InterLib | September 2019

Imaduddin Ahmed

(800 word piece in the 2019 InterLib Kashmir pages, following the articles on Kashmir by Liberal Democrat MEPs Phil Bennion and Dinesh Dhamija)

The 72 year history of Kashmir since the British Raj dissolved is fraught with unconfirmable contentions and theories and riddled by complex problems. For a start, the issue of self-determination of the people of the various parts of Kashmir under Pakistani, Indian and even Chinese administration is not straight-forward: self-determination by whom, given migrations since 1947? The wider stakes at play for the two nuclear powers in dispute over the region is multifaceted, including the way by which sectarian Pakistanis and Indians identify their nationhood; revenge for the partition of Pakistan in 1971; and water security. The Raj, a coterie of deep state officials in Pakistan, non-state actors from Pakistan, the Governments of India and even China have all played their part in the troubled decades that Kashmiris, particularly in Jammu and Kashmir, have had to endure. With all this in the background, it is important to not lose focus of the need for action against the most immediate and pressing concern for human rights in the region.

On August 5th and 6th, the Government of India revoked the special status accorded to the state of Jammu and Kashmir under Article 370 of the Indian Constitution. Under Article 370(1) of the Constitution of India, such a revocation may only be effected with the “concurrence” of the state government of Jammu  and Kashmir. Jammu and Kashmir has not had a government in months, and so the revocation under the President’s direct rule and the federal Government abrogated the spirit of Article 370.

Accompanying these actions, the Government of India escalated military presence in Jammu and Kashmir, already perhaps the densest in the world, enforced curfews, enforced a media blackout and blocked all communications. Further, under a draconian public safety law, the Government of India detained and arrested Kashmiri politicians without issuing warrants. Reports of torture of civilians are now coming through the BBC.

Civilian casualties over the past 12 months were already at a decade high, according to the UN High Commissioner for Human Rights as of April 2019 who found in his 2018 report the Indian state to be guilty of ‘excessive force that […] led to unlawful killings and a very high number of injuries’, and to be guilty of denying access to justice to Kashmiris. The report recommended measures to reduce the impunity with which security forces were able to act and improve accountability for human rights violations of the state, as well as for the self-determination of Kashmiris in both Pakistan and Indian administered Kashmir. Instead of adopting its recommendations, the Government of India’s recent actions will worsen the situation.

British liberals, being committed to fair, free and open societies, will be itching to intervene. However, British involvement in the bilateral (but asymmetric) issue between Jammu and Kashmir and India could reek of colonial tones given the UK’s history in South Asia. The best outcome would be for the Indian Supreme Court to quickly find the Government of India’s actions unconstitutional, and to reinstate the special status of Jammu and Kashmir under Articles 370 and 35A. Given that the Supreme Court will not start hearing the petitions against the revocation of these articles until October, and that the citizens of Jammu and Kashmir are effectively under house arrest, to mitigate against the accusation of being colonial, British liberals should agitate for the UK government to work multilaterally within the European Union, United Nations and Commonwealth of Nations.

The first priority should be for the comity of nations to reset affairs to the status quo as of 4th August, and to use instruments at their disposal to achieve this outcome. First, the media and communications blackouts in Jammu and Kashmir must be lifted and politicians and party workers  detained without warrants for arrest must be released. Second, the original conditions of accession of Jammu and Kashmir to India (ie. those laid out in Articles 370 and 35A) must be recognised.

The secondary priority should be to improve the human rights conditions for Kashmiris from what they were on 4th August, per the recommendations of the UN High Commissioner for Human Rights. Chief amongst these recommendations should be interventions that end the legal use of lethal and arbitrary force by Indian security forces and that improve accountability of the security forces’ use of force. This means calling for a. the repeal of the Armed Forces (Jammu and Kashmir) Special Powers Act, which prohibits the prosecution of security forces personnel unless the Government of India grants a prior permission to prosecute, and allows any army officer to use lethal force against any person contravening laws or being in an ‘assembly of five or more persons’; and b. extending the competence of the Jammu and Kashmir State Human Rights Commission to investigate all human rights violations in the state, including those allegedly committed by central security forces.