in that period, the report alleged that “Indian security forces used excessive force that led to unlawful killings and a very high number of injuries”. It said one of the most dangerous weapons used against protesters in 2016—and which is still being employed by security forces—was the pellet-firing shotgun. It pointed out that as per official records, pellet guns claimed the lives of 17 people between July 2016 and August 2017 and left 6,221 people injured from July 2016 to March 2017. “Civil society organisations believe that many of them have been partially or completely blinded,” the report said.

AFSPA and PSA

The report pointed out that the AFSPA and the Public Safety Act (PSA) guarantee impunity to the forces and impair the administration of justice and indeed the normal course of the law, a situation that has stripped the victims of human rights violations the right to remedy. “Impunity for human rights violations and lack of access to justice are key human rights challenges in the state of Jammu and Kashmir,” the report said. According to the AFSPA, security personnel can be prosecuted only if the Centre approves a request made by the State government to that end. The report said: “This gives security forces virtual immunity against prosecution for any human rights violation. In the nearly 28 years that the law has been in force in Jammu and Kashmir there has not been a single prosecution of armed forces personnel granted by the Central government.... There is also almost total impunity for enforced or involuntary disappearances, with little movement towards credibly investigating complaints, including into alleged sites of mass graves in the Kashmir Valley and Jammu region.”

The report referred to the infamous mass rapes in Kunan-Poshpora on February 23, 1991, and pointed to the “chronic impunity” enjoyed by the forces for sexual violence. “An emblematic case is the Kunan-Poshpora mass rape 27 years ago when, according to survivors, soldiers gang-raped 23 women.... Attempts to seek justice have been denied and blocked over the years at different levels,” the report said.

Despite India’s summary rejection of the June 2018 U.N. report and its follow-up in March this year, ground reports carried out by independent rights groups and journalists reveal that the U.N. observations are more fact than fiction. The PSA, a law meant for adult offenders, for instance, is used randomly to book minors. In most cases, the police register the detainee’s age as above 18 while refusing to entertain birth certificates provided by the detainee’s family, mostly from disadvantaged, disempowered backgrounds and unable to afford legal counsel. Shockingly, the Act has been invoked successively against persons absolved by the Jammu and Kashmir High Court; in most cases the accused is not released even when the court quashes the PSA. The police then slap a subsequent PSA, obviously without merit since a person already in custody cannot be involved in a successive threat to public order.

Shafkat Hussain, a Srinagar-based lawyer, told this reporter how the PSA was abused in numerous ways. “First of all there is this practice of booking minors under the PSA and that is something not uncommon. There are instances when people who have been slapped with the PSA had had no FIRs [first information reports] against them to validate their involvement in anything prejudicial to law and order. This despite the fact that a District Magistrate has to subjectively satisfy himself that the relevant constitutional guarantees have been fulfilled before he issues a detention order under the PSA. Moreover, the law is successively invoked against people absolved by a court,” Hussain, who has appeared as counsel in dozens of PSA cases, pointed out.

Rights groups allege that during the peak of militancy in the 1990s, custodial killings were the order of the day. Indeed, places such as Papa II and Cargo House are registered in the collective memory of Kashmiris as dreaded interrogation chambers from where “no one returned”. The practice has abated but not ended. As recently as March 18, a 29-year-old school principal, Rizwan Pandit, was killed while in police custody in Awantipora. Rizwan had been picked up from his home in connection with a “terror case investigation”. Rizwan’s brother, Mubashir Pandit, told the media later that his brother had “visible torture marks” all over the body. “His legs had turned blue and there were scars on his body. Even his face was bruised.” Ironically, the police said that Rizwan was killed when he tried to flee from custody, and it also filed a case against the deceased.

When it comes to prosecution of forces for rights transgressions, India’s record is dismal. Only in 50 cases has the Jammu and Kashmir government made a request to the Centre for prosecution sanction against security personnel, as revealed by the then Union Minister of State for Defence, Subhash Bhamre, in the Rajya Sabha on January 1, 2018. At the time, Bhamre said, sanction was declined in 47 cases while the decision was pending in the remaining three.