Since the partition of India and Pakistan in 1947, Kashmir has become a problem
between these two nuclear countries. Kashmir since then has struggled for
self-determination which was promised by the UN by suggesting to conduct a free
and fair plebiscite for Kashmiris to decide their future but both these
countries even through negotiations failed to conduct the same.
Since then,
anger has taken over among Kashmiris over the repeated human rights violations
in Kashmir by security forces. This paper in brief highlights the human rights
crises in Kashmir engaged by the armed forces in Kashmir. It covers major
instances of such crises from the year 1947 to 2020.
Introduction
Human beings are born equal in dignity and rights. Human rights are moral claims
which are inalienable and inherent in all individuals by virtue of their
humanity alone irrespective of caste, color, creed, and birth of place, cultural
difference, or any other consideration. These claims are articulated and
formulated in what is today known as human rights. Human rights are sometimes
referred to as fundamental rights, basic rights, or natural rights.
According to
the United Nations, human rights as those rights which are inherent in our
nature and without which we cannot live as human beings (human rights and laws).
Human rights allow a human being to develop and make use of human qualities,
intelligence, and talent to satisfy our basic needs.
The conflict in Kashmir, which has its origins in the state's disputed accession
to India in 1947, erupted in December 1989 when Indian government troops
launched a brutal crackdown on rising violence by armed militant groups in the
predominantly Muslim Kashmir valley.
From the outset, that crackdown was marked
by brutality against civilians, including the shooting of unarmed demonstrators,
civilian massacres and summary executions of detainees. Since early 1990, the
valley of Kashmir in the north Indian state of Jammu and Kashmir has been the
site of a vicious conflict between Indian security forces and Muslim insurgents
demanding independence or accession to Pakistan. In their efforts to crush the
insurgency, Indian forces in Kashmir have engaged in massive human rights
violations, including extrajudicial executions, rape, torture, and deliberate
assaults on health care workers.
Armed insurgent groups have murdered Hindu and
Muslim civilians, summarily executed persons in their custody and have committed
rape, assault, kidnapping, and indiscriminate attacks which have injured and
killed civilians. In late 1992 and early 1993, human rights conditions further
deteriorated as Indian troops embarked on a "catch and kill" campaign against
suspected militants. Since then, summary executions of detainees by security
forces have sharply increased.[1]
Indian forces continue to exert large-scale, documented, and unpunished human
rights abuses in Kashmir. To date, 70,000[2] people have
been killed, 8,000[3] have disappeared—meaning to this day, no one knows of
their whereabouts. Countless women have been raped, including the gang rape of
women in the villages of Kunan Poshpora by Indian forces in 1991.[4] A number
of mass graves have been discovered. During the militancy, over half a million
Indian armed forces, including soldiers and paramilitary became part of the
permanent landscape of the region.
Today, the region is the most militarized
place on earth. India’s armed forces operate in a state of impunity and are
protected by laws such as the Armed Forces Special Powers Act and the Public
Security Act, which allows the state to arrest anyone for long periods of time
without any due process. Although the militancy was effectively quashed by the
early 2000s, by 2008, it gave way to mass mobilizations and civil disobedience
by a generation that has come to age under the gun. Since 2008, entire
generations of Kashmiri youth have taken on the Indian state, both online, and
on the streets.
Dubbed by analysts as the
new intifada, Kashmiri youth protest
the Indian oppression and the lack of political self-determination. Initially,
the protests were peaceful, as large crowds gathered to protest fake encounters,
land transfers, human rights violations, and cases of sexual violence, demanding
an end to the occupation and the right to a plebiscite to determine Kashmir’s
future.
As the protests grew in momentum, the Indian state responded brutally,
firing live ammunition and pellet guns into crowds, arresting political leaders
and youth activists, and oftentimes, declaring shoot-on-sight curfews in the
region in order to prevent further protests from occurring. State repression and
violence has increasingly gotten worse under the current Modi government.
Historical Background
Jammu and Kashmir, India's northernmost territory, is centered in the Himalayas
and shares boundaries with Pakistan, Tibet, and China. The state is divided into
three administrative regions: Jammu, which is located in the plains below the
Pir Panjal range and has a population of 5.04 Lakh;[5] Ladakh, which borders
Tibet and has a population of 2.74 Lakh;[6] and Kashmir, which is situated
between the Pir Panjal and Panjri ranges and has a population of 1.25 crores.[7]
Jammu
and Kashmir is the only Muslim majority state in India. The state, on the other
hand, is largely divided along religious lines. In the Kashmir valley, 95% of
the population is Muslim, the vast majority of who are Sunnis, while in Ladakh,
and 50% of the population is Buddhist and 46% Muslim. Jammu is religiously
diverse, with Hindus accounting for 66% of the population and Muslims accounting
for the majority of the remaining.[8]
The division of the Indian subcontinent in 1947, which resulted in the creation
of the independent states of India and Pakistan, is at the root of the conflict
in Kashmir. Hundreds of nominally autonomous "princely states" were incorporated
into the two new nations as a result of the division. However, Maharaja Hari
Singh, the ruler of Kashmir, refused to accede to either government, ostensibly
in the hope that the state would be allowed to remain independent.
Invasion by
Pakistani tribesmen in August and September 1947, along with an uprising among
Kashmiri Muslims in the state's western regions, prompted the maharaja to take
the assistance of Indian Prime Minister Nehru, who agreed to send troops only if
Kashmir formally assented to India. On 27 October 1947, the Maharaja agreed to
the accession of Kashmir to India provided that it was allowed to keep its own
Constitution.[9]
Indian troops managed to stop Pakistani forces and driving them
back to the state's western third, which was then annexed by Pakistan as "Azad"
(free) Kashmir. An armed conflict involving Indian and Pakistani forces, which
India brought to the attention of the United Nations Security Council on 1
January 1948. Two weeks later, Pakistan raised its concerns on the same issue.
On 20 January 1948, the Security Council, by means of Resolution 39, established
the United Nations Commission for India and Pakistan (UNCIP) to scrutinize the
allegations made by the Governments of India and Pakistan and to facilitate in
mediating the dispute.[10]
On 21 April 1948, Security Council Resolution 47 extended the mandate of the
Commission and authorized it to facilitate a free and impartial plebiscite to
decide whether the State of Jammu and Kashmir is to accede to India and
Pakistan.[11] Despite the fact that Kashmir was briefly independent between
August and October 1947, the resolution did not give the citizens of Kashmir the
option of declaring independence.
Resolution 47 proposed that the Pakistani
government ensure the removal of tribal fighters and Pakistani fighters from the
state of Jammu and Kashmir, as well as the prevention of any intrusions or
assistance to those fighting. The plebiscite was supposed to take place after
various steps outlined in Resolution 47 were put in place.[12] In July 1949
there had been a truce and a Security Council-mandated military observers to
oversee it. The UNCIP ended in 1951 and the UN Military Observer Group (UNMOGIP)
was formed in India and Pakistan.
The Security Council Resolution 91 continued
the work of military observers.[13] The ceasefire line divided the former
princely state, with Pakistan governing the Muslim-majority western and northern
areas of Jammu and Kashmir, known as Azad (free) Jammu and Kashmir and
Gilgit-Baltistan (previously called the Northern Areas), and India governing the
Kashmir Valley with its mostly Muslim population, as well as the Hindu-majority
region of Jammu in the south.[14]
The Indian state of Jammu and Kashmir is
comprised of these three regions. China now has jurisdiction over a portion of
the former princely state's territory.[15] Despite the fact that the
"India-Pakistan Issue" remained on the Security Council's agenda until1957,
resulting in multiple resolutions, the plebiscite was never held because the
necessary conditions of withdrawal of forces were not met.
In 1957, protection Council resolution 122 stated the convening of a constituent
meeting, as endorsed with the aid of the overall counsel of the All Jammu and
Kashmir national conference, any motion that the meeting might also have taken
or may try and take to decide the future form and association of the complete
kingdom or any part thereof, or movement by means of the events worried in
assist of such an action via the assembly, could now not constitute a
disposition of the kingdom in accordance with the standards[16] installed by
using preceding resolutions of the Security Council and UNCIP.[17]
Following a
second war between India and Pakistan in 1965, minor changes to the ceasefire
line in Kashmir were made. Following any other conflict in December 1971, it was
gradually turned into a management line focused solely on the December 1971
truce lines, via to the 1972 Simla agreement signed by the Indian and Pakistani
governments. The Simla agreement calls for "the creation of a long-term order of
peace in the subcontinent, such that both foreign locations would commit their
properties and resources to the urgent venture of advancing the welfare of their
peoples" and "resolved to address their disputes by non-violent means, such as
direct dialogue or another non-violent route mutually decided upon."[18]
The
authorities of India have due to the fact claimed that the Simla settlement made
all preceding safety Council resolutions redundant, whilst the authorities of
Pakistan have persevered to name for the implementation of these
resolutions.[19] The Secretary-General of the United Nations has stated that
UNMOGIP can only be terminated by a decision of the Security Council; since no
such decision has been made, UNMOGIP has continued to operate.[20]
Phase I- 1950-1992
Political dissatisfaction with the central government's attempts to dominate
politics in the state surged in the 1950s and 1960s. In 1964 the first militant
group, the Jammu and Kashmir Liberation Front (JKLF), was formed to fight for
independence. Independence activists and activists for plebiscites have been
repeatedly imprisoned.
The Simla Accord was signed on July 2, 1972, by India and
Pakistan, in which both countries agreed to respect the cease-fire line and to
resolve their differences over Kashmir "
peacefully" through negotiation and
meetings to negotiate "a final settlement." Since then, the Simla Accord has
acted as the basis for all bilateral talks on Kashmir.[21] In 1986, then-Indian
Prime Minister Rajiv Gandhi and Jammu and Kashmir Chief Minister Farooq Abdullah
signed a new agreement, which was generally seen as a betrayal of Kashmiri
interests in the province. Farooq Abdullah's National Conference faction was
quickly tarnished by allegations of systemic misconduct.
The Muslim United Front
(MUF), a new opposition party with support from pro-independence leftists,
Islamic fundamentalists, and many dissatisfied Kashmiri youth, was founded and
ran in the state assembly elections in March 1987. In the aftermath of the poll,
widespread fraud in the vote count and mass arrests of MUF candidates triggered
widespread public disillusionment with state politics, driving many to back new
insurgent groups.[22]
In July 1988 after the formal declaration of "armed
struggle," by JKLF chief Amanullah Khan following bombing in various locations
in Srinagar, the predominantly indigenous self-determination movement, launched
by the Jammu Kashmir Liberation Front (JKLF), was characterized by a rebellion
in the Kashmir valley. During that summer, after the violently rude elections of
1987, wide-ranging demonstrations for self-determination and agitation against
the Indian rule took place and the 1989 parliamentary polls were widely
boycotted.
Following the polls, JKLF and other insurgent groups became bolder, detonating
explosives at government offices, buses, and the homes of current and former
state government leaders, and imposing a state-wide boycott of the November 1989
national parliamentary elections, many of whom publicly acknowledged that they
obtained weapons and training in Pakistan. A month later, JKLF militants
kidnapped Mufti Mohammad Sayeed's daughter, but rescued her after the government
caved in to calls for the release of five arrested militants.
This, along with a
surge in widespread protests against the state and federal governments, prompted
New Delhi to begin a major counter-insurgency campaign against the militants.
Governor's rule under Jagmohan was proclaimed on January 19, 1990, after the
state government resigned in protest, who initiated a
‘tough’ no-tolerance policy including continuous and complete civil curfews
against the mass protests for self-determination, and marches against the
escalating army atrocities. In 1990, Kashmir was put under continuous curfew for
175 days from January to May, in response to the killing of 60 mourners in the
funeral of Mirwaiz Mohammad Farooq.[23]
In the following years, several such
curfews were enforced over long periods. Fear of reprisals of the Indian armed
forces that raided houses or searched homes in the course of repressions led to
documents or the literature relating to self-determination being burned up in
the village. Security forces opened fire on thousands of peaceful protesters,
killing hundreds, and insurgents escalated their attacks on security forces in
the weeks that followed. Kashmir's civil war began in earnest as riots, threats,
and revenge rose in strength over the next few months.
Originally, regular military soldiers from the frontier were called in to
aid civilian bodies 'restore law and order'. The military forces with
the central armed police forces that had been additionally deployed, launched a
brutal campaign of lawless violence, terrorist violence, including
indiscriminate attacks and open firing onto civilian crowds resulting in several
mass murders, including the Gaw Kadal massacre (2 January 1990; 50 killed),
Handwara massacre (January 2, 1990; 50 killed), Zakoora and Tengpora massacre
(March 1, 1990; 33 killed).[24] In the early 1990s, many incidents were reported
as informative, supporting government policies, and opposing the goals of some
militant groups, resulting from targeted killings of Hindu and Muslim civilians.
This led to Hindus and some Muslim professionals migrating massively.[25]
Human
rights groups said that while in 1990 an estimated 300 active army fighters were
being countered by 36,000 military forces, including regular military personnel
and police, by 1991, the figure had risen to 200,000, while militant groups were
proliferating rapidly as well, and militant numbers estimated to have increased
by thousands.[26] Based on the insurgency in Kashmir valley, a new specialized
counter - insurgency group, called the Rashtriya Rifles, had been formed by May
1990, using soldiers drawn from existing army regiments.[27]
On July 5, 1990 India introduced the Armed Forces (Jammu and Kashmir) Special
power act (AFSPA)[28] to control the armed organization's which arose from
objections against Indian control over Kashmir during the 1980's.[29] The act
gave the army sweeping powers of arrest of civilians, and even to use lethal
force on ‘unlawful assemblies’ on law and order grounds. Ultimately a vast
variety of Indian security forces were stationed in Kashmir, alleging serious
violations of human rights.
Civil society and the media also quote the number of
between 500,000 and 700,000 troops[30] making Kashmir one of the world's largest
militarized regions. Human rights abuses are claimed to include torture, death
in detention, rape, forced disappearances and executions. The AFSPA allows the
army to carry out arrests, searches, seizures, and destructions of weapons and
ammunition in civilian areas in the assistance of civilian authorities in order
to maintain law and order.
Following the promulgation of AFSPA the Cordon and
Search Operation, also known as a "crackdown," began in July 1990, and as well
as indiscriminate arson attacks, allegedly to destroy secret weapons, became a
near-daily occurrence.[31] By1990, the Cordon and Search Operations (CASOs) had
become a commonly feared and routine occurrence, with a wide variety of crimes,
including mass sexual abuse and torture, unlawful arrests leading to subsequent
disappearances, and custodial and extrajudicial killings.
As counter-insurgency
forces sought to establish territorial supremacy over the countryside, their
campaign shifted to more frequent and brutal crackdowns on civilian support
bases and indiscriminate reprisals, especially in downtown Srinagar and villages
in northern Kashmir that served as ‘infiltration' routes for Pakistan-trained
militants.
A human rights fact-finding team from India, headed by the Andhra
Pradesh Civil Liberties Committee (APCLC), the Committee for Protection of
Democratic Rights (CPDR), the Lok Shahi Hakk Sanghatana (LHS), and the
Organisation for Protection of Democratic Rights (OPDR), observed in 1991that:
The majority of those tortured and killed in detention are young men captured
by the army or paramilitary forces during
"crackdown" operations in villages or
other places aimed at locating suspected militants.[32] By the mid-1990s, the
neighborhood crackdown had been established as a feared but all-too-common
occurrence, with a wide range of crimes, including widespread sexual abuse and
torture (for example, the Kunan Poshpora mass rapes and torture, 1991 and
Operation Wular, 1993), as well as unlawful arrests leading to subsequent
disappearances or custodial and extrajudicial killings.[33]
Between July and December 1990, the Jammu and Kashmir High Court Bar Association
reported 70 separate instances of crackdowns, and 79 between January and June
1991, several of which lasted several days. The majority of the people who are
tortured and killed in detention are young men picked up by the army or
paramilitary forces during "crackdown" operations in villages or other areas to
locate alleged militants, according to the 1991 fact-finding delegation.
The
families of those arrested are often kept in the dark about why they are being
held or where they are being detained. These victims suffered a variety of
horrific injuries, including rectal muscle tears, perforated abdomens, diaphragm
and intestines, and permanent limb mutilation.[34]
The repressive Terrorist and Disruptive Activities Act (TADA), enacted in 1987
to deal with the unrest in Punjab, was used in Kashmir to arrest and detain
thousands of people on so-called "open FIRs" for months or even years without
charge, even without informing their families. In fact, the army or paramilitary
authorities such as the Border Security Force (BSF) and the Central Reserve
Police Force were in charge of all operational activities, including detentions
and interrogations in the field, despite the fact that the military was meant to
operate as an "aid" to civilian authorities under the law. In Kashmir, TADA has
been widely used against people accused of having links to militant groups. The
act (as amended in 1987) provisions for up to a year of administrative detention
without charge or trial. It effectively criminalizes freedom of expression.
Anyone who "knowingly encourages the commission of any destructive activity or
any act preparatory to a disruptive activity shall be punished by imprisonment
for a period not less than three years but not less than life, and shall also be
liable to fine," according to the TADA.[35] A disruptive activity includes "any
action taken, whether by act or by speech or through any other media or in any
other manner whatsoever:
- which questions, disrupts or is intended to disrupt, whether directly or
indirectly, the sovereignty and territorial integrity of India; or
- which is intended to bring about or supports any claim, whether directly
or indirectly, for the cession of any part of India or the secession of any
part of India from the Union."[36]
The provisions of TADA
also substantially increase the risk of torture.[37] Despite the fact that TADA
was repealed in 1995, security forces in Kashmir continue to prosecute detainees
under it, alleging that the crime was committed before TADA was revoked.[38]
Enforced disappearances were described by Amnesty International in 1993 as one
of the most persistent types of human rights abuses. Other systematic human
rights abuses since 1990 included "hundreds of extrajudicial killings, often in
the form of staged "
encounters," regular and brutal torture, including rape, and
the incarceration of several thousands of political prisoners detained for
months or years without being brought to trial while being denied the basic
legal safeguards provided in international human rights standards," according to
the report.[39]
It indicated that since 1990, thousands of people have been
imprisoned without trial in the state under the Public Safety Act (PSA)[40] and
the Terrorist and Disruptive Activities Act (TADA), and that "many have died in
captivity after torture, and the number of extrajudicial killings in Jammu and
Kashmir has reached unprecedented levels; they are currently by far the highest
in any Indian state." Hundreds of people are said to have died in custody in
Jammu and Kashmir in recent years, and their bodies were often dumped in the
open, with noticeable injuries.[41]
Phase II- 1992- 2008
In 1990, rising anxiety among Pakistan and India following the escalation of the
warfare in Kashmir raised fears of any other battle between the two countries.
By the mid of 1992, diplomatic talks on settling the Kashmir crisis had come to
a halt. Five former opposition figures were freed from jail in March 1992,
largely as part of a government initiative to ready the state for elections.
Since then, government officials have indicated that they are prepared to
cooperate with insurgent groups "within the context of the Indian constitution."
Taking advantage of the crisis, Pakistani leaders have turned to international
forums to demand a plebiscite along the lines of the 1948 resolution, with the
possibility of secession excluded from the plebiscite's criteria. Militant
leaders in Pakistan and India both continued to oppose restrictions imposed by
both countries. Independent observers and the international press claimed that
the most prominent insurgent groups in Kashmir's valley continued to endorse
independence.[42]
In August 1992,
‘Operation Tiger’ was launched, it became the
primary in a chain of systemic counterinsurgency operations code-named ‘Shiva’,
‘Eagle’, and ‘Cobra’, and many others. Those had been locally called the seize
and kill coverage.[43] The government of India conducted a vicious new
offensive in Kashmir marked by surprise attacks and search operations aimed at
capturing and killing insurgent leaders.
During this time, the number of persons
executed in a summary fashion rose. A bomb explosion in early October 1992
nearly destroyed the central transmission station for telecommunications between
Kashmir and the rest of India. The perpetrators of the sabotage, who essentially
cut off phone connectivity to the Kashmir valley, were unknown.
On January 6, 1993, Indian paramilitary forces rampaged through a neighborhood
in the city of Sopore, killing at least 43 civilians in the conflict's single
largest civilian massacre. The attack was allegedly in revenge for a militant
attack that killed two soldiers. Security services
"run amok,"[44] according to
a local police official on the scene, preventing police and fire fighters from
intervening. According to army officials, those who died were killed in
"crossfire." The BSF commandant and several other officers were suspended by the
central government, and an investigation was launched. The findings of the
investigation were not available at the time this article went to print.[45]
The early 1990s saw a deterioration of trust between military and civilian
authorities, with the torture and murder of a police constable in 1993 sparking
a police revolt. To resolve the lack of police cooperation, the Special Task
Force (STF, later renamed ‘Special Operations Group') was formed in 1994 as a
specialized ‘elite' and ‘frontline' counter-insurgency wing of the police. It
was staffed primarily by ethnic minorities and Jammu-based troops, adopting a
classic colonial counter-insurgency strategy of exploiting social fault lines to
"divide and rule."
Personnel from the STF were subject to specific financial
rewards for insurgent "
kills" providing an economic prosperity for the "catch
and kill" policy of extrajudicial executions and "false encounters" within the
local police and military. The STF camp became associated with police brutality
and the use of third-degree torture techniques, as well as contributing to a
destructive communalization of the conflict. Personnel from the STF were subject
to specific financial rewards for insurgent "kills," providing an economic
prosperity for the "catch and kill" policy of extrajudicial executions and
"false encounters" within the local police and military.
The STF camp became
associated with police brutality and the use of third-degree torture techniques,
as well as contributing to a destructive communalization of the conflict. As
international outrage over Indian atrocities in Kashmir increased, human rights
organizations noticed the rise of a new trend: state-backed "pro-government
militants" or "irregular militia," also known as naabid or Ikhwan, which
consisted of paramilitary groups that began clandestinely acting as
counter-insurgents on behalf of the Indian army.[46]
Several mysterious paramilitary outfits emerged, taking advantage of the
multiplicity of armed groups and rivalries between indigenous and Pakistan-based
factions, and receiving daily payments and funding from the Indian state. They
operated with absolute impunity, openly engaging in criminal acts and
terrorizing neighborhoods. They were sometimes assigned to specific Special
Operations Group (SOG) camps or army divisions and reported to them. Human
Rights Watch observed in 1996, While promising to convince the international
community that they have taken measures to curtail human rights violations in
Kashmir, Indian forces have effectively subcontracted some of their violent
practices to organizations with no official accountability,
Extrajudicial murders, kidnappings, and attacks carried out by these groups
against alleged militants are pointed to as "intergroup rivalries."[47] These
radical counter-insurgents worked with impunity under the strong command of the
armed forces, blatantly assisting them on searches, interrogations, and
crackdowns, as well as carrying out politically awkward clandestine abductions
and killings on their behalf, like the kidnapping of human rights lawyer Jaleel
Andrabi while he and his wife were travelling in a vehicle. Andrabi's body, with
a bullet wound on his head, was later fished out of the river Jhelum.[48]
They
carried out official counter-insurgency activities such as intelligence
collection and interrogations while also posing as a terrorizing group, carrying
out abduction, ransom, land grabs, lumber theft, sexual harassment, and human
trafficking operations.[49] SOGs have been a communally based militia backed
and armed by the Indian Army but operated independently of its chain of
command, Human Rights Watch wrote in a 1999 article. During cordon and rescue
operations in villages and suburbs, members of the SOGs have assisted army
troops. They have committed grave human rights violations, such as extrajudicial
killings and assaults.[50]
In the mid-1990s, the relentlessly brutal Ikhwan-led counter-insurgency movement
reached a pinnacle with the declaration of parliamentary elections in Jammu and
Kashmir in May 1996. A study by an Indian fact-finding delegation on the 1996
elections noted that in the nine months after their last visit, state-sponsored
counter-militancy had risen to the point that "it is crucial to the fears of the
Kashmiris. The Indian state announced at the end of 1995 claimed that it had
achieved the establishment of "peaceful conditions" in the area and "broken the
will of terrorists" based on the dwindling number of official militancy-related
casualties.
These statements, however, ignored the fact that civilian deaths
continued to hover about ten a day, as well as the increasing number of kills by
'unknown gunmen,' which were commonly attributed to the Ikhwan by
locals.[51] The parliamentary elections were generally interpreted as
demonstrating a return to "normalcy" in Kashmir, as well as Kashmiris'
willingness to engage in Indian political processes and fully recognize India's
disputed accession. As a consequence, the electoral process was viewed as a
counter-insurgency operation. Several well-known counterinsurgents ran for
office as independents, publicly bearing arms and campaigning with complete
state and military assistance.
While the overall number of militancy-related
killings declined after the creation of the National Conference civilian
government in the immediate aftermath of the elections, killings by "unknown
gunmen" increased, causing an environment of distrust and terror.[52] The 1995
kidnapping and murder (including a decapitation) of a group of foreign visitors
by the Al-Faran militant group, which was originally attributed to the militant
group but later discovered to be carried out by pro-government insurgents
exemplifies how the dirty war and covert action techniques have become the
cornerstone of counter-insurgency operations by this time.[53]
The disarming of the various clandestine counter-insurgency organizations known
collectively as the Ikhwan was one of the main political fronts on which the
National Conference campaigned. Farooq Abdullah declared in his first press
conference after the election that these counter-insurgents, who had formerly
served under separate command systems such as the army, BSF, and CRPF would be
united and placed under a single unified command.
The issue of disbanding and
disarming the Ikhwan was not brought up.[54] Despite the so-called
'normalization,' custodial torture and other human rights crimes tended to
follow familiar trends when only the perpetrators' official designations had
changed, not their names, intentions, or practices. Crimes against civilians
were explicitly promoted and honored, as has been the official
counter-insurgency strategy, by making offenders permanent employees of the
state apparatus, and therefore immune from punishment for actions perpetrated in
the course of their duties. In the first six months of the National Conference
civilian administration, the Institute of Kashmir Studies estimated 130
custodial killings.
Armed forces sexual harassment occurred unabated, with a 1997 survey documenting
as many as ten different incidents of serious sexual attacks between April 1996
and May 1997, including cases involving minors, gang rapes, and assaults on
several members of a single household. A single visit by the fact-finding team
to a medical institution in Srinagar in May 1997 yielded four different cases of
extreme torture, including the well-known cases of Rhabdomylosis (a kidney
disease caused by severe muscle damage that causes the contents of muscle cells
to be released directly into the bloodstream) as a result of pressure-related
torture procedures.[55]
Despite the state repression, which included mass killings (for example, in
Magam in 2001, where seven people were killed) and extrajudicial killings, the
latter part of the era saw a steady return to normalcy in the Kashmir valley,
including curfew relaxation, a decrease in the number of crackdowns, and the
resumption of normal activities in the evening hours. In comparison to the
mid-1990s, there was a continued fall in insurgent numbers and the number of
armed engagements with insurgents in the early 2000s to mid-2000s, and the
counter-insurgency was declared a major victory by the military. However, the
war, far from being over, had taken on a more violent and invisible face.
The
alleged false flag attack in which 36 civilians from the minority Sikh community
were killed by uniformed men who eyewitnesses identified as belonging to the
Indian army in Chhitisinghpora, a remote village was immediately followed by an
orchestrated encounter at Pathribal of five local men alleging that they were
the perpetrators of the Chhitisinghpora massacre, and then open fire.[56]
Despite widespread voter participation in the 2002 State Assembly elections,
large-scale complaints of repression were registered from various parts of
Kashmir, especially the remote areas. Threats and alerts issued by the Indian
armed forces over the loudspeakers of local mosques, compelling people to vote,
were among the means of intimidation used, according to a 2002 election
observation study by JKCCS. They warned that if the indelible ink marks
(evidence of voting) was not detected on the finger, significant consequences
would follow.
Army and SOG were seen herding, often pulling, and people from
their homes to polling booths while wielding lathis in many locations. A
crackdown was announced in a village in Bijbehara, Anantnag, and residents were
ordered to vote by the Rashtriya Rifles. Property destruction was common: in
Srinagar's Zaindaar Mohalla, SOG raided a dozen houses, destroying valuables,
and beat people up for boycotting the elections.[57]
The Peoples' Democratic
Party (PDP) was elected on a platform that vowed to disband the famously violent
and abusive Special Operations Group (SOG), demilitarize and remove bunkers, and
beautify urban areas, dubbed the "Healing Touch" policy. Despite a decrease in
the number of violent militants and the widely publicized pledge of
demilitarization and troop reductions, the number of armed forces mobilized did
not decrease, despite the
beautification of some bunkers and restrictions on
army deployment in Srinagar's central city areas.
The SOG was not disarmed or
disbanded; however, it was integrated into the daily Jammu and Kashmir Police,
and several former Ikhwan continued to serve as SPOs in the police force. As a
result, the entire Police Force got involved in counter-insurgency operations:
in Kashmir, it was widely said that the entire police department had become SOG.
Phase III- 2008-2020
The government's assertion of a "return to normalcy" was broken in 2008, when
Kashmiris took to the streets in large numbers to protest a plan to purchase and
use forest land for the purpose of constructing a township for Hindu pilgrims on
the heavily militarized Amarnath pilgrimage. Protests in the valley was met with
large-scale Hindu nationalist mobilizations in the Jammu district, as well as
blockading and brutal attacks on the valley's only road connection to mainland
India, the national highway.[58]
In Kashmir, unarmed protesters were fired upon in several different incidents,
resulting in the deaths of over 50 people and the escalation of demonstrations
and funeral processions into fierce stone-throwing protests against armed forces
troops, barricades, and infrastructure, mostly by teenage male youths. At this
time, the teenage ‘stone pelter' emerged as a criminalized group, subjected to a
cycle of unlawful and unrecorded arrests based on speculation and profiling,
extended detentions, inhumane treatment, release, and re-arrest at the first
instance of political unrest. Cycles of civilian killings, strikes and street
protests erupted throughout the valley, as well as in the Chenab and Pir Panjal
regions, in the summer of 2009, in response to the rape and murder of Asiya and
Neelofer Jan of Shopian by armed forces personnel,[59] and again in 2010,
initially in response to a staged encounter killing of three civilians in
Macchil, Kupwara,[60] and in 2013, in response to the hanging of Afzal Guru in
Tihar Jail, New Delhi.[61]
Armed forces troops routinely used live ammunition
and pellet shotguns to disrupt demonstrations and funeral processions, resulting
in devastating permanent casualties, including mass blindness, subsequent
shootings, funeral gatherings and protests.
The "crowd-control" initiatives were followed by the harassment of organizers,
civic leaders, journalists, and street protestors ("stone pelters") under the
Public Safety Act of 1978, and the use of an "open FIRs" scheme to keep them in
regular preventive detentions. As a result of their participation in street
demonstrations, indiscriminate abuse, arbitrary detentions and torture of
children and teenagers increased.
Images and videos of Indian forces committing
human rights violations went viral on social media, despite the healing touch
policy efforts to make them invisible. To fight this re-visualization of torture
and other human rights abuses, social media became a hotbed of surveillance,
harassment, and targeting, with numerous people being detained for
‘interrogations' based on their social media content and public posts.
Following the assassination of militant leader Burhan Wani in July 2016, the era
has been characterized by unparalleled periods of such aggression. Extrajudicial
killings, injuries, arbitrary detentions, torture, sexual harassment,
disappearances, arson and destruction of civilian buildings, restrictions on
congregational and religious practises, media gags, and bans on communication
and internet services, among other things, have all occurred in Kashmir in the
last two years. More than 100 protesters were killed in the five-month-long
street protests following Wani’s killing, triggering a new wave of popular anger
against the Indian rule.
People's human rights and civil liberties were
curtailed as a result of curfews, strikes, and continued violence and
re-militarization. Cell phones, laptop computers, and other mobile gadgets, in
addition to social media messages, also were routinely inspected during sporadic
stop and frisk searches. Anyone found with content that is perceived to be
pro-self-determination or pro-militancy, even seemingly harmless material like
Pakistani music or pictures of Pakistani cricketers, faced violence, assaults,
confiscation of their computers, detention, and possible torture.
In the first
ten months of 2017, 42 militant attacks were reported in the state of Jammu and
Kashmir, killing 184 civilians, including 44 security forces. As security forces
tried to suppress violent demonstrations, many protesters were killed or
wounded.[62]
In May, the army awarded a commendation to an officer who allegedly used a
bystander as a "human shield" to rescue security forces and election workers in
Jammu and Kashmir's Budgam district from a mob.[63]
The Armed Forces Tribunal overturned the life sentences of five army officers
convicted in 2014 for the 2010 extrajudicial killing of three villagers in the
Machil sector in Jammu and Kashmir in a setback for accountability for security
force violations.[64]
Indian armed forces conducted Operation All Out in Jammu and Kashmir in 2017, an
offensive mission to root out insurgents in the area. When this operation was
ongoing, Jammu and Kashmir faced its most violent year in a decade. On December
30, 2018, Yashwant Sinha, India's former finance minister and a BJP leader who
is a regular visitor to Kashmir said that India has been quelling insurgency in
Kashmir by using force.
He argues that the new Indian government assumes that
the best way to fix issues is to use coercion, not compromise, equality, or Insaniyat (humanity), but merely to use brutal force to destroy as many
civilians as possible.[65] Every year, human lives are lost in Jammu and
Kashmir's long-running war, which has no end in sight. According to the APDP and
JKCCS, a total of 4042 people were killed in Jammu and Kashmir between 2008 and
2018. There were 1067 people, 1898 militants, and 1077 veterans of the armed
forces.
In Indian-administered Kashmir, the year 2018 was the deadliest in the last
decade, with at least 586 people killed in various incidents of violence, the
highest number in the last decade. 160 men, 267 militants, and 159 officers of
the Indian armed forces and Jammu and Kashmir police are among the 586 people
killed in Indian-controlled Jammu and Kashmir. The 267 militants killed in
clashes with security forces and police is the highest number in the last
decade. In reality, militant killings have increased dramatically since 2016,
with 145, 216, and 267 militants killed in Indian-controlled Kashmir in 2016,
2017, and 2018.[66] APDP and JKCCS reported 108 instances of internet blockade
in Indian-controlled Jammu and Kashmir in 2018.
As the horrific rape and murder of an eight-year-old girl from Kathua in January
2018 shows, sexual assault as a "weapon of war" appears to be widespread in
Indian-controlled Jammu and Kashmir. Other charges of rape against CRPF
personnel in Poonch were made in 2018, and Indian army personnel were detained
by police for allegedly abducting a teenager in Poonch.[67]
The Office of the United Nations High Commissioner for Human Rights
(OHCHR) released a 49-page report detailing human rights violations in Indian
and Pakistani-controlled Kashmir. The research reports on human rights
violations in India since July 2016, when violent demonstrations broke out in
response to the government's killing of a militant leader. The report was
immediately rejected by the government, which described it as "fallacious,
tendentious, and inspired."[68]
According to the OHCHR survey, Indian security
forces used disproportionate force in response to the frequently violent
protests that started in 2016, killing at least 145 people and injuring hundreds
more, according to civil society organizations. In the same time span, militant
groups killed up to 20 civilians, according to the study.[69] Unidentified
gunmen assassinated prominent journalist Shujaat Bukhari, editor of the Rising
Kashmir, outside the newspaper's office in Srinagar, just hours after the report
was released.[70] The UN stated, among other abuses, that pellet-firing shotguns
were used against violent protesters, resulting in deaths and serious injuries.
Between July 2016 and August 2017, 17 people were killed by pellet injuries,
according to official government estimates. The chief minister of Jammu and
Kashmir told the state legislature in January 2018 that pellet guns had wounded
6,221 civilians. The study shared concerns about human rights abuses going
unpunished and a lack of access to justice. The Jammu and Kashmir Public Safety
Act (PSA) and the Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA)
have created mechanisms that hinder the usual course of law, inhibit
transparency, and jeopardize the right to redress for victims of human rights
violations,[71]
On February 14, 2019, over 40 Indian troops were killed in a terror attack on a
security forces convoy in Pulwama district. Jaish-e-Mohammad, a Pakistan-based
militant group, took responsibility for the attack. It triggered a military
standoff between India and Pakistan, with at least four civilians killed in
shelling along the contested territory de facto international boundary. Kashmiri
students and businessmen in other parts of India were assaulted or beaten up in
the aftermath of the attack, and some were forcefully evicted from rental
accommodation and dorms.[72]
In July, the UN High Commissioner for Human Rights
issued an update on its 2018 Kashmir report, expressing grave concern regarding
violations by state security forces and militant groups in both Indian and
Pakistani areas of Kashmir, and stating that neither government had taken any
meaningful measures to resolve the issues posed in the previous report. In
India, the study decried a lack of justice for past atrocities, such as militant
group killings and attacks against Hindu Kashmiris, leading to forced
displacement; militant group abuses with Pakistani support; and security forces
violations, such as enforced disappearances, extrajudicial
killings, indiscriminate use of force leading to injuries from shotgun
pellets, and alleged sexual violence.[73]
On August 5, 2019, the government of India revoked the special autonomous status
of the state. Former chief ministers, party officials, opposition activists,
attorneys, and journalists were among those arrested without notice, and the
internet and phones were shut down.
Movement was heavily limited, and public
meetings were banned. While the government argued that these measures were
appropriate to deter deaths during violent demonstrations, there were also
credible and severe reports of security forces beatings and torture. In
September, a 15-year-old boy in Chandgam village, Pulwama, committed suicide
hours after an alleged army beating.
The army refuted the argument. Although
some sanctions have since been lifted, hundreds of people remain imprisoned, and
cell phone and internet access are still limited. Many parents are also fearful
of their children's safety to send them to school or college.[74] The
communication and internet blockade that started on August 5 has been India's
longest to date, and it resulted in a series of significant abuses of the right
to freedom of speech and peaceful assembly. From January 1 to August 4, 2019,
the Indian government had shut down the internet in Jammu and Kashmir 54 times.
Both landline and cell phone lines were also disconnected, in addition to the
internet being closed.[75]
Hundreds of people remained in custody by November,
despite the lifting of certain limits, and mobile phone and internet access were
also limited. Independent trips to Kashmir were barred by the government for
opposition leaders, foreign ambassadors, and international journalists. On 15
January 2020: Internet was restored in hospitals, government offices and
schools, but access to social networks and personal home broadband connections
remains banned.
On 18 January 2020: Low-speed internet services (2G) were
restored in 10 districts of Jammu & Kashmir and in two districts (Kupwara and
Bandipora) of North Kashmir, with access to only 301 government-approved
websites.
By the end of 2020, Hundreds of people in Jammu and Kashmir still remained
imprisoned without charge under the draconian Public Safety Act, which provides
for imprisonment without trial for up to two years. In June, the government
announced a new media policy in J&K that gives officials the authority to
determine what constitutes "false news," "plagiarism," and "unethical or
anti-national practices," as well as to punish media organizations, writers, and
editors.
The legislation includes ambiguous and overbroad clauses that may be
abused, restricting and penalizing constitutionally protected expression
excessively. Critics, whistleblowers, and human rights campaigners were also
targeted by the government.[76]
Since August 2019, restrictions on access to communications networks, as well as
other restrictions, have affected livelihoods, especially in the
tourism-dependent Kashmir Valley. Since August 2019, the Kashmir Chamber of
Commerce and Industries estimates that the lockdown to deter demonstrations has
cost the economy over US$2.4 billion, for which no compensation has been given.
Since the government introduced new restrictions to curb the spread of Covid-19
in March 2020, losses have nearly doubled.
Access to the internet became vital
for information, networking, schooling, and business during the pandemic.
Despite the Supreme Court's declaration in January that internet access was
a fundamental right, authorities only allowed slow-speed 2G mobile internet
networks, prompting doctors to complain that the lack of internet was affecting
the Covid-19 response.[77]
End-Notes:
[1] Human Rights Watch (1999). Behind the Kashmir Conflict - Undermining the
Judiciary (Human Rights Watch Report, July 1999). [online] www.hrw.org.
Available at:
https://www.hrw.org/reports/1999/kashmir/judiciary.htm#:~:text=Detainees%20who%20are%20ultimately%20charged
[Accessed 12 Oct. 2020].
[2] International forum for justice, Human Rights JK (IFJHRJK) Report.
[3] Ibid.
[4] Kashmir mass rape survivors fight for justice. (2017). BBC News. [online]
6 Oct. Available at: https://www.bbc.com/news/world-asia-41268906 [Accessed 16
Apr. 2021].
[5] www.census2011.co.in. (n.d.). Jammu District Population Census 2011-2021,
Jammu and Kashmir literacy sex ratio and density. [online] Available at:
https://www.census2011.co.in/census/district/639-jammu.html [Accessed 3 Apr.
2021].
[6] www.census2011.co.in. (n.d.). Leh Ladakh Municipal Committee City Population
Census 2011-2021 | Jammu and Kashmir. [online] Available at:
https://www.census2011.co.in/data/town/800047-leh-ladakh-jammu-and-kashmir.html
[Accessed 3 Apr. 2021].
[7] Census2011.co.in. (2011). Jammu and Kashmir Population Sex Ratio in Jammu
and Kashmir Literacy rate data 2011-2020. [online] Available at:
https://www.census2011.co.in/census/state/jammu+and+kashmir.html.
[8] BBC News, India/Pakistan government census,
http://news.bbc.co.uk/1/shared/spl/hi/south_asia/03/Kashmir_future/html/default.stm
(retrieved November, 2020).
[9] Instrument of Accession, clause 7.
[10] UN Security Council, Security Council resolution 39 (1948) [The
India-Pakistan Question], 20 January 1948, S/RES/39 (1948), available at:
https://www.refworld.org/docid/3b00f1f48.html [accessed 01 Feb. 2021]
[11] UN Security Council, Security Council resolution 47 (1948) [The
India-Pakistan Question], 21 April 1948, S/RES/47 (1948), available at:
https://www.refworld.org/docid/3b00f23d10.html [accessed 01 Feb. 2021]
[12] United Nations High Commissioner for Refugees (2020). Refworld | Security
Council resolution 47 (1948) [The India-Pakistan Question]. [online] Refworld.
Available at: https://www.refworld.org/docid/3b00f23d10.html [Accessed 1 Feb.
2021]. Paragraph 1(b) and 14.
[13] UN Security Council, Security Council resolution 91 (1951) [The
India-Pakistan Question], 30 March 1951, S/RES/91 (1951), available at:
https://www.refworld.org/docid/3b00f1f338.html [accessed 03 Feb. 2021]
[14] J&k Govt Census (2013). DIGEST OF STATISTICS 2013-14. [online] Available
at: http://ecostatjk.nic.in/Digest1314/1%20area%20and%20papulation.pdf [Accessed
03 Feb. 2021].
[15] In 1962, India and China went to war over unresolved colonial-era border
disputes, with China gaining control of the still uninhabited Aksai Chin region
in the East. In 1963, Pakistan gave China the Shaksgam or Trans-Karakoram tract
in Gilgit-Baltistan as part of a wider boundary arrangement. After the Kashmir
conflict between Pakistan and India is settled, the resolution provides a clause
for renegotiation in the event of a transition of sovereign authority.
[16] UN Security Council, Security Council resolution 122 (1957) [The
India-Pakistan Question], 24 January 1957, S/RES/122 (1957), available at:
https://www.refworld.org/docid/3b00f1f057.html [accessed 03 Feb. 2021]
[17] UN Security Council, Security Council resolution 47 (1948) [The
India-Pakistan Question], 21 April 1948, S/RES/47 (1948), available at:
https://www.refworld.org/docid/3b00f23d10.html [accessed 03 Feb. 2021]
[18] Mea.gov.in. (2013). Simla Agreement. [online] Available at:
https://mea.gov.in/bilateral-documents.htm?dtl/5541/simla+agreement [Accessed 08
Feb. 2021].
[19]Mea.gov.in. (2013). QUESTION NO.3203 KASHMIR ISSUE. [online] Available at:
https://mea.gov.in/lok-sabha.htm?dtl/26533/question+no3203+kashmir+issue
[Accessed 08 Feb. 2021].
[20] United Nations (2017). Mandate. [online] UNMOGIP. Available at:
https://unmogip.unmissions.org/mandate [Accessed 09 Feb. 2021].
[21] Human Rights Watch (1999). Behind the Kashmir Conflict - Undermining the
Judiciary (Human Rights Watch Report, July 1999). [online] www.hrw.org.
Available at:
https://www.hrw.org/reports/1999/kashmir/judiciary.htm#:~:text=Detainees%20who%20are%20ultimately%20charged
[Accessed 09 Feb. 2021].
[22] Human Rights Watch (1999). Behind the Kashmir Conflict - Undermining the
Judiciary (Human Rights Watch Report, July 1999). [online] www.hrw.org.
Available at:
https://www.hrw.org/reports/1999/kashmir/judiciary.htm#:~:text=Detainees%20who%20are%20ultimately%20charged
[Accessed 09 Feb. 2021].
[23] Bukhari, S. (2016). Why The 51-Day Curfew Will Change Nothing In Kashmir.
[online] www.scoopwhoop.com. Available at:
https://www.scoopwhoop.com/Why-51-Days-Of-Curfew-Is-Nothing-New-For-Kashmir/#.gn42opwp0
[Accessed 11 Feb. 2021].
[24] Human Rights Watch (1999). Behind the Kashmir Conflict - Undermining the
Judiciary (Human Rights Watch Report, July 1999). [online] www.hrw.org.
Available at:
https://www.hrw.org/reports/1999/kashmir/judiciary.htm#:~:text=Detainees%20who%20are%20ultimately%20charged
[Accessed 13 Feb. 2021].
[25] Ibid
[26] Andhra Pradesh Civil Liberties Committee (APCLC), Committee for Protection
of Democratic Rights (CPDR), Lok Shahi Hakk Sanghatana (LHS) and Organisation
for Protection of Democratic Rights (OPDR) (1991). Undeclared War on Kashmir.
[online] http://www.unipune.ac.in. Available at:
http://www.unipune.ac.in/snc/cssh/HumanRights/02%20STATE%20AND%20ARMY%20-%20POLICE%20REPRESSION/E%20Jammu%20and%20Kashmir/03.pdf
[Accessed 13 Feb. 2021].
[27] People’s Union for Civil Liberties (PUCL), Citizens for Democracy (C.F.D),
Radical Humanist Association and Manav Ekta Abhiyan (1990). Report on Kashmir
situation. [online] http://www.unipune.ac.in. Available at:
http://www.unipune.ac.in/snc/cssh/HumanRights/02%20STATE%20AND%20ARMY%20-%20POLICE%20REPRESSION/E%20Jammu%20and%20Kashmir/01.pdf
[Accessed 13 Feb. 2020].
[28] MHA (1990). THE ARMED FORCES (JAMMU AND KASHMIR) SPECIAL POWERS ACT, 1990.
[online] https://mha.gov.in. Available at:
https://mha.gov.in/sites/default/files/The%20Armed%20Forces%20%28Jammu%20and%20Kashmir%29%20Special%20Powers%20Act%2C%201990_0.pdf
[Accessed 18 Feb. 2021].
[29] Former armed group leader Muhammad Yasin Malik narrates the emergence of
Jammu and Kashmir National Liberation Front on 13 August 1996 and their decision
to take up arms against Indian control of Kashmir.
Muhammad Yasin Malik (2017). Amanullah Khan: the legend I knew. [online] Greater
Kashmir. Available at:
http://www.greaterkashmir.com/news/front-page/amanullah-khan-the-legend-iknew/247552.html.
[Accessed 24 Feb. 2021].
[30]Ashraf, A. (2016). Do you need 700,000 soldiers to fight 150 militants?:
Kashmiri rights activist Khurram Parvez. [online] Scroll.in. Available at:
https://scroll.in/article/812010/do-youneed-700000-soldiers-to-fight-150-militants-kashmiri-rights-activist-khurram-parvez
[Accessed 24 Feb. 2021].
[31] Amnesty International (1995). Torture and deaths in custody in Jammu and
Kashmir. [online] https://www.amnesty.org. Available at:
https://www.amnesty.org/download/Documents/176000/asa200011995en.pdf [Accessed
24 Feb. 2021].
[32] Andhra Pradesh Civil Liberties Committee (APCLC), Committee for Protection
of Democratic Rights (CPDR), Lok Shahi Hakk Sanghatana (LHS) and Organisation
for Protection of Democratic Rights (OPDR) (1991). Undeclared War on Kashmir.
[online] http://www.unipune.ac.in. Available at:
http://www.unipune.ac.in/snc/cssh/HumanRights/02%20STATE%20AND%20ARMY%20-%20POLICE%20REPRESSION/E%20Jammu%20and%20Kashmir/03.pdf
[Accessed 24 Feb. 2021]. Pg no. 14-16
[33]Ibid, Pg no.14.
[34] Ibid, Pg no. 14-16
[35] Human Rights Watch (1991). Behind the Kashmir Conflict - Undermining the
Judiciary (Human Rights Watch Report, July 1999). [online] www.hrw.org.
Available at:
https://www.hrw.org/reports/1999/kashmir/judiciary.htm#:~:text=Detainees%20who%20are%20ultimately%20charged
[Accessed 1 Mar. 2021].
[36] S. K. Ghosh (n.d.). Terrorism, World under Siege. 8/81 Punjabi bagh, New
Delhi: Ashish Publishing House, p.522. Section 4. Punishment for disruptive
activities.
[37] Under ordinary law a detainee may be held in police custody after remand by
the court for a maximum of fifteen days before being transferred to judicial
custody. (Remand may be renewed.) However, under Section 20 of the TADA, a
detainee may be held in police custody for up to sixty days. The extended period
of police remand substantially increases the risk of torture. In addition, under
the TADA a detainee need not be produced before a judicial magistrate, as is the
case under ordinary law, but instead may be produced before an "executive
magistrate"- that is, an official of the police or administrative services who
is not answerable to the High Court. TADA reverses the presumption of innocence,
placing the burden on the accused to prove he is not guilty, and it effectively
amends India's Criminal Procedure Code and the Indian Evidence Act to allow the
introduction into evidence of extrajudicial confessions made to a police officer
"not lower in rank than a superintendent of police," thus substantially
increasing the risk of torture.
[38] Police elsewhere in India have also continued to use TADA
retroactively. Human Rights Watch (1999). Behind the Kashmir Conflict -
Undermining the Judiciary (Human Rights Watch Report, July 1999). [online]
www.hrw.org. Available at:
https://www.hrw.org/reports/1999/kashmir/judiciary.htm#:~:text=Detainees%20who%20are%20ultimately%20charged
[Accessed 2 Mar. 2021].
[39] Amnesty International (1993). An Unnatural Fate: Disappearances and
Impunity in the Indian States of Jammu and Kashmir and Punjab. [online] .
Available at:
https://www.amnesty.org/download/Documents/188000/asa200421993en.pdf [Accessed 4
Mar. 2021]. Page 5.
[40] Under the PSA, a detainee may be held in administrative detention for a
maximum of two years without a court order. At the detainee's request, an
advisory board consisting of three judges may be assembled to review the
detainee's case. The detainee may make this request only once.
[41] Amnesty International (1993). An Unnatural Fate: Disappearances and
Impunity in the Indian States of Jammu and Kashmir and Punjab. [online] .
Available at:
https://www.amnesty.org/download/Documents/188000/asa200421993en.pdf [Accessed 4
Mar. 2021].
[42] Human Rights Watch (1999). Behind the Kashmir Conflict - Background (Human
Rights Watch Report, July 1999). [online] Hrw.org. Available at:
https://www.hrw.org/reports/1999/kashmir/back.htm. [Accessed 17 Mar. 2021].
[43] Ibid
[44] Reuters (1993). India Says Troops Went Amok in Kashmir (Published
1993). The New York Times. [online] 8 Jan. Available at:
https://www.nytimes.com/1993/01/08/world/india-says-troops-went-amok-in-kashmir.html
[Accessed 17 Mar. 2021].
[45] Human Rights Watch (1999). Behind the Kashmir Conflict - Undermining the
Judiciary (Human Rights Watch Report, July 1999). [online] www.hrw.org.
Available at:
https://www.hrw.org/reports/1999/kashmir/judiciary.htm#:~:text=Detainees%20who%20are%20ultimately%20charged
[Accessed 17 Mar. 2021].
[46] Ibid
[47] Human Rights Watch (1996). INDIA’S SECRET ARMY IN KASHMIR New Patterns of
Abuse Emerge in the Conflict. [online] www.hrw.org. Available at:
https://www.hrw.org/reports/1996/India2.htm [Accessed 18 Mar. 2021].Page 1.
[48] Pankaj Khandelwal (2012). The Forgotten Case Of The Victim Jaleel Andrabi
And The Accused Avatar Singh | Youth Ki Awaaz. [online] Youth Ki Awaaz.
Available at:
https://www.youthkiawaaz.com/2012/06/the-forgotten-case-of-the-victim-jaleel-andrabi-and-the-accused-avatar-singh/
[Accessed 18 Mar. 2021].
[49] Andra pradesh civil liberties committee( APCLC) (1996). Voting at the Point
of a Gun: Counter Insurgency and the Farce of Elections in Kashmir. [online]
http://www.unipune.ac.in. Available at:
http://www.unipune.ac.in/snc/cssh/humanrights/02%20STATE%20AND%20ARMY%20-%20POLICE%20REPRESSION/E%20Jammu%20and%20Kashmir/05.pdf
[Accessed 18 Mar. 2021].
[50] Human Rights Watch (1999). Behind the Kashmir Conflict - Undermining the
Judiciary (Human Rights Watch Report, July 1999). [online] www.hrw.org.
Available at:
https://www.hrw.org/reports/1999/kashmir/judiciary.htm#:~:text=Detainees%20who%20are%20ultimately%20charged
[Accessed 18 Mar. 2021].
[51] Andra pradesh civil liberties committee( APCLC) (1996). Voting at the Point
of a Gun: Counter Insurgency and the Farce of Elections in Kashmir. [online]
http://www.unipune.ac.in. Available at:
http://www.unipune.ac.in/snc/cssh/humanrights/02%20STATE%20AND%20ARMY%20-%20POLICE%20REPRESSION/E%20Jammu%20and%20Kashmir/05.pdf
[Accessed 18 Mar. 2021].
[52] Andhra Pradesh Civil Liberties committee (APCLC), Committee for Protection
of Democratic Rights (CPDR) and People's Union for Democratic Rights (PUDR)
(1997). Civil War and Uncivil Government: Human Rights Violations in Kashmir
under the National Conference Government. [online] http://www.unipune.ac.in.
Available at:
http://www.unipune.ac.in/snc/cssh/HumanRights/02%20STATE%20AND%20ARMY%20-%20POLICE%20REPRESSION/E%20Jammu%20and%20Kashmir/06.pdf
[Accessed 18 Mar. 2021].
[53] Levy, A. and Scott-Clark, C. (2012). The Meadow : Kashmir 1995- : where the
terror began. London: Harperpress.
[54] Andhra Pradesh Civil Liberties committee (APCLC), Committee for Protection
of Democratic Rights (CPDR) and People's Union for Democratic Rights (PUDR)
(1997). Civil War and Uncivil Government: Human Rights Violations in Kashmir
under the National Conference Government. [online] http://www.unipune.ac.in.
Available at:
http://www.unipune.ac.in/snc/cssh/HumanRights/02%20STATE%20AND%20ARMY%20-%20POLICE%20REPRESSION/E%20Jammu%20and%20Kashmir/06.pdf
[Accessed 18 Mar. 2021].
[55] Ibid. Page 28-31
[56] Andhra Pradesh Civil Liberties committee (APCLC), Human Rights Forum (HRF)
and Etc (2002). Grim Realities: of life, Death and Survival in Jammu and
Kashmir. [online] http://www.unipune.ac.in. Available at:
http://www.unipune.ac.in/snc/cssh/HumanRights/02%20STATE%20AND%20ARMY%20-%20POLICE%20REPRESSION/E%20Jammu%20and%20Kashmir/07.pdf
[Accessed 19 Mar. 2021].
[57] JKCCS: Election observation Report of 2002.
[58] Bhan, M. and Zia, A. (2018). Resisting Occupation in Kashmir: the
Ethnography of Political Violence. Resisting Occupation in Kashmir: the
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[63] Ibid.
[64] Ibid.
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[67] Ibid
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[77] Ibid
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