<click here to download the report>
We travelled across Kashmir, and spoke with a large number of people from across society. The abrogation of Article 370 is in a sense the proverbial last straw that erodes whatever hope that may have existed of a peaceful and just resolution of the people’s demands for democracy. It comes, for people, at the end of decades of a systemic and systematic erosion of their hopes and aspirations, at the end of decades during which the promises and assurances made to them by the Indian government have been belied and at the end of three decades of extreme physical brutality, psychological warfare and pervasive intrusive panoptical control.
The freehand given to the armed forces by virtue of laws which allow for almost anything to be done under the garb of “maintaining law and order” in the valley has resulted in absolute impunity. This impunity enjoyed by the armed forces has led them to use the bodies and minds of Kashmir’s people as a political territory to perpetuate violence. The numerous instances of alleged killings, tortures, rapes and vandalism committed by the armed forces calls for investigation and those responsible for such actions. The Indian state cannot be seen to be allowing it’s forces to commit such gross human rights violations without them having to face any consequences.
The blatant abuse of power, the violent aggression and extreme forms of abuse (physical, sexual and emotional) unleashed on the Kashmiri people has caused deep and destructive trauma that may take generations to heal. Not only has it caused extreme suffering and a plethora of mental health disorders of unprecedented proportions, it has also manifested in the seething anger, acute polarization and paranoia, a complete lack of trust and hardening of attitude towards the Indian state.
The Indian government’s hubris, cowardice, high- handedness, and lack of accountability from August 5, 2019 has been recognised by Kashmir’s peoples as an effort to change the composition, shape and face of Kashmir itself. They recognise that this time around the forms of violence, subjugation and subordination and not just military but are accompanied with an ideological nationalism too. As one person, who has faced illegal detention many times before said: ‘they may have beaten me, tortured me but never before did they demand I say ‘Jai Sri Ram‘.
Amidst a seeming calm everyone we spoke with, bore an extreme anger at what the government has done. They said: “It’s better to have war than to have this”, or “Azaadi or death is the only choice”. People were clear that the political middle ground has been extinguished and that everyone was willing to face the might of the Indian State. This resolve has translated into the indefinite and complete people’s hartal. The hartal defines the political space of Kashmir today. The hartal represents people’s urge to take back control, the struggle for democracy and self-rule, all in the face of the lockdown. The hartal marks a point of departure, so to speak, from the illusory possibilities within the present political framework, the focus of the resistance as its next steps are contemplated. The other face of the resistance today is in places like Anchar, downtown Srinagar and old Baramulla, is the persistence of the dilawars.
Reality is that this people’s response was not in the Indian government’s playbook and even on this 88th day since August 5, 2019 that we place this report in the public domain does the government know where to go besides more hubris, ideological posturing, false and fake news and above all a fiercer employment of violence and arms against people by the state. This is the shape of ‘normalcy’ that the Indian government is persisting with as it takes apart basic norms of democracy and the very foundations of the ‘Republic’.
8.1 The Will of the people of Kashmir
“We have been using a shawl for all these years to cover our bodies. There are several, maybe 10 holes in it. Yet we have been using the same shawl. There is today an 11th hole in it and we will continue wearing the shawl”, an old man in Anchar summarised the situation and the will the people with this metaphor.
“We will starve, but we want our freedom…” “Our children might die, but we want freedom….”
“We will not earn this year due to the hartal, but we are clear, the hartal is here to stay, we want freedom….”
No matter whom we spoke to, in whatever contexts the discussions were taking place, every narrative was interspersed with “We want freedom”. Every Kashmiri we met across the entire Valley were unequivocal about their will, that for Freedom.
government’s ability to maintain its control over Kashmir and combat militant separatist groups operating in the region.”
While we were not able to speak with the Sikhs in Baramulla, we were told that their will is Freedom too. We met a key leader of the Kashmiri Pandit community in Srinagar who shared the same sentiment of betrayal as that of the Kashmir’s Muslims. He said, “Normalcy hasn’t yet been established, as it is made out to be. The volcano is yet to erupt. Even if you integrate J&K completely with India, normalcy won’t be restored. In the last 30 years, due to the existence of 370, there was hope of reviving the Kashmiri people’s movement.”
The impunity of the army, the police and other agencies in violating their bodies and minds has saturated the contempt people have for the forces. People are emphatic that there is no stopping now even if Article 370 is brought back, They say their struggle will now end only with ‘Azaadi’.
Kashmir’s society has come to be transformed since August 5, 2019. The divisions that exist within most societies have disappeared. First, the whole political spectrum has collapsed into one with the division between parliamentary parties and non-parliamentary parties have ceased even as the cadre of the mainstream regional parties no more offer a political middle ground. Second, the generational divide has for all practical purposes disappeared with the hitherto pacifist older generation speaking the same language of resistance as of the young. Third, there is collapse which has as yet not been fully articulated, but is possibly emerging which is the divide between Kashmir’s society and Kashmir’s state apparatus. The erosion of these divisions in society contributes to the strength of the resistance.
8.2 The State of the law
With the loathing and revulsion towards the armed forces, distrust and contempt for the Indian government, Kashmir’s peoples have lost confidence in the judiciary too. This is a view that has evolved over time as a report of Yale Law School found that the Kashmiri justice system – both the courts themselves and the legal process for victims seeking to bring human rights claims – falls short of international standards. It further states that: “Although the Kashmiri judiciary attempts to review independently the actions of other branches of government, the judiciary exists within a highly sensitive conflict situation, where executive and militar y prerogatives are regarded as sacrosanct. Many lawyers of the Jammu and Kashmir Bar Association reiterated that the judiciary functioned as if it were a branch of the Indian executive, whose long – standing official position is that Kashmir is an atoot ang (integral part of India). As such, the Kashmiri judiciary, despite its purported independence, has played an instrumental role in ensuring the Indian
People have become wary of approaching the courts to seek relief since they have seen with their own eyes and experienced the impunity with which the armed forces operate. Be it mass atrocities such as Kunan Poshpora and Sopore or the individual allegations of illegal arrest, detention, torture, custodialdeath, enforced disappearances, etc. have not met with justice. More recently the staying of the FIR against Major Aditya Kumar who is alleged to have shot five children who were alleged stone pelters, by the Supreme Court has deepened this disillusionment.
People have reached a point where they almost completely refuse to engage with the machinery of the state, perhaps this explains why no complaints have been filed with any state authority or the SHRC. While there is the awareness of the risks associated with reaching out to the state’s apparatus, there is also a sense of futility in doing so. Such is the repudiation of the democratic institutions of the state that are meant to serve as a ‘check and balance’ against an authoritarian government and its uncontrolled armed forces.. As one man said, “Everyone keeps attacking us, including the politicians, armed forces, media bureaucrats and even your judiciary! We have no more faith left.”
Post August 5, 2019 this has only intensified. Not only is there no faith in the local judiciary but now there’s a declining faith in the Supreme Court. While there is hardly any hope that the habeas corpus cases will be heard expeditiously in the High Court, the order passed by the Supreme Court on September 16, 2019 when the petition involving the challenging to the communication blockade has further added to the alienation since it is believed that there is no regard for the Kashmiris and their rights. To recall the said Order read as follows: “The State of Jammu & Kashmir, keeping in mind the national interest and internal security, shall make all endeavours to ensure that normal life is restored in Kashmir; people have access to healthcare facilities and schools, colleges and other educational institutions and public transport functions and operates normally. All forms of communication, subject to overriding considerations of national security, shall be normalized, if required on a selective basis, particularly for healthcare facilities.”
There can be little doubt that the Supreme Court reinforced its deference to the executive through its failure to take suo moto action against the Indian government for placing 1.25 crore people under siege and suspending their fundamental rights.
As one advocate said: “our alienation from the rest of India is complete on account of the “constitutional fraud” that has been perpetrated by government and has been upheld by the courts through their inaction et we are kept under a constant fear of reprisal and backlash from the State if we speak out”. And then the other advocates said in unison, “public referendum, demilitarisation and restoration of special status to Kashmir are the minimum demands even for a dialogue to begin with the Indian State”.
The government has used every platform to claim that the people of Kashmir have welcomed the abrogation and that it has been done in their economic and social interests. Yet, in Barmaulla Kulgam, Pulwama, Srinagar and Shopian, we were told, “If the Indian state is so clear that this (being with India) is the will of the people, then why don’t they put it to vote. They should have no cause for concern as according to them Kashmiris will vote to choose to be with them.” Perhaps what the Indian government says even it knows is not quite the truth hence our constitutional provisions of Right to Life have been set aside because of the communal greed of the ruling government. Until this question is addressed Jammu and Kashmir will remain a matter of dispute.
A reputed writer on Kashmir question said to us before we left Srinagar: “if the Indian government thinks it can make Kashmir an integral part of India, then the Kashmiri’s may well decide to make India an integral part of Kashmir…if the Indian government wants to get out of this it will have to rewind its action”. When an entire people speak about a government’s action not hearing that voice is almost always at everyone’s peril.
We also believe that the Supreme Court of India, above all, must step in when the fundamental rights of any person are transgressed by government actions.
The persistence with which the government is violating the fundamental rights of the peoples of Jammu and Kashmir and the failure of the Supreme Court and the High Court to address these violations not just takes down their democratic rights but takes apart the very principles of democracy that our republic is founded on.
All people have a right to determine their own future. It is an acknowledgement of and respect for this right that brings peace in society. This right must be enjoyed by the people of Jammu and Kashmir too.
There is no doubt the decision of the Indian government has been opposed by various sections of Indian society too, including the members and organisations of this Team, and demands have been made that status quo ante as on August 4, 2019 including restoring all constitutional and legal provisions that were available to the state of Jammu and Kashmir on that date. This would require repealing of the parliamentary decisions of August 5 and 6 August 20119 and rescinding the Presidential orders C.O. 272 and C.O. 273 along with the repealing of Jammu and Kashmir Reorganisation Act, 2019. With this the government must release all those imprisoned on and after August 1, 2019, and lift the lockdown in all its forms – barricades, communication, transport and all government services as well as restore all civil, political, social and economic rights.
Following this, in order to find a lasting and peaceful solution the Government of India must
- Recognise that a dispute exists between peoples of Jammu and Kashmir and the Indian government.
- Repeal the Jammu & Kashmir Public Safety Act 1978 and the Armed Forces (Jammu & Kashmir) Special Powers Act.
- Withdraw all army and paramilitary forces from civilian areas of Jammu and Kashmir.
- Open a transparent unconditional dialogue with the peoples of Jammu and Kashmir and their representatives so as to address peoples’ aspirations to determine and define their own destinies through democratic means and to find a political solution that respects the democratic will of the people in accordance with human rights and international law.