Failures of Human Rights in Jammu and Kashmir

This paper basically answers to the report documented obstacles to justice for victims of human rights
violations existing in both law and practice in Jammu and Kashmir, and shows how the government’s
response to reports of human rights violations and has failed to deliver justice for several victims and
families. The report is written by Amnesty international India and it documents personal accounts of
people in the state and their struggle with the execution of law in the state.

The lack of political wills to account for the state police is fortified by legislation and aggravated by other
obstacles to justice, especially for those who lack financial resources and mostly education. To this date,
not a single perpetrator of a human rights violation has been prosecuted in a civilian court. Victims and
their families routinely face threats from the security forces when attempting to bring cases against
soldiers. The climate of impunity encourages human rights violations to continue. Faith in the
government and judiciary is non-existent in Jammu and Kashmir. Although human rights defenders and
activists say that levels of violence from armed groups have gone down in the recent years and direct
threats and intimidation by the army and other security forces so seeking justice continues to remain
out of reach for the people of J&K. Trust in the judiciary is low among families of victims. Families
repeatedly frustrated by the process now refuse to pursue cases as they feel that attempting to bring
cases against the state is a pointless venture. Lawyers and activists speak out against impunity in the
system, but their protests are met with little action by the state.
There are policy changes that would increase accountability – such provisions requiring sanction to
prosecute members of the security forces, granting sanction in previously denied and currently pending
cases, ensuring independent investigations, and excluding the option for trial by military courts in cases
of human rights violations by security forces; but political will to enact them remains mercurial. In
Jammu and Kashmir, ensuring accountability would include ensuring access to information for victims
and families during police investigations, and guaranteeing due process when victims attempt to bring
complaints against their abusers. Addressing Jammu and Kashmir’s impunity problem, and indeed
India’s attitude towards impunity, is a challenge; but it is essential to ensure justice to victims of human
rights violations, and facilitate the healing process for those who have suffered during the course of
Jammu and Kashmir’s decades of struggle and alienation.

1
The major Act that governs military action in Jammu & Kashmir is the Armed Forces (Special Powers)
Act, 1958 [as amended in 1972]. Human rights activists have long argued that this Act is unconstitutional
and violates international humanitarian law. The Supreme Court has, like in the earlier case of TADA,
upheld the validity of the law, but in view of the potential abuse of human rights has laid down some
detailed guidelines for its use. Nonetheless, we believe this is a ''lawless law" which violates both the
Constitution and international law.
The Act gives no precise definition of "disturbed area." The declaration of any area as 'disturbed' under
Section 3 is the prerogative of the Governor of the State or the Central Government. The State
legislature has absolutely no jurisdiction in the matter, though under the Constitution 'public order' is a
State subject [Seventh Schedule, List II, Entry 1]. Under Section 4(a) of the Act, even a non-
commissioned officer can order his men to shoot to kill "if he is of the opinion that it is necessary to do
so for maintenance of public orderS" This gives very wide discretion to even very junior officers.
Similarly, Section 4(b) allows such military personnel to destroy any shelter from which, in his opinion,
armed attacks "are likely to be made" or which has been utilised as a hide-out by absconders "wanted
for any offense." This latitude has permitted the destruction of large numbers of dwellings and other
buildings in the State, including in collateral damage when buildings adjoining the one targeted have
been damaged or destroyed.
Section 4(c) of the Act permits the arrest without warrant, with whatever "force as may be necessary" of
any person against whom " a reasonable suspicion exists that he is about to commit a cognizable
offence." This has provided the basis of indiscriminate arrests, and the use of brutal force including firing
against innocent civilians. Section 4(d) authorises the entry and search, without warrant, of any
premises to make arrests as sanctioned under Section 4 ©, or to recover any person "believed to be
wrongfully restrained or confined," or any property "reasonably suspected" to be stolen property or any
arms, ammunition or explosive substance "believed to be unlawfully kept in such premises" For military
personnel operating in a culturally alien terrain, 'beliefs' and 'reasonable suspicions' are often wholly
unfounded leading to human rights abuses, as we shall see below.
Though Section 5 of the Act explicitly lays down that, "Any person arrested and taken into custody under
this Act shall be made over to the office in charge of the nearest police station with the least possible
delayS," this has been repeatedly violated. Section 6 exempts Army personnel from prosecution, stating,
"No prosecution, suit or legal proceeding shall be instituted, except with the previous sanction of the
Central Government, against any person in respect of anything done or purported to be done in exercise
of powers conferred by this Act." The exemption from prosecution is not only for what is done under
this Act, but also for what is "purported to be done."

2
Experts in the UN Human Rights Committee, which met in Geneva in March 1991, were categorical that
this Act is violative of several Articles of the International Covenant on Civil and Political Rights to which
India is a signatory. Article 2(3) directs the state to ensure that any person whose rights have been
violated "shall have an effective remedy, notwithstanding that the violation has been committed in an
official capacity." While Article 4(1) permits State Parties to take measures derogating from their
obligations in the time of national emergency, Article 4(3) lays down that any such derogation must be
reported to other State Parties through the UN Secretary-General. The Indian government has made no
such communication. In any case, as an expert in the UN Human Rights Committee pointed out, such an
emergency must be a temporary measure, and cannot be in operation for decades, as this Act has been
in various parts of India.

The most important point of my argument is that if there needs to be some kind of remedy or
something that will make them speak the truth then that should be taken up rather than torturing them
and making them admit it. In some cases the tortured victim because of so much pressure given on
them by the police that it makes them falsely admit about a crime that they have not even committed.

Another point that I would like to make is the recent crisis that had happened in Jammu and Kashmir
where the reporter was tied on the boot of the car and was dragged as an example to show the
autonomy of the so called “effective police system” in the state. At this very point I raise the question
“What about his human right?”

Article 3: Freedom from torture and inhuman or degrading treatment of the Human Rights Act. This act
basically focuses on the mental and physical torture and the inhuman treatment done by prople.

All three special laws in force in the state assist the government in shielding the perpetrators of human
rights violations from prosecution, and encourage them to act with impunity. Provisions of the Armed
Forces (Jammu and Kashmir) Special Powers Act clearly contravene international human rights
standards laid down in the International Covenant on Civil and Political Rights, as members of the UN
Human Rights Committee have pointed out. One Committee members felt that provisions of the act –
including immunity from prosecution – were highly dangerous and encouraged violations of the right to
life.1

1
https://en.wikipedia.org/wiki/Human_rights_abuses_in_Kashmir

3
Conclusion

If we take the human right violation into consideration we would understand that it is the duty of the
state to see whether there is proper mechanism in the state. The conflict in Jammu and Kashmir has
been a problematic one and has been a point to problem in the human right convention. The people of
the state feel alienated by the very country they live in and the non-judicial existence serves nothing to
them. The scrutiny faced by them as documented by the amnesty international speaks volume of the
situation of the state and ho much there is a need of a human right intervention. In the end I would like
to conclude that whatever the situation maybe there has to be a remedy for the kind of violence that
goes around the state and this is exactly where the human “rights” come in the picture.