As the sun was setting on the British Raj in the Indian subcontinent during the first half of the 20th century, the tide was shifting and Indians were beginning to wake up to a nationalist consciousness based on identity and self-determination. In 1947, the Subcontinent suddenly found itself torn apart as British India split into the muslim-majority Islamic Republic of Pakistan and the secular, but Hindu-majority Republic of India. Such division came about through the emergence of two distinct nations, one for muslims and one for the rest of India, within the subcontinent. In the midst of drawing borders, Indian provinces and princely states gravitated towards one or the other, joining either India or Pakistan due to geographical proximity or religious commonality. One such princely state was the region of Jammu and Kashmir, a muslim-majority province ruled by a Hindu King. Located towards the north-west of the Indian Subcontinent, Jammu and Kashmir sat smack between the would-be Pakistan and India with China to the north. Tribal invasions from the North-Western frontier forced the Hindu ruler Maharaja Hari Singh to accede the predominantly Hindu territory to India after initially attempting to remain independent.
Known simply as Kashmir, the region has been a point of conflict and contention between India and Pakistan since independence. The two have fought three wars over the region with the most recent one in 1999. Today, Kashmir is split between Pakistan and India divided by a ceasefire line known as the Line of Control with both maintaining active occupations of their portions while claiming the whole region in full. The Line of Control has functioned as a de facto border between India and Pakistan, and both occupiers call the other’s claims as illegitimate. Since 1947, against international law, both nations have actively maintained occupations over their side of the Line of Control. From the onset of the conflict, the United Nations (UN) affirmed through several UN Security Council resolutions that a plebiscite was to take place through which the Kashmiri people would choose on their own whether to join India or Pakistan. However, neither India nor Pakistan have made indications that they intend to move towards conducting the plebiscite in their respective areas. On the Indian side, the Indian Constitution codified Kashmir as part of India through the inclusion of Article 370, which granted the region of Jammu and Kashmir special status. Through Article 370, Kashmir was allowed to have its own constitution and flag, settlements by non-Kashmiris were restricted and non-Kashmiris could not buy property.
During its occupation, India has long since been accused of human rights violations and it is my aim in this paper to explore the recurring violations that India has had a hand in during its occupation thus far. More specifically, I will focus on the arbitrary arrests that India conducts as the mass detentions without due process are objectively the biggest violations based on their scale alone.
Despite such autonomy over its internal administration, Jammu and Kashmir has experienced a 70-year long military occupation by India under the guise of countering Pakistan and the Kashmiri insurgency. Although my focus will be on India’s abuses in Kashmir, one cannot mention Kashmir in the same breath without including Pakistan in one form or another. Pakistan’s proximity to India has kept the region on edge as Kashmir has been made to be in the middle of a game of tug-of-war between the two nations. Most recently, on August 5th, 2019, the Indian Parliament under the ruling Hindu nationalist Bharatiya Janata Party (BJP) revoked Article 370 of the Indian Constitution, effectively revoking Kashmir’s special status and bringing it under the direct control of the Indian federal government. Since its revocation, the region has been under a lockdown and a communications blackout imposed by Indian security forces.
Through the abrogation of Article 370, the Indian government has begun anew its project of settler colonialism and the erasure of native societies. Settler colonialism is a system of elimination and replacement of the indigenous peoples and cultures by a colonialist entity that expropriates land and resources in order to shift the identity and demographics of the area to their benefit. In settler colonialism, the general population is expanded at the cost of the native livelihoods and their lands. When Article 370 was scrapped, Kashmiris lost their right to claim their homeland as their own; not only did they lose their constitution and flag, non-Kashmiris can now move in and buy up property which will inevitably present a demographic shift. Soon, Kashmiris may find themselves a minority in their own homeland.
Furthermore, even before the revocation, Indian security forces have utilized checkpoints and seize-and-search operations as a means of combating the insurgency and controlling the local populace. Measures such as arbitrary arrests have long been a facet of the occupation, and Indian forces have orchestrated massive operations such as dusk-and-dawn raids to arrest significant numbers of men including teenage boys.
A Brief History of India and the Occupation
On midnight August 15th, 1947, India gained its independence from the British Empire after a bloody partition and its leaders assumed the responsibilities of a new nation. Jawaharlal Nehru, India’s first prime minister, declared in the concluding sentence of his “Freedom at Midnight” speech that “We have to build the noble mansion of free India where all her children may dwell” It is only fitting that Nehru as a Kashmiri himself saw the grander vision of what an independent India could be and advocated for the equal representation of all Indians regardless of background. Following Nehru’s strong advocacy and stance on human rights and equality for all Indians, India managed to ratify most of the nine core treaties of the United Nations.
Regarding ratification, India has ratified the International Covenant on Civil and Political Rights (ICCPSR), the International Covenant of Economic Social and Cultural Rights (ICESR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Persons with disabilities (ICRPD) and lastly, the Convention on the Rights of the Child (CRC) as well as its optional protocol dealing with the rights of children in armed conflict. India has also been a signatory of the UN Universal Declaration of Human Rights as well as the UN Charter. On the other side of the same coin, let us analyze which of the core nine treaties that India failed to ratify. For example, India has failed to ratify the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT), it has also failed to raitify treaties such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) and the International Convention for the Protection of all Persons from Enforced Disappearance (ICED).
In the late 1980s, Jammu and Kashmir saw the beginning of an armed insurgency against the Indian occupation led by both secular nationalist groups as well as an Islamist right directed by the Pakistani military. From secular groups such as the Jammu and Kashmir Liberation Front to the more religious Hizb-ul-Mujahideen and Lashkar-e-Taiba, the Indian occupation found itself engaged in an armed insurgency with which ethnic Kashmiris from the local populace were being given material support from Pakistan and were conducting operations against Indian security forces. In 1990, the insurgency was in full swing while attacks on security forces occurred twenty times more than those of the previous year. As a consequence, 552 fighters died in engagements with the Indian military. Such a sustained conflict led by the local populace was met with a strong corresponding response as the Indian government ramped up its grip on the region.
Since then, the Indian military has committed some 700,000 troops to the region. According to a recent report, from 1989 to 2010, Indian security forces have conducted 117,345 arrests without any judicial or due process. According to a report from Amnesty International published in 2010, 600 individuals were detained for years under the Public Safety Act without trial, this is a key aspect of the law which grants the magistrate to detain any individual for up to two years without any trial. Even more alarming, estimates have put those detained under the Public Safety Act during the last two decades to be up to 20,000 at this point.
In 2014, Srinagar, the capital of Indian-occupied Kashmir, was getting ready to experience the democratic process and head towards elections. A mass boycott occurred during which Kashmiris, the majority being teenagers, threw stones at Indian soldiers. Roughly 600 Kashmiris were detained. While 600 Kashmiris were arrested, only a couple hundred had actually thrown stones.
It is important to note that although the boycott of the elections and the subsequent arrests in Kashmir was taking place, India ratified the ICCPSR. Therefore, even from the perspective of international law, these Kashmiris were well within their rights to boycott any election they deem unfair and did not deserve the crackdown and collective punishments enforced upon them by the Indian occupation. Since the abrogation of Article 370 of the Indian Constitution, the Indian government has assumed direct control and has instilled greater control of the populace. For example, thousands of Kashmiris are still in jail, with some detainees as young as the age of nine, while families of the detainees have made claims of torture and executions.
Torture seems to be the most common human rights violation that is coupled with the arbitrary arrests that the Indian security forces conduct. A report found that in 2010, in Indian-occupied Jammu and Kashmir, torture in police custody was the most widespread and systematic practice. In the same year, NGO reports cited that around 2,950 political detainees were arrested. Amnesty International has also reported that after being arrested, detainees are transported to different torture centers where they are beaten and coerced into giving confessions; the majority of these have been those suspected of being insurgents.
There are two paramount distinctions to make here: Firstly as mentioned earlier, India has ratified the CRC and its optional protocol which deals with children in armed conflict. The CRC makes clear the rights of children when it comes to legal protection before and after birth. In the case of the mass detentions sustained by the Occupation, these children are not being given the proper care and dues under the CRC. Secondly, India has not ratified the treaty dealing with torture (CAT). Failing to ratify CAT has opened the way for the Indian occupation to use whichever methods it deems necessary in order to conduct investigations relating to the insurgency. While the two may not directly deal with each other, in the case of India’s abuses in Jammu and Kashmir, they represent a supreme contradiction. How is it that a government which has signed onto the protection of children, especially in armed conflict and has failed to address torture, is in violation of treaties in which both items are the central topic?
Even without Article 370, India has always claimed Kashmir in full and the Indian Constitution grants the same fundamental rights to each Indian regardless of background. To be more specific, Article 21 of the Indian Constitution guarantees the right to life while Articles 14 and 19 protect fundamental rights. Through a legal analysis alone, the treatment of the Kashmiri populace at the hands of the Indian occupying force is not only against international law but is also fundamentally unconstitutional and goes against the idea of Indian unity as well as the character of the Indian democracy. The far-right BJP’s measures to change Kashmir’s identity is also on false grounds because Kashmir has always been part of India and is tied to both India and Pakistan through a shared history. However, this does not mean that Kashmir is not entitled to choose its own fate; after all, self-determination is also a fundamental right of any people. Arbitrary arrests and mass detentions without a judicial process are significant human rights violations that are against the nature of what it means to be democratic. Bearing all of these in mind, I have several proposals on how to alleviate the crisis at hand:
Firstly, in the short term, the Indian government, as a member of the UN, must reaffirm its commitment to the UN Charter and the UN Universal Declarations of Human Rights and reinstate Article 370 of the Indian Constitution which will return special status to Kashmir and bring it closer to self-determination. This is the first step if we are to solve the human rights crisis, especially if we are to consider the implications of what a settler colonialist project might bring.
Secondly, the occupation must swiftly and conclusively conduct trials of those they have detained with the proper legal representation and release immediately those for whom no charges are filed. More importantly, all minors that are detained should be released immediately and released to their families. The legal process will be extremely important in this regard so that the hundreds of innocent Kashmiris are given their dues and protected.
Thirdly, I propose that the international community intervene and bring both India and Pakistan as well as the various insurgent groups to the table in order to negotiate an end to the conflict and a conclusive ceasefire. Doing so will not only establish proper dialogue but bring all the players together so that a process of peace and withdrawal can begin.
Fourthly, it is my proposal that the UN Security Council pass a resolution to bring into effect the official plebiscite which was originally promised in 1947. Such a plebiscite or referendum, organized throughout the whole of Jammu and Kashmir from both occupying powers, will give the Kashmiri people right to self-determination for the first time in 70 years. The plebiscite, as planned originally, should be conducted with the choice of whether to join India or Pakistan or to remain entirely independent. It is my hope that the UN as an international third party oversees the monitoring and enforcement of the referendum for the sake of minimizing the influence of results. There is historical precedence globally as many nations have conducted referendums, from Algeria seeking independence from France to the more recent Scottish referendum on seeking independence from the United Kingdom.
While this is taking place, the Indian security forces need to be held accountable for the past 70 years of violations. Laws such as the Public Safety Act, The Terrorist and Disruptive Activities Act, and Armed Forces Special Power Act have long granted the occupying force with immunity and relieved it from accountability. These laws have allowed Indian security forces to act with impunity and conduct operations in whatever manner they like, from arresting anyone without due process to killing civilians without repercussions. Thus, it is my recommendation that individuals deemed responsible be brought forth to an international tribunal so that some sort of transitional justice may be established. The tribunal may establish modes of criminal prosecution and can recommend reparations programs. Bringing the responsible individuals to justice is just one way in which the crisis can be stopped.
Additionally, the intervention of the UNHCR must be initiated and the implementation of the Commission of Inquiry (COI) must take place so that an international third party body may objectively assess the extent of the human rights abuses. The purpose of the COI is to view the occupation as a structure and to analyze its institutional mechanisms in order to properly dismantle it. Furthermore, by assessing the extent of the violations through a structural lens, we can make sure that it does not occur anywhere else.
The region of Jammu and Kashmir has long been under occupation for 70 years, and on the Indian side it has experienced a long list of human rights abuses. When it came to arbitrary arrests, the Indian government has overlooked the treaties it has ratified and has violated others. It has gone against its own domestic laws and constitution with which it has guaranteed all Indians no matter their background equal rights and due process. The revocation of Article 370 has been just another encroachment from India on Kashmir and its right to self-determination.
As Amir Khusro, describing Kashmir in the 13th century, wrote in his Persian couplet “Agar firdaus bar roo-e zameen ast, Hameen ast-o hameen ast-o hameen ast” and translated into english “if there is a paradise on earth, it is this, it is this, it is this.” (goodreads 2016). When the British left the Subcontinent in 1947, no one could have guessed that the repercussions of partition would lead to three wars over a single piece of territory. One just has to imagine what could have happened had the originally planned plebiscite sanctioned by the UN taken place.
About the Writer: Jazzib Akhtar is a Houston-based Pakistani-American writer and poet, he is a senior at the University of Houston majoring in Political Science and National Security Studies. He is also an organizer and artist who uses his work to find intersections between art and structural inequity. Apart from being the co-founder of UH’s first poetry slam team and spoken word community, when he is not working on his craft he can be found hitting game-winners at the rec.
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