challenges faced by india for protection of human rights to establish peace and cooperation in...

7/31/2019 Challenges Faced by India for Protection of Human Rights to Establish Peace and Cooperation in Kashmir

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The Challenges Faced by India Against Violation of Human Rights to Establish

Peace and Cooperation in Kashmir

The Challenges Faced by India against Violation of Human Rights to Establish


Prepared By,

Dr. Chintan N. Pandya

Coordinator,

BBA Programme,

AMCOST,

Anand.

The human rights record of the Indian security forces in Kashmir has been

characterized by arbitrary arrests, torture, rape and extrajudicial killings. These have

been extensively documented by human rights organizations such as Human Rights

Watch and the PUCL (People's Union for Civil Liberties) and others. Most of these

violations routinely go unchecked and unpunished, "justified" as unavoidable in a proxy

war managed by Pakistan; only a handful cases have been brought to justice by due

process. Often, New Delhi's response to the reports by various human rights

organizations has been evasive.

2477 civilians had been killed by the Indian forces in the period 1990-1998 (PTI

release, 13 September 1998), according to conservative estimates by official sources

which mostly exclude thousands of custodial killings. In April 1997, the Minister of

State for Home Affairs admitted that 454 persons were missing since 1990.

Source: Amnesty International,Disappearances in Jammu and Kashmir, 1999

1 - Dr. Chintan N. Pandya


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Civilian killings in firings

The insurgency that began in 1989 in the Valley involved hundreds of thousands of

Kashmiris marching on the streets of Srinagar between January and May 1990. Under

Jagmohan's regime, India's response to the protests was brutal with indiscriminate

firings at unarmed protesters;

Source : Balraj Puri,Kashmir: Towards Insurgency, New Delhi 1993, pp.72-3.

On 20 Jan90, an estimated 100 people killed when a large group of unarmed

protesters were fired upon by the Indian troops at the Gawakadal bridge.

On March 1 1990, an estimated one million took to the streets and more than

forty people were killed in police firing.

In May 1990, an estimated 200,000 Kashmiris took to the streets in a funeral

procession of the martyred leader Mirwaiz Maulvi Farooq; over 100 were killed

in police firing.

In January 1993, 40 people were killed in Sopore by security forces who burnt

down a section of the town after two of their men were killed.

In March 2000, nine civilians were killed in police firing in a large

demonstration at Brakpora protesting killing of civilians at Panchalthan.

In August 2000, 35 civilians were killed including 23 Amarnath pilgrims in

Pahalgam; it has come to light that most of the people were killed in fact by the

panic-stricken CRPF jawans who continued firing for another 20 minutes after

the two suspected militants were killed; a commission under Lt.Gen. Mukherjee

found 17 police officers responsible.

Source: Kamal Mitra Chenoy,Report On human rights violations in Kashmir.



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Indian forces also have severely beaten 17 journalists in May 2001.

Source: Human Rights Watch,India/Pakistan Summit: Call to Address Human

Rights in Kashmir, 2001.

In January 2002, Indian troops killed a civilian and wounded another in a firing

at a demonstration at Sodal, protesting civilian beatings in search operations.

Torture and Custodial Killings

Civilians suspected of having information about militants, many of them innocent, are

routinely detained, tortured and killed in custody, besides militants. Methods of torture

include severe beatings, electric shock, crushing the leg muscles with a wooden roller,

and burning with heated objects.

In 1995, Amnesty International documented 706 cases of custodial killings in the period

1990-1994, nearly all after gruesome torture; In its response to Amnesty, the

Government of India (GOI) responded to 519 out of 706 cases in an evasive manner,

dismissing half of them as "encounter killings" without supporting evidence despite

eye-witness reports to the contrary; The government indicated that there was prima

facie evidence of human rights violations in 85 other cases which were said to be under

investigation, however no one has been brought to justice till date.

Source: Amnesty International, Torture and Deaths in Custody in J & K, 1995.

Source: Amnesty International,Analysis of the Government of India's response to

Amnesty International's report on torture and deaths in custody in Jammu and

Kashmir, 1995.



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On 26 April 1993, The Kashmir Times run by Ved Bhasin carried a report of police

records listing 132 persons to have been killed in custody in the preceding 33 days

alone. The Kashmir Monitor, a human rights group, has reported around 220 custodial

deaths for the period June'94-April'95 which represent the bare minimum. Estimate of

the number of custodial killings since 1990 by human rights organizations runs in

several thousands, many of them are civilians.

Source: Pankaj Mishra,Death in Kashmir

Source: Human Rights Watch,India's Secret Army In Kashmir

Disappearances

In August 2000, Amnesty International reported that the fates of up to 1,000 persons

reported missing in Jammu and Kashmir since 1990 remain unexplained by authorities.

Few of the hundreds of habeas corpus petitions filed by families of the "disappeared"

before the judiciary in Jammu and Kashmir have been brought to a resolution. The

Kashmir Monitor has also documented around 300 cases of disappearance during 1989-

95.

Source: Amnesty International, India (Jammu and Kashmir): Day of the

"Disappeared", 2000.

Rapes

Hundreds of women have been raped with impunity and most of them go unreported

given the social stigma and fear of retribution by the State; The GOI has been quick to

deny and cover-up most of those cases which do get reported; The reported gang-rape

of nine women at Shopian in October 1992 by an army unit was dismissed off-



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handedly after investigation by army and police, the very units charged with the crime,

despite solid medical evidence to the contrary; no independent investigation by an

impartial agency was carried out. The reported mass rape of over 20 women at Konan

Poshpura in February 1991 was also handled in a similar evasive manner; the

complaint was not investigated in a timely manner by an impartial agency and the

medical evidence was dismissed without good cause; one of the victims who was nine

months pregnant during the incident delivered a baby with a fractured left arm;

Governor Girish Saxena who denied the incident admitted to mass rapes in the past by

the Indian forces however. Rapes continue to be reported, an example from this year

being the April 17 gang-rape of a 17-year old girl in Pahalgam.

Sources:

Amnesty International, Torture and Deaths in Custody in Jammu and Kashmir,

1995.

Asia Watch and Physicians for Human Rights, The Human Rights Crisis in

Kashmir: A Pattern of Impunity, 1993, pp.98-107.

Tavleen Singh,Kashmir: A Tragedy of Errors, New Delhi 1995, p.177

BBC News,Kashmir troops held after rape, april 19, 2002.

Pro-India Renegade Militants

The phenomenon of renegade militants has been extensively documented by Human

Rights Watch. Renegades are former militants who have surrendered and changed sides

to the Indian forces. Since the 1989 insurgency in Kashmir, renegades have been used

for extrajudicial executions of militants (besides human right activists, journalists and

other civilians) and later conveniently dismissed as "intergroup rivalries". Many of



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these groups have been responsible for grave human rights abuses, including summary

executions, torture, and illegal detention as well as election-related intimidation of

voters. They are never arrested or prosecuted and go scot-free.

Source: Human Rights Watch,India's Secret Army In Kashmir

In 1997, the Director General of Police Gurbachan Jagat acknowledged that the

continued services of the renegades had become counter-productive in view of their

excesses; an estimated 5000 renegades were reportedly 'rehabilitated' as Special Police

Officers (SPO) in the State police and many others were absorbed in the security forces.

The present number of renegade militants continues to be significant and the estimates

vary; In 1999, Gurbachan Jagat acknowledged that there were 1,200 renegades in the

payroll of New Delhi; According to a renegade representative Javed Shah, the number

of renegades exceeded 2,000; Renegades remain a dreaded group.

Sources:

Amnesty International,Disappearances in Jammu and Kashmir, 1999.

Indian Express,J&K's friendly ultras say pay more, or else...,4 May, 1999.

The Chattisinghpora cover-up

In March 2000, around the time of US President Clinton's visit to India, unidentified

gunmen gunned down 35 Sikhs at Chittisinghpora; India blamed foreign militants;

Kashmiris blamed renegade militants employed by Indian security forces; A few days

after the massacre, security forces killed five persons in an "encounter" at Panchalthan

village and claimed they are "foreign militants" responsible for the Sikh massacre.



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Later, in July 2002, DNA testing of the corpses proved that the five persons killed were

civilians.

The relatives of the five murdered villagers held a series of demonstrations for public

exhuming of the bodies; A crowd of five thousand unarmed civilians at Brakpora was

fired upon by the police; Nine more men died; When the bodies were finally exhumed,

they were discovered to have been burnt and defaced, but curiously dressed in brand

new army fatigues. They were identified by the relatives as the local villagers who went

missing. Initial attempts in DNA testing of the exhumed bodies were compromised by

fudging of the DNA samples in a cover-up attempt by the authorities; Later results

indicated that the five persons killed by the Indian forces were indeed civilians and that

Indian forces engaged in a deliberate subterfuge to portray them as "foreign" militants

responsible for the Sikh massacre.

The Pandian Commission investigated the firing at Brakpora and pronounced that three

police officers be tried for murder, however no action has been taken against them till

date; No judicial inquiry into the Sikh massacre itself has been conducted till date

despite repeated announcements. While some argue that the Chattisinghpora massacre

may very well have been engineered by the Indian forces for political gains during

Clinton's visit, the least that can be said is that confirmed, unpunished atrocities of the

security forces most certainly do not inspire confidence in the people, and fuel

resentment instead.

The army-renegade nexus

Jalil Andrabi, the human right activist was abducted by the paramilitary and

renegades in March 1996 in the presence of eye-witnesses and tortured to death



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in custody. Despite the GOI's initial denials of the army's involvement, the

Special Investigation Team identified an army Major in April 1997 as the

person responsible for the death; however the accused major was released with

no punishment.

H.N. Wanchoo, the noted human rights activist had documented and filed writ

petitions for hundreds of custodial deaths in 1992; Being a Pandit, his petitions

were an embarrassment to the Central and State governments. He was

assassinated by unidentified gunmen in December 1992; Although the

government claimed that the persons responsible belonged to the militant outfit

Jamiat-ul Mujahidin, human rights activists who investigated the case have

alleged that the militants of that group were released from jail on condition that

they kill Wanchoo. Following his death, none of the custodial death cases were

heard in the court and lawyers attempting to get the cases listed have reportedly

found that many of the files of these cases were now missing from the High

Court premises.

Dr. Farooq Ahmad Ashai, chief of orthopaedics and a human rights activist

who had spoken against the GOI was killed by gunshots from a CRPF bunker

while traveling in a car clearly marked with a red cross. The government stated

that he had been killed in 'crossfire', despite evidence to the contrary. Dr. Abdul

Ahad Guru, a surgeon who had treated torture victims was killed by

unidentified gunmen. A government source alleged to Human Rights Watch that

Zulkar Nan, a militant, had been released specifically to carry out the murder.

Shortly afterwards, Indian security forces shot and killed Zulkar Nan.

Mirwaiz Maulvi Farooq and Abdul Ghani Lone, two Kashmiri activists were

killed by unidentified gunmen on 21 May 1990 and 2002 respectively. In both



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cases, the governments blamed militants while some Kashmiris blamed Indian

sponsored renegades.

Sources:

Human Rights Watch,Behind the Kashmir Conflict, 1999.

Human Rights Watch, Violations By Indian Government Forces: State-

sponsored "renegade" Militias, 1996.

Other Abuse of Human Rights - fuelling Kashmir violence:

The graveyards investigated by IPTK (INTERNATIONAL PEOPLE'S TRIBUNAL

ON HUMAN RIGHTS AND JUSTICE IN INDIAN-ADMINISTERED

KASHMIR) entomb bodies of those murdered in encounter and fake encounter

killings between 1990-2009. These graves include bodies of extrajudicial,

summary, and arbitrary executions, as well as massacres committed by the

Indian military and paramilitary forces.

Of these graves, 2,373 (87.9 percent) were unnamed. Of these graves, 154 contained

two bodies each and 23 contained more than two cadavers. Within these 23 graves, the

number of bodies ranged from 3 to 17.

A mass grave may be identified as containing more than one, and usually unidentified,

human cadaver. Scholars refer to mass graves as resulting from crimes against

humanity, war crimes, or genocide. If the intent of a mass grave is to execute death with

impunity, with intent to kill more than one, and to forge an unremitting representation

of death, then, to that extent, the graves in Bandipora, Baramulla, and Kupwara are part



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of a collective burial by Indias military and paramilitary, creating a landscape of mass

burial.

Post-death, the bodies of the victims were routinely handled by military and

paramilitary personnel, including the local police. The bodies were then brought to the

secret graveyards primarily by personnel of the Jammu and Kashmir Police. The

graves were constructed by local gravediggers and caretakers, buried individually when

possible, and specifically not en mass, in keeping with Islamic religious sensibilities.

The graves, with few exceptions, hold bodies of men. Violence against civilian men has

expanded spaces for enacting violence against women. Women have been forced to

disproportionately assume the task of caregiving to disintegrated families and undertake

the work of seeking justice following disappearances and deaths. These graveyards

have been placed next to fields, schools, and homes, largely on community land, and

their affect on the local community is daunting.

The Indian Armed Forces and the Jammu and Kashmir Police routinely claim the dead

buried in unknown and unmarked graves to be foreign militants/terrorists. They claim

that the dead were unidentified foreign or Kashmiri militants killed while infiltrating

across the border areas into Kashmir or travelling from Kashmir into Pakistan to seek

arms training. Official state discourse conflates cross-border militancy with present

nonviolent struggles by local Kashmiri groups for political and territorial self-

determination, portraying local resistance as terrorist activity.

Exhumation and identification have not occurred in sizeable cases. Where they have

been undertaken, in various instances, encounter killings across Kashmir have, in



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fact, been authenticated as fake encounter killings. In instances where, post-burial,

bodies have been identified, two methods have been used prevalently.

It was also examines 50 alleged encounter killings by Indian security forces in

numerous districts in Kashmir. Of these persons, 39 were of Muslim descent; 4 were of

Hindu descent; 7 were not determined. Of these cases, 49 were labelled

militants/foreign insurgents by security forces and one body that was drowned. Of

these, following investigations, 47 were found killed in fake encounters and one was

identifiable as a local militant.

IPTK has been able to study only partial areas within 3 of 10 districts in Kashmir, and

our findings and very preliminary evidence point to the severity of existing conditions.

If independent investigations were to be undertaken in all 10 districts, it is reasonable to

assume that the 8,000+ enforced disappearances since 1989 would correlate with the

number of bodies in unknown, unmarked, and mass graves.

Allegations made by IPTK

The methodical and planned use of killing and violence in Indian-administered Kashmir

constitutes crimes against humanity in the context of an ongoing conflict. The Indian

states governance of Indian-administered Kashmir requires the use of discipline and

death as techniques of social control. Discipline is affected through military presence,

surveillance, punishment, and fear. Death is disbursed through extrajudicial means

and those authorized by law. These techniques of rule are used to kill, and create fear of

not just death but of murder.

Mass and intensified extrajudicial killings have been part of a sustained and widespread

offensive by the military and paramilitary institutions of the Indian state against



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civilians of Jammu and Kashmir. IPTK asks that the evidence put forward be examined,

verified, and reframed as relevant by credible, independent, and international bodies,

and that international institutions ask that the Government of India comply with such

investigations.

It was noted that the international community and institutions have not examined the

supposition of crimes against humanity in Indian-administered Jammu and Kashmir.

It was also noted that the United Nations and its member states have remained

ineffective in containing and halting the adverse consequences of the Indians states

militarization in Kashmir.

The evidence from unknown, unmarked, and mass graves in Indian-administered

Jammu and Kashmir is used to seek justice, through the sentencing of criminals and

other judicial and social processes. As well, the existence of these graves, and how they

came to be, may be understood as indicative of the effects and issue of militarization

and the issues pertaining to militarization itself must be addressed seriously and

expeditiously.

The violence of militarization in Indian-administered Kashmir, between 1989-2009,

have resulted in 70,000+ deaths, including through extrajudicial or fake encounter

executions, custodial brutality, and other means. In the enduring conflict, 6, 67,000

military and paramilitary personnel continue to act with impunity to regulate

movement, law, and order across Kashmir. The Indian state itself, through its legal,

political, and military actions, has demonstrated the existence of a state of continuing

conflict within Indian-administered Jammu and Kashmir.



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Source: BURIED EVIDENCE, authored by Angana P. Chatterji, Parvez Imroz,

Gautam Navlakha, Zahir-Ud-Din, Mihir Desai, and Khurram Parvez.

[Dr. Angana P. Chatterji is Convener IPTK and Professor, Anthropology, California

Institute of Integral Studies. Advocate Parvez Imroz is Convener IPTK and Founder,

Jammu and Kashmir Coalition of Civil Society. Gautam Navlakha is Convener IPTK

and Editorial Consultant, Economic and Political Weekly. Zahir-Ud-Din is Convener

IPTK and Vice-President, Jammu and Kashmir Coalition of Civil Society. Advocate

Mihir Desai is Legal Counsel IPTK and Lawyer, Mumbai High Court and Supreme

Court of India. Khurram Parvez is Liaison IPTK and Programme Coordinator, Jammu

and Kashmir Coalition of Civil Society.]

Rights abuses by Indian armed forces

The Indian government's failure to end human rights abuses committed by its security

forces is both the cause and consequence of insurgency in the state, says a report that is

equally critical of Pakistan's role in backing militants who have perpetrated rights

abuses on civilians

Indian security forces and Pakistani-backed militants have both come under fire for

widespread human rights abuses in the Indian state of Jammu and Kashmir, in a new

report by the US-based rights watchdog Human Rights Watch.

The report says the Indian government's failure to end the impunity with which army

and paramilitary forces and armed militants are committing acts of torture and killing

innocent civilians is fuelling the cycle of violence in the troubled state.



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While conceding that instances of human rights abuse had declined since 2002, the 156-

page report, 'Everyone Lives in Fear: Patterns of Impunity in Jammu and Kashmir', says

Indian security forces have committed torture, "disappearances" and arbitrary

detentions. They also continue to execute Kashmiris in fake "encounter killings,"

claiming that these killings take place during armed clashes with militants.

Indian security forces say they are fighting to protect Kashmiris from militants and

Islamic extremists, while the militants claim they are fighting for Kashmiri

independence and to defend Muslim Kashmiris from an abusive Indian army. In reality,

both sides have committed widespread and numerous human rights abuses and

violations of international humanitarian law (or the laws of war), says the report.

These abuses have taken place against the backdrop of almost two decades of the

failure of political and legal systems in India and Pakistan to end abuses or punish

perpetrators. "Human rights abuses have been a cause as well as a consequence of the

insurgency in Kashmir," says Brad Adams, Asia director at Human Rights Watch.

"Kashmiris continue to live in constant fear because perpetrators of abuse are not

punished. Unless the Indian authorities address the human rights crisis in Jammu and

Kashmir, a political settlement of the conflict will remain illusory."

Adams also condemned the largely Pakistan-backed militant groups, saying any attack

on civilians, irrespective of the cause or intention, was not acceptable. "No cause can

justify attacks on civilians. The attacks on civilians has alienated the people of Jammu

and Kashmir and instilled a sense of fear among them."

Extra-judicial executions by Indian security forces are common. Police and army

officials have told Human Rights Watch that security forces often execute alleged



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militants instead of bringing them to trial, in the belief that keeping hardcore militants

in detention is a security risk. Most of those summarily executed are falsely reported to

have died during armed clashes between the army and militants in "encounter killings".

The Indian government has effectively given its forces free rein, while Pakistan and

armed militant groups have failed to hold militants accountable for the atrocities they

commit. Through documentation of the failure to prosecute key cases, the report shows

how impunity has fuelled the insurgency.

If the Indian authorities had addressed these abuses seriously when they took place,

public confidence in the authorities would have increased and future abuses may have

been substantially reduced. Instead, India failed to prosecute or discipline the

perpetrators, says the report.

Impunity has been enabled by Indian law -- the report documents cases where Indian

security forces have shot civilians under the authority of laws such as the Jammu and

Kashmir Disturbed Areas Act and the Armed Forces (Jammu and Kashmir) Special

Powers Act. These laws, enacted during the beginning of the conflict, allow lethal force

to be used "against any person who is acting in contravention of any law or order for

the time being in force in the disturbed area."

Other laws offer state agents effective immunity from criminal prosecution.

"It's absurd that the world's largest democracy, with a well-developed legal system and

internationally recognised judiciary, has laws on its books that prevent members of its

security forces from being prosecuted for human rights abuses," says Adams. "It's time

for the Indian government to repeal these laws and re-commit itself to justice for

victims of all abuses, whoever the perpetrator may be."



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The new report, based on research from 2004 to 2006, documents abuses that have

occurred since the election in 2002 of a Jammu and Kashmir state government with an

avowed human rights agenda and the resumption of peace talks between India and

Pakistan in 2004.

Since 1989, the armed secessionist struggle against Indian rule in Jammu and Kashmir

has claimed more than 50,000 lives. Despite a fall in levels of violence over the past

two years, almost half-a-dozen people die every day in gun battles, shootings and

occasional bomb blasts in the region. Protests also erupt regularly over alleged abuses

by Indian troops.

Source:

The Hindu, September 13, 2006

www.hrw.org, September 12, 2006

Reuters, September 12, 2006

www.bbcnews.com, September 12, 2006



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Accountability

The National Human Rights Commission's (NHRC) presence has not been effective in

improving the human rights record; For instance, the NHRC lacks the jurisdiction to

investigate complaints of violations by the army and paramilitary forces. New Delhi

continues to deny permission for various human rights organizations such as Human

Rights Watch, UN Special Rapporteur of Torture and others, to visit Jammu and

Kashmir and investigate the violations.

Chief Secretary Ashok Jaitley acknowledged that while disciplinary action was taken

against security personnel involved in large massacres in the mid-1990s, no

prosecutions take place as no witness will dare step forward. What action is taken is not

made public. In the past, the GOI has made public a number of prosecutions of

members of security forces for rape. However, even these amount to no more than a

handful; many other incidents of rape have never been prosecuted. In its 1999 report,

Human Rights Watch stated that was not aware of a single prosecution in a case of the

torture or summary execution of a detainee in the ten years since the conflict began.

The fact that the officer indicted in the 1996 murderer of a human rights lawyer Jalil

Andrabi, has not yet been arrested, contrasts sharply with the GOI's claim that it has

ensured greater accountability from its forces in Kashmir.

Sources:

Human Rights Watch, The Ongoing Problem of Impunity, 1999.

Amnesty International, Torture and Deaths in Custody in Jammu and Kashmir,

1995.



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Amnesty International,Impunity must end in Jammu and Kashmir, 2001.

Full force of the law

The Armed Forces Special Powers Act of 1958 and the Disturbed Areas Act of 1976

give police extraordinary powers of search and arrest without warrants and detention.

The Special Powers Act provides that unless approval is obtained from the Central

Government, no "prosecution, suit, or other legal proceeding shall be instituted against

any person in respect of anything done or purported to be done in exercise of the

powers of the act." To human rights groups, it is such provisions that allow security

forces to operate with virtual impunity.

According to one NGO, there were 1,300 writs ofhabeas corpus pending in the Jammu

and Kashmir High Court in 1999 in such detention cases. The government is also

known to abuse such powers, an example being the case of Yasin Malik, chairman of

the JKLF, a separatist group. He was arrested under POTA on 23 March on charges of

accepting illegal money, a charge which he refuted as a frame-up. Intriguingly the

prosecution failed to present the mandatory challan within ninety days of his detention

under POTA despite repeated directions by the court and the judge ordered his release

on bail; subsequently he was rearrested under the Public Safety Act(PSA). The events

clearly show that the POTA case was indeed a frame-up.

A charge which the GOI did not deny in a response to Amnesty was that it had issued

secret orders to the Police to disregard complaints of human rights violations against the

security forces in FIRs. This leads to the conclusion that the numbers of registered

complaints are probably fewer than the number of excesses actually committed.



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Source: Amnesty International,Analysis of the Government of India's response to

Amnesty International's report on torture and deaths in custody in J & K, 1995.

In October 1996, a Union Home Ministry report for 1995-96 stated that 272 J&K

security personnel including 153 BSF, 80 CRPF, and 39 army personnel, had been

"sacked, jailed or disciplined" for abuses committed in the past five years; a number

hardly proportional to the number of violators, by most accounts.

In conclusion of above all it can be said that the human rights abuses in the region in

which both the security forces and militants have come in for equal criticism.

According to Adams, Human Rights Watch is to release a similar view in their report

on the human rights situation in Pakistan-occupied Kashmir also, on September 21,

2006. This is very controversial issue might be very difficult to resolve but on the same

hand these issues human rights are becoming reason for increasing violence in Kashmir.

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