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READING ROOM YEARLY REPORT 2019 - 20 2

DEDICATION

Kashmir Reading Room dedicates this report to all who have given their lives to resolve and to end this conflict. To us, you exemplify the best of humanity - humility, courage against all odds, a burning conscience and above all the determination to ensure that the crimes of our oppressors are not forgotten.

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Visit us at - jklpp.org Facebook- https://www.facebook.com/KashmirReadingRoom/ Instagram- https://www.instagram.com/kashmirreadingroom/ - https://twitter.com/KReadingRoom Email- [email protected] KASHMIR READING ROOM YEARLY REPORT 2019 - 20 3 Table of contents

Introduction 6

Part 1 - Contributions from different regions of & Kashmir and 9

Section 1 - Political Developments 10

1. Hindu Rashtra’s Propaganda on J&K 12 - Sandhya Gokhale

2. Trifurcation to Bifurcation: Autonomy Demands, Regional Politics and Internationalisation 16 of the - Amina Mahmood Mir

3. Experience as a 22 - Mustafa Haji

4. ‘The Kashmiri Nation will Rise’ 27 An Interview with Sampath Prakash

5. Remembering Afzal 30 - Amrit Wilson

6. Hindu Forum of Britain and Keir Starmer’s positioning on Kashmir 33 - South Solidarity

Section 2 - Law and Policy 35

1. The Kashmir Conflict and International Peace and Security 36 Post August 2019 - Madeeha Majid

2. Article 370: From Erosion to Cremation 41 - Mihir Desai and Saranga Ugalmugle

3. Domicile Law and India’s Naya Kashmiris 47 Incremental Dispossession, and Displacement - Mirza Saaib Beg

4. The Constitutional Courts and Kashmir 53 Rights Dependent on the Goodwill of Court Can Never be Secure - Saranga Ugalmugle and Clifton D’ Rozario KASHMIR READING ROOM YEARLY REPORT 2019 - 20 4

5. Indian Judiciary’s apathy to Habeas Corpus Petitions of Kashmiris 61 - Gayathree KT and Sameer Rahid Bhat

6. Detention of Freedom, Thought and Expression through the Public Safety Act 66 - Saaquib Amin Parray

Section 3 - Economy 73

1. Unilateral Integration, Global Pandemic and Declining Economy 74 An Overview of the Economic Situation of J&K by KRR

2. Dismantling Land Reforms in J&K 80 Land Grab Under the Garb of Developmentalism - Shinzani Jain

3. Ecological Vandalism in J&K 86 The Aftereffects of Abrogating the Special Status - Sushmita

4. Tales of a Vanishing River 91 Notes on Sand Mining in Kashmir - Basim-U-Nissa and Salik Basharat

5. The state of Tribes in times of COVID Crisis 102 - Afreen Faridi

Section 4 - Culture and Minorities 107

1. Deification of Land and the State 108 Industry-Military Complex in Kashmir - Swathi Sheshadri

2. Coming Together on One Platform 117 - Jang-Vijay Singh

3. Kashmiri Sikhs after Abrogation 125 - Khushdeep Kaur

4. Attacks on Religious Places of Minorities 132 Post Abrogation of Autonomy - Arman Kazmi

Section 5 - Conflict and Society 138

1. Debunking the Colonial Discourse 139 Gender and Kashmir - Misbah Reshi KASHMIR READING ROOM YEARLY REPORT 2019 - 20 5

2. Punitive Childhood 145 Child Rights Post Abrogation - Malika Galib Shah and Junaid-Ul-Shafi

3. Mental Health and Kashmir 155 A Longitudinal Perspective - Dr. Amit Sen

4. in Kashmir Since August 5, 2019 160 - Sarthak Tomar

5. Enforced Homelessness 167 Collective Dispossession and Punishment in Kashmir - Mariyeh Mushtaq

Section 6 - Media 172

1. Amidst Harassment and Persecution, Resilient Journalism Continues 173 - Freny Manecksha

2. Bureaucratic Strangleholds over Media Freedom 180 - Geeta Seshu

3. State of Supreme Lawlessness 185 - Mirza Saaib Beg

Part 2 - Letters, Statements and Reports by Kashmir Reading Room 192

Part 3 - KRR Report to the UN 211 KASHMIR READING ROOM YEARLY REPORT 2019 - 20 6

Introduction

Kashmir Reading Room (KRR) was set up in 2014 by a group of working professionals – lawyers, doctors, academicians, researchers, activists, and journalists – based in different parts of the world. Our objective is to promote free political thought and adopt mechanisms of active and comprehensive dialogue to generate international awareness on the conflict in Jammu & Kashmir (J&K). We believe that it is imperative to sensitize people on the political, legal, and everyday struggles of people in the erstwhile of J&K including the frontier regions of Gilgit Baltistan and Ladakh. Through our efforts, we endeavour to foster an understanding between people of India, , and all five regions of the erstwhile state of J&K. It is our belief that this process is imperative to facilitate the resolution of the conflict.

August 5, 2019 has been marked by Kashmiris as a day when India’s expansionist policy on Kashmir has been laid bare in an undeniable manner. India unilaterally suspended the civil and political rights of people of J&K and imposed a severe lockdown and communication blockade for months, in the absence of the legal authority to do so. This was the longest ever internet and communication blockade in the history of any democracy in the world.

Kashmiri leaders representing all shades of political opinion were detained, including the former Chief Ministers, one of whom was previously in coalition with the ruling party in India. Thousands of Kashmiri civilians were detained amidst spec- ulation and rumours about the possibility of war with Pakistan. The anxiety of Kashmiris was fuelled by the additional troop deployment in the valley. When the Bills were debated in the Indian Parliament on August 5 and 6, there was no consultation with Kashmiris or their representatives. This was compounded by the internet and telecommunication ban due to which Kashmiris did not have any access to information about decisions that would have a significant impact on their lives. This report covers the events leading up to this forcible integration of J&K with India and the ground realities in the last one year.

Due to the overwhelming nature of the humanitarian and political crisis in Kashmir, the history of the conflict and the con- comitant human rights issues have been extensively researched and documented by scholars of the Kashmir conflict. Given the ghastly nature, human rights abuses strike as an urgent concern. However, to understand the conflict it is pertinent to examine the control mechanisms employed to enforce the occupational structures. The law and policy measures constituting these control mechanisms deserve comprehensive engagement.

This report documents the changes taking place on the political, legal, policy, and economic sphere since August 2019. Ad- ditionally, it provides an overview of the human rights violations and disenfranchisement of Kashmiris that is still underway, a year after the amendment of Article 370, bifurcation of the state, conversion into two Union Territories and the effective annexation of J&K. In order to generate international awareness and dialogue on these concerning developments, KRR has engaged with political representatives through regular interactions, reports, letters, and statements. Some of these have been included in this report. We would like to inform the readers that the views, and opinions expressed in the contributions belong solely to the respective authors, and not necessarily to KRR.

This report has been divided into three sections. The first section includes opinions and analysis from a diverse range of contributors - from India and all regions of J&K. The second section of the report includes the letters, statements and repre- sentations drafted by KRR since August 5, 2019. The third section includes a report submitted by KRR to the (UN). This report covers human rights violations under international law, most notably the International Covenant on Civil and Political Rights (ICCPR), which has been ratified by India.

INTRODUCTION KASHMIR READING ROOM YEARLY REPORT 2019 - 20 7

The section on Political Developments covers the international and regional developments that took place in the past year, most notably - bifurcation of the erstwhile State, Ladakh’s position on the Union Territory status and the propagandist nar- ratives invoked by the Indian state machinery to justify the annexation of J&K. This section includes an interview by KRR with Sampat Prakash, an octogenarian trade unionist from J&K on his views on the abrogation of autonomy, domicile law, among other things.

The section on Law and Policy contextualizes the position of Indian and International law on the legislative measures affect- ing the annexation of J&K. The legislative changes and the state excesses have been challenged in the Constitutional Courts of India and J&K. The developments in the cases filed in the and the J&K High Court since August 5, 2019, have been covered in this section. Additionally, while the litigation on the constitutional validity of amendments to Article 370 is sub-judice, the Indian government has hastily introduced measures with the intention of causing demographic changes in the valley through the new Domicile Law. The section covers an analysis of these aggressive moves by the Indian government.

The amendment of Article 370 and the ensuing lockdown has severely affected the economy of J&K. It has been argued that by the Indian government and state agencies that Article 370 has restrained developmental activities in the state. The validity of these claims is examined in this section. The section on Economy briefly covers the history of progressive reforms and development in the state. It provides an overview of the deteriorating economy and ecology of the state due to prolonged lockdown, COVID crisis, and exploitative economic policies.

The de-operationalization of Article 370 has effectively led to the abrogation of Article 35A which ensured special rights to the people of the state and prohibited the transfer of land away from permanent residents. The legislative and Constitutional changes since August 2019 have diluted these protections. The papers in the Economy section examine these changes and their impact on land rights of the peasantry, the tribal community, and the local business community of J&K. It also covers the grant of mining leases to Indian businesses.

There appears to be a concerted effort at the exploitation of religious identities in J&K to create a sectarian and communal divide in the society. In the section on Culture and Minorities, the report analyses how religious pilgrimage/tourism is used as a political tool by the state in its nationalist project. It has been the assertion of the Indian government that Article 370 has been discriminatory against the minority communities of J&K. This section of the report includes accounts of Kashmiri Sikhs and Kashmiri Shias who expose the propaganda being employed to legitimize the abrogation of the state’s autonomy in the name of protecting the rights of the minority communities.

A concerted effort has also been made by the state to portray Kashmiris as regressive, homophobic, and unfit for self-gover- nance. It has been argued that the progressive legislation and jurisprudence by the Supreme Court of India was not applica- ble in the state prior to amendments to Article 370. The section on Conflict and Society examines these claims and exposes how the language of upliftment is being used by state agencies and regressive forces to pit one oppressed community against another. This exercise effectively whitewashes the human rights violations under the structures of Indian occupation. The Kashmir conflict has seen large scale human rights abuses with absolute impunity to the forces of the Indian state. The section on Conflict and Society also covers the cases of illegal detentions, arrests, cases of torture, destruction of property, and enforced homelessness. It covers the military strategy of the Indian state in Kashmir including the heavy troop deploy- ment immediately preceding the amendment to Article 370. The prolonged shutdown of communication, the arbitrary and illegal arrests and abuse of children, and the denial of stable education which has impacted the growth and development of children in Kashmir have also been covered. This includes the effect of the conflict on the mental health of the local popu- lation.

The strict lockdown imposed since August 5 had severely hampered the movement and communication of the people in J&K. This had led to an information blockade creating panic and anxiety in the people. The section on Media covers the effect of the communication blockade in the valley. It covers the disruption in reporting during this time of crisis and the litigation aimed at lifting curbs on journalistic freedom. It also covers the harassment of journalists in the valley through anti-terror legislation, arbitrary detention, and physical abuse.

INTRODUCTION KASHMIR READING ROOM YEARLY REPORT 2019 - 20 8

It is our firm belief that in these trying times, we must keep our consciousness and conscientiousness alive and contribute to the fight of the struggling and working people in all regions of J&K. We must do this by struggling and organising on the ground as well as through our intellectual labour. In the initial months after the amendment of Article 370, several fact-find- ing teams visited the valley and published their accounts of the situation on the ground. ‘(Dis)Integration at Gunpoint’ aims to update readers about developments following these fact-finding reports. The contributions seek to deconstruct the dis- course of occupation and colonisation propounded by the Indian state over the past one year. It documents the undemocratic and unilateral measures of the Indian state and its damaging impact on the aspirations of the people of J&K.

*Due to a software error the footnote numbers are not accurately reflective of the referencing in the text. We maintain that the facts in the report are accurate and verified. The references have been mentioned as endnotes. We apologise for the inconvenience. A revised version of the articles will be uploaded with accurate footnote numbers on our website www.jklpp.org

INTRODUCTION KASHMIR READING ROOM YEARLY REPORT 2019 - 20 9

Part 1

Contributions from different regions of Jammu & Kashmir and India KASHMIR READING ROOM YEARLY REPORT 2019 - 20 10

Section 1 Political Developments

SECTION 1 - POLITICAL DEVELOPMENTS KASHMIR READING ROOM YEARLY REPORT 2019 - 20 11

SECTION 1 - POLITICAL DEVELOPMENTS KASHMIR READING ROOM YEARLY REPORT 2019 - 20 12

Hindu Rashtra’s Propaganda on J&K ’ Journey from National Integration to Hindu Rashtra

Sandhya Gokhale

After the amendment of Article 370 and 35 A, and abrogation of autonomy in Jammu & Kashmir (J&K), Prime Minister Modi addressed the nation on August 8, 2020. He laid down the rationale behind the abrogation in a 40-minute-long ad- dress.1 However, it comes as no surprise that this speech was yet another version of ‘Emperor’s new clothes’. Prime Minister Modi started his address saying that the biggest hurdle in development and wellbeing of people of Jammu, Kashmir and Ladakh had been removed with the amendment of Article 370. He added that the dreams of , B.R. Ambedkar and Shyama Prasad Mookerjee had been fulfilled. He also alleged that Article 370 did not benefit the people of Kashmir in any manner, except promoting , corruption, terrorism and family rule, adding that this (Article 370) was being used as a tool by Pakistan and that 42,000 innocent people had been killed. This characterization reiterates that providing outright false information and providing opaque governance has been one of the biggest achievements of the Modi government.

Dismantling state propaganda on J&K

J&K has the unique distinction of having introduced land reforms of considerable magnitude including remission of land revenue on smallholdings.2 A start was made in 1948 with the promulgation of the Big Landed Estate Abolition Act, 1950, whereby 4.5 lakh acres of land held over 22.75 acres (excluding orchards) were expropriated from as many as 9000 large landowners.3 From this ownership rights of over 2.31 lakh acres of land was transferred to cultivating peasants. Transferring land without compensation to big landlords was possible due to Article 370, since the provisions of the , concerning compensation at market value did not yet apply in the state.

The impact of land reforms gets reflected in the 2011 census. While India has 26.5% landless workers, Kashmir has only 6.6%. The percentage of people below the poverty line also reflects the impact. In 2004, while India had 27.5 % of people below the poverty line, in Kashmir this percentage was a mere 5.4 %.4 Decades of militarization resulting in lack of freedom of movement and shrinking livelihood options has led to an increase in people below the poverty line in Kashmir. Despite that the figures are nowhere near the Indian reality. 2011-12 figures show that India has 21.92 % population below the pov- erty line whereas Kashmir has 10.32%.5

The Prime Minister also spoke about how the Kashmiri women will now get the same rights, as , since Ar- ticle 370 will no longer obstruct them. He surely needs to look at the census data, to apprise himself of the status of women in India, in contrast to the situation in J&K. In India, nearly 150 child marriages take place every hour and almost 3,603 take place per day.6 30% of and in India engage in child marriages7 as compared to 16% in Kashmir.8

India reports the highest number of dowry deaths at 8,391 (reported in 2010), which translates to 1.4 deaths per 100,000 women. Pakistan reports 2,000 dowry deaths per year translating into 2.45 per 100,000 women.9 In Kashmir the number is merely 0.1%. Shockingly, the recorded rate of cruelty by husbands in India is at 20.5%, whereas in Kashmir it is at 8%. The number of women separated/deserted, without divorce, in India is nearly 1%, whereas in Kashmir it was 0.18% in 2001 and it was 0.08% in 2016.10

SECTION 1 - POLITICAL DEVELOPMENTS KASHMIR READING ROOM YEARLY REPORT 2019 - 20 13

Ambedkar and Patel on Kashmir

Falsifying facts and history are not a new venture for India’s Prime Minister. Interestingly, he spoke of Dr Ambedkar or Sardar Patel’s opposition to article 370. In fact, Dr. Ambedkar advocated plebiscite in . He was also con- cerned about the situation of Hindu and Buddhist populations of Jammu and Ladakh. In an interview given on, October 27, 1951, available in BAWS Vol 17(2), he stated: “I fear that a plebiscite in may go against India. To save Hindu and Buddhist populations of Jammu and Ladakh from going to Pakistan, in such an eventuality, there should be zonal plebiscite in Jammu, Ladakh, and Kashmir.” There are no less than 17 volumes published of Ambedkar’s writings Hindu Rashtra’s Propaganda on J&K and speeches, and his opposition to article 370 is not found in any one of them. Sardar Vallabhbhai Patel was the Home Minister of India and was responsible for the accession of nearly 554 princely states to India. He was even agreeable to part with Kashmir if Pakistan gave up its claim to . In a speech at the Bahaud- din College in , after its accession but before the accession of Hyderabad, Sardar Patel is quoted as:

“If Hyderabad does not see the writing on the wall, it goes the way Junagadh has gone. Pakistan attempted to set off Kash- mir against Junagadh. When we raised the question of settlement in a democratic way, they (Pakistan) at once told us that they would consider it if we applied that policy to Kashmir. Our reply was that we would agree to Kashmir if they agreed to Hyderabad.”11

Sardar Patel was a part of the five-months-long discussion which finally culminated in Article 370 in 1950. It was only Shy- ama Prasad Mukherjee, founder of Jana Sangh, the earlier avatar of BJP, who had been opposed to autonomy for Kashmir right from 1947. In 1952, along with Praja Parishad, , and Ram Rajya Parishad he coordinated many pro- tests in Jammu and . From 1949, the Rashtriya Swayamsevak Sangh (RSS), which the ruling party shares its cultural and ideological links with, has been advocating Akhand Bharat as Hindu Rashtra and taking complete control of the only Muslim majority state is just one important step in the fullfillment of their dream ofHindu Rashtra.

Invocation of Pakistan

In a televised debate between a Congress’ leader and BJP’s Sudhanshu Trivedi, the BJP leader was asked to speak for two minutes without mentioning Pakistan, , terrorism etc. In his excitement, the show host started a timer, but it came as no surprise that Sudhanshu lost the challenge within 30 seconds. While this was great for comedic relief, it is emblematic of the strategy of BJP to invoke Pakistan at every question as a circular strategy. To deflect us from asking about failures of governance, they invoke Kashmir and as we begin to wonder about Kashmir, they invoke Pakistan.

PM Modi has claimed that Article 370 is used as a tool by Pakistan, has no factual basis at all. The failure of the ‘secular state’ which systematically eroded Article 370 and subverted the democratic processes in order to establish Delhi’s control over Kashmir, right from 1953, has been the root cause of resistance in Kashmir Valley. The 42000 innocent persons killed are the result of militarization foisted on the people of Kashmir, to curb their resistance, further subverting any traces of democracy. Pakistan may have fuelled the militancy but was not the root cause.

Plebiscite and the choice of Rulers

The ‘secular’ credential of India is questioned when one compares the way India handled the accession of Junagarh, a Hindu majority state and J&K, a Muslim majority state. Junagarh was afforded the opportunity to decide their political fate with India through a plebiscite, whereas it remains as an unfulfilled promise for J&K. There is a need to peek into history, to understand the deceit and violation of rights faced by Kashmiri people over several decades.

For centuries, Kashmiris did not have the freedom to choose their rulers. Kashmir has been ruled by Mughals, Afghans and Sikh in the past. Thereafter in 1846, rule of the ‘Hindu State’, under the Dogra King, was established as he bought the region of J&K from the Britishers. The Dogra Hindu State provided the Kashmiri Pandits (the dominant Hindu Caste in Kashmir then) with land resources, as well as important positions in the administration and revenue department. The Muslim subjects were not only deprived of religious freedom but also property rights, education, were taxed excessively and forced into unpaid labour.

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Before accession to India, there were reports from Jammu of the systematic extermination of lakhs of Muslims by the Dogra army. Post-partition, Jammu, which was a Muslim majority area became a Hindu majority area. This reality added to the insecurity felt by people in J&K.

Ironically, the rising communal tensions in India post-partition prompted the first drastic action against the democratically elected Prime Minister of Kashmir. Sheikh Abdulla, who was not only dismissed, replaced by a pliant Ghulam Bakshi but also placed under arrest in August 1953. He was detained for eleven years, under false charges of ‘Kashmir Conspiracy’ which were never proved. This became a pattern where the Indian state used various means, including rigged elections, ’s rule to keep complete control over the Kashmir region. Subsequently, all through these decades, Governor’s rule was imposed on Kashmir eight times.

In a letter written to in December 1974, Sheikh Abdulla12 writes:

“Myself and the Plebiscite Front Leadership were purposely kept behind the bars or externed from the State at the time of every general election to the State Legislature or the Parliament in the years 1957, 1962, 1967 and 1972. As if this was not enough, large scale rigging in elections was taken recourse to. Obviously these means were ad- opted so as to bring into being a legislature and Government in the State of a particular choice and keep effective opposition out of the way, thus facilitating the erosion of Article 370 – a process which has been going on for over last two decades.”

The question still arises that if Article 370 had been so eroded, what is the real reason behind de-operationalizing the same? This is exactly the truth which the Prime Minister never spoke of.

Another Dogra Hindu Rule

Kashmiris fear that another ‘Dogra Hindu rule’ is being imposed. All that is being achieved in this Union Territory is:

1. By imposing globally unprecedented complete lockdown on all modes of transport and communications, including telephone, mobile network, internet, the local population is deprived of all means of livelihood, rendering them eco- nomically vulnerable. This has also resulted in silencing of the local press. Education has taken a complete backseat.

SECTION 1 - POLITICAL DEVELOPMENTS KASHMIR READING ROOM YEARLY REPORT 2019 - 20 15

2. Arbitrary and illegal arrests and detentions of civilians, children and all leaders of mainstream political parties in- cluding the emerging younger leadership, has effectively silenced any democratic voices emerging from the local population.

3. By allowing people from outside of Kashmir to acquire domicile status, land and property, demographic change is being initiated in the only Muslim majority state of India to reduce it to Hindu majority State.

4. The real intent behind allowing non-Kashmiri entrepreneurs and crony capitalists, with more resources and political backing, to participate in business and industrial activities is to take ownership of wealth and resources away from the local population. This will reduce Kashmiris to the status they had under the .

While the Article 370 granting special status to J&K has been aggressively attacked by India, other states continue to enjoy limited autonomy. The North-East states of India, under Article 371, enjoy autonomy at various levels. This includes inner line permits, which are essentially a protective regime to keep the local population shielded from the onslaught of large- scale migration and land grab. In this context once again, the Prime Minister is pulling the wool over our eyes when he says, “We are now one nation, one constitution”.

Sandhya Gokhale is a Mumbai based activist associated with a feminist collective - Forum Against Oppression of Women for the last 40 years and is a member of People’s Union of Civil Liberties.

END NOTES

1. Paliwal, A (8 August 2019). ‘In a 40-minute speech, PM Modi spoke of J&K 69 times’. India Today. Retrieved from https://www.indiatoday.in/ india/story/in-40-minute-speech-pm-modi-spoke-of-jammu-kashmir-69-times-barely-mentioned-pakistan-1578884-2019-08-08 2. Aslam, M (1977). ‘Land Reforms in Jammu and Kashmir’. Social Scientist. Vol. 6, No. 4, pp. 59-64 3. Verma, P.S (1994). Jammu and Kashmir at the political crossroads. Vikas Publishing House: 4. Mehdi, A, Chaudhry, D and Tomar, P (1st Ed., 2018). ‘Freedoms, Fragility and Job Creation: Perspectives from Jammu and Kashmir, India’. Springer. 5. PTI (24 June 2015). ‘Delhi sees decline in poverty rate’. . Retrieved from https://economictimes.indiatimes.com/news/econ- omy/indicators/delhi-sees-decline-in-poverty-rate/articleshow/47803536.cms 6. Mathew, A (25 July 2017). ‘Child marriage increasing in Kerala, TN, Himachal and J&K’. . Retrieved from https://www.nation- alheraldindia.com/national/child-marriage-increasing-in-kerala-tn-himachal-and-jandk

7. Tikku, A (28 May 2016). ‘Child marriage shame: 30% Hindu, Muslim women tie knot before turning 18’. Times. Retrieved from https://www.hindustantimes.com/india/child-marriage-shame-30-hindu-muslim-women-tie-knot-before-turning-18/story-aLH8c4fnBoEEeztIsu- ZZlJ.html 8. Mathew, A (25 July 2017). ‘Child marriage increasing in Kerala, TN, Himachal and J&K’. National Herald. Retrieved from https://www.nation- alheraldindia.com/national/child-marriage-increasing-in-kerala-tn-himachal-and-jandk 9. Tiwari, S (2016). ‘Dowry Deaths’. Retrieved from https://ssrn.com/abstract=2760851 or http://dx.doi.org/10.2139/ssrn.2760851

10. Dang, G, Kulkarni, V, S and Gaiha, R. ‘Why Dowry Deaths Have Risen in India?’. ASARC Working Paper 2018/03. Retrieved from https:// crawford.anu.edu.au/acde/asarc/pdf/papers/2018/WP2018-03.pdf

11. Ashok, S (12 February 2018). ‘Sardar Vallabhbhai Patel’s views on the Kashmir Problem: What the record says’. Indian Express. Retrieved from https://indianexpress.com/article/explained/sardar-vallabhbhai-patels-views-on-kashmir-problem-what-the-record-says-5060077/ 12. Noorani, A. G (12 August 2019). ‘Letters between Indira Gandhi and before the controversial Kashmir accord’. Scroll.in. Re- trieved from https://scroll.in/article/933095/letters-between-indira-gandhi-and-sheikh-abdullah-before-the-controversial-kashmir-accord

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Trifurcation to Bifurcation

Autonomy Demands, Regional politics and Internationalization of the Kashmir Conflict

Amina Mahmood Mir

Sub-regional perspectives

Indian administered Jammu & Kashmir (IAJK) is home to different religions, cultures, ethnicities, languages, and political ideologies. It is not justified to generalize thoughts of any sub-region. The sub-regions of IAJK i.e. Jammu, Ladakh and Kashmir have different political aspirations concerning the resolution of the Kashmir Conflict. From 1846 to 1947, these regions were brought together by the Dogra rule and after 1947, they were held together by the Indian union, without the consent of the people of each respective region. Thus, they had difficulties in understanding each other’s political aspirations because each region had envisaged a different political future for themselves. It is not reasonable to pit them against each other, blame them for the lack of unity, and for having different political aspirations. Hence, it’s imperative to understand the sub-regional perspectives regarding the Kashmir Conflict. The demands of the self-determination groups range from (a) more constitutional rights while being a part of the Indian Union; to (b) a separate sovereign entity.

The way forward should be rooted in creating space for all political groups, enjoying popular public support, to voice their opinions and represent the political interests of their respective regions. This paper summarises the contemporary interna- tional and regional political developments regarding the Kashmir Conflict focusing on the Indian Administered Jammu and Kashmir.

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India’s unilateral action

On August 5, the Indian government unilaterally changed the status of Indian Administered Jammu & Kashmir (J&K) by an amendment to Article 370.13 It lacked the involvement and consent of the people of J&K and other stakeholders. The Unit- ed Nations Security Council (UNSC) has passed several resolutions and continuously emphasized on settling the dispute through a dialogue process involving all stakeholders14. India and Pakistan also signed the agreement to resolve all the bilateral disputes by mutual consent15.

However, the forceful integration of the former state of J&K into the Indian Union, by splitting it into the Union territory of J&K and the Union territory of Ladakh, changed the internationally recognised nature of the disputed regions. This action resulted in the violation of UN resolutions, Shimla Agreement16 and many bilateral agreements between India and Pakistan. The alteration of the territorial boundaries and political status of a disputed territory without following due process has been in gross violation of all established understanding and law.

Claims by India, Pakistan and

The former state of J&K is not only claimed by India and Pakistan. China also claims the territorial ownership of Ladakh and . The amendment of Article 370 involves the integration of Ladakh, which is China’s strategic interest, into the Indian Union. China ignored India’s Kashmir policies in the past and merely issued customary statements to maintain its strategic interests with Pakistan. However China participated actively to demonstrate its resentment over India’s unilateral decision to change the boundaries of these disputed regions. In September 2019, Pakistan and China requested an informal UNSC meeting which turned into a traditional United Nations session addressing the Kashmir Conflict17.

Diplomatic Failure

It can be argued that 2019-2020 was a diplomatic failure for China and Pakistan since the UNSC did not even issue a formal statement. Subsequently, China acted aggressively by engaging in a face-off with Indian troops in Ladakh. It resulted in the death of at least 20 Indian soldiers. The violent face-off between the Indian and Chinese armed forces took place when China claimed territorial rights over Galwan valley which is the part of the Ladakh region administered by India. China supports Kashmir’s right to self-determination. However, their support to Kashmir is questionable because of their expansionist policies towards Ladakh. China’s claim to Ladakh without seeking public consent is a denial of Ladakhi people’s right to self-determination

On the other hand, Pakistan’s Prime Minister nominated himself as the ‘ambassador of Kashmir’ and pledged to fight for the right to self-determination of Kashmiri people.18 However, Pakistan missed the crucial deadlines to submit a draft resolution for the scheduled session of the United Nations Human Rights Council (UNHRC).19 Ironically, it demon- strated the commitment of the ‘ambassador’ towards the Kashmiri people. This is reminiscent of an earlier diplomatic blun- der when the Pakistani representative to the United Nations relied on a Palestinian girl’s image to highlight the condition of pellet victims in Kashmir. It is critical not to misrepresent the facts concerning the oppressed people because it provides an opportunity to question the legitimacy of their demands. In order to demonstrate solidarity with the marginalized people, one must not deprive them of their own agency. Hence, in my view, Pakistan needs to change its policy from representing Kashmiris to amplifying the Kashmiri voices.

India-China Conflict

India’s authoritarian approach towards the resolution of Kashmir Conflict, the rise of politics and discriminatory state policies aimed at minorities has severely dented India’s soft image20. Yet, the economic interests of the nation-states around the world favored India’s position in the global political amphitheater over grave human rights violations.

There was no substantial international political development on Kashmir against the abrogation of autonomy and blanket communication blockade in Kashmir. Some leaders issued a token condemnation, but no policy action or concrete reper- cussion followed. China-India faceoff in Spring 2020 changed the political debates and the Kashmir Conflict was again the epicenter of political debates regarding the sub-continent. However, no international or regional organization made an effort to learn about the political aspirations of the people of Jammu, Ladakh and Kashmir and failed to acknowledge their reaction

SECTION 1 - POLITICAL DEVELOPMENTS KASHMIR READING ROOM YEARLY REPORT 2019 - 20 18 to the recent political developments regarding the Kashmir Conflict.

Sub-regional Difference in Perception

The response to the integration of the former State of J&K was different in Jammu, Ladakh and Kashmir. The political groups in Jammu and Ladakh have a history of demanding more constitutional rights in the form of a separate union territory or statehood.21 Ladakh Buddhist Association (LBA), Jammu & Kashmir National Panthers Party (JKNPP), and Jammu State Morcha (JSM) are a few regional political groups of Jammu and Ladakh; who have struggled for regional autonomy. They have constantly struggled for the complete integration of Jammu and Ladakh into the Indian union.

Virender Gupta (former JSM president) linked the trifurcation with the resolution of the Kashmir conflict and stated, “The trifurcation or reorganisation of Jammu and Kashmir is in the national interest as well as in the interest of all three regions of the state. It will free Jammu and Ladakh from Kashmiri dominance. The reorganisation will go a long way in solving the Kashmir imbroglio.”22 It must be added, however, that there has never been any referendum in Jammu or Ladakh on this issue - so while there have always been voices that seek separate status, there is no conclusive proof that these are a majority in any region. Of these, only has a sustained campaign for separation from J&K. In this regard, the Ladakh Buddhist Association started a movement in Ladakh in 1989, demanding the status of Union Territory. The argument for the demand of the UT status was the alleged discriminatory policies towards the people of Ladakh.23 It became a mass movement and resulted in Ladakh getting an Autonomous Hill Council while the state was placed under President’s Rule for 6 years.

Kashmiri political groups favoring Kashmir’s integration with India, always opposed the trifurcation of the state on commu- nal lines. , President of Kashmir based Jammu & Kashmir National Conference (JKNC) said, “The very talk of separating Jammu, Kashmir and Ladakh is falling in line with the two-nation theory, which our party has been opposing and will continue to oppose... Jammu & Kashmir is the symbol of secular ethos which people like these (the RSS) are not able to digest.”24

Similarly, Mufti Mohammad Sayyed, late president of Jammu & Kashmir Peoples Democratic Party (JKPDP) supported Omar Abdullah and stated, “These irresponsible demands should be condemned and all attempts to divide the state should be resisted. When there is every possibility of restoration of peace in the state, raising such demands sends a wrong message to the people of the state as well as the international community.”25

Reaction to abrogation of autonomy

The reaction to the effective amendment of Article 370 and 35A by the Indian Union was mixed in all these regions. Article 370 was only relevant in Kashmir because of the psychological attachment of Kashmiri people to it. The idea of Article 370 as a protection against Indian dominance was sold to Kashmiri people for many years. In fact, it had been rescinded a long time ago through various Presidential Orders. On the other hand, some groups in Jammu and Ladakh had seen it as an obstacle to their Constitutional right and regional developments.

Heavy restrictions were imposed in Kashmir fearing the harsh reaction from the people. There was complete communication blockade and all basic human rights were suspended in addition to the prevailing subjugation of the people of Kashmir.26 The political groups demanding the right to self-determination were either already in jail or placed under house arrest. The BJP government did not even spare the pro-India politicians and placed them under house arrest.27 Several political leaders were released after signing the political bonds, agreeing to stay quiet and not speak against this unilateral decision of the state.28 The shocking abrogation of autonomy psychologically affected all the political groups though with completely dif- ferent political ideologies.

The sub-regional factions supporting the ruling nationalist party celebrated it considering a fair deal to end all the discrim- inatory policies in Jammu and Ladakh. However, the amendment of Article 370 was not celebrated as homogeneously as it was claimed by the Indian media. The political groups who always demanded the elimination of Article 35A and 370 started showing concern when they realised that there will be less political rights and employment opportunities and more

SECTION 1 - POLITICAL DEVELOPMENTS KASHMIR READING ROOM YEARLY REPORT 2019 - 20 19 exploitation of resources.29 People who celebrated in the beginning, to demonstrate the political and ideological differences with Kashmir; also started questioning the Indian state’s unilateral policies when the lack of a clear roadmap and future was made obvious.

Muslim majority protested against the amendment of Article 370 and considered its violation of their fundamental rights to decide their political future.30 The political groups of Ladakh have been struggling for decades for their Consti- tutional rights and regional empowerment. However, they didn’t appreciate the fact that they were not consulted before granting Ladakh the Union Territory status, that too without a Legislative Assembly.31 The absence of Ladakhi people in the decision-making process is equivalent to denying them the right to represent their political interests.

The bifurcation of the former state of J&K seemed a very attractive marketing project to create a massive vote bank in Jam- mu, Ladakh and most importantly in India. BJP failed to calculate the risk factors before implementing its hard-line Kashmir policy. They were unable to realise that their reckless strategies can undermine India’s regional and international interests. However, the attempt to annex Indian Administered Jammu and Kashmir, by amending Article 370, forced the UNSC to de- bate the Kashmir Question again nearly after five decades.It also moved China to advance in the internationally recognised disputed territory of Ladakh without worrying about International condemnation since China was now able to claim that it was merely reacting to India’s unilateral action on Article 370.

Hundreds of protestors in on August 16, agitated against the amendment of Article 370. Police responded with tear gas shells and pellet-firing shotguns, a security lockdown entered its 12th straight day.

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The United Nation’s constructive efforts are needed to resolve the Kashmir dispute, considering the contemporary political developments. However, its resolutions fail to fully grasp the multiple dimensions of the conflict and involvement of stake- holders at various levels. In my view, it is not appropriate to settle the Kashmir dispute in 2020 by focusing on political developments of 1947. The Kashmir Conflict is a political dispute affecting the lives of millions of people trapped in this conflict. It is in search of a political settlement which is not possible without the effective and active engagement of all the regions of the former state of J&K along with other stakeholders and the international community. Any statements short of concrete action do not yield results and are a mere cosmetic eyewash for the people of this conflict-ridden region.

Amina is a doctoral researcher at the Centre for the Study of Democracy in the School of Social Sciences at the University of Westminster. Her focus is on regional politics in Kashmir.

END NOTES

13. Aljazeera (5 August 2019). ‘Kashmir special status explained: What are Articles 370 and 35A?’ Retrieved from https://www.aljazeera.com/ news/2019/08/kashmir-special-status-explained-articles-370-35a-190805054643431.html 14. United Nations Digital Library Record: Security Council’s resolutions on Kashmir https://digitallibrary.un.org/search?ln=en&p=Kash- mir&f=&rm=&ln=en&sf=&so=d&rg=50&c=United+Nations+Digital+Library+System&of=hb&fti=0&fct__1=Resolutions+and+Deci- sions&fti=0&fct__1=Resolutions+and+Decisions&fct__2=Security+Council 15. Shimla Agreement: According to the Article 2 (2) of the agreement “the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them. Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation, and both shall prevent the organization, assistance or encour- agement of any acts detrimental to the maintenance of peaceful and harmonious relation” The article 5 (2) specifically defined the future course of action to resolve the Kashmir Dispute “ In order to initiate the process of the establishment of durable peace, both the Governments agree that: In Jammu and Kashmir, the resulting from the cease-fire of December 17, 1971 shall be respected by both sides without prejudice to the recognized position of either side. Neither side shall seek to alter it unilaterally, irrespective of mutual differences and legal interpretations. Both sides further undertake to refrain from the threat or the use of force in violation of this Line.” 16. Nagri, J, Naqash,T, and Ali,Z (19 January 2017) ‘It’s important to note that Pakistan also violated the Shimla Agreement in 1972 by unilaterally abolishing the state subject in Gilgit-Baltistan.’ . Retrieved from https://www.dawn.com/news/1198967 17. Bashir, T (2019, September 19). ’Abrogation of Article 370 and Pakistan’s Pathetic Response’. Retrieved from Modern Diplomacy: https://mod- erndiplomacy.eu/2019/09/19/abrogation-of-article-370-and--pathetic-response/

18. (26 August 2019).’ Imran Khan nominates himself “ambassador” of Kashmir, says ‘will keep fighting till “freedom” is achieved’. Retrieved from https://www.business-standard.com/article/news-ani/imran-khan-nominates-himself-ambassador-of-kashmir-says- will-keep-fighting-till-freedom-is-achieved-119082601024_1.html 19. The Wire (20 September 2019).’ Pakistan Misses Deadline to Submit Resolution on Kashmir in UNHRC’. Retrieved from https://thewire.in/ diplomacy/pakistan-kashmir-resolution-unhrc-deadline 20. Thapar, K. (5 October 2019). ‘How the world sees India’s Kashmir Policy, writes Karan Thapar’. . Retrieved from https://www. hindustantimes.com/columns/how-the-world-sees-india-s-kashmir-policy-opinion/story-MwWJ60CuODsqAsjlw0Tf7J.html Quick Take ( 23 October 2019). ‘Forget US Congress criticism on Kashmir; India must do the right thing’. . Retrieved from https:// www.thehindubusinessline.com/opinion/quick-take/forget-us-congress-panel-criticism-on-kashmir-india-must-do-the-right-thing-for-its-own- sake/article29775715.ece Bruke, J. (5 August 2019) ‘India’s cancellation of Kashmir’s special status will have consequences’. . Retrieved from https://www. theguardian.com/world/2019/aug/05/india-cancellation-of-kashmir-special-status-will-have-consequences 21. Mir, A. M. (2018, September 30). ‘Jammu & Kashmir and Trifurcation: why it matters’. Kashmir Connected. Retrieved from: http://www.kash- mirconnected.com/articles--reports/jammu-kashmir-and-trifurcation-why-it-matters-by-amina-mahmood-mir 22. Hindustan Times (1 August 2013).’ JSM to revive campaign seeking statehood for Jammu’. Hindustan Times. Retrieved from https://www.hindu- stantimes.com/india/jsm-to-revive-campaign-seeking-statehood-for-jammu/story-C6UJBjXf8N6CIBDQqewa3J.html 23. , L (17 November 2019). ‘Jammu and Kashmir: complex realities after bifurcation’. . Retrieved from https://www.telegraphin- dia.com/opinion/jammu-and-kashmir-complex-realities-after-bifurcation/cid/1719958

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24. . (4 July 2000). ‘Trifurcation of J&K rejected’. Milli Gazette. Retrieved from https://www.milligazette.com/Ar- chives/15072002/1507200231.htm

25. ibid. 26. . (15 November 2019). ‘Kashmir communication blockade, art 370 abrogation; Sc defers hearing to dec 10, asks centre to file counter affidavit by nov 22’. Kashmir Times. Retrieved from Kashmir Times: http://www.kashmirtimes.com/newsdet.aspx?q=96362 27. Zargar, S (26 December 2019). ’Kashmiri leaders released from detention are silent on Article 370’. Scroll.in. Retrieved from https://scroll. in/article/947142/kashmiri-leaders-released-from-detention-are-silent-on-article-370-heres-why 28. Mir, H (3 March 2020). ‘New pro-India party launched in Jammu and Kashmir’. AA. Retrieved from https://www.aa.com.tr/en/asia-pacific/ new-pro-india-party-launched-in-jammu-and-kashmir/1758756 29. Chowdhary, R (31 October 2019). ‘While Kashmir Is Silenced, Jammu and Ladakh Are Muttering Anxiously’. The Wire. Retrieved from https://thewire.in/government/while-kashmir-is-silenced-jammu-and-ladakh-are-muttering-anxiously 30. (8 August 2019). ‘Article 370: Protesters detained for defying restrictions in Kargil’. The New Indian Express. Retrieved from https://www.newindianexpress.com/nation/2019/aug/08/article-370-protesters-detained-for-defying-restrictions-in-kar- gil--2016036.html 31. Trivedi, D (27 September 2019). ’Cautious welcome in Ladakh to Abrogation of Articles 370 and 35A’. . Retrieved from https:// frontline.thehindu.com/cover-story/article29382356.ece

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Ladakh - Experience as a Union Territory

Mustafa Haji

Ladakh Was a Separate Kingdom till 1834

In 1834 the Dogra conquered the independent Kingdom of Ladakh through one of his generals, Zorawar Singh and remained under the Dogras till the fall of the British rule. In its heyday the territory of Ladakh extended from Jammu to Lhasa and Gilgit Baltistan. Skardo (Gilgit-Baltistan) which is currently under Pakistan-Administration used to be the Winter Capital and Leh the summer capital. Owing to the central equidistant location between Skardo and Sri- nagar, Kargil became a centre of trade between Skardo, Srinagar, Leh and Zanska. Over the years, Kargil became a resting place for the traders and travellers to and from and South , and Yarkand (China).

Unbeknownst to the people of Kargil, this seemingly advantageous location would one day be reduced to a precarious po- sition.

Leh and Kargil

After Partition in the subcontinent, Ladakh was stitched up as one district within Jammu & Kashmir (J&K). It comprises Kargil and Leh. In 1979 Kargil would be carved into a separate district, but only to be side-lined by Leh in most aspects. The last 40 years have witnessed very different growth trajectories of the socio-political states in Leh and Kargil. Leh pro- gressed rapidly as the political and tourism hub- so much so that in many imaginations Leh became synonymous to Ladakh whereas Kargil was reduced to being just a stop on the way. Leh’s monasteries, stupas, landscapes and the serene lakes fit in the exact imagination of a person who fantasizes Ladakh to be a “land of lamas and wanderlust”. This image of Ladakh runs in the advertisements, news and all kinds of discourse popularised in India.

Kargil is a Muslim majority region with Buddhists as the second majority. Over the years it has rather come to be known by the . It is worth mentioning that Bollywood war movies only further solidified the war-zone image. Not many people realize that Kargil is one of the two districts in Ladakh, in fact the only other district after Leh and that too with a bigger population.

Having all the discourse set around Leh has inevitably steered most of the attention away from Kargil, both from the central as well as the . This reflects in the number of government institutions with head offices located in Leh, the level of development in the Leh town, the number of NGOs and the tremendous support they get, the voices that reverberate in the policy corridors; all in the name of Ladakh, whereas very little of it can be seen in Kargil.

The prejudice can be seen in the writers who have been writing on Ladakh also as most the writings on Ladakh have been centered around Leh with little to no focus on Kargil. Whatever available literature is found on Kargil, it depicts a grim, bleak picture. John Da Silva in his recent account on Ladakh writes-

“After Kargil the road bends south and as the sun has not yet risen over the mountains, we travelled the next twenty-five miles in Shadow. The dwellings by the roadside had an untidy and furtive appearance and the few women we saw turned

SECTION 1 - POLITICAL DEVELOPMENTS KASHMIR READING ROOM YEARLY REPORT 2019 - 20 23 away, covering their faces. Our last glimpse was a tiny mosque with a Golden dome in the darkened fields before we emerged into sunlight at Mulbekh and saw a Buddhist Monastery high on the hill to our left... It seemed that we emerged metaphorically as well as actually out of darkness into light”32

Kargil has been protesting for the Zojila tunnel (which will connect Ladakh to Kashmir) for the last 70 years, but this de- mand has been kept in abeyance for the longest time. Recently a divisional status was granted for Ladakh making it the third division after Jammu and Srinagar, but all the headquarters were to be stationed at Leh. It took 10 days of civilian protests for the government to agree on making the status sharing between the two districts, only for the arrangement to become redundant due to the new bifurcation.

The political milieu in Kargil is more of a theocratic nature; the two Shia Schools, Islamia School and the Imam Khomeini Memorial Trust (IKMT) have a huge influence on the daily discourse in Kargil. Apart from their influence over the so- cio-politics, their influence is deeply rooted in every aspect of Kargil and surprisingly, the two organizations do not get along well. A recent example of the vendetta between the two is losing the Member of Parliament seat to Leh even after having a bigger voter turnout. It was solely because both the institutions had proposed a candidate of their own. This was the scenario in the previous parliamentary election as well. The issue of corruption, nepotism and religious orthodoxy is more visible in Kargil than in Leh. The last major recruitment drive for General Line teachers and Village Level workers resulted in protests the selection as masses had accused the authorities of nepotism and corruption.

Kargil’s Dependence on Kashmir and Jammu

Although culturally and ethnically Ladakh is common from in Drass to valley in Leh, the difference in the aspirations of Leh and Kargil has a lot to do with the problems of accessibility. With a surface area of 59,146 km² and a pop- ulation of just 274,289 many places in Ladakh are sparsely populated.33 Kargil is closer to Srinagar than it is to Leh. Drass, one of the biggest blocks of is just 150 km from Srinagar and has very harsh winters even by the standards of Ladakh - the mercury dips below minus 30 degrees which forces people to migrate to places in the Kashmir or Jammu region before winter sets in.34 Decades of difficulties owing to lack of amenities and opportunities led to many people from Kargil settling in Jammu or Kashmir.

Unlike Leh, which has a commercial Airport that operates throughout the year and an alternate land route via Manali in summers, Kargil is left with no alternative to depend on Kashmir. Residents are left dependent on the erratically available Army Air Courier service which occasionally ferries the locals in Kargil in winters. Ladakh gets cut off from the world in winters for almost 6 months with having no point of access other than going to Leh and then taking a flight whenever some- one wants to go out of Ladakh. To access the High Court in Srinagar- a person from Kargil must take a detour from Leh and spend thousands of rupees which only a few can afford, instead of directly traveling to Srinagar which is closer to Kargil.

The status of Ladakh Post August 5, 2019

It is now gradually dawning on many that the reconstitution of Ladakh as a UT under the Jammu and Kashmir reorganization Act, 2019, following the revocation of Jammu & Kashmir’s (J&K) special status, has not solved Ladakh’s problems once and for all; it has created a new set of dilemmas for the locals. There is a gap between the dream of a union territory called Ladakh, with extended autonomy, and the UT that seems to be firmly under the thumb of the LG office and its bureaucracy.

Viral images and situation on ground in Kargil

The immediate response to Ladakh’s reconstitution as a union territory last year was mixed. saw an outpouring of celebration on the street and in the main market. The pictures of Ladakh’s sole Member of Parliament, Jamyang Tsering Namgyal, dancing went viral just like the MP’s speech in Parliament had been during the debate on the J&K Reorganisation Bill. However, it is important to highlight that the same excitement was not visible in Kargil due to several reasons: The Union Territory has its headquarters in Leh, therefore the people of Kargil must travel a greater distance for official work than they did earlier. Further, the new UT does not have any provisions for the protection of land rights and job reservations either. And again, Kargil’s demand for the Zojila tunnel, to provide year - round connectivity, has been stalled for several years.

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Ladakh never asked for UT without legislature

The demand for UT status for Ladakh had been a longstanding one for various reasons. When it was finally accepted, the timing of it surprised many because there was no urgent circumstance necessitating it. Moreover, the reality of Ladakh as a union territory does not coincide with the conception of the kind of UT the people of Ladakh had envisaged. The people had assumed that if Ladakh was to get UT status, it would come with a legislature; there were four MLAs and two legislative council members who used to represent it in the legislature of the erstwhile state of J&K. An UT devoid of a legislature meant an LG-centric administration. This was perhaps the just the first disappointment for the Ladakhis.

No Roadmap/vision for Union Territory

While the rest of J&K remained under an unprecedented lockdown, including a blockade of internet service, Kargil was placed under curfew, and those in Leh put up a celebratory front. Once the celebrations in Leh dimmed down, discussions began on how the UT would function. There were many discussions on this aspect, which were attended by people from all walks of life, including leaders, students, lawyers, academics and ordinary people. The Hill Council of Leh even sent a team of members and officials to study the administrative working of an UT.35 The sudden surge of haphazard activities proved that there had been no prior research or study undertaken to plan the kind of union territory that would be appropriate for Ladakh and specific to its concerns. Even the Ladakh Buddhist Association, which was by far the biggest advocate of UT status for Ladakh did not seem to have a roadmap.

There was a fresh anxiety too, there would now be an influx of outsiders buying up land or commencing industrial enterpris- es which would dilute the distinct culture and affect the fragile ecology of the land. Rumours of people showing interest in buying land in Ladakh had already surfaced leading to protests by locals.36

Demand for 6th Schedule Status

A fresh round of debates began, this time about the need to be given a 6th Schedule status.37 (The Sixth Schedule of the Indian Constitution comprises provisions for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram, providing safeguards for tribal dominated areas). The public opinion was that only a 6th Schedule status would enable Lada- kh to preserve its cultural identity and environment and secure jobs for its people.

The Himalayan Institute of Alternatives, Ladakh (HIAL), headed by prominent Ladakhi figure and Ramon Magsasay award- ee, Sonam Wangchuk, organised study tours to Sixth Schedule states to get an idea of the system that had been put in place to protect their distinct cultures, land and ecology. In addition to the study tours, there were protests spearheaded by students in Leh who went on hunger strike in the cold winter, in mid-November.38

In the meantime, Ladakh formally became a Union territory on October 31, 2019, and the office of the Lieutenant Governor (LG), along with several senior bureaucrats, assumed charge. There are several changes – from just two District Commis- sioners, the strength of Ladakh’s senior bureaucracy has grown to five with the addition of three senior IAS officers - Ad- visor to the Governor, Commissioner Secretary, and Divisional Commissioner- assisting the LG office. There is also the office of the Inspector General of Police, followed by various Directors who are mostly from the state civil service. This new administrative set-up was in the process of settling down and acclimatizing to the difficult climatic conditions and terrain of Ladakh when the Coronavirus crisis was unleashed. The new executive swung into action and took control of the situation, gathering plaudits in the process.

COVID-19 fault-lines and Collision in Ladakh

As different parts of India have grappled with a rapid rise in COVID 19 cases in the last four weeks or so, the manner in which the five month old Union Territory of Ladakh and its new, Lt. Governor - headed administrative set-up has tackled the crisis has been appreciated. The irony is that the efforts of the LG office to protect the people of Ladakh from the infectious disease have put it on a collision course with the elected members of the very institutions based on the principle of people’s participation in the planning process -- democratic decentralization – namely, the autonomous hill development councils of Leh and Kargil; bodies that came into being after much struggle by the people of Ladakh. Actions such as ordering a shutdown of the Leh Council’s office for a few days or reopening the Zojila pass and taking over

SECTION 1 - POLITICAL DEVELOPMENTS KASHMIR READING ROOM YEARLY REPORT 2019 - 20 25 the distribution of essential commodities, the remit of the Kargil Council, to name a few, have created such an opaque atmo- sphere. Tensions reached such a high that members of the latter held a press conference some days ago complaining about a non-responsive LG office and threatened mass resignation. These events have exposed the fault-lines running through the core of the unplanned decision to make Ladakh a Union Territory. Fault-lines that foreground the absence of a well-thought out roadmap despite a longstanding demand and agitation for the status of UT for Ladakh. The war on the new Coronavirus was being won in Ladakh but the zeal of the bureaucrats had started to unnerve the Auton- omous Hill Development Councils (Hill Council) in Leh and Kargil. In a straight clash of power in Kargil, the District Mag- istrate wrote against the Executive Counsellor (EC) Health for breaking the curfew and visiting a village.39 The EC argued that being the head of the health department in the Hill Council he was duty bound to attend to distress calls. As mentioned earlier, the Hill Council office in Leh was ordered to close down for some days and the Kargil Hill Council found itself being side-lined as the LG office took over the task of reopening the Zojila pass and distribution of essentials to locals. At a press conference held a few weeks ago, members of the Kargil Hill Council said they would resign en masse if their demand of evacuation of Ladakhi pilgrims and students stuck in foreign countries was not heeded.40 Many political leaders from Leh, even the ones from the BJP, have shown their discontent with the LG office on several other occasions.

It is worth noting that the Hill Councils in Leh and Kargil are the outcome of the struggle of the Ladakhi people, especial- ly the people of Leh, against marginalisation. The Hill Council of Leh was created with the holding of elections in 1995, and the Kargil Hill Council came into being in 2003. They are also part of the bigger project of decentralization in India, with people’s participation in the planning process shaping development according to grassroot realities and needs. The Hill Councils of Leh and Kargil have existed for close to two decades now and the BJP government had even extended many of its powers in 2018 for the same reasons. With an unprecedentedly large and controlling bureaucracy taking over in Ladakh, it remains to be seen how the elected representatives will survive.41

“1st Independence Day”?

On Independence Day last year, a huge banner was hung in the main market of Leh which read “Union Territory of Ladakh celebrates its 1st Independence Day”.42 Mr. Sonam Wangchuk congratulated everyone with the same euphoric note. For La- dakhis the word ‘independence’ clearly meant freedom, or unshackling themselves from the rule of Kashmiri leaders who due to their Kashmir-centric agenda sorely neglected regions like Ladakh.

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However, months after Ladakh formally became a Union Territory, reality has asserted itself. The lack of any clear roadmap in the minds of the Ladakhis, the inconclusive debates over the proposed 6th schedule status for Ladakh, and the Hill Coun- cils’ struggle to co-exist with the LG office and assert their powers, makes one wonder if the word ‘independence’ on the banner held another meaning for the Ladakhis - namely, unshackling themselves from their autonomy as well?

The creation of two union territories upends the decades of links and ties that have been built between Kashmir and Kargil. There is a shared grievance of the people of Leh and Kargil that they did not get their due in Kashmir. This is a grievance that needs to be addressed politically and democratically. But a Union Territory for Ladakh that is devoid of a legislature, land protection laws and job security, is something we never asked for and it is not acceptable to the people of Kargil.

Mustafa Haji is a Lawyer, from Kargil. He was a law officer in Hyderabad and then a researcher with the Vidhi Centre for Legal Policy, Delhi. He has written for various national and local groups. This article is an update on his previous work as published in the Wire and Caravan

END NOTES

32. Wedge, J. F. N and Hamilton, C (1987). ‘The society’s tour to Kashmir and Ladakh’. Asian Affairs. 18:1, 45-44. 33. Alexandra Ulmer, “India’s Ladakh Buddhist enclave jubilant at new status but China angered”, , August 6, 2019 https://www.reuters.com/ article/us-india-kashmir-ladakh/indias-ladakh-buddhist-enclave-jubilant-at-new-status-but-china-angered-idUSKCN1UW1QL

34. News 18 (26 December 2019). ‘Mercury Falls to Minus 30.2 Degree Celsius in Drass Belt of Kargil’. News18. Retrieved from https://www. news18.com/news/india/mercury-falls-to-minus-30-2-degree-celsius-in-drass-belt-of-kargil-2436791.html#:~:text=Share%20this%3A,Cel- sius%2C%20Meteorological%20Department%20official%20said. 35. (9 September 2019). ‘Hill Council of Ladakh members call on Pondy LG’. Business Standard. Retrieved from https://www. business-standard.com/article/pti-stories/hill-council-of-ladakh-members-call-on-pondy-lg-119090900728_1.html 36. ANI (6 August 2019). ‘Maharashtra govt plans MTDC resorts in Ladakh, Kashmir’. Business Standard. Retrieved from https://www.business-stan- dard.com/article/news-ani/maharashtra-govt-plans-mtdc-resorts-in-ladakh-kashmir-119080601751_1.html

37. Rashid, H. I (11 March 2020). ‘After the UT tag, Ladakh residents seek constitutional safeguards’. Economic Times. Retrieved from https:// economictimes.indiatimes.com/news/politics-and-nation/after-the-ut-tag-ladakh-residents-seek-constitutional-safeguards/articleshow/74568531. cms?from=mdr

38. PTI “Students stage protest demanding inclusion of Ladakh in Sixth Schedule of Constitution” Outlook, 11 December, 2019 https://www.outloo- kindia.com/newsscroll/students-stage-protest-demanding-inclusion-of-ladakh-in-sixth-schedule-of-constitution/1683234

39. , N (20 March 2020). ‘DC Kargil, Executive Councillor Health slug it out on corona’. Kashmir Monitor. Retrieved from https://www. thekashmirmonitor.net/dc-kargil-executive-councillor-health-slug-it-out-on-corona/

40. Aswani, T (14 April 2020). ‘Ladakh Autonomous Hill Council May ‘Mass Resign Due to Lack of Essentials. The Wire. Retrieved from https:// thewire.in/government/ladakh-autonomous-hill-council-may-mass-resign-due-to-lack-of-essentials

41. https://timesofindia.indiatimes.com/topic/Ladakh-Autonomous-Hill-Development-Council-Act

42. PTI (15 August 2019). ‘Ladakh celebrates ‘1st Independence Day’ after being declared UT’. Live . Retrieved from https://www.livemint.com/ news/india/ladakh-celebrates-1st-independence-day-after-being-declared-ut-1565875091148.html

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‘The Kashmiri Nation will rise’

Kashmir Reading Room Speaks with Sampat Prakash, a Kashmiri Trade Unionist

Kashmiri Pandits and Kashmiri Muslims have been portrayed as being mutually incongruous by vested interests of the Indian regime. In an environment which is abuzz with venomous and polarizing narratives, it is pertinent to amplify voices of reason and camaraderie. This interview is an effort to commemorate the history of their common struggle and solidari- ties. Kashmir Reading Room interacts with octogenarian trade unionist, Sampat Prakash. Having witnessed and led several movements in Kashmir, Sampat Prakash sheds light on the history of working-class struggles in Kashmir and how Kashmiri Pandits reject the domicile law. From his decades of experience in the struggle for democracy and egalitarianism in the val- ley, he throws light on the exploitation and repression that the Kashmiri people have faced at the hands of the Indian state.

KRR: The Modi Government has made statements that Article 370 was a hindrance to trade, investment, and de- velopment in the state. Now that Article 370 has been amended and Article 35A is gone, how do you see the situation changing?

SP: It is 100% false and incorrect. With 60 years of experience in public movement, I can say it is a false statement. I shall be giving two examples; since 1947 after accession to India, we had our own Prime Minister, State Assembly, Special Status, and state subject laws as a result of Article 370. Since then Indians have reached out to almost every village in India. But it has now been 70 years and they have not even started trains from Jammu to Srinagar.

Many governments came but none of them took any interest in the development of Kashmir- be it Nehru, Indira Gandhi, V.P Singh, or the present BJP. Our commodities, our fruit business, orchards, our handicrafts, vegetables - they have never tried to uplift these businesses. This is not because of Article 370. This is merely being used as propaganda to deprive Kashmir of its basic rights.

We have never even had the opportunity of consuming electricity being produced in our valley (the electricity generated in the valley is transferred to Indian states). We have Jhelum, Sindh, and Wular but not even 20% of the electricity generation potential has been realized. We have botanical gardens, beautiful lakes, springs and places like . But none of these are developed to reach their real potential. We have our own vegetation, minerals, etc. India never built any multinational companies, they have always discouraged us, portrayed Kashmir as a disputed territory. Our tourism industry has suffered the worst. Kashmir would have been a prosperous nation. Kashmir was a self-ruled nation before this forceful accession. In 1947, we rejected the two-nation theory. We did not accede to a ‘Hindu Hindustan’. We acceded to a secular India, a demo- cratic republic. If India does not continue as secular and democratic now, our fight with them will start again.

I would like to mention something, 50 years ago, when I was in my 30s and G. M. Sadiq was the Chief Minister, I went on a strike and was detained. I was kept in Tihar jail and my activities were considered to be affecting the ‘security of the state’. I was detained under the Preventive Detention Act (1964). I challenged it in the Supreme Court of India (arguing against invalidity of the detention on the ground of infringement of the fundamental rights guaranteed by Part III of the Constitu- tion). Before the (five-judge) bench comprising Chief Justice Hidayatullah it was debated whether Sampat Prakash could be detained under the law passed by the Indian parliament. Due to Article 370, law applicable in Kashmir must be only from my own legislature. I had my own flag, Prime Minister and my own identity.

While speaking about the history of Hindu-Muslim unity in Kashmir, Prakash remarked...

Kashmir is a proud nation that has produced rulers like Lalitaditya, the ruler of , known as the Alexander of Kashmir. Look at the Martand Sun . We have a history of more than 5000 years, which is older than the Mesopo- tamian civilization (4300 years). The Aryan civilization is only 4200 years old. Chinese civilization is 4500 years old. We are one of the oldest civilizations of central Asia. Throughout this time, Kashmir has maintained communal harmony. We had welcomed Shah Hamdaan who brought the light of Islam with himself and the majority of the population converted to Islam, peacefully, without any force. They provided us with handicraft which enriched and strengthened the economy as

SECTION 1 - POLITICAL DEVELOPMENTS KASHMIR READING ROOM YEARLY REPORT 2019 - 20 28 well. The entire shawl industry is a gift from them. When did the Indian economy come to uplift us? In this regard, Allama Iqbal had mentioned:

Ae Aab-e-Rood-e-Ganga! Woh Din Hain Yaad Tujh Ko?

Utra Tere Kinare Jab Karwan Humara

Oh, of the river ! Do you remember those days?

Those days when our caravan halted on your bank?

KRR: How are the daily wagers surviving the lockdown?

SP: Almost 1 lakh daily wagers and labourers have been affected. There is a Minimum Wages Act but not even 1/4th of the wages are given to these labourers due to the present economic condition. Our workers have earned their rights after years of struggle. Their movement is also one of the oldest in the world - at the time of Napoleon, 28 lakh shawls were produced in one year while Ranbir Singh imposed 71% tax on the production. The first movement led by the working class in the world was the Shawlbaf movement in 1865 - more than 20 years before the Hay-Market agitation in Chicago. Thousands of shawl weavers marched to Maharaja’s palace and many were butchered. Whether you look at South East Asia, Asia or Europe, ours is the first uprising of the working class of the world. The world celebrates the first Workers Movement as May Day in Chicago in commemoration of a worker’s movement in 1886 but we started before that in 1865. The honour of the world’s first uprising of working classes belongs to Kashmir. “If death is the penalty to speak the truth, call your hangmen. We will march to the gallows!” - This was the main slogan of the leaders of the movement of 1865. The shawl weavers were hanged at Zaldagar from the old city.

KRR: How has the turmoil affected trade unions and your work with the workers movement in J&K?

SP: J&K state has had a well organised trade union movement. The first unions of working classes, private sector, master (teachers/carpenters), clerks, sweepers, shikara wala and even gazetted and non gazetted officers were members of a reg- istered body - the J&K Trade Union in 1964. I have been the head of the organization since then. After August 5, 2019, hundreds of men have been put behind bars in the state and outside the state. These men protested the dismissal of Article 370 of the Constitution of India.

“Raakh bhi ghar mai aur chingaari bhi sulakh jayegi”

The Kashmiri nation, our new generation will rise. No movement in history is just 30-40 years old. The new generation is rising. They are emancipated and enlightened.

Militancy is not a debt; it is a devotion. Those who died for the Kashmiri nation are the best souls that almighty has given us. I am of this opinion. After 5th August, the Indian forces have been writing a book of terror with the blood of innocent kashmiris, the foreword of which was written by that butcher , notorious for ‘frozen turbulence’ - the whole Kash- mir valley was scorched, the beautiful valley has been bulldozed, humanity ravished, virginity molested. People have been tortured, molested and killed in interrogation centres like Papa II. Lakhs have been uprooted from their homes in Kashmir. For Kashmiri women every morning begins with the heinous crime of rape. Cases like Kunan Poshpora show the level of inhumanity - it is a big blot on the face of Indian state.

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KRR: It is said that the domicile law is beneficial for Kashmiri pandits. How true is that?

SP: I am at the advanced age of my life; I am now 85. This is a big shock to me. All the political parties should form a com- mon platform, we all need to come together to reject this law. What is the need of this domicile law? I carry my own status as a Permanent Resident and state subject. Kashmir was an independent country. We have been fighting since a century with our movements like Quit Kashmir, Kashmir Conspiracy Case etc. In Naya Kashmir, we have already given equal rights to women and to workers. We have maintained communal harmony till now.

India and Pakistan are the same country and have the same cultural and social heritage. But they’ve turned everything upside down - from the Mohenjo-daro civilization to the Aryan civilization of 4000 years.

When Afghans took over Kashmir, they reached near Shalteng, all the people from different villages and towns like and Srinagar, and protected the Kashmiri Pandits in these regions. Kashmiri Pandits comprised of 7% of the state population but all the Muslim families at that time protected Pandit women. Muslims provided Pandit women with clothing to look like Muslims. This is the real Kashmiri Muslim. Not even a single blood drop fell.

Contrast this with the communal situation at the time of partition, the whole of India and Pakistan were in flames - from Lahore to . But at the same time, in Kashmir, this period was a historical example of harmony. Mamata Gandhi ob- served this and said “sooraj ki kiran mujhe Kashmir sai dikhi.”

While many leaders were fighting for the Quit Kashmir movement including Sheikh Mohammed Abdullah, Premnath Ba- zaz, Mirza Afzal Beg, we have always placed harmony between the Hindus and Muslims first.

At this moment as well, Kashmiri Pandits who have been with me and others present in different parts of India prioritize our peaceful co-existence and are also against this domicile law. Domicile law is not accepted by us. We want our special status - India and Pakistan should solve our issue by bilateral talks. We have become the victims of their war and we have lost 1 lakh children. 4 lakh Kashmiri Pandits were forced to leave. Discord was created between us - Ikhwans (surrendered militants working for army) like Kuka Parray, Papa Kishtwari, Saithe Gujar, Ahmad Khane. We have seen such elements being created by India for 60 years now.

KRR: The Modi government is saying that they’re investing in Kashmir. What is your view, do you feel this invest- ment is going to benefit people or is it going to create more unemployment?

SP: First provide food and shelter to those who are affected due to COVID-19, investment is not a big deal. They are not even developing the resources that Kashmir already has, how will their investment benefit us? Which corporate house is go- ing to invest in Kashmir when India is not even able to fulfill our necessities? We had an ideology leaning towards socialism prioritizing public spending. The BJP does not believe in this. They want to leave only class-IV jobs for Kashmiri people like cleaning, peons and sweepers, etc.

KRR: What do you say about the future of the working class during the Modi government?

SP: The working classes and students will be the backbone of our struggle.

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Remembering Afzal

Amrit Wilson

It was a cold grey winter day in December 2007 when I got permission to visit in Tihar jail. I had so many ques- tions I wanted to ask him, so much I wanted to hear. In the event it was the briefest of meetings. He was only allowed a few minutes outside the cage-like structure in Jail no 3 of the high-security wing where he was being held, and we could only speak separated by a security barrier. I remember mainly the warmth of his smile and the friendship he extended to me. He told me he had received my letter and thanked me for the events demanding his release which Solidarity Group had organised in London – a demonstration in front of the Indian High Commission, a letter signed among others by 4 La- bour MPs, a public meeting, an Early Day Motion in the British Parliament and the successful lobbying of Members of the to take his case up with President Abdul Kalam during his upcoming visit to Strasbourg.

The previous November, Afzal had filed a petition to the under Article 72 of the Indian Constitution asking for clemency. It was more like the statement of a political prisoner asserting their legal right to justice than a plea for mercy.

“When a man faces certain death things become clearer,” he had written “I find myself wondering if my death can achieve any kind of justice or bring us closer to peace. I really do not think [ so] … I would like to write and tell you my story, as I see it, in the hope that you will spare my life but also that you will understand the stories of thousands of other Kashmiri youths who are locked inside jails. I want you to understand why the Kashmiri people have taken to the streets on my behalf. Their anger, their anguish, their pain is still not understood in India.” He had gone on to recount what it was like for his generation of youth who had grown up during the 90s, why he had joined the movement, why he had surrendered and what life was like for surrendered militants. “In those heady days, [in the mid-90s] I was like thousands of youths, who left the comfort of our homes, the security of our future jobs and gave up our dreams, joined the movement and went over to Pakistan.” After only 3 months, during which he did not receive any training he, like many others, had returned to the valley and surrendered, ‘disillusioned by the fact that both India and Pakistan were using Kashmiri youth as their pawns’.

But life as a surrendered militant meant facing a constant reign of terror. “The officers of the and the STF would not allow me to live a normal life. They would call me and other surrendered militants to their camp, beat us, torture us and humiliate us till we agreed to become informers [or work for them in other ways]”

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He went on to relate the stark and dehumanising injustice he had faced at every step from arrest to incarceration in Tihar. Before the case went to court, he had faced a trial by media organised by officers of the Delhi police cell. His ‘confession’, obtained as he sat in handcuffs with his torturers standing around him had been broadcast over and over again for two days by NDTV accompanied by remarks43 such as ‘See how natural, how truthful, how fluent his statement appears’ and ‘Who can believe that such a statement can be given under torture’. Viewers were encouraged to act as a virtual lynch mob by soliciting SMS messages from them asking whether he should be hanged in light of the ‘confession’ being broadcast. At the trial itself he had not been represented by a lawyer. He was from a poor family and could not afford lawyers’ fees and every lawyer he had requested had refused to act on his behalf.

The campaigns across the world, interventions at the British and European Parliament and the expressions of outrage by a wide variety of people and organisations in Kashmir were, of course, in the end, unsuccessful. In the early hours of Febru- ary 9, 2013, Afzal was hanged in secret and buried in Tihar jail. His family were not informed and a memo to his wife with Afzal’s name insultingly misspelt arrived only after he had been executed.

The news was received with an unstoppable outpouring of grief and anger in Kashmir. People poured out onto the streets despite a curfew being imposed. They were met with further repression. In India, at the time, and even more so as the years passed and the BJP came to power, every attempt was made to stop any discussion of the terrible injustice Afzal Guru had faced. He was seen as dangerous even in death - so dangerous that organisers of meetings about him were openly threatened by the BJP’s foot soldiers. At the same time his body, like that of before him, has not been returned to Kash- mir and to his family.

In the last month, however, with the arrest of DSP Davinder Singh in Jammu & Kashmir, allegedly for ferrying Hizbul militants to Delhi, Afzal Guru’s name is in the news again. The Indian media, who in general had shown little interest in his testimony, while he was alive are finally unearthing the letters he had written to his lawyer Sushil Kumar and to human rights organisations. In these documents he had described his entrapment by the STF, the tortures, relentless extortion and threats to lives of his loved ones which he had faced from this very Davinder Singh and other police officers and most significantly he had stated that it was Davinder Singh who had introduced him to a man known as Mohammed and ordered him to do the ‘small job’ of taking him to Delhi and finding him a rented place to live. Mohammed, who was clearly not a Kashmiri, was later identified as one of the five terrorists who stormed the Parliament building on December 13, 2001, who had all been conveniently gunned down by the police so no further investigation was possible.

Questions are being asked about why these documents with their incriminating evidence were not discussed in court. So far, neither the judiciary nor politicians have provided any answers. Other older questions continue to hang in the air, also unanswered: Why did the Supreme Court admit there was no direct evidence against Afzal Guru and then sentence him to death? Why did it rule that by killing an innocent man ‘the collective conscience of the society will be satisfied’, what did that say about Indian ‘society’? And why, even before the BJP came to power were Indian institutions so eager to appease the violent Hindutva forces who wanted Afzal killed, when clearly, as Nandita Haksar wrote,1 back in 2006, his hanging institutionalised the growing lawlessness of the police and authoritarianism of the Indian state and gave a fillip to the growth of Hindu fascist forces.

Today, in India, with the judiciary often acting like a mere appendage of the ruling party, it is unlikely that these questions will be answered. To honour Afzal Guru’s memory, however, we must continue to ask them and demand justice for him while we also campaign for his body to be returned to Kashmir and his family.

Amrit Wilson is a writer and activist on issues of race and gender in Britain and South Asian politics. She is a member of the South Asia Solidarity Group collective. She was a founder member of Awaz, the first South Asian women’s activist organi- sation in Britain. Her books include Finding a Voice, Asian women in Britain which won the Martin Luther King award for 1978 and has been republished with a new introduction and other additions (Daraja Press 2018) and Dreams, Questions, Struggles –South Asian Women in Britain (Pluto Press 2006)

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END NOTES 43. (26 January 2007). ‘Torture, Lies And A Fabricated Confession: No Death Penalty For Afzal Guru’ Islamic Human Rights Commission. Retrieved from https://www.ihrc.org.uk/activities/events/5720-torture-lies-and-a-fabricated-confession-no-death-penalty-for-afzal-guru/

44. Haksar, N (5 October 2006). ’Afzal’s Story’. Outlook. Retrieved from https://www.outlookindia.com/website/story/afzals-story/232712

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Hindu Forum of Britain and Keir Starmer’s positioning on Kashmir

South Asia Solidarity

South Asia Solidarity Group (SASG) is an anti-imperialist, anti-racist organization based in Britain committed to support- ing, publicising, and building solidarity with people’s struggles for justice and democracy and against exploitation, gender, and caste-based oppression, imperialism, war and the so-called ‘’ in the countries of South Asia. Since Au- gust 5, SASG has worked with various members of the Kashmiri and Indian diaspora in the UK to campaign and organize against the revocation of Article 370 by the Indian Government. In association with the diaspora and student organisations, SASG has put forth a resistance to the Indian government’s actions in Jammu & Kashmir. Further, they have ruptured the myth of the British Indian diaspora’s unquestioning loyalty to and the BJP Government through parliamen- tary interventions.

In May 2020, following a meeting with “Labour Friends of India”, which acts as a channel between people in the Labour Party and India’s far-right Hindu nationalist government, Keir Starmer, currently, the leader of the Labour Party declared that Kashmir is “a matter for the Indian Parliament” and that he wanted “even closer business links” and “dialogue” with India. SASG and Indians for Labour expressed their concern over this development in an open letter signed by over 600 people, most of them members and officeholders in the Labour Party.

At a time when Kashmir had been under lockdown for more than 9 months, this was a let-down for Kashmiris and effective- ly a capitulation to the Hindu-fascist government of Narendra Modi. After Keir Starmer took over from Jeremy Corbyn as leader of the Labour Party, there have been several attempts to form stronger relations with the Indian diaspora by reaching out to the Hindu Forum of Britain (HFB), an organization closely aligned with the far-right and Hindu supremacist gov- ernment in India. This attempt to form alliances with pro-BJP groups in the diaspora was strongly criticised in the letter by SASG.

Parts of this are reproduced below-

….. This (amendment of article 370) is an act of colonialism by the BJP government against a nation that has been denied its historic right to self-determination and was handed over to India by British colonialists in 1947. It comes against a back- ground of decades of occupation by the Indian army and human rights abuses and has been followed by brutal lockdowns, curfews, and increased repression in a region which has long been the most highly militarised in the world.

Contrary to their assertions in their letters to you, the HFB does not represent the entirety of the Indian diaspora in the UK. Many Labour Party members who are part of this diaspora have actively condemned not only these human rights abuses but also the lynchings of Muslims, and other minorities by mobs affiliated to the RSS (Rashtriya Swayamsevak Sangh), which is a fascist organization modelled on Mussolini’s Blackshirts and is the parent organization of the BJP. These mob attacks have been rampant since Modi’s initial rise to power in 2014. To attempt to rebuild ties with the ‘Indian community’ in the UK by reaching out to far-right sympathising organisations such as HFB is to ignore us and suggest that the Labour Party will from now on be more concerned with maintaining the support of far-right groups within the Indian diaspora than with sticking to the Labour internationalist principle of condemning international human rights abuses.

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The second issue raised in the HFB letter is Labour’s policy on Kashmir under Jeremy Corbyn’s leadership. The letter claims Corbyn’s supporting a motion to bring the issue of the siege on Jammu and Kashmir to the United Nations represents his ‘Anti-India stance’. This is an attempt to silence the condemnation of the revocation of Article 370 as a human rights issue, despite the UN repeatedly raising concerns about the Kashmir situation. To reposition the Labour Party approach in this context would also be disrespectful of the Labour Party procedure.

……

In a second letter to you, the HFB makes a further disturbing claim that, in their own words, ‘Pakistan Occupied Kash- mir was and is an integral part of India, of that there is no doubt’. Not only is this an act of war-mongering against Pa- kistan, which like India is a nuclear-armed state, but it is also an assertion of the idea of Akhand Bharat or undivided India, which will include Pakistan, , Nepal, and Sri Lanka and is one of the key expansionist aims of the RSS.

The letter specifically spoke about two actions of the Indian Government that are reflective of its Hindu supremacist agenda: revocation of Article 370 followed by the longest lockdown in the world in Kashmir and the discriminatory Citizenship Amendment Act. They go on to state “We urge you to represent the majority within the Indian diaspora who do not align themselves with the ongoing fascism of the Modi regime and their allies in Britain.”

SASG acknowledges the long and continuing struggle for self-determination by Kashmiris and offers them its unconditional solidarity. SASG will continue organizing events, protests, vigils, and campaigns for the rights of Kashmiris at the ground and parliamentary levels while centering Kashmiri voices and narratives.

SASG has played a prominent role in raising awareness in the UK on the situation in Kashmir by organizing protests such as Vigil for Kashmir on 5th August 2019, Stand with Kashmir protest on 15th August 2019, panel discussions at academic institutions such as the event in SOAS, “Resisting Fascism, Building Solidarities: India, Kashmir, and Beyond” and have continued their efforts during the pandemic time through webinars and social media actions. Importantly, SASG has been working consistently within, and outside, the Labour Party to highlight the occupation and colonisation of Kash- mir by India.

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Section 2 Law and Policy

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The Kashmir Conflict and International Peace and Security:

Post August 2019

Madeeha Majid

Contrary to what many nations claim, there is nothing truly domestic in an increasingly globalized world. This is more so in case of conflict, which has far reaching ramifications beyond geographical limitations, affecting human as well as collective security. One such issue is the Kashmir conflict. Essentially involving fundamental rights and aspirations of the Kashmiri people, the Kashmir conflict is warped in territorial claims and aggression between three major nuclear powers.

Internationally, the United Nation’s principal political organ, the Security Council, is placed with the primary responsibility of maintaining international peace and security.44 The relevance of the United Nations Security Council (UNSC) in the case of Kashmir has been quite visible since the beginning of the conflict. After India approached the UNSC against Pakistan over Kashmir for endangering international peace and security in 1947, the UNSC passed resolutions to end hostilities be- tween the two countries. 45 The UNSC established a United Nations Commission for India and Pakistan (UNCIP) to inves- tigate the facts of the dispute and to exercise a mediatory role in the resolution of the crisis.46 Importantly, UNSC through its resolutions, set forth a two-part recommendation calling for ‘demilitarisation’ of the region, following which, a ‘plebiscite’ would be conducted with the help of a UN Plebiscite Administrator. These recommendations were reiterated in many sub- sequent UNSC Resolutions.47 The United Nations Military Observer Group in India and Pakistan (UNMOGIP) was also formed to help observe and report to the UN from the region.48

However, due to the absence of any enforcement action, the resolution adopted created little change on ground.49 Thus, even though the parties had obligations both under customary international law (to act in good faith), as well as the UN Charter (to respect the decisions), the plebiscite could not be conducted.50 Many termed the behaviour of the parties as out of line with the UN Charter and morally wrong.51 The relevant UNSC resolutions on Kashmir, apart from being criticised for form and scope,52 were also condemned for not giving Kashmiris the option to seek an independent country for themselves.53 Such a position of the Security Council was the result of the absence of any understanding between India and Pakistan to pursue an all-Kashmiri settlement.54 This was also reflective of the heavily state-centric approach to international law during that time.

After a second war was fought between India and Pakistan in 1965 over the region, the Security Council again called upon the parties to use peaceful means.55 In the following years up until 1971, more resolutions were passed and the issue of Kashmir was regularly on the agenda of UNSC.56 A considerable change in UNSC’s practice was seen with the signing of the between India and Pakistan post the Bangladesh War, which significantly diminished UNSC’s role in the region. Although some argue that the UNSC played a role in the Kashmir dispute by not playing a role,57 there are considerable arguments against bilateralism stating that India and Pakistan used it as a shield to bring their own ‘radical, dysfunctional, and incommensurable issues to the table’, halting any real progress on the issue.58

Moreover, during the period, as the Security Council was grappling with issues elsewhere (such as Kosovo, Yu- goslavia, Somalia, East Timor, etc.), its overall approach towards Kashmir lacked any bearing, even in the face of an armed

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KASHMIR READING ROOM YEARLY REPORT 2019 - 20 37 conflict between Kashmiri fighters (allegedly aided by Pakistani soldiers) and the Indian security forces.59 As the Kashmir issue receded to the margins of international diplomatic fora, India declared the region to be an integral part of the country, where all its boundaries are fixed, final, and non-negotiable.60 This left little scope for negotiation, negating the purposes of the Shimla agreement. Since then, until now strict adherence to bilateralism has resulted in the creation of a stalemate. 61

However, the status quo changed post August 5, 2019. The de-operationalization of the special status of the Indian Con- trolled Kashmir has visibly escalated tensions in the region, presenting grave implications for international peace and secu- rity. It is clear that the prolonged conflict has sustained hostilities between the three nuclear powers.62 Thus, an international armed conflict is plausible in the future, along with the risk of terrorist groups like ISIS (also referred to as ISIL or Daesh) finding ground in the region.63 Taking note of the situation, the Security Council held a closed door meeting on the issue in August 2019, after many decades of not discussing it.64

Besides the change in the local laws, and bifurcation of the state, the most controversial aspect of the Indian decision per- tains to the abolishing of the region´s almost 100-year-old permanent residency rules. This drew vehement criticism for attempting to change the demography of the region.65 Many termed the move to be unconstitutional under Indian national laws,66 while others argued for its qualification as an unlawful annexation, resulting in thede jure occupation of the territory under international law.67

Already prevailing decades of heavy militarisation and human rights violations had led to a pattern of impunity and a denial of justice in the region.68 Adding to it, the change in status quo has intensified tensions between India and Pakistan,69 and also triggered incursions and clashes in eastern Ladakh, along the LAC () between India and China (May/June 2020).70

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Assuming, arguendo, that the Kashmir conflict, which began as an internationalised dispute, has condensed into a bilateral dispute,71 the recent incursions of China in the Indian controlled Ladakh region have added a new party to the dispute. Chi- na’s aggressive politics and alleged use of force, in the background of its multilateral investments in the disputed territory of Pakistan Controlled Kashmir, has increased its interests to promote stability and economic growth in the region, making it a major stakeholder in the issue. China’s position is also significant due to its membership (as a P5 member), capable of substantively impacting the handling of the dispute at the Security Council. Chinese support for Pakistan’s efforts to inter- nationalize the Kashmir issue had declined over the past few decades.72 However, they have revived post Kashmir’s changed status.

Undoubtedly, Chinese policies on Kashmir affect regional stabilization and crisis management efforts in South Asia. China has in the past, raised concerns about rising tensions in Kashmir and reiterated calls for a peaceful resolution of the dispute through dialogue and consultation.73 As mentioned, on China’s call (at the request of its ally, Pakistan) for the first time since 1971, the Kashmir issue was discussed by the UNSC in a closed door meeting in August 2019.74 Even though the Council failed to come out with a statement, the meeting carried symbolic weight as it helped to internationalize the issue once again. Thus, even though China’s strategy remains ambiguous,75 the Kashmir crisis has already exceeded the bilateral framework. Accordingly, there is an urgent need for the international community to exert moderating pressure upon all sides of the conflict, bringing them to a table to negotiate.76 Such a conducive environment for peace talks can only be created when the States, by means of the UNSC, fulfil their obligations to resolve the crisis, which is at the brink of a political and humanitar- ian catastrophe.77 Within its competencies, the UN must operate to keep peace and contain the conflict, while also ensuring justice for those affected.78 Lastly, and most importantly, the people of Kashmir, often overlooked in the state binary, must remain primary parties, relevant to any resolution of the conflict.79

Madeeha Majid is an Advanced L.L.M. student of Public International Law at Leiden University, pursuing her speciali- sation in Peace, Justice and Development. The paper is an extract from her Advanced L.L.M. thesis at Leiden University. (2019-2020)

END NOTES

45. United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Preamble, available at, https://www.un.org/en/sections/un-charter/ preamble/. S.D. Bailey & S. Daws, The Procedure of the UN Security Council, 3rd ed. (1998).

46. Letter from the Representative of India to the President of the Security Council, UN Doc. S/RES/628 (1 January 1948).

47. UNSC Res. 39 (1948), on establishing a Commission on the India-Pakistan question, UN Doc. S/RES/39 (20 January 1948).

48. UNSC Res. 91(1951), on deciding to appoint a UN Representative for India and Pakistan in succession to Sir , UN Doc. S/RES/ 91 (30 March 1951); UNSC Res. 99 (1951) on a plan for the demilitarization of the State of Jammu and Kashmir, UN Doc. S/RES/96 (10 November 1951); UNSC Res. 98 (1952) on negotiations to reach an agreement on a plan of demilitarization of the State of Jammu and Kashmir, UN Doc. S/RES/98 (23 December 1952); UNSC Res. 122 (1957), on the final disposition of the State of Jammu and Kashmir, UN Doc. S/RES/122 (24 January 1957); UNSC Res. 122 (1957), on negotiations on the India-Pakistan question and visit of the UN Presentative for India and Pakistan to the subcontinent, UN Doc. S/RES/126 (2 December 1957).

49. Sonnenfeld R. Resolutions of the UNSC, Polish Scientific Publishers, (1998).

50. On the binding-ness of UNSC Resolutions, See, Advisory Opinion, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), (1971) ICJ Rep 16 at 113.

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51. International Crisis Group (ICG), India, Pakistan, and Kashmir: Stabilising a Cold Peace, Asia Briefing, No. 51 (: ICG, June 2006).

52. Schaffer, H. The Limits of Influence: America’s Role in Kashmir, An ADST-DACOR Diplomats and Diplomacy Book, Press, (2009).

53. “The American Diplomat at the UN criticized the form and scope of the Security Council’s resolutions, as being unrealistic and ineffective because they depended on India and Pakistan cooperating with the council and failed to give it authority to impose sanction.” H. Schaffer, The Limits of Influence: America’s Role in Kashmir, An ADST-DACOR Diplomats and Diplomacy Book, Brookings Institution Press, (2009).

54. Hashmi, R. S. & Sajid, Kashmir Conflict: The Nationalistic Perspective (A Pre-Partition Phenomenon) 31 Research Journal of South Asian Stud- ies, No. 1, 219 – 233 (January – June 2017).

55. Birdwood, C. India and Pakistan: A Continent Decides, Frederick A Praeger (1954) at 262.

56. UNSC Res. 211 (1965), on demanding immediate cease-fire and subsequent withdrawal of armed personnel from the State of Jammu and Kashmir, UN Doc. S/RES/211 (1965).

57. Lamb, A (1994). Birth of a tragedy. Roxford Books.

58. Qerimi, Q (2013). The S Word and Security Council: The Role and Powers of the United Nations Security Council in the Creation of New States, 36 TJLR 181

59. Sharpe, M. E. (2016). Kashmir in the Shadow of War, Regional Rivalries in a Nuclear Age. Routledge; 1 ed.

60. Widmalm, S. (2002). Kashmir in Comparative Perspective: Democracy and Violent Separatism in India, Psychology Press at 44.

61. (30 July 2018) ‘Integrity of India’s borders non-negotiable: CBFC chief on Kashmir references in Mission: Impossible (Eds: Updating with chang- es in intro)’. Outlook. Retrieved from https://www.outlookindia.com/newsscroll/integrity-of-indias-borders-nonnegotiable-cbfc-chief-on-kash- mir-references-in-mission-impossible-eds-updating-with-changes-in-intro/1360352.

62. Ganguly. S (1997). The Crisis in Kashmir: Potents of War, Hopes of Peace 1st ed.

63. Wenning, H (2003). Kashmir: A Regional Conflict with Global Impact, 1 NZJPIL

64. Butt, A (7 August 2019). ‘India just pulled Jammu and Kashmir’s autonomy. Here’s why that is a big deal for this contested region.’ Washington Post. Retrieved from https://www.washingtonpost.com/politics/2019/08/07/india-just-pulled-jammu--autonomy-heres-why-this-is-big- deal-this-contested-region/

65. UN News (16 August 2019). ‘UN Security Council discusses Kashmir; China urges India and Pakistan to ease tensions’. UN News. Retrieved from https://news.un.org/en/story/2019/08/1044401

66. Letter from the Permanent Representative of Pakistan to the UN, UN Doc. S/2019/654 (13 August 2019); Letter from the Permanent Repre- sentative of Pakistan to the UN addressed to the President of the Security Council, UN Doc S/2020/431, (21 May 2020). M. Ganguly, India Failing on Kashmiri Human Rights: Some Easing, but Abusive Restrictions Persist, , available at https://www.hrw.org/ news/2020/01/17/india-failing-kashmiri-human-rights. (17th January 2020)

67. Chandrachud, A (2020). The Abrogation of Article 370, in Essays and Reminiscences: A Festschrift in Honour of Nani A. Palkhivala, A. P Datar (ed.), 1st Ed.

68. A. B. Soofi, & Ors., Legal Memorandum, Legal Memorandum, The Status of Jammu & Kashmir Under International Law: The Law of Occupation and Illegal Annexation, Research Society of International Law, Pakistan (2019).

69. UN Human Rights Council, OHCHR, Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan (14 June 2018) (Henceforth, OHCHR Reports).

70. Butt, A (7 August 2019). ‘India just pulled Jammu and Kashmir’s autonomy. Here’s why that is a big deal for this contested region’, Washington Post, Retrieved from https://www.washingtonpost.com/politics/2019/08/07/india-just-pulled-jammu-kashmirs-autonomy-heres-why-this-is-big- deal-this-contested-region/ (Last Accessed on 14-06-2020).

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71. Krishnan, A (12 June 2020). ‘Beijing think-tank links scrapping of Article 370 to LAC tensions. The Hindu. Retrieved from https://www.thehindu. com/news/national/beijing-think-tank-links-scrapping-of-article-370-to-lac-tensions/article31815266.ece

72. Hussain, I (2004). Kashmir Dispute, An International Law perspective 2nd Ed.

73. Chang, I.J (2017). China’s Kashmir Policies and Crisis Management in South Asia. US Institute of Peace.

74. Ibid.

75. Roth, R (16 August 2019). ‘UN Security Council Has its First Meeting on Kashmir in Decades — and Fails to Agree on a Statement, CNN’. CNN. Retrieved from https://edition.cnn.com/2019/08/16/asia/un-security-council-kashmir-intl/index.html

76. Jianxue, L. (18 August 2019). ‘India Is Playing with Fire on Kashmir, Global Times’. Global TImes. Retrieved from http://www.globaltimes.cn/ content/1161857.shtml

77. Simma, Bruno & Ors., The Charter of the United Nations: A Commentary 3rd Ed., Volume I, Oxford University Press, (2012) at 332.

78. Lone, F.N. Historical Title, Self-Determination and the Kashmir Question, 7 Brill’s Asian Law Series (2018). 79. Quigley, J. Displaced Palestinians and a Right to Return 39 HJIL 192 (1998).

80. Lone, F.N. ‘The Creation story of Kashmiri People: The Right to Self-Determination’ 21 The Denning Law Journal 1-25 (2009).

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Article 370: From erosion to cremation

Mihir Desai and Saranga Ugalmugle

August 5, 2019 marks the cremation of the Instrument of Accession of the erstwhile princely state of Jammu & Kashmir(- J&K) and the subsequent Article 370 of the Constitution of India. The Indian government led by the Bharatiya Janata Party (BJP) finally fulfilled its long due agenda of ‘scrapping’ Article 370 and perpetuating its grand plan of complete integration of territory of J&K with India, one step closer to realising its ideal of ‘Akhand Bharat’.

Article 370 of the Constitution of India was the link between India and Kashmir. It reflected the commitment of the Indian people to the people of Kashmir- it was an agreement for Kashmir to have semi-autonomy within India. This followed from the Instrument of Accession80(IOA), signed in October 1947, and the protracted negotiations between India and representa- tives of Kashmir. Article 370 provided for special provisions for J&K, which were as follows:

a. It exempted J&K from provisions of the Constitution of India, which apply to all other states of India. Instead, Jammu & Kashmir were to have its own Constitution.

b. The Indian Parliament’s legislative powers over the State are restricted to subjects of defence, foreign affairs, and communication. The President has the power to extend to the State other provisions of the Constitution ‘if they are related to the matters specified in the Instrument of Accession’ with the ‘consultation’ with the State Government.

c. However, if ‘other constitutional provisions’ or union powers were to be extended to the State of J&K, the prior ‘con- currence’ of the State Government was required.

d. This concurrence was strictly provisional since it has to be ratified by the State’s Constituent Assembly as provided under Article 370 (2).

e. The State Government’s authority to give concurrence was to last till the State Constituent Assembly was convened. The President’s power to extend provisions of the Constitution of India to the State of J&K was to end once the State’s Constituent Assembly drafted and finalized the State’s Constitution.

f. The President has the power under Article 370(3) to make orders abrogating or amending Article 370. Though, a ‘rec- ommendation’ by the State’s Constituent Assembly ‘shall be necessary before the President issues such a notification’.

The Constitution of the erstwhile81 State of J&K was adopted on November 17, 1956 and came into force on January 1, 1957. The Constituent Assembly was thereafter dissolved on January 26, 1957.

The IOA, in late October 1947, was signed hurriedly with the specific condition of Indian troops coming in defence of the kingdom of Maharaja who was faced with an armed rebellion and invasion from Pakistani tribesmen in different parts of his kingdom. It is argued that this IOA between Maharaja of J&K and Governor-General Mountbatten of the of India, as it then was, is an agreement with binding legal obligation between two sovereigns. The two distinct yet equally situated contracting parties agreed on a compromise on the sharing of legislative powers. The political and con- stitutional and the State of J&K suggests that there was a partial surrender of the sovereignty of Kashmir to India in only 3 specific matters. As far as issues beyond defence, foreign affairs, and communication, the State of Jammu & Kashmir had retained its sovereignty. Clause 7 of the IOA, specifically states that “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the under any such future Constitution”. Subsequently, a White Paper on J&K was issued by the Government of India in 1948 which reiterated that “In accepting the accession, the Government of India made it clear that they would regard it as purely provisional until such time as the will of the people of the State could be ascertained”. 82

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This further attained the force of law through Article 370 of the Indian Constitution. The basic provisions of the said Article are mentioned above. It then provided a legal basis for provisions like Article 35A, which was subsequently introduced to protect rights to property of people of Kashmir by ensuring that only state subjects with proof of permanent residency status are entitled to own land within its territory. Through Article 35A, non-permanent residents were also disallowed from being appointed in government services as well as from becoming members of the state legislature.

It is clear from the above history of the manner of integration of J&K into India that Article 370 was transitory, only in the sense that the right to decide permanently on the relation between India and J&K vested, in the final measure, in the Constit- uent Assembly of Kashmir through the Constitution of J&K. Without the sanction of the Constituent Assembly, no further changes could be made. The Constituent Assembly dissolved in 1957, and therefore there was no question of making any further changes to the relation between India and Kashmir by any other authority, including the President of India. Further, the relation between India and Kashmir as laid down in the Constitution of Kashmir in 1956 is part of the basic structure of the Indian Constitution and therefore cannot be changed except with the approval of the Constituent Assembly of Kashmir. Thus, the Constitutional relationship between India and Kashmir was frozen in time in 1957.

The first Presidential Order was executed on the very day that the Indian Constitution came into effect in January 1950. This Presidential Order called the Constitution (Application to Jammu and Kashmir) Order83 1950 was executed to apply the Constitution of India to J&K, under the terms stipulated in Article 370. The said order extended India’s legislative juris- diction in J&K to 37 out of 100 subjects listed in the Union List of the Constitution of India, including those not related to ‘defence, foreign affairs, or communications’. Preventive detention, concerning defence, foreign affairs, and the security of India, which later went on to become the ‘lawless law’84, was a subject on which the Indian legislature could legislate. Since the 1950s itself, India ignored the special status afforded to J&K and introduced a series of executive Presidential Orders of 1950 and 1954. The Indian Supreme Court almost religiously sanctioned and approved of these erosions of Article 370.

Supreme Court and Article 370

In the case of Prem Kaul85, the Constitutional Bench of the Supreme Court upheld the above position concerning the crucial role of the Constituent Assembly. In this case, the petitioner had challenged the authority of Prince to enact a legislation for the state.86 The five-judge bench upheld the Act and stated that “Constitution-makers attached great importance to the final decision of the Constituent Assembly, and the continuance of the exercise of powers conferred on the Parliament and the President by the relevant temporary provision of Article 370 (1) is made conditional on the final approval by the said Constituent Assembly in the said matters”.

An opposite interpretation was given by the Supreme Court in 1968, in the case of Sampat Prakash87 essentially holding that Presidential Powers to extend laws concerning all other items in the Union List of the Indian Constitution continued even after the J&K Constitution was made. Surprisingly, in arriving at this conclusion, the Supreme Court completely overlooked the Constitutional Bench judgment in Prem Nath. Thus, Sampath Prakash judgement triggered the transition of Article 370 from a temporary provision into a permanent mechanism for systematically eroding the provision, to extend Indian legis- lative jurisdiction over the J&K through a series of Presidential Orders superseding the limitations imposed by the IOA.

Thereafter, in the case of Puran Lal Lakhanpal88, the Supreme Court, while deciding on the question of whether the power to make modifications through a Presidential Order under Article 370 was limited to making minor alterations, held that the term ‘modification’ must be considered in its ‘widest possible amplitude’. The five-judge Constitution Bench, decided that while applying any provision of the Indian Constitution to the State of Jammu and Kashmir, the President of India can use his/her power even to make a radical transformation to ‘extend’ the application of the provisions of the Indian Constitution.

This is how, over the decades, there has been a constant erosion of Article 370 by devious means through a large number of Presidential Orders made thereunder. Through these Presidential Orders, 94 of the 97 entries in the Union List were ex- tended to J&K. Moreover, 260 of 395 of the Articles of the Constitution of India were also extended to the State. This was done through deceit and betrayal of the people of Kashmir either by getting the consent of puppet State Assemblies set up through rigged elections or the consent of the Governor during the many times when the Governor’s rule was imposed. In fact, all the Presidential Orders made after 1957 are unconstitutional since they are without the concurrence of the Constit- uent Assembly.

Article 370 has thus been hollowed completely by the various Presidential Orders and their legitimation through the Apex

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Court of India. The Supreme Court has allowed the Indian state to undermine the letter and spirit of Article 370 and the special status that is granted to the State of Jammu & Kashmir. The Supreme Court has not just been a bystander to this Constitutional mayhem but seems to have, in effect, endorsed it.

August 5, 2019

The Governor of J&K issued a proclamation on June 20, 2018 under Section 92 of the Constitution of J&K with the con- currence of the President of India, assuming to himself the functions of the Government and Legislature of the State. The State Assembly, initially kept in suspended animation, was eventually dissolved by the governor on November 21, 2018. The President of India issued a Proclamation under Article 356 of the Indian Constitution on December 19, 2018, imposing President’s Rule in J&K. It is pertinent to note that vide the said notification, the operation of the second proviso to Article 3 of the Constitution pertaining to Jammu and Kashmir was suspended, which later allowed conversion of the State to Union of Territory.

Subsequently, on January 5, 2019 the Union approved the imposition of President’s Rule in J&K for a further peri- od of six months under article 356(4) of the Constitution of India. The Presidential Rule was extended and continued to be in existence as the orders/Act of August 5 and 6 were passed. At midnight of August 4, 2019, all communication services in the territory of the erstwhile state of J&K were blocked and thousands of people, including former Chief Ministers and other previously elected representatives of the state were put under detention. On August 5, 2019, a Presidential Order, G.S.R.551(E) - The Constitution (Application to Jammu and Kashmir) Order, 2019 was passed by the President of India allegedly in the exercise of the powers conferred by clause (1) of Article 370 of the Constitution. This order supersedes the Constitution (Application to Jammu and Kashmir) Order, 1954 by which special status had been given to J&K. Besides, it extends the provisions of the entire Constitution of India to Jammu and Kashmir. It further amended Article 367 of the Constitution of India to read the term ‘Constituent Assembly’ in Article 370 as ‘State Legislative Assembly’.

The , on the same day ie. August 5, 2019 passed the Jammu and Kashmir (Reorganisation) Bill, 2019, unani- mously. The Bill provides for the reorganization of the state of Jammu and Kashmir. It reorganizes the state of Jammu and Kashmir into (i) the Union Territory of J&K with a legislature, and (ii) the Union Territory of Ladakh without a legislature. The Union Territory of Jammu and Kashmir will be administered by the President through an administrator appointed by him, known as the Lieutenant Governor. The Union Territory of Ladakh will be administered by the President, through a Lieutenant-Governor appointed by him.

On August 6, 2019, a Declaration, G.S.R.562 (E), was issued by the President under Article 370 (3) of the Constitution of India on August 6,2019. It read that,

“In exercise of powers conferred by clause (3) of Article 370 read with clause (1) of Article 370 of the Constitution of India, the President, on the recommendation of Parliament, is pleased to declare that, as from the 6th August 2019, all clauses of the said Article 370 shall cease to be operative except the following which shall read as follows, namely :

Article 370. All provisions of this Constitution, as amended from time to time, without any modifications or excep- tions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in Article 152 or Article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgment, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under Article 363 or otherwise”.

The people of Jammu and Kashmir were neither consulted before such a drastic change in their relationship with India was introduced nor were they informed about it since no telecommunication, publication, and distribution was allowed in the State before and even after these impugned Orders/Act had been introduced. Both procedural and substantive safeguards provided in the Constitution of India were completely bypassed in introducing the said orders. The concurrence of the Con- stituent Assembly, as required, was not possible (since it has been dissolved) and the concurrence of the State Legislative

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Assembly was not sought (since it was deliberately suspended much before the said order was passed). In doing so, the Indian government has been cunning and deceitful.

Thus, with political treachery, Article 370 has not been done away with but has been completely hollowed out with the aforesaid actions of August 2019. While Article 370 had lost much of its significance over the decades, its symbolic impor- tance cannot be denied. Till now, at least morally it was accepted that people of Kashmir had a special distinct and significant place within the Indian Constitution. The understanding was that Kashmir was for Kashmiris. While it was part of India it had special features arising out of the Constitutional arrangement and commitment to the people of Kashmir, which have now been destroyed. While the Congress and its puppet Governments began this slow process of betrayal, the final nail in the coffin was hammered in by the BJP Government which always declared that Article 370 should be abrogated. This was part of their Hindutva project and done with the object of teaching Muslims in India a lesson.

Soon after the August 2019, legislative decisions, multiple petitions were filed in the Supreme Court challenging the abro- gation. The Supreme Court of India was called upon to decide on issues of limits of executive functioning and federalism. The supposed sentinel on qui vive is expected to help the throttled democracy to breathe by urgently putting a check on this undemocratic and unconstitutional move by the Indian government. Ideally, they should have decided on these matters by now. What could be more important for the Hon’ble Supreme Court of India than the survival of Constitutionalism and democracy? However, there has been a completely unjustified delay on part of the Supreme Court and the matters have kept on lingering. In fact, on September 30, during one of the hearings, the Supreme Court delayed the hearing of the matter, stating that, “We do not have time to hear so many matters. We have a Constitution Bench case ( dispute)89to hear.”

The only issue which has been decided and dangerously so is that there is no conflict between the judgments in Prem Nath and Sampat Prakash’s cases which have been discussed above. In Dr. ’s Case90 a Constitutional Bench of the Supreme Court shockingly decided that there was no conflict91 between Prem Nath’s Case and Sampat Prakash’s Case. Not only this but through a tortuous process of wrong interpretation, it upheld the Sampat Prakash interpretation which sought to do away with the significance of the Kashmir Constitution and ConstituentAssembly.

While Petitions challenging Article 370 are still pending, it is not certain when they will be decided and, in the meanwhile, the Central government is going full speed ahead to make these petitions infructuous.

With ‘special status’ gone...

The Jammu and Kashmir (Reorganisation) Act, under its Schedule Five, extends 106 Central legislations to the two new Union Territories. 164 out of the 330 State and Governor’s Acts continue to operate with 166 being repealed. Seven laws which are sought to be amended concern reservation for economically weaker sections as well as title and transfer of land.92

Given the prior special status of J&K, there was a bar on non-locals leasing and renting of mineral blocks in the region. However, the auctions93 were opened for businessmen from outside of J&K, post-August 5. Following this, majority of min- ing94 and sand extraction contracts were secured by non-local contractors who have already started their operations without the requisite environment clearances.

The changes in land rights and domicile law are arguably the most pressing concerns arising out of the amendment of Article 370 and the subsequent Reorganisation Act. The Indian government extended domicile reservation to all government posts in Jammu and Kashmir in April 2020, during the COVID 19 lockdown. Thereafter, the J&K administration notified the Jammu and Kashmir Grant of Domicile Certificate (Procedure) Rules, 2020, which specify the conditions and the process to obtain the documents required for applying to jobs and avail other privileges restricted to residents.95 Reports96 suggest that 25,000 people have already been granted domicile certificates of which one is an IAS Officer from . These changes, though subject to legal challenge, are apprehended to be a mechanism for creating permanent demographic changes and further perpetuating the project of the homogenous identity of one integrated97 nation.

With no bars on the transfer of land to non-permanent residents and a ceiling on the transfer of state land to non-permanent residents removed; the path towards dismantling all the protections afforded to people of Kashmir, by whatever was remain- ing of Article 370 (before August 5, 2019), has been accelerated. The Supreme Court of India, if it so chooses, can put a stay on all these processes till the validity of the abrogation is decided. The Hon’ble Court could also, if it wills, decide the petitions pending before it with a sense of urgency. Though what remains to be seen is whether democracy, federalism, rule of law and constitutionalism are issues that merit such urgent attention by the Highest Court of Law in India.

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Mihir Desai is a senior advocate and the Vice President of PUCL. He was a legal counsel to the International People’s Tribunal on Human Rights and Justice in Kashmir.

Saranga Ugalmugle is an advocate in the High Court of Bombay. She is pursuing LLM from Azim Premji University, Ben- galuru (2020-2021). Both the authors were part of an eleven member team that visited Kashmir in September, 2019.

END NOTES

81. Government of India (26 October 1947). ‘Instrument of Accession of Jammu and Kashmir’. Retrieved from http://jklaw.nic.in/instrument_of_ac- cession_of_jammu_and_kashmir_state.pdf

82. Any reference to the State of Jammu and Kashmir should be construed as the erstwhile State of Jammu and Kashmir; The erstwhile State has been reorganized to form two separate Union Territories of J&K and Ladakh.

83. Government of India (1948). ‘White Paper on Jammu & Kashmir’. OCLC Number: 9440812, LCCN Number: 80915605

84. The Constitution (Application to Jammu and Kashmir) Order, 1950. Retrieved from http://jklaw.nic.in/jk1950order.pdf

85. (2019). ‘Tyrany of a ‘Lawless Law’. Amnesty International. Retrieved from https://amnesty.org.in/wp-content/up- loads/2019/06/Tyranny-of-A-Lawless-Law.pdf

86. Prem Nath Kaul v. The State of Jammu and Kashmir, Supreme Court of India (2 March 1959), AIR 1959 SC 749.

87. In that particular instance, reference was the Jammu and Kashmir Big Landed Estates Abolition Act, 1950.

88. Sampat Prakash v. State of Jammu and Kashmir & Anr., Supreme Court of India (10 October 1968) AIR 1970 SC 1118.

89. Puranlal Lakhanpal vs The President Of India And Others, Supreme Court of India (30 March 1961), 1961 AIR 1519, 1962 SCR (1) 688.

90. The Ayodhya dispute has been going on for more than 100 years. It is essentially a tussle for ownership by and between the Hindu and Muslim communities over a piece of land admeasuring 1500 square yards in the town of Ayodhya, in state of Uttar Pradesh. ‘Ayodhya Dispute: The complex legal history of India’s holy site’. BBC (9 November 2019). retrieved from https://www.bbc.com/news/world-asia-india-50065277; Ugalmugle, S (14 November 2019) ‘Balanced’ in favour of the Majority?’. Indie Journal. Retrieved from https://www.indiejournal.in/article/ balanced-in-favour-of-the-majority.

91. Dr. Shah Faesal and Ors. vs Union of India and Ors., Supreme Court of India (02 March 2020), 2020 SCC ONLINE 263.

92. LiveLaw News Network (2 March 2020). ‘Article 370: No Need To Refer Pleas Challeng- ing Repeal Of J&K Special Status To Larger Bench, Holds SC 5-Judge Bench’. LiveLaw.in. Retrieved from https://www.livelaw.in/top-stories/article-370-no-need-to-refer-pleas-challenging-repeal-of-jk-special-status-to-larger-bench-holds-sc-5-judge- bench-153350.

93. Varma, S (11 August 2019). ‘Land Grab, Political Disempowerment are Twin Pillars of J&K Changes’. NewsClick. Retrieved from https://www. newsclick.in/Jammu-Kashmir-Article-370-Revoked-Land-Grab-Political-Disempowerment-Modi-Government.

94. Zargar, A (5 February 2020). ‘With Article 370 Gone, Locals Lose Majority Bids for Sand Extraction in Kashmir’. NewsClick. Retrieved from https://www.newsclick.in/Article-370-Gone-Locals-Lose-Majority-Sand-Extraction-Kashmir.

95. Zargar, A (30 June 2020). ‘J&K: New Contractors Being Extraction on Mineral Blocks without Environmental Clearance’. NewsClick. Retreived from https://www.newsclick.in/Jammu-kashmir-new-contractors-begin-extraction-mineral-blocks-without-environmental-clearance.

Newsclick Team (4 July 2020). ‘J&K: Mining Without Environmental Clearance. NewsClick. Retrieved from https://www.newsclick.in/jk-min- ing-without-environmental-clearance.

96. HT Correspondent (19 May 2020). ‘J&K notifies domicile rules for jobs, other privileges’. Hindustan Times. Retrieved from https://www.hindu- stantimes.com/india-news/j-k-notifies-domicile-rules-for-jobs-other-privileges/story-tmHdlqrruRKUFoo5KWdHCP.html.

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97. Saman, L (26 June 2020). ‘IAS Officer among 25,000 people granted domicile certificates in J-K’. . Retrieved from https://www. tribuneindia.com/news/j-k/ias-officer-among-25-000-people-granted-domicile-certificates-in-j-k-104783.

98. India Today Web Desk (15 August 2019). ‘PM Narendra Modi calls for one nation, one election in Independence Day speech’. India Today. Re- trieved from https://www.indiatoday.in/india/story/pm-narendra-modi-one-nation-election-independence-day-speech-1580998-2019-08-15.

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Domicile Law in and India’s Naya Kashmiri

Incremental Dispossession, Statelessness and Displacement

Mirza Saaib Beg

In absence of any representative government in Jammu & Kashmir, the Indian government has exercised undiluted and direct control in the region through a bureaucratic administration since 2018. 9 months ago, the Indian government unilat- erally annexed Jammu & Kashmir(J&K), ending the autonomous status of the region. Today this administration notified98 the J&K Grant of Domicile Certificate (Procedure) Rules, 2020. These rules provide a fast-track procedure for issuance of Kashmiri domicile certificates, within 15 days, to Indian citizens. The sense of urgency to legalise the occupation of land is further underscored in the new rules since non-compliance with the time frame provided therein attracts a penalty99 of INR 50,000 from the salary of an errant officer.

Eligibility under the New Rules

These rules create new classes of citizens who are now eligible for domicile certificates that are mandatory for admission in schools and get employment opportunities in J&K. Indian citizens who

(a) have resided in J&K for a period of 15 years, or

(b) have studied in J&K for a period of 7 years, or

(c) have parents who have served in J&K for 10 years are now eligible for domicile of J&K.

The domicile certificate has been made mandatory for employment in Kashmir following amendments100 in the Jammu and Kashmir Civil Services rules. Eligible Indian citizens will also be exclusive rights in Kashmir - a region that called ‘the most dangerous101 place on .’ Over the last one year, Kashmiris have observed a grotesque, euphoric celebra- tion102 by Indians on the disenfranchisement and dispossession of Kashmiris through these legislative changes. In response, Kashmiris have long realised that we cannot indulge in the luxury of despair and despondency. We need to, and will continue to, engage in the persistent labour of resistance and hope despite the reckless strictures that India continues to impose on our freedom and democracy.

Departure from Established Law

The new rules are a major departure from an established body of historical precedent, law and jurisprudence. This position was guaranteed to Kashmiris under the Delhi Agreement103 of 1952, the Presidential Order104 of 1954, Article 35A105 of the Constitution of India and Part III Section 6106 of the Constitution of J&K. These instruments and articles recognized the right of J&K to define its citizens, known as ‘permanent residents’ or popularly called ‘state-subjects’ based on a 1927 notifica- tion107 by the erstwhile king of J&K. Through the new rules, with retrospective effect, a ‘permanent resident’ has now been replaced with ‘domicile’ even though no instrument has ever granted such power to the Indian government. The rules grant eligibility of domicile to new classes108 of Indians including migrants, central government employees, personnel and their children109 who meet the eligibility criteria. It is pertinent to add that in this new arrangement there is no space for a diaspora Kashmiri, whose parents do not have an existing certificate of permanent residence, to obtain domicile without living in the region for 15 years or serving the Indian government for 10 years. Effectively the child of an Indian citizen is eligible, even if the child has never lived in Kashmir, but the child of a diasporic Kashmiri may not be eligible if the parent does not possess an existing certificate of residence.

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Despite the Indian state being overwhelmed with an economic collapse, migrant labour crisis and a pandemic, the desire to ‘conquer’ Kashmir has been funneled with stringent and virulent zeal. It drives home the message to the people of Kashmir that nothing, not even a medical emergency, can prevent the Indian state from doing what it wants to do in Kashmir.

Violation of Geneva Convention

The rules do not merely grant Indians a right of residence in Kashmir. They also engineer a situation where Kashmiris must submit certificates of permanent residence for verification of domicile if Kashmiris want the jobs where a domicile certificate is now required. The certificate of permanent residence was a constitutionally valid document and has been held by numerous judgments to be a ‘conclusive proof of residence’. Under the new rules it merely carries evidentiary value for residence. Therefore, if a Kashmiri fails to meet the new criteria, whether by malice/manipulation or by design of the new rules, the revocation of residency rights will inevitably lead to forcible transfer out of Kashmir in search of shelter and employment. All these initiatives have sparked fears of demographic change, militarised settlements, dispossession and alienation of land in Kashmir. The forcible transfers of population may qualify as a war crime under the Rome Statute of the International Criminal Court as well as a grave breach of the Fourth Geneva Convention.

From ‘State Subjects’ to ‘Permanent Residents’ to ‘Domiciles’

The changes to J&K’s residency laws are an erasure of Kashmir’s history as a Princely state, independent of India, and a project in creating homogeneity – so that there is no legal difference between a Kashmiri and an Indian citizen. Kashmiris were once the State- Subjects of a Princely State, a sovereign entity that was not formally/directly a part of British India. Under questionable circumstances,110 we were then made Permanent Residents of an autonomous state under Indian admin- istration, pending a plebiscite. Today we are being made domiciles of a Union territory, without our consent.

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Domicile law and NRC/CAA

The designation of ‘domicile’ is a recognition of being a permanent resident in that jurisdiction. J&K’s Permanent Resident Certificate already establishes this statutory test for residence. Therefore, it makes no sense to ask people who are already recognised as permanent residents to now obtain a certificate of domicile. This appears to be a circular exercise of re-verifi- cation of permanent residents in many ways like the controversial NRC/CAA exercise which has already seen hundreds of thousands of people being rendered stateless after failing to satisfy the criteria for documentation. This is not because they are illegal residents. Most have lived in India for decades and many were even born in India. This is because the requirement for the most destitute and vulnerable- the homeless, the millions living in starvation - to even own documents to prove their citizenship is too onerous a requirement.

Legislative History

It is quite ironic how some sections of Kashmiri Pandits have welcomed111 this legislative development when the existing arrangement of ‘permanent residents’ was initially made because of their agitation and specifically for the protection of their interests. The historical background to the need to make a distinction between permanent and non-permanent residents can be traced back to a decades long agitation by Kashmiri Pandits against the hiring of Punjabis in the state administration, which eventually led to a 1927 law promulgated by Maharaja Hari Singh. The 1927 notification112 sought to provide certain privileges to permanent residents, especially in the purchase of land and employment in J&K. The protection of the law was mostly intended for non-Muslims of the region because Muslims were not part of the popular imagination of reform. The Dogras had essentially built a Hindu state where the nature of governance and reform were predominantly Brahmanical.

Article 35A and 1954 Presidential Order

In 1954, through a Presidential Order, Article 35A113 of the Indian constitution recognised the legislature of Indian-admin- istered Kashmir to define the state’s ‘permanent residents’ and what distinguishes them. All identified residents are issued a permanent resident certificate, which entitles them to special benefits related to employment, scholarships and other privi- leges. But the biggest advantage for permanent residents is that only they have the right to own and, therefore, buy, property in the state. All those who were living in the state as of May 14, 1954, when the law came into effect; and those who have lived in the state for 10 years anytime since, are counted as permanent residents.

Section 6 Constitution of J&K

When the Constitution of J&K was passed, Part III Section 6114 of the Constitution of J&K retained the power to define ‘permanent residents’ with the state. It is important to note that the Constituent Assembly of J&K was not set up by a sanc- tion of the Indian Constitution115 or of the Government of India. It was set up by the State itself acting independently of both, under the Maharaja’s Proclamation of May 1, 1951, on the advice of Sheikh Abdullah. There is no provision in the Indian Constitution under which the Constitution of J&K can cease to exist except with the consent and concurrence of the Constituent Assembly of the state.

Therefore, legally speaking, Section 6 will still apply even if Article 35A ceases to exist because Section 6 does not derive its validity from Article 35A. And while we are on this point, Indians must be reminded that Article 35A, like Article 370, is the representative of an agreement between the governments of Kashmir and India. Article 370 was the result of the In- strument of Accession and Article 35A represents the Delhi Agreement116 of 1952 between the leaders of Kashmir and the .

The only question then is this - What purpose does Article 35A serve in the Constitution of India when this position is al- ready covered in Section 6 of the Constitution of J&K? The answer to this is that Article 35A was meant to guard against a challenge in an Indian court against the protections under the Constitution of J&K. In that sense, Article 35A was meant to bind India’s legal machinery from interference in a right that the Constitution of Kashmir has retained for the state itself.

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Israel’s Revocation of Residency for Palestinians

It is relevant to mention that since 1995, even Israel has been escalating the use of residency revocation as a punitive mea- sure when the Israeli Interior Ministry started reinterpreting the 1952 Law of Entry. In 1952 Israel enacted its own Nation- ality law and repealed the Palestine Citizenship Order of 1925. The revocation of residency forms part of a widespread and systematic policy to transfer the protected Palestinian population, it may amount to a crime against humanity under Article 7 of the Rome Statute. Israel uses the following 3 discriminatory117 and illegal criteria to forcibly transfer Palestinians -

1. Living abroad for an extended period118.

2. Based on a 1995 High Court judgment 119, Palestinians need to establish that their ‘centre of life’120 is in Jerusalem in order to maintain residency rights.

3. Accused of breaching ‘allegiance’ or ‘minimum loyalty’ to Israel. In 2006, this provision was first used against 4 Hamas members121 elected to the Palestinian Legislative Council. Customary International humanitarian law explic- itly forbids122 the occupier from demanding the allegiance of an occupied population.

A reminder of deceit

For Kashmir, this is just another reminder that the Indian government can alter its position at any point to suit the circum- stances- Prime Minister Modi had given an assurance to123 a delegation of members of a pro-India political group that inter- ests of J&K residents would be protected in government jobs and land laws. However, by these changes, all eligible Indians can compete against J&K residents for jobs and benefits indicating how much respect the Indian Prime Minister has for pro-India politicians, as well as how much he values his own words.

Effects of the New Domicile Law

1. Prior to the ‘Jammu & Kashmir Reorganization Order, 2020’ a total of 480,000124 Grade A to D government jobs were available only for domiciles but the new arrangement opens the field for anyone that meets the criteria without taking the consent of the people of Kashmir. While earlier a total of 480,000 government jobs were only for perma- nent residents, the new law opens the field for any Indian citizen who has been living in the state for a certain period. This is especially disconcerting at a time when the 2016 Economic Survey Report125 had pegged a quarter of J&K’s population between 18 and 29 as unemployed.

2. According to a reply by India’s Ministry of Home Affairs to a parliamentary panel on February 18, 2020, there are over 84,000 vacancies in J&K of which 7,552 vacancies are at the gazetted level. So effectively there are only 7500 gazetted jobs for a population with 25% unemployment in the youth and now they are adding at least 1.5 million people to the competition.

3. Further, only 30% of land in Kashmir is habitable and fit for cultivation. Already as admitted by the Mehbooba Mufti government – 4 lakh kanals, or 50,000 acres, or 20,000 hectares of land are under occupation of the Indian army. So, there is very little habitable land to go around for the new domiciles without deforestation in Kashmir. The unplanned influx of Indians can cause an irreparable impact on the ecology and livelihood of the people of Kashmir.

The diminution of our rights is set to increase the levels of unemployment126 as well as hasten the disenfranchisement of Kashmiris while engineering demographic changes. Without domicile status, Kashmiris cannot obtain work in most sectors of employment. While the rules are silent on this aspect, there are fears that through incremental displacement of rights, Kashmiris could also lose benefits of welfare schemes for food, health care, children, the elderly and people with disabilities.

An Erasure of Kashmir’s History

These changes are an erasure of Kashmir’s history as a Princely state, independent of India, and a project in creating homo- geneity – so that there is no legal difference in a Kashmiri and an Indian citizen who has lived in Kashmir for a specified

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KASHMIR READING ROOM YEARLY REPORT 2019 - 20 51 period. Kashmiris were once the State- Subjects of a Princely State. We were then made Permanent Residents of an autono- mous state. Today we are being made domiciles of a Union territory, without our consent. Assessing from the developments taking place it is quite likely that the Kashmiri landscape will be seeded with predatory militarised settlements in a hege- monic fashion blatantly similar to Palestine. The implications can only be calamitous. The threat of demographic change, loss of livelihood and increased competition for scarce resources is bound to electrify an already incensed population. In any sensible democracy this situation would be alarming but authoritarian and xenophobic actions seen over the last year suggest that Modi’s India is neither sensible nor democratic.

Mirza Saaib Bég is a Kashmiri lawyer and an alumnus of NALSAR University of Law. He is currently in the UK to pursue a Master’s in Public Policy at the Blavatnik School of Government, University of Oxford as a Weidenfeld- Hoffman scholar.

Parts of this article have first appeared in the Wire at https://thewire.in/rights/kashmir-domicile-law and the Polis Project at https://www.thepolisproject.com/with-india-changing-domicile-law-kashmirs-indigenous-population-faces-risk-of-dis- possession-possible-war-crime/#.XxREFxLhVLM.

END NOTES

99. Ashiq, P (18 May 2020). ‘J&K notifies amended domicile certificate rules’.The Hindu. Retrieved from https://www.thehindu.com/news/national/ jk-notifies-amended-domicile-certificate-rules/article31617453.ece 100. The Kashmir Wala Staff (18 May 2020). ‘Centre’s J-K domicile law: Fast track process, fine for delays, non-locals eligible’. The Kashmir Walla . Retrieved from https://thekashmirwalla.com/2020/05/centres-j-k-domicile-law-fast-track-process-fine-for-delays-non-locals-eligible/?fbclid=I- wAR1hHU35FiloNYdxEzMQ_QAeu_BtQByagxgc9AIH_ulz7ILljEBC-eTOuVs 101. Javaid, A (1 April 2020). ‘Modi govt redefines J&K domicile rule, extends it to those who have lived in UT for 15 years’.The Print. Retrieved from https://theprint.in/india/modi-govt-redefines-jk-domicile-rule-extends-it-to-those-who-have-lived-in-ut-for-15-yrs/392596/ 102. Popham, P (18 March 2000). ‘The world’s most dangerous place’ is already at war’. The Independent. Retrieved from https://www.independent. co.uk/news/world/asia/the-worlds-most-dangerous-place-is-already-at-war-282458.html 103. Shah, K (9 August 2019). ‘Article 370: The Indians celebrating Kashmir’s new status’. BBC News. Retrieved from https://www.bbc.com/news/ world-asia-india-49250594 104. The , 1952, https://www.satp.org/satporgtp/countries/india/states/jandk/documents/papers/delhi_agreement_1952.htm 105. The Constitution (Application To Jammu And Kashmir) Order, 1954 http://jklaw.nic.in/constitution_jk.pdf 106. Article 35A in The Constitution of India 1949 107. The Constitution of Jammu and Kashmir, 1956. http://jklaw.nic.in/the_constitution_of_jammu_and_kashmir_1956.pdf 108. State Subject Definition Notification dated the 20th April, 1927 Legal Document No 44 https://www.satp.org/satporgtp/countries/india/states/ jandk/documents/actsandordinances/State_Subject_Rules.htm 109. Live Mint Staff (19 May 2020). ‘People from , to get domicile under new rules by J-K admin.’ Live Mint . Retrieved from https://www.livemint.com/politics/policy/people-from-west-pakistan-valmikis-to-get-domicile-under-new-rules-by-j-k-admin-11589851163094. html 110. Javaid, A (3 April 2020). ‘What new J&K domicile rule is and how it impacts residents of the union territory’, The Print. Retrieved from https:// .in/theprint-essential/what-new-jk-domicile-rule-is-and-how-it-impacts-residents-of-the-union-territory/394038/ 111. Beg, S.M (23 September 2019). ‘Politics of cowardice’, TRT World. Retrieved from https://www.trtworld.com/opinion/india-s-politics-of-cow- ardice-misguide-misinform-and-mislead-30044 112. Ashiq, P (22 May 2020). ‘Kashmiri Pandits welcome amended domicile laws’. The Hindu. Retrieved from https://www.thehindu.com/news/na- tional/kashmiri-pandits-welcome-amended-domicile-laws/article31645649.ece

113. State Subject Definition Notification date the 20th April, 1927 Legal Document No.44 https://www.satp.org/satporgtp/countries/india/states/ jandk/documents/actsandordinances/State_Subject_Rules.htm

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114. Article 35A in The Constitution of India, 1949 115. The Constitution of Jammu and Kashmir, 1956 http://jklaw.nic.in/the_constitution_of_jammu_and_kashmir_1956.pdf 116. Noorani, A.G (19 August 2017). ‘Threat to Kashmir’s Existence’. . Retrieved from https://www.greaterkashmir.com/news/ opinion/gk-exclusive-threat-to-kashmirs-existence/ 117. The Delhi Agreement, 1952 https://www.satp.org/satporgtp/countries/india/states/jandk/documents/papers/delhi_agreement_1952.htm 118. Al Haq (3 July 2017). ‘Residency Revocation: Israel’s Forcible Transfer of Palestinians from Jerusalem’. Retrieved from http://www.alhaq. org/advocacy/6331.html 119. Human Rights Watch. ‘Israel: Jerusalem Palestinians Stripped of Status’ https://www.hrw.org/news/2017/08/08/israel-jerusalem-palestin- ians-stripped-status 120. Translation from Hebrew by Hamoked - Judgment of Supreme Court, May 9, 1988, June 5, 1988 http://www.hamoked.org/files/2010/1430_ eng.pdf 121. Human Rights Watch. ‘Israel: Jerusalem Palestinians Stripped of Status’ https://www.hrw.org/news/2017/08/08/israel-jerusalem-palestin- ians-stripped-status 122. Ministry of Foreign Affairs, ‘Removal of Jerusalem residency of four Hamas representatives: Legal background’ https://mfa.gov.il/MFA/ AboutIsrael/State/Law/Pages/Removal_Jerusalem_residency_Hamas_representatives_28-Jun-2010.aspx 123. Customary International Law, Rule 130: Transfer of Own Civilian Population into Occupied Territory https://ihl-databases.icrc.org/custom- ary-ihl/eng/docs/v1_rul_rule130 124. Bukhari, F (15 March 2020). ‘PM assures restoration of Statehood, domicile status to J & K’. . Retrieved from https://www. dailyexcelsior.com/pm-assures-restoration-of-statehood-domicile-status-to-jk/ 125. Ali, M (22 June 2016). ‘Of 4.8 lakh Govt employees, 1.08 lakh belong to reserved categories’. Greater Kashmir. Retrieved from https://www. greaterkashmir.com/news/kashmir/of-4-8-lakh-govt-employees-1-08-lakh-belong-to-reserved-categories/ 126. Government of J&K, Directorate Of Economics & Statistics, ‘Economic Survey, 2016’ http://ecostatjk.nic.in/ecosurvey/Economic%20Sur- vey%202016%20PDF.pdf 127. Beigh, U (8 April 2020). ‘Will New Delhi revisit its decision of domicile change in J&K?’. Moneycontrol. Retrieved from https://www.mon- eycontrol.com/news/kashmir/politics-will-new-delhi-revisit-its-decision-of-domicile-change-in-jk-5120591.html

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The Constitutional Courts and Kashmir

Rights dependent on the goodwill of the Courts can never be secure

Saranga Ugalmugle and Clifton D’ Rozario

The World Justice Project127 ranked India in the 69th position in the Rule of Law Index128 for the year 2020. India’s consis- tently low ranking is just one indicator of how the Rule of Law is gutted in the country. While this is the situation in India at large, Kashmir, a conflict zone, functions under an almost complete suspension of democracy and the rule of law. Kashmir is known for the impunity with which human rights abuses occur therein- more particularly, by way of illegal detentions of minors as well as adults, numerous cases of alleged rape and torture by the armed forces, and various instances of de- struction of homes and properties of families by the J&K Police and the armed forces. Besides these patterns of abuse by the armed forces, the Indian state employs other methods to exert its control over the valley - the arbitrary and indefinite curfews which restrict the right to movement, the communication blockades and blinding of protestors by way of reprisals carried out by the barrels of pellet-firing guns. The people of Kashmir are denied access to justice due to abusive security laws which provide impunity to the armed forces stationed therein and almost nonexistent accountability of the Indian state. To make the situation worse, the judiciary appears to have given carte blanche to the executive by completely abdicating its responsibility, as a protector of the rights of citizens while keeping a check on the excesses of the state.

Kashmir has been under a year-long lockdown since August 5, 2019, initially brought about due to forceful integration of the valley with India, and later extended owing to the COVID-19 pandemic. There has been a slew of litigation from Kashmir since August 2019 with numerous Habeas Corpus petitions being filed in the J&K High Court, and petitions challenging the communication blockade, the violation of rights of children in the valley due to arbitrary detentions and the orders of the amendment to Article 370, etc., in Supreme Court of India. This has been detailed in the report titled ‘Imprisoned Resis- tance: 5th August and its aftermath’129, the fact-finding mission of which the authors of this piece were participants. Here, we look at the status of some of these cases, one year after the abrogation of the special status of J&K, as well as some of the new matters filed before the High Court of J&K and the Supreme Court of India.

An overview of the last few years about how the Constitutional Courts have handled the matters which directly challenge the policy of the current political regime in India shows that there has been judicial evasion which effectively leads to a decision in favour of the government. In this piece, we argue - by briefly analysing some of the important cases concerning Kashmir arising since August 5, 2019 - that there appears to be a similar pattern in which challenges arising from Kashmir have been handled. Despite serious concerns of blatant suspension of fundamental rights of the entire population of the re- gion of Kashmir, the Courts have often delayed and effectively denied justice. Though the solution to the issue of Kashmir’s political status, lies with people’s movements, these experiences with the Constitutional Courts of the land, whether in the form of judicial avoidance, delay or lack of discernible judicial standards to scrutinize claims of security threats, only affirm that the rights, dependent on the goodwill of the courts, can never be secure.

J&K High Court

Over 600 Habeas Corpus petitions have been filed before the J&K High Court at Srinagar since August 6, 2019. As per the Rules formulated by the J&K High Court, Habeas Corpus petitions ought to be decided within 14 days of filing the peti- tion. However, the Court appears to have shown no sense of urgency on this front. A representation130 made the Executive Committee members of the J&K High Court Bar Association, Srinagar dated June 25, 2020 to the Supreme Court of India stated that “since August 5, 2019, nearly 13,000 people from Kashmir valley were arrested u/s 107/151 of the J&K CrPC and thereafter hundreds were booked under PSA and are lodged in various jailed of India.” One of those detained under the Public Safety Act (PSA)131, includes the J&K Bar Association President, Senior Advocate Mian Abdul Qayoom, who is lan- guishing at the Central Jail, Tihar. The said representation also points out that 99% of the 600 plus Habeas Corpus Petitions filed before the High Court since August 2019 have not yet been decided by it.

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On February 7, 2020,132 a Single Bench of the High Court dismissed a Habeas Corpus Petition which challenged the preven- tive detention of the aforesaid Advocate Mian Abdul Qayoom. In doing so the Court observed that preventive detention is based on “suspicion or anticipation and not on proof”. Further, the court also stated that the responsibility for security of the State, or maintenance of public order, rests on the Executive. While this proposition cannot be controverted, what happens when the executive has a carte blanche in matters of preventive detention? The court also made a rather absurd comment stating that “A Court is not a proper forum to scrutinize the merits of administrative decisions to detain a person.” This begs the question, what then is a proper forum to impose checks on the administrative decisions?

The said order of dismissal was further challenged before a Division Bench. On May 4, 2020,133the Division Bench had to adjourn this matter due to poor internet connectivity. The valley, as is known, has been under a communication blockade for months with no internet connection initially, which was only later restored to 2G connection. When the Supreme Court of India heard a petition seeking restoration of 4G connections in Kashmir, the Central government submitted before it that 4G connections may be used for propagating “modern terrorism”134. The lack of fast and efficient connectivity, however, has been hampering access to justice. In any case, eventually, the Division Bench upheld the detention of the 70-year-old ailing Senior Advocate, observing that the ideology professed by Qayoom had an ‘effect’ and ‘potential’ of nurturing a ‘tendency of disturbance in public order’. This bizarre approach of the High Court in deciding whether an order of detention under PSA is valid is baffling, to say the least.

The foregoing narration of how the detention order of a Senior Advocate and President of the Bar Association of the High Court is being handled leaves little to the imagination when the question arises as to how the thousands of other detentions in the valley are being handled, with arguably much less legal support.

The High Court of J&K has decided many other important matters in the last 11 months. In October 2019 itself, the Court declared criminalization of beggary to be unconstitutional135 and struck down the provisions of the Jammu & Kashmir Pre- vention of Beggary Act, 1960, and the Jammu & Kashmir Prevention of Beggary Rules, 1964. In April 2020, the HC took Suo moto cognizance136 of the plight of victims in domestic violence cases amidst lockdown and issued notices seeking action taken report. Further, on April 3, 2020 the Court also passed many directions137 for protection of Health Workers and sought compliance of Lockdown Guidelines. On March 11, 2020, the J&K HC dismissed138 a PIL seeking prohibition of the use of pellet guns on civilian protests. The Court stated that “It is manifest that so long as there is violence by unruly mobs, use of force is inevitable” and that whether the use of force is excessive or not, cannot be decided by the Constitutional Court.

The High Court has been proactive in taking up and deciding matters which do not hinder the central government’s brutal control mechanism employed to curb the civil and political rights of the people of the valley. However, when it comes to matters concerning illegal and arbitrary detention orders or the use of blinding pellet guns, the same proactiveness and commitment towards the protection of Constitutional and human rights of citizens against the excesses of the State, seem alarmingly absent.

Supreme Court of India and Kashmir

The challenge to the amendment of Article 370 and other related cases:

At the very outset, it must be pointed out that the numerous cases challenging the de-operationalisation of Article 370 of the Constitution of India and the reorganization of the State of J&K remain pending. The only development in these matters was on the question of whether the cases had to be referred to a larger bench. Incidentally, though some petitioners have asked that the case be sent to a larger bench, most petitioners and the Centre are opposed to it. The judgment was rendered on March 2, 2020 in the case of Shah Faesal,139 wherein the Court considered whether the issue of the de-operationalisation of Article 370 through the two Presidential Orders would have to be referred to a larger bench on account of two allegedly conflicting decisions of the Court in Sampath Prakash and Prem Nath Kaul. In holding that the two decisions are not in con- flict, the 5-judge bench declined to refer the matter to a larger bench. The main issue of the validity of the latest amendment to Article 370 remains sub-judice.

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Habeas Corpus cases:

● Insofar as the Habeas Corpus cases are concerned, case of Mohammad Aleem Syed140 was disposed of on November 19, 2019 because the petitioner sought to withdraw it as infructuous. The petitioner, in that case, had approached the Supreme Court since he was unable to contact his family since August 4, 2019. The Supreme Court, on August 28, 2019, ‘permitted’ him to travel to Kashmir to meet his parents, ensure their welfare and report back to the court. Consequently, Syed visited his parents. On the date of the subsequent hearing on September 5, 2019, he orally stated that he wanted to lead a ‘quiet and uneventful life’ as he handed over an affidavit to the judges in a sealed envelope detailing his visit.

● In another matter, CPM General Secretary, Sitaram Yechury had filed a Habeas Corpus case regarding his party col- league and former MLA Mohammed Yusuf Tarigami and he too was ‘permitted’ to visit Mohammed Yusuf Tarigami and file an affidavit before the Court. The Habeas Corpus case of Sitaram Yechury141 was last heard on January 28, 2020 wherein the Court directed the Registry to list the matter before an appropriate bench - the matter has not been listed since.

It must be noted that citizens in India do not need a ‘permission’ of the Court to travel. The executive on the other hand, does need to justify to the Court, its actions of detaining the citizens. The writ of Habeas Corpus, which was held to be ‘the first security of civil liberty’142, requires the law enforcers to produce a person, who may be untraceable or under detention, before the Court. However, in both these cases, neither was the detenu directed to be produced nor was the State required to justify such detention. Instead, in an order that can only be seen as an abdication of its constitutional duty, the Supreme Court ‘permitted’ the petitioners to travel to Kashmir.

Incidentally, in the case of Sitaram Yechury, while according him such permission, the Supreme Court prohibited143 Yechury from indulging in any other ‘act, omission or commission’, except - to meet his friend and colleague party member and to enquire about his welfare and health condition. Not satisfied with merely bailing on its Constitutional obligations towards the detenus, the Court went one step forward and, for good measure, thwarted the fundamental rights of the very persons who had approached the Court.

The echoes of the Supreme Court’s moment of infamy in 1976 in the ADM Jabalpur case, where it declared that even the right to life could be suspended during an emergency, were heard when the Court dealt with these cases of Habeas Corpus of Kashmir. Notably, this time around, there isn’t even a declared emergency in Kashmir. While specifically overruling the judgment in ADM Jabalpur in the K.S. Puttaswamy144 case, the Supreme Court had held that the ADM Jabalpur case, “was an aberration in the constitutional jurisprudence of our country” and it was being overruled with “..the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection.” The grave, however, appears to have been a shallow one - the ‘resurrection’ appears to have occurred sooner than expected.

Violation of child rights:

In our report145, we have detailed the instances of widespread violence, arrests, and torture of young boys that came to our attention and also pointed out that a petition on this aspect, of Enakshi Ganguly146, was pending before the Supreme Court. After the release of the Report, this case was taken up by the Supreme Court, which on November 5, 2019, directed the Ju- venile Justice Committee to send a second report expeditiously. In its final Order dated December 13, 2019, the Court stated that the Juvenile Justice Committee of the High Court made an independent examination that there were no excesses against juveniles. The Court directed that if there are individual cases of illegal detention, the petitioners are at liberty to approach the appropriate forum for redressal. The Court directed the J&K Government to take the services of experts from Institute of Mental Health and Neurosciences (IMHANS) and the Child and Adolescent Mental Health Centre in Sher-e-Kashmir Hospital to provide help to affected children on the recommendation of the medical officer.

Strikingly, while the matter was being heard before the Supreme Court, the lawyer for the petitioner had argued that “Public Safety Act does not apply to minors. How can they be detained without FIR?”. A judge of the said bench interjected the lawyer and remarked, ““But they were released the same day. Are you aware what 15 year old are capable of doing these

SECTION 2 - LAW & POLICY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 56 days”.147 The rampant illegal and arbitrary detentions of minors in Kashmir has not been taken as seriously, often with a prejudice that the minors indulge in ‘stone pelting’ on the Indian forces and thus deserve to be detained by the executive. A matter of concern however remains, whether the Constitutional Courts can afford to neglect the obvious illegality and forego the urgent necessity to intervene in issues of such serious violations of fundamental rights and statutory position on detention of minors.

Internet/telephone ban:

Internet and telecommunication services were completely suspended, and a lockdown was imposed in Kashmir in antici- pation of protests the amendment of Article 370 in August 2019. In light of these moves, Anuradha Bhasin, the Executive Editor of Kashmir Times newspaper, moved the Supreme Court seeking to lift the information blockade in Kashmir valley and restore the fundamental rights of its residents. The Court had to decide whether the government had the authority to impose the said lockdown and communication ban; if so, whether the infringing of fundamental rights was necessary? During the hearings, whilst refusing any interim relief, the Court firstly accepted an assurance from the Attorney General that the issue would be settled soon. Secondly, as the order dated September 16, 2019 reveals, the Court acquiesced with the State’s notions of national interest and internal security, marking these as riders even in any decision to restore normal life in Kashmir. Later in the hearing, when the state was asked by the Court to reveal the orders under which the restrictions were imposed, the Solicitor General (SG) claimed that revealing the order to the petitioner would hinder national security. The Court, instead of condemning such lack of transparency of the state, allowed the SG to file an affidavit explaining the reason for such ‘privilege’.

Eventually, after five months of almost complete suspension of communication in the Kashmir valley, the Court delivered its judgment on January 10, 2020. The Apex Court held that an order suspending internet services indefinitely is impermissi- ble, but may be valid for a temporary duration only, adhering to standards of proportionality, subject to judicial review. The court laid down many important principles in the said judgment. Though a fine job of summarising the law on this question was done, the Court refused to decide the fundamental question before it - the constitutionality and legality of the order of internet ban in the valley - and left the decision to be taken by the state. During the intervening period between the filing of this case and its disposal, the people in Kashmir suffered the longest internet shutdown in a democracy.

A review committee was eventually set up which led to gradual but partial restoration of communication services in the valley. It was around March 2020, coinciding with the outbreak of the COVID pandemic, that 2G internet was finally made available in Kashmir (but 4G continued to remain banned). This was challenged in the Supreme Court in Foundation for Media Professionals case on the ground that in the existing COVID-19 situation, when there is a national lockdown, the restrictions imposed on the residents of the entire Union Territory of J&K impacts their right to health, right to education, right to business and right to freedom of speech and expression. It was argued by the petitioners therein that access to the internet acquires greater importance under the prevailing circumstances in the country relating to the pandemic since the fulfillment of the right to health is dependent on the availability of effective and speedy internet. The Government opposed the petition tooth and nail, even as the petitioners argued that there was no evidence connecting internet restrictions and quelling the spread of propaganda, and that there were a host of other, less-restrictive alternatives than a blanket internet ban.

On May 11, 20202, the Supreme Court, in its judgment, examined this issue with the view that the ‘fundamental rights’ of citizens need to be ‘balanced with national security’ concerns when necessary. The Court took cognizance of the fact that, the order banning 4G internet, does not provide any reasons to reflect that all the districts of the Union Territory of J&K require the imposition of such restrictions. Yet, recognizing that Kashmir has been plagued with militancy, the Court refused to set aside the orders and merely reiterated that “ the authorities are required to pass orders concerning only those areas, where there is an absolute necessity of such restrictions to be imposed…”. The Court ordered for another Special Committee to be set up to decide the matter.

The judgments in Anuradha Bhasin and Foundation for Media Professionals follow the same pattern of summarising the legal position and laying down important principles regarding access to the internet, whilst refraining from granting any relief to the people of Kashmir. Yet again the Court stops short of applying the settled law and principles to the factual ma- trix of Kashmir and instead constitutes a Special Committee to perform the task. There is a fundamental problem when the Court accepts security threats as qualifiers to the fundamental rights of persons in Kashmir. In doing so, the Court effectively

SECTION 2 - LAW & POLICY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 57 approves the State’s version of diluted citizenship for the people of Kashmir. Holding that the arguments of the petitioners would warrant serious consideration in ‘ordinary times’ but not when the ‘outside forces are trying to infiltrate the borders and destabilize the integrity of the nation’, only further erodes the belief in the Constitutional Court as the protector against State excesses.

Supreme Court: Other matters concerning India

Over the past year, the Supreme Court has taken up and passed judgments in crucial and controversial matters, including demolition case148 which was heard over continuous days from August 6, 2019 to October 16, 2019, in what is the second-longest argument in the history of the Supreme Court. A Constitution Bench also passed its verdict in the Sa- barimala matter,149 referring to a larger bench, the review petitions filed against the right of women to enter the Sabarimala Temple, among other questions. The Court in other matters held that the came under the ambit of the Right to Information Act, 2005150, and settled interpretation of section 24(2) of the Right to Fair Compensation and Trans- parency in Land Acquisition, Rehabilitation and Resettlement Act, 2013151 besides cementing the equal rights of female officers in the Armed Forces of the country.152

However, in matters concerning direct challenge to the policy of the Modi government, there appears to be undue delay in deciding cases and pronouncing judgements. The readers will recall the fateful ‘demonetisation’ which was unleashed on November 8, 2016 and challenged thereafter in a slew of matters before the Supreme Court, which was then referred to a Constitutional Bench on December 16, 2016. These matters are yet to be taken up. Demonetisation was not the first mat- ter challenging the Modi government’s policy moves. Several other crucial matters such as challenges to the Citizenship Amendment Act, 2019 and electoral bonds issue remain pending, just like the challenges to the amendment of Article 370 and related cases. Legal scholar Gautam Bhatia argues that this is ‘judicial evasion’ where courts avoid deciding a thorny and time-sensitive question, and yet this very avoidance is, effectively, a decision in favor of the government, given that the government benefits from the status quo being maintained. Needless to add, a necessary consequence of this evasion is that the very decision becomes a fait accompli, and a decision in the future, if at all, is inconsequential. This also hits the public perception of an independent judiciary, especially when the Court fails to take up matters on which public opinion is sharply divided. There is now a noticeable trend of the Supreme Court of not taking up and deciding matters, especially those that have far-reaching impacts on the rights of people.

Conclusion

At the time of the framing of the Constitution, when Article 32 (numbered as Article 25 in the draft Constitution) was being debated,153Ambedkar stated that: “If I was asked to name any particular article in this Constitution as the most important - an article without which this Constitution would be a nullity - I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it”. The reason being, that alongside the guarantee of fundamental rights, Article 32 provided a remedy for its enforcement. The Supreme Court once observed154: “The Constitutional Courts are entrusted with the critical task of expounding the provisions of the Constitution and further while carrying out this essential function, they are duty-bound to ensure and preserve the rights and liberties of the citizens without disturbing the very fun- damental principles which form the foundational base of the Constitution.” The objective exercise of this power is necessary since it can have the effect of legitimizing government action as opposed to protecting the Constitution against any undue encroachment by the government. Invoking this duty, several petitions have been filed before the Supreme Court post Au- gust 5, with the expectation that the Supreme Court would inquire into the actions of the Government and when necessary, the Court would declare the same as unconstitutional and void. Unfortunately, this was not to be.

The foregoing overview of how the High Court of J&K and the Supreme Court of India have handled the pressing concerns of violations of fundamental rights and suspension of democratic principles in Kashmir since August 2019, is disappointing to say the very least. It would suffice to say that the Constitutional Courts have failed to discharge their judicial duty. Article 32 guarantees remedy at the hands of the Supreme Court in the event of a violation of fundamental rights. It has been long held that the fundamental right to move the Supreme Court under this provision constitutes the cornerstone of the democrat- ic edifice raised by the Constitution. The Supreme Court should regard itself ‘as the protector and guarantor of fundamental rights’, and it should declare that “it cannot, consistent with the responsibility laid upon it, refuse to entertain applications seeking protection against infringements of such rights”.155

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There is a rather alarming outcome when the Court, after concluding that there is a violation of rights, in deference to the Government’s claims of security threats, creates an exception to the protection of fundamental rights. The message sent out is that the Government is well within its right to circumscribe the enjoyment of rights, on its sole assessment of security threats, and no judicial review of such actions by the state can be brooked. Further, it appears that the rights of the people of Kashmir are determined purely on the apprehension of the actions of certain persons in Kashmir, and Pakistan, and not based on the Constitution of India. In effect, there is judicial acceptance of the government sponsored notion that Kashmiris are not entitled to equal protection of the law even after the rhetoric of ‘one-country-one-Constitution’ accompanied the de-operationalisation of Article 370. When there are no discernible judicial standards to scrutinize claims of security threats, how is it conscionable for the same to be used to circumscribe rights? This is even more alarming considering that the very violent acts, which the internet ban purported to thwart, took place when there were restrictions on the internet! Clearly, the perceived security threat by the Government overrides any logic, let alone judicial review.

In dealing with people’s rights in conflict areas (besides Kashmir) the Supreme Court, in the past, at the very least, has rec- ognised the need for judicial review156 of security threat claims and issued cautions. The Apex Court has however failed to live up to its once known liberal image - which gave paramount importance to fundamental rights of people and protection of democracy - when it comes to matters concerning Kashmir. This can be observed not just post August 5, 2019, but for the last 70 years. The experience in the Constitutional Courts, post August 5, has notably been of delay or failure to act even when violations are acknowledged and accepted. Constitutional safeguards appear to be suspended in exceptional cir- cumstances of Kashmir. The so-called extraordinary circumstances are compelling enough, even for the Supreme Court to judicially approve the unequal protection of the rights of people of Kashmir. Effectively, the fundamental right to a judicial remedy under Article 32 is unavailable to people of Kashmir given the “compelling circumstances of cross-border terror- ism”, even though there has been no proclamation of Emergency yet by the Indian Government.

Why, then, are people approaching the Constitutional Courts? What is it that they expect? Is there an inherent belief that they will be victorious in their cases? These questions are especially pertinent concerning the public interest litigations challenging the amendment of Article 370 and the bifurcation of J&K while taking away Kashmir’s special status. It can, however, be said, that this litigation has been engaged in without much participation of the people in Kashmir who resist the Central Government’s decisions and have different aspirations for Kashmir. This also assumes relevance when one seeks to assess the impact of the outcome of these litigations on the aspirations of the Kashmiri people. History has shown that legal victories do not necessarily translate into social change for the disempowered and oppressed sections of society. Rights, dependent on the goodwill of the Courts, can never be secure. An analysis of the struggles of the African-American communities in the United States reveals that the famed ‘Brown v. The Board of Education of Topeka’ in 1954 did not bring about integration. Similarly, the judgment in Safai Karamchari Andolan has not abolished manual scavenging nor has the passing of Navtej Singh Johar ensured society’s acceptance and an end to discrimination of same-sex relations. Society must change for the courts to follow suit effectively. In the present times, with shrill hyper-nationalism worn like a badge of honor, barring exceptions, the dominant view in India is one of territorial integrity vis-à-vis Kashmir. The dismantling of the limited protection afforded to the state of J&K in self-governance, territorial integrity, and the collective rights to land and livelihood, was part of the ruling Party’s agenda and manifesto. What the legal challenge to the de-operationalisation of Article 370, in reality, seeks to achieve is a political agenda, which, having learned through the history of the Supreme Court, is a distinct impossibility.

Till the political resolution of the Kashmir conflict is achieved, the excesses of the Indian state would continue to be ques- tioned before the Constitutional Courts of India. One can only hope that the distinction between the political executive and on the qui vive is not eroded to the point of erasure.

Saranga Ugalmugle is an advocate in the High Court of Bombay. She is pursuing LLM from Azim Premji University, Ben- galuru (2020-2021).

Clifton D’ Rozario is an advocate and part of the All India People’s Forum, Bengaluru. Both the authors were part of an eleven-member team that visited Kashmir in September 2019.

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END NOTES

128. World Justice Project (2020). ‘Rule of Law Index’. Retrieved from https://worldjusticeproject.org/sites/default/files/documents/WJP-ROLI-2020- Online_0.pdf.

129. The report relies on eight sectors - constraints on government powers, absence of corruption, open government, fundamental rights, public order and security, regulatory enforcement, and civil and criminal justice - to determine the situation of rule of law in particular countries.

130. (October 2019), ‘Imprisoned Resistance - 5th August and its Aftermath’, Para 6.8. Retrieved from http://www.pucl.org/sites/default/files/reports/ Imprisoned%20Resistance-final%20for%20dissemination.pdf.

131. Zargar, A (27 Jun 2020) ‘99% Habeas Corpus Filed in J&K HC Since August 2019 Pending’. Newsclick. Retrieved from https://www.newsclick. in/99%25-Habeas-Corpus-Filed-Jammu-Kashmir-HC-August-2019-Pending

132. The Jammu & Kashmir Public Safety Act (PSA), 1978

133. Mian Abdul Qayoom v. State of J&K and Ors., Supreme Court of India dated 07.02.2020, WP(Crl) No. 25/2019.

134. Mian Abdul Qayoom v. UT of J&K and Ors, Supreme Court of India, dated 04.05.2020, LPA No.28/2020 in WP (Crl) No.251/2019.

135. Foundation For Media Professionals v. UT of J&K and Anr., Supreme Court of India, reply dated 28.04.2020, WP (C) DIARY No. 10817/2020.

136. Suhail Rashid Bhat v. St. of J&K and Ors., Supreme Court of India dated 25.10.2019; PIL 24/2018

137. In Re: Court on Its Own Motion, Supreme Court of India dated 16.04.2020.

138. Azra Usmail v. UT of J&K, Supreme Court of India dated 03.04.2020; WP(C) PIL no. 4/2020 c/w WP(C) PIL no. 5/2020.

139. J&K HC Bar Association v. UoI, Supreme Court of India dated 11.03.2020; WP(C) (PIL) no.14/2016.

140. Dr. Shah Faesal & Ors. v. Union of India & Anr., Supreme Court of India dated 02.03.2020, WP(C) No. 1099/2019.

141. Mohammad Aleem Syed v. Union of India, Supreme Court of India dated 19.11.2019, WP(Cri) No. 225/2019.

142. Sitaram Yechury v. Union of India, Supreme Court of India dated 28.01.2020, WP (Cri) No. 229/2019.

143. Shafin Jahan vs. Asokan K.M. and Ors., Supreme Court of India dated 08.03.2018, AIR 2018 SC 1933.

144. Sitaram Yechury v. Union of India & Ors., Supreme Court of India dated 28.08.2019, W.P. (Criminal)No. 229/2019.

145. Justice K.S. Puttaswamy vs Union of India, Supreme Court of India dated 24.08.2017, AIR 2017 SC 4161.

146. Supra note 130

147. Enakshi Ganguly v. Union of India, Supreme Court of India, WP(C) No. 1166/2019.

148. Chaudhary, N. (December 13, 2019). ‘SC Accepts JK Juvenile Justice Committee’s Findings Against Allegations Of Illegal Detention Of Children In Kashmir’. LiveLaw. Retrieved from: https://www.livelaw.in/top-stories/sc-accepts-jk-juvenile-justice-committees-findings-that-no-children- are-illegally-detained-in-kashmir-150774”

149. M Siddiq through Lrs v Mahant Suresh Das and Ors., Supreme Court of India dated 09.11.2019, 2020 (1) SCC 1.

150. Kantaru Rajeevaru v Indian Young Lawyers Association, Supreme Court of India dated 14.11.2019, W.P.(C) No.373 of 2006.

151. Central Public Information Officer, Supreme Court of India v. Subhash Agrawal, Supreme Court of India dated 13.11.2019, 2019 (16) SCALE 40.

152. Indore Development Authority Vs. Manoharlal and Ors., Supreme Court of India dated 06.03.2020, MANU/SC/0300/2020.

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153. The Secretary, Ministry of Defence Vs. Babita Puniya and Ors., Supreme Court of India dated 17.02.2020, 2020 (3) SCALE 712 and Union of India and Ors. Vs. Annie Nagaraja and Ors., Supreme Court of India dated 17.03.2020, MANU/SC/0307/2020.

154. Constituent Assembly of India Debates (Proceedings), Vol. VII (9.12.1948).

155. The Government of NCT of Delhi v. Union of India, Supreme Court of India dated 04.07.2019, (2018) 8 SCC 501.

156. Romesh Thappar vs The State Of Madras, Supreme Court of India dated 26.05.1960, AIR 1950 SC 124.

157. Rashid,M. (8 July, 2016)‘ Extra Judicial Killings: Allegation of excessive force by Police or Armed Forces must be thoroughly en- quired into: SC’. Live Law. Retrieved from https://www.livelaw.in/manipur-extra-judicial-killings-allegation-excessive-force-police-armed-forc- es-must-thoroughly-enquired-sc/

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Indian Judiciary’s Apathy to Habeas Corpus Petitions of Kashmiris

Gayathree Devi KT and Sameer Rashid Bhat

Introduction

After hitting its lowest ebb in ADM Jabalpur during the Emergency,157 the Supreme Court of India (hereinafter, referred to as the Court) reinvented itself as a protector of fundamental rights.158 Scholars like Ackerman159 and Mate160 characterize the case-law of the post-emergency Court as a mark of its commitment to be the ‘supreme guardian of the Indian Constitution’. While this characterisation may arguably be true for mainland India, what is clear is that for the people of Jammu & Kashmir (J&K), the Court is anything but a protector or a guardian. For instance, take the Kashmir Lockdown case of January 2020, in which the Court, after repeated deferrals, returned no finding on the legality of the blanket internet and communication lockdown in Kashmir. Instead, it chose to leave it to the government to ‘review’ its decision,161 in what can only be termed as an abdication of its protector or guardian role. As though that was not enough, when faced with this question again in the Kashmir 4G Internet case after five agonizing months, the Court had no qualms reiterating its original deferential stance.162

But the Court’s most egregious renunciation of its role as a protector till now is reflected in how it has been dealing with Habeas Corpus petitions of Kashmiri detenus post August 2019. In a move that reversed the long-standing adjudicatory ap- proach to Habeas Corpus petitions, the Court now relies on a combination of adjournments and rights-stifling extra-consti- tutional reliefs, as shall be described in the next section.163 This is eerily reminiscent of the Court’s failure in ADM Jabalpur to hold the executive to account. One might assume that this deference is peculiar to the Indian Supreme Court. However, unsurprisingly, when it comes to J&K, what is true for the Supreme Court holds good even for the High Court of Jammu & Kashmir (J&K HC). The current piece provides a snapshot of these issues and more.

Habeas Corpus: Supreme Court of India

The Constitution of India, under Articles 32 and 226, confers powers on the Supreme Court of India and High Courts, re- spectively, to issue, inter alia, the writ of Habeas Corpus. ‘Habeas Corpus’ is a Latin phrase that means ‘to have the body’. Put simply, the writ of habeas corpus requires the state to produce the body of the detenu before the court and justify the detention. Therefore, if an individual is illegally detained, any person can approach the Supreme Court (under Article 32) or the High Court (under Article 226) on their behalf for a writ of Habeas Corpus.

That the writ of Habeas Corpus is one of the most fundamental protections guaranteed to an individual against the state and therefore, has priority over all other business of the Court, is established beyond any doubt. Suffice it to say that Habeas Corpus (as the right to move the Court for the enforcement of the fundamental right to life and liberty) cannot be suspended even during an emergency.164

In August 2019, the decision to abolish the special status of J&K was accompanied by the illegal arrests or detentions of thousands of Kashmiris, including activists, businesspersons, leaders from the pro-Indian mainstream political parties, law- yers, journalists and alleged participants in violent protests.165 Naturally, several Habeas Corpus petitions were filed by the friends, relatives and colleagues of the detenus both in the Supreme Court and the J&K HC. The judicial responses to these petitions encapsulate the failure of Indian Constitutional courts to check executive aggrandizement.

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We begin with the first Habeas Corpus petitions that the Supreme Court considered post August 2019. Mohammad Aleem Syed, a law graduate from Jamia Millia Islamia, approached the Court on August 9, 2019 because he could not contact his parents in J&K since August 4. 19 days later, the Court addressed his petition in a peculiar fashion. Instead of asking the government to produce his parents before the judges, it granted Syed ‘permission’ to travel to J&K, visit his parents and after ensuring their well-being, report back to the Court.166 It is unclear why a court-administered permit raj had crept into Habeas Corpus petitions, but it was a clear indication that the big boss was watching. It is unsurprising therefore that Syed reported back on his visit with this plea: ‘I want to live a quiet and uneventful life.’167

Syed’s petition was considered alongside the one filed by Sitaram Yechury of the Communist Party of India challenging the detention of Kashmiri politician and the party’s general secretary Mohammed Yousuf Tarigami. The Court once again responded to Yechury’s Habeas Corpus petition by ‘allowing’ him to meet Tarigami in the place of his detention, instead of asking the government to produce the ‘bodies’ before the courtroom. Crucially, the ‘permit’ given to Yechury came with the following caveats:

On due consideration, we permit the petitioner to travel to Jammu & Kashmir for the aforesaid purpose and for no other purpose. We make it clear that if the petitioner is found to be indulging in any other act, omission or commission save and except what has been indicated above i.e. to meet his friend and colleague party member and to enquire about his welfare and health condition, it will be construed to be a violation of this Court’s order.168

In neither of these two petitions did the Court discuss the merits of the petition, or even issue a notice to the Centre questioning the detentions. Although in light of its earlier precedents, in the normal course, the Court should have assessed the legality of the detention as on the date on which the application was made to the Court,169 it did not venture into the legality of the detention at all and simply ordered that the petitioners were free to meet the detenus at the place of detention. This marked a significant departure in the Court’s approach in the wrong direction for it defeated the purpose of Habeas Corpus petitions to challenge the legal validity of the detentions.

Another case worth considering is the detention of , a mainstream Kashmiri politician, sitting Member of Parliament at the time of his detention, and a former Chief Minister. On September 11, 2019, Rajya Sabha MP Vaiko filed a Habeas Corpus petition challenging Abdullah’s detention. The Court issued a notice to the government 5 days later, on Sep- tember 16. Although Abdullah was originally detained under Section 107 of the Code of Criminal Procedure (CrPC), which allows the executive magistrate to detain on grounds of public order and tranquility, curiously, hours before the September 16, hearing before the Supreme Court, Abdullah was charged under the Public Safety Act 1978 (PSA).170 PSA detention orders can be challenged before the government within 10 days, before approaching the J&K HC.

One would assume that in line with the AK Gopalan precedent, the Supreme Court would have nonetheless considered the legality of Abdullah’s detention as on September 11, the date on which the application was filed. However, in a strange turn of events, the then Chief Justice, Ranjan Gogoi, held on September, 16 that ‘nothing survives’ in the Habeas Corpus petition since PSA charges were brought against Abdullah.171 The Court appeared unperturbed by the underhanded manner in which the government slipped in PSA charges to block Vaiko’s petition, and also had no regard whatsoever to its own precedents on Habeas Corpus.

The way the Court dealt with petitions concerning the detention of the then Chief Minister of J&K, Mehbooba Mufti, also borders on the problematic. On September 5, Mufti’s daughter Sana Iltija Mufti filed a petition (not Habeas Corpus)

SECTION 2 - LAW & POLICY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 63 seeking the Court’s permission to visit her mother in Kashmir. It is telling that the Court was concerned more about curbing her free movement in Srinagar, absurdly questioning her motivations behind wanting to move freely in Srinagar when it’s ‘cold’. The Court’s response to the Habeas Corpus petition filed by Iltija Mufti on February 5, 2020 has also been less than satisfactory, because it was marred by delays. Although the petition was filed on February 5, the notice was issued only on February 25. The petition was subsequently posted for hearing on March 18, 2020, but not taken up since due to the outbreak of the COVID-19 pandemic. In the meantime, on May 5, 2020, Mufti’s detention was extended by 3 months. What is also perturbing is the fact that the Supreme Court required Iltija Mufti to give an undertaking to the effect that she has not filed ‘any other petition before another judicial forum, including the high court, challenging the detention of her mother.’172 Once again, this reflects a disregard for precedents – in this, precedents on the application of res judicata in Habeas Corpus pe- titions. As held by the Supreme Court as early as in 1967, a Habeas Corpus petition under Article 32 would not be barred on the principle of res judicata if a petition for a similar writ under Article 226 of the Constitution before a High Court has been decided.173

Yet another relevant case is the Habeas Corpus petition filed by Sara Abdullah Pilot, sister of former J&K chief minister Omar Abdullah, before the Supreme Court, challenging his PSA detention.174 Like his father, Omar Abdullah was also orig- inally detained under Section 107 of the CrPC. However, on February 4, 2020, he was freshly charged and detained under the PSA. Pilot challenged this on February 10, and the Supreme Court issued a notice to the government on February 14, 2020. However, when it set March 2, 2020 as the date for hearing and Abdullah’s lawyers sought a sooner hearing, Justice Arun Mishra’s remark that since Abdullah already waited for so long, waiting for 15 more days should not make a differ- ence,175 perfectly captures the Supreme Court’s laidback and insensitive attitude towards the post-August 2019 detentions in Kashmir. Further, curiously, Omar Abdullah was released from detention on March 24, 2020. It is unclear what suddenly inspired the government’s confidence in Omar’s ability to restrain his ‘radical ideology’ it complained of barely one month ago176 – if anything, it hints at the government’s interest mala fides in detaining Kashmiri politicians.

Habeas Corpus: Jammu & Kashmir High Court

In relation to the consideration of Habeas Corpus petitions by the High Court of Jammu & Kashmir (J&K HC), the case of Mian Abdul Qayoom, the president of the Kashmir Bar Association, is significant. Qayoom was detained on August 5, 2019, charged under the PSA and moved from one jail to another during which his health steadily deteriorated. Yet, the J&K HC took 9 long months only to dismiss his Habeas Corpus petition and uphold his detention. In February, the single-judge bench that rejected his petition observed, strangely enough, that a court is not the ‘proper forum to scrutinise the merits of admin- istrative decisions to detain a person’. In what can only be regarded as the unbecoming of a constitutional court responsible for enforcing fundamental rights, the J&K HC justified the reliance of preventive detention under PSA on suspicion and not proof, and refused to objectively assess the legality of the detention.177 In another appalling disregard for human rights, particularly the right to freedom of thought, the J&K HC rejected Qayoom’s appeal of the single-judge bench’s decision by asking him to shun ‘secessionist’ ideology.178

Quite unsurprisingly, the appeal against the J&K HC’s order before the Supreme Court was adjourned at its last hearing on July 15, 2020.179 The Court gave the Centre more time to respond regarding the reasons for prolonging detention, even as Qayoom’s health continues to deteriorate. It is telling that almost a year after the detentions, the Courts are still giving time to the government to ‘respond’ although the norm is that Habeas Corpus petitions must be decided immediately or at the earliest. In any case, the J&K HC’s unwillingness or inability to actively secure human rights is evident from the fact the Court has not even decided 1% of the 600 Habeas Corpus petitions filed before it sinceAugust 6, 2019.180

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Conclusion

As we write this piece, news about more adjournments of Habeas Corpus petitions is making it to the headlines. The Su- preme Court just adjourned the Habeas Corpus petition filed against the detention of Congress leader Saifuddin Soz, who, like many others, has been under detention since the fateful day of August 5, 2019. Soz, as claimed in the petition filed by his wife,181 is yet to be informed of his grounds of detention. It’s clearer than ever before that when it comes to J&K and its people, Indian courts find their hands tied by the binding precedents of delay, evasion, abdication and justification. Can the Constitutional Courts in India ever step up to their role of protecting human rights, instead of validating executive aggran- dizement and political ideology? If their apathy to Habeas Corpus petitions of Kashmiris is any indication, the answer is a clear no.

Sameer Rashid Bhat is a 2018 Rhodes Scholar from Kashmir (India) and an incoming PhD candidate at the University of Oxford where he is currently reading for the MSc in Global Governance and Diplomacy. In 2019, Sameer completed the Master of Public Policy (MPP) with a distinction from Oxford’s Blavatnik School of Government. Prior to Oxford, he ob- tained an undergraduate degree in law from Gujarat National Law University, India. Sameer is qualified to practice as a lawyer in India.

Gayathree Devi KT is an MPhil candidate in Public International Law at the University of Oxford where she is researching State responsibility for human rights violations in contested territories. She is the HSA Advocates Law Scholar at the Ox- ford India Centre for Sustainable Development, Somerville College. In 2019, Gayathree obtained the Bachelor of Civil Law (BCL) degree with distinction from Oxford. Before coming to Oxford, she completed BA.LLB (Hons) at Gujarat National Law University, India and is qualified to practice law in India.

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END NOTES

158. ADM Jabalpur v Shivkant Shukla, (1976) 2 SCC 521. 159. Neuborne, B (2003). ‘The Supreme Court of India’. International Journal of Constitutional Law. 1(3) 476, 494. 160. Ackerman, B (2019). Revolutionary Constitutions: Charismatic Leadership and the Rule of Law 73. 161. Mate, M (2018). ‘Constitutional Erosion and the Challenge to Secular Democracy in India’. In Mark Graber, Sanford Levinson, Mark Tushnet (eds). Constitutional Democracy in Crisis? 162. Anuradha Bhasin v Union of India & Ors, Writ Petition (Civil) No 1031/2019. 163. Foundation for Media Professionals v UT of J&K & Anr, (2020) SCC Online SC 453. 164. Noorani, A. G (25 October 2019). ‘Habeas Corpus Law: A Sorry Decline’. Frontline. Retrieved from https://frontline.thehindu.com/cover-story/ article29604480.ece 165. ADM Jabalpur (n 1) (dissenting opinion of Khanna, J). 166. AFP (18 August 2019). ‘About 4,000 people arrested in Kashmir since August 5: govt sources to AFP’. The Hindu. Retrieved from https://www. thehindu.com/news/national/about-4000-people-arrested-in-kashmir-since-august-5-govt-sources-to-afp/article29126566.ece 167. Mohammad Aleem Syed v Union of India, Writ Petition (Criminal) No 225/2019. 168. Sinha, B (26 June 2020). ‘All about the Kashmir petitions and Supreme Court responses.’ Hindustan Times. Retrieved from https://www.hindu- stantimes.com/india-news/all-about-the-kashmir-petitions-and-supreme-court-responses/story-yDTcrHFosyEYKAWNOPOevO.html 169. Sitaram Yechury v Union of India, Writ Petition (Criminal) No 229/2019. 170. AK Gopalan v Government of India, AIR 1966 SC 816. 171. (11 September 2019). ‘Produce Farooq Abdullah in court, Vaiko files plea in Supreme Court’. The Hindu. Retrieved from https://www.thehindu. com/news/national/vaiko-moves-sc-to-produce-farooq-abdullah-in-court-and-set-him-free/article29392304.ece 172. Rajagopal, K (30 September 2019). ‘SC refuses to further entertain plea by Vaiko seeking information on Farooq Abdullah’. The Hindu. Re- trieved from https://www.thehindu.com/news/national/sc-refuses-to-further-entertain-plea-by-vaiko-seeking-information-on-farooq-abdullah/ article29555350.ece 173. PTI (26 February 2020). ‘SC issues notice to J&K on plea challenging ex-CM Mehbooba Mufti’s detention under PSA’. The New Indian Express. Retrieved from https://www.newindianexpress.com/nation/2020/feb/26/sc-issues-notice-to-jk-on-plea-challenging-ex-cm-mehbooba-muftis-de- tention-under-psa-2108782.html 174. Ghulam Sarwar v Union of India and Ors, AIR 1967 SC 1335. 175. Haidar, S (10 February 2020). ‘Omar’s sister challenges PSA charge against him in SC’. The Hindu. Retrieved from https://www.thehindu.com/ news/national/omar-abdullahs-sister-moves-sc-challenging-his-detention-under-psa/article30780833.ece 176. F P Staff (14 February 2020). ‘Omar Abdullah’s detention case: SC sends notice to Jammu and Kashmir admin on sister’s plea challenging PSA charges’ First Post . Retrieved from https://www.firstpost.com/india/omar-abdullahs-detention-case-sc-sends-notice-to-jammu-and-kashmir-ad- min-on-sisters-plea-challenging-psa-charges-8041201.html 177. Ashiq, P (10 February 2020). ‘Omar Abdullah used politics to cover his radical ideology: Public Safety Act dossier’. The Hindu . Retrieved from https://www.thehindu.com/news/national/other-states/omar-abdullah-used-politics-to-cover-his-radical-ideology-public-safety-act-dossier/ article30778476.ece 178. Ganaai, N (7 February 2020). ‘Day After Omar, Mehbooba Booked Under PSA, J&K HC Says “Preventive Detention Not Punitive”’. Outlook India. Retrieved from https://www.outlookindia.com/website/story/india-news-preventive-detention-not-punitive-jk-high-court-dismisses-bar- presidents-plea-for-release/346927 . For more on how the PSA violates human rights, see Office of the UN High Commissioner for Human Rights, ‘Update of the Situation of Human Rights in Indian-Administered Kashmir and Pakistan-Administered Kashmir from May 2018 to April 2019’ (8 July 2019) https://www.ohchr.org/Documents/Countries/IN/KashmirUpdateReport_8July2019.pdf ; ADM Jabalpur (n 1) (dissenting opinion of Khanna, J). 179. Ahmad, M (29 May 2020). ‘Prove You “Shunned Separatist Ideology”: J&K HC Upholds Senior Lawyer’s PSA Detention’. The Wire. Retrieved from https://thewire.in/law/jammu-kashmir-mian-abdul-qayoom-psa 180. Roy, R (16 July 2020). ‘SC Adjourns Habeas Corpus Plea of Octogenarian Congress Leader Prof. Saifuddin Soz’. Live Law. Retrieved from https://www.livelaw.in/news-updates/sc-adjourns-habeas-corpus-plea-of-octogenarian-congress-leader-prof-saifuddin-soz-160004 181. Mandhani, A (28 June 2020). ‘99% habeas corpus pleas filed in J&K since Article 370 move are pending. HC Bar tells CJI’.The Print. Retrieved from https://theprint.in/judiciary/99-habeas-corpus-pleas-filed-in-jk-since-article-370-move-are-pending-hc-bar-tells-cji/450281/ 182. Supra note 180

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Detention of Freedom, Thought and Expression through the Public Safety Act

Saaqib Amin Parray

Administrative Detention

Administrative detention laws override ordinary judicial processes and suspend all protections envisaged including the right to fair trial. Fair trial, a necessary ingredient of criminal jurisprudence, is an inalienable right of an individual which demonstrates spirit of right to life and personal liberty. A preventive detention law usurps these rights and an individual can be detained without trial on the basis of suspicion.

Preventive detention laws have been used to detain thousands of people of Jammu & Kashmir (J&K) resisting the control of Indian state. Detentions without trial have been used as a weapon of oppression and individuals are detained for supporting the cause for independence or resolution of Kashmir issue in accordance with U.N. resolutions. Since inception of detention laws, lawyers, journalist’s political activists and others have been detained on a daily basis.

In its 2010 report, Amnesty International observed that the J&K High Court Bar Association (JKSCBA) plays an important role in challenging a large number of detention orders, undertaking jail visits and more generally taking up cases of human rights violations. In this light, the post - August 5, 2019 detention of the President of JKHCBA and other members of bar association appears to be an attempt to intimidate the lawyers182. The United Nations (UN) working group on enforced or involuntary disappearances jointly with three other UN special procedures mechanisms has sent an intervention letter to the government of India in July 2010 regarding the arrests and detentions of lawyers of the Bar Association. In 2019, the UK Bar Council and the UK Bar Human Rights Committee sent a joint letter to India’s Prime Minister reminding him of India’s international commitments considering the arrests of lawyers in Kashmir.

Public Safety Act, J&K

The Public Safety Act (PSA) enables the authorities to order preventive detention of a person whose activities it apprehends would either pose threat to the security of the state, or to the public order. In a situation of ‘threat to state/national security’, a person can be detained for two years and for public order the detention can be extended up to one year. The detainee is not produced before any court of law in this duration and the allegations leveled against him are not made subject to judicial review.

Section 8 of the Act envisages the powers for detention, the only requirement for permitting detention under the Act is mere ‘satisfaction of the detaining authority’. In practice, these detention orders are passed based on the orders of the Home De- partment and in many cases the dossiers are drafted in advance to suppress any political dissent.183

This article discusses a few cases out of the hundreds of pending detentions cases in J&K -

Detention of Mian Qayoom under Jammu and Kashmir Public Safety Act, 1978

Mian Abdul Qayoom an eminent lawyer and President Kashmir Bar Association was arrested during the intervening night of August 4 & 5, 2019 under section 107/151 criminal procedure code and on August 7, 2019 an order of detention was passed detaining him under J&K Public Safety Act184. The contents of grounds of detention demonstrate the vagueness and uncertainty of allegations leveled against Mr. Qayoom.

Grounds of Detention of Mian Qayoom

The first ground of detention accuses Mr. Qayoom of being a staunch supporter of secessionist ideology and his belief that J&K is a disputed territory. It is pertinent to mention that all accusations have been made without mentioning any dates or

. SECTION 2 - LAW & POLICY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 67 events, and only tangible reference is made to the First Information Reports (FIRs) registered against him in 2008 and 2010.

The grounds of detention are filled with sweeping statements without any reference to individual acts of the detainee that have compelled the authorities to detain him. One of the reasons for detaining reads:

“In view of various decisions taken by Union of India on 5th of August, there is every likelihood that the subject will insti- gate the general public...”

The grounds of detention itself reflect that he was under custody, at the time of passing of detention orders. Section 107 and 151 Cr.P.C. provides for preventive measures and empowers a police officer to arrest a person apprehending a cognizable offence, breach of peace and public tranquility. In addition to this, the FIRs relied on by the detaining authority reflects of- fences under Unlawful Activities Prevention Act (UAPA) wherein a person can be detained without warrant from a court of law. The reason people are detained under preventive detention laws when there is enough scope for arresting them under ordinary law is that under preventive laws a detune has no remedy of judicial review, no right to seek bail and the allegations can stand without proof.

Demonstrable Lawlessness

This is a classical case where the lawlessness of preventive detention laws is explicitly demonstrable. As Mr. Qayoom was already under custody, a question can be raised on the need for putting him under preventive detention under the PSA. The reason that such methods are employed is that under ordinary law, every arrested person has a right to fair trial and given the indefinite and ambiguous allegations, the state will find it difficult to prove the accusations. However, under PSA, the only remedy available to a detainee is to file a Habeas Corpus petition in the High Court. Here too, the detainee cannot challenge the allegations made against him, and can only challenge the detention order on procedural violations envisaged under the Public Safety Act, given that limited judicial review is available.

Mr. Qayoom challenged his detention order before the High Court and the grounds of challenge include non-supply of ma- terial, the FIRs relied upon by detaining authority dates back to 2008 and 2010, that the detention is passed on merely on the basis of Mr. Qayoom’s questioning by police in 2008 and 2010 and the grounds of detention are vague, indefinite, uncertain and ambiguous. While hearing the petition, the Court held in para 25 of the judgment that the grounds are ‘clumsy’ but up- held the detention relying on FIRs registered in the year 2008 and 2010, notwithstanding the fact that it was brought to the notice of the Court that he was previously detained in 2010 regarding the same FIRs.185

Mr. Qayoom’s case is demonstrable of the collusion of interest - how the Courts come to the rescue of administrative au- thorities in cases related to preventive detention. In its judgment dated May 28, 2020, the High Court not only upheld the detention but also travelled beyond its jurisdiction by upholding the detention based on the ‘ideology’ of a person.

Section 8 of PSA provides for detention of a person who can act in breach of peace and not for a thought or inner manifes- tation of a person can be made based on passing orders under the Act. While responding to the argument that the FIRs relied upon by the detaining authority are of the year 2010, the court took into consideration the reports from the police which were never provided to the detainee. The court observed in para 48 of the judgment:

“Having considered the matter, we may say that an ideology of the nature reflected in the FIR and alleged against the detain- ee herein is like a volcano………when it comes to propensity of an ideology of the nature reflected in the FIRs supported by the intelligence reports we have gone through, we are convinced that it sub serves the latent motive to thrive on public order.”

Detention of

Another case under the PSA is the detention of Masarat Alam Bhat (21), a political activist, who was detained between 1990 and 2005 for nine years without trial and is presently serving his 37th detention. In one of the judgments (2015), quashing his detention, the court recorded that the detenu for the last two and half decades, except for brief intervals, has been placed under detention.

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Detention order dated December 11 was set aside on June 10, 2011. Order dated August 4, 2011 was quashed on December 23, 2011. Order dated December 30, 2011 was set aside on June 2, 2012. And the order dated August 3, 2012 was quashed on October 19, 2012. Another order was passed on October 30, 2012 and the same was challenged before Supreme Court, the order was revoked on March 18, 2013 but he was continuously under custody till January 8, 2014 when a fresh deten- tion order was passed186. The court while referring to the Supreme Court judgment in A.K. Roy vs Union of India (1982) observed repeated detention orders, offends the spirit of Article 21.187

The failure of courts to get their orders implemented results in further victimization of persons held under preventive deten- tion laws. The practice of re-arresting detainees is very prevalent and that is done either on the ground of frivolous FIRs or by passing of fresh detention orders one after another. This is done to keep persons continuously under detention without trial.

The procedural technicalities create more difficulty in getting orders quashed. On filing of a Habeas Corpus petition, the court grants four weeks’ time to the state for filing reply which is often extended by another four weeks. The High Court Case Flow Management Rules, 2010, provides that in Habeas Corpus cases (detention cases) the court should give only 48 hours’ notice for filing reply and a detention case shall be decided within fifteen days188. Every case takes at least three to four months for final hearing and in a number of cases, with the objective to frustrate court proceedings, the state authorities revoke the order of detention only to issue a fresh one later. This practice sets the clock back and the detainee has to file another petition to challenge the fresh order. This fact is evident from Masrat Alam Bhat’s case, he challenged his detention dated October 30, 2012 before Supreme Court, which was revoked on March 18,2013, turning his petition infructuous only to pass a fresh detention order. The delay in hearing the Habeas Corpus petitions by the courts further adds to the misery of the detainees.

Detention of Sabzar Ahmed Naik

Sabzar Ahmad Naik was first arrested in first week of January 2019 under FIR 65/2018 and was detained on February 27, 2019189. Petition challenging detention order was filed on March 9, 2019, to which a reply was filed by the state on May 3, 2019. It is July 2020, and the case has not been decided yet. The grounds of detention are vague, indefinite, without any mention of dates and ambiguous. Five FIRs were registered against Sabzar in the year 2018, with the allegation of stone pelting. The detaining authority has squarely relied on these older FIRs while passing detention order in 2019.

It is noteworthy that Sabzar Ahmad was also already under police custody when his detention order dated February 6, 2019 was issued. Surprisingly, the grounds of detention are the same and everyone is labeled as a stone pelter or (OGW) of some underground group. Records in this case reveal that the detention order was quashed on May 30, 2019190. In this case, the court took four months to hear a petition finally, and even after quashing the detention order he was not released and is still under custody.

Grounds of detention of Sabzar Ahmed Naik

The first ground of detention states-

“This mental setup to achieve freedom from the union of India and merge the state of J&K with Pakistan through violent means has been augmented by the unscrupulous elements who dream of cessation of J&K state from India.”

The next ground for detention states-

“Whereas the Sr. Superintendent of police further reports that it is his considered opinion based on inputs from various field formations that the prevailing militancy scenario and facts obtained on the ground are not conducive enough for you to be let off…”

These grounds in the detention orders demonstrate the real intent for the arrests. The ‘inputs’ are always used to claim the benefit of section 13(2), which gives protection to the authorities to avoid/deny disclosure of the source and even the de- tails of the information. Notably, even the Court in Mr. Qayooms judgment relied upon these ‘inputs’ while upholding the detention order.

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Detention based on FIRs and practice of ‘Open’ FIR

It is especially concerning that in J&K, FIRs are often used as the main ground for detentions. In practice, the police file ‘Open’ FIRs (without naming any accused), then add names of their own choice in the said FIRs as it suits them. The ‘Open’ FIRs are kept languishing and the charge sheets (reports filed by police after investigation to the court under section 173 criminal procedure code) are not filed in those cases for years. In one of the cases, the record reflects that a FIR 278/2016 was registered under UAPA in the year 2016, as an ‘Open’ FIR (FIRs without naming the accused are coined as open FIRs). In 2020, Arshid Ahmad Rather was shown as an accused in the said FIR. He was arrested in April 2020. This practice of open FIRs gives full discretion to the police to add names at their discretion later.

A reminder of the Emergency era

This judgment reminds one of the year 1975 in India, when the courts failed to rescue victims of detention laws and in many cases held that during emergency the government has the power to suspend even the fundamental right to life and liberty.191 The judgment in Mr. Qayoom’s case has equipped the authorities with more unbridled power to detain persons on the allegation of a particular ideology. The passing of this judgment has injected a firm belief of absolute immunity to the administrative authorities. Its consequences will surely be dangerous.

Juveniles and Preventive Detention

The state authorities also detain young people, with little regard to their age, under the preventive detention laws with impu- nity. Most of them are labeled as ‘over ground workers’ (OGW-name coined for supporters of militants) and ‘stone-pelters’. The intention of the same is to curb their physical movement. To challenge a detention order, one must file a petition before the High Court. An application under Juvenile Justice Act can be before the Juvenile Justice Board. It takes months to prove that the detainee is below the age of 18 years(minor) and by the time the detention order is quashed, the minor has already spent months in a prison. Juveniles often become victims of open FIRs. The local police arrest minors and their names are then shown in these already registered FIRs.

Not only are the minors detained under ‘open’ FIRs, they are also charged under PSA. There are various tactics of intimi- dation used by the police. Police officers often bargain with the parents before releasing the minors who are detained. They demand bribes to release the minors, or threaten to charge them under PSA. As a practicing lawyer, I have faced situations when parents of juveniles showed their helplessness to apply for bail under the JJ Act, because the moment a bail application is filed, and another order of detention is passed. In a number of cases, the police intimidate the parents of the juvenile and threaten them against approaching any court or informing anyone about the illegal custody of their kids. This intimidation is a clear warning that an order of detention (under PSA) will follow.

Detention of Ubaid Rashid Mir

Ubaid Rashid Mir S/O Abdul Rashid Mir is presently under preventive detention. He was first arrested by the police in connection with FIRs registered against him. His date of birth is February 6, 1997, and the FIRs stand registered from 2012 (when he was 15 years old). The first FIR registered against him, as shown in the grounds of detention, is FIR 251/2012 and then subsequently in 2013, 2014, 2017 and 2018. Most of the FIRs relied upon by the detaining authority, were registered when he was a minor. He was detained on June 16, 2018 and has been behind bars since then. The order of detention was passed on August 25, 2018 and he was shifted to Kotbalwal jail in Jammu.

This order was quashed by the J&K High Court on December 4, 2018192, and soon thereafter, a new detention order was passed on June 6, 2019,193 which expired on June 25, 2020. This expiry was followed by a yet another detention order No.127/DMS/PSA/2020 dated July 1, 2020. The grounds of detention latest order state activities that he was accused of as a juvenile, no new activities are mentioned to merit yet another detention order. The detention orders are, in practice, issued merely on the whims of the police, this is evident from the very contents of the order. The detaining authority, while a passing fresh detention order against Ubaid, has stated -

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“...the activities during the course of your detention have remained highly objectionable and have left no stone unturned in inflicting the blow on the fragile peace environs of district Shopian”.

This indicates how these detention orders are passed- how can a detainee create law and order problems while being in jail? How can he be dangerous to the fragile environs in Kashmir when he is detained in Jammu, 400km away from his home district? As a lawyer I do not have any answers for him.

Detention of Ghulam Jeelani Gatoo

Ghulam Jeelani Gatoo S/O Ab. Aziz Gatoo, serving detention, was arrested in September 2016 in connection with FIRs starting from year 2012. Official records show his date of birth as January 15, 1998. When the first FIR was registered, he was just 14 years old.

Grounds for Detention of Ghulam Jeelani Gatoo

The grounds of detention display a long list of FIRs 173/2012, 64/2014, 70/2014, 76/2014, 77/2014, 83/2014, 84/2014 list goes on up to 2018. His grounds of detention state that he is affiliated to “sung baz-e-shopian” (stone-pelters of Shopian). There is no organization named Sung baz-e-shopion.

The first detention order issued on September 5, 2018 clearly states that most FIRs relied upon by the detaining authority date back when he was a minor. Under the grounds of detention, he is accused of the following-

1. being an anti-national

2. arranging huge gatherings (in the year 2008, when he was 10 years old)

3. inculcating hatred against the government (In 2009 when he was 11 years old)

His Detention order reads: “…You have been granted Bail in many cases and there is every likelihood that the Honorable court may grant bail to you in other cases also as such it becomes essential to book you under extra ordinary law of PSA-1978”. The order dated September 5, 2018 was quashed by the court on March 15, 2019194. However, he was not released and yet another detention order was passed on May 25, 2019195. While the petition challenging the second order is still pending and a new order no. 65/DMS/PSA/2020 was issued on June 27, 2020. The grounds of detention in all these orders of detention are the same; the only difference is the date of detention. In the detention order of June 27, 2020, the detaining authority has relied on FIR no. 77/2014. The ground of detention reads:

“...As such in order to have maintained the peaceful atmosphere in the entire district Shopian you require to be kept out of circulation...”

This is the real intention behind these detentions, as has succinctly been summarized by the statement of Samuel Varghese Financial Commissioner (Home) Jammu and Kashmir, who told Amnesty in 2010, “We have to keep some people out of circulation”.

Conclusion

The Public Safety Act has been misused and abused by the state ever since it was introduced in Kashmir. The detention orders, as can be seen from the above-mentioned cases, are orders passed without application of mind. The law is designed to give unbridled power to the executive to harass people and deny them any scope of redressal. The ‘revolving-door’ deten- tions through open FIRs are methods employed to torment the people into subjugation. Post-abrogation, many Kashmiris, including the formerly elected representatives of the state were charged with PSA. Ironically, former Chief Minister of J&K, Farooq Abdulla, whose father introduced this repressive law, was also charged under PSA. Though many people are languishing in jails since August 5, 2019, detaining people under PSA has been an old practice of the Indian administration to ‘keep people out of circulation.’ Though, the de-operationalisation of Article 370 is a major betrayal against the people

SECTION 2 - LAW & POLICY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 71 of Jammu & Kashmir, it does not change much as far as the brutal structural violence perpetrated by the Indian government by means of such oppressive laws.

Saaqib Amin Parray is an advocate practicing in the High Court of J&K, Srinagar.

END NOTES

183. Amnesty International, “A ‘Lawless Law’ Amnesty 2011 Report on Detentions under the Jammu and Kashmir Public safety Act”, 2011.

184. Jammu and Kashmir Public Safety Act 1978.

185. Detention order passed by District Magistrate (Executive) Srinagar, Order No. DMS/PSA/105/2019 dated 07-08-2019.

186. LPA NO28/2020 in WP (Crl.) No. 251/2019, The court upholding the detention announced judgment on 28-05-2020.

187. Reported in Law Journal, 2015 (4) JKJ 249 [HC] Jammu and Kashmir Judgments.

188. Constitution of India Article 21, Right to Life and Personal Liberty

189. Rule 8 of Jammu and Kashmir High court Case Flow Management Rules 2010.

190. Detention order No. DMS/PSA/2019 dated 27-02-2019

191. Detention order Quashed by the High court, Judgment dated 30-05-2019

192. A.D.M. Jabalpur vs Shivkant Shukla, AIR 1976 SC 1207

193. Habeas Corpus petition No. 248/2018

194. Habeas corpus petition No. 220/2019, challenging order of detention dated 25-06-2019, this petition was pending when a fresh order of detention dated 01-07-2020 was issued.

195. Habeas corpus petition No. 310/2018, Judgment dated 15-03-2019 Quashing detention order129 / DMS / PSA / 2018

196. Habeas corpus petition No. 205/2019 challenging order no. DMS/PSA/19/358-60.

*Update as on August 4, 2020: Mian Qayoom had challenged the High Court order before the Supreme Court of India. Instead of deciding the legality of the challenged order, the Supreme Court asked the Central government to consider releasing Adv. Qayoom. The government informed the Court that they will release Mian Qayoom.

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Indian liberals assume that Kashmir was not simmering before Modi. We would like to remind them that our fight is not against Modi alone.

As state-subjects of Jammu & Kashmir, we place on record our rejection of the ill-conceived designs of Narendra Modi and Amit Shah. The Indian government has arrested our leaders, curbed dissent and disregarded the democratic will of the Kashmiris. No permanent resident of the erstwhile state of Jammu & Kashmir is satisfied with the decision to bifurcate us. Ladakh has been left without a legislature, robbed of any representation. Kashmir has always been against any interference with Article 370 and even Jammu is agitated for being robbed of land and employment protections.

The Modi government feels that if they succeed in winning over any one section of the erstwhile state of Jammu & Kashmir, the new arrangement will be accepted. So, the Indian Government is trying to purchase the loyalty of Kash- miris by throwing money at us. They have announced a budget of INR 6000 crore (USD 800 Million) for Ladakh. Ladakh has a population of 2.6 lakh people. This budget is nearly INR 3 Lakh per adult or INR 10 Lakh per family. This reminds us of Nehru and his attempt to buy the Kashmiri sentiment in 1954. Nehru arrested our leaders, curbed dissent and disregarded the democratic will of Kashmiris. In order to buy our sentiment and make us think that India was a land of abundance, he increased ration by 25% and subsidised rice by 60% in Kashmir- all this while Indians were dying of hunger, malnutrition and living in poverty. Within 10 years of doing this, Nehru realised that the Kashmiris could not be bought. He released our leaders to negotiate a final settlement on Kashmir, but he died soon after and no solution was possible.

We remind Narendra Damodardas Modi that wounds inflicted by deceit cannot be healed by politically motivated largess and financial incentives.

We reject your budget. We reject your government. We reject you.

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Section 3 Economy

SECTION 3 - ECONOMY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 74

Unilateral Integration, Global Pandemic and Declining Economy

An Overview of the economic situation of J&K by Kashmir Reading Room

The amendment to Article 370 was accompanied by severe restrictions on movement and communication in Jammu & Kashmir (J&K). These restrictions lasted for months and caused massive losses to the economy and the business communi- ty. In an interview with Kashmir Reading Room (KRR), Sheikh Ashiq, the President of Kashmir Chambers of Commerce and Industries (KCCI), estimates that the losses since August 2019 have reached INR 40,000 crore (USD 5.3 billion). Due to prolonged shutdown, businesses have gone bankrupt resulting in a spike in unemployment. This comes in the wake of an upcoming global recession when large parts of the world are reeling under two overlapping crises - one being the COVID pandemic and the other being a slump in the global economy.

The Indian government has used the COVID lockdown and consequent restrictions on public participation as an opportu- nity to introduce a slew of new policies in India. Labour laws were amended to dilute labour rights in many states of India, forest clearances have been granted without following procedural requirements and environmental laws are being amended to favour industries instead of preserving the ecology. Most of these actions appear to have been taken in a haste to push for legislative changes in the absence of public consultation and suspension of democratic participation. The stakeholders, who are most affected by these laws, have been kept out of the loop. A similar approach has been adopted while introducing the New Kashmir Policies of 2020 which include - Media Policy, Hydropower and Renewable Energy Policy, Real Estate Pol- icy, Education Policy, Pharma Policy, New Industrial Policy, etc. Unilateral and non-participatory decision making appears to be the modus operandi of the present regime.

The history of development in the state of J&K demonstrates the emphasis placed on the social sector as the driver of the economy and the delivery of public goods. In the early years, the focus of the state government was infrastructural devel- opment and redistributive reforms - land reforms, massive debt waiver and reconciliation, restitution of mortgaged prop- erties, health and educational reforms, etc. The focus of the state was ‘rights-based’ with special emphasis on benefitting the marginalized communities - scheduled castes, tribes, women and workers of the state. The bulk of resources that the state received (including resources from the Centre) were invested in developing the social sector as opposed to providing incentives to the private sector. The J&K was largely successful in achieving this as is evidenced by its better performance in Human Development Indicators (HDI) and low poverty rates. The state made a transition from the category of ‘Special Status’ in terms of backwardness in 1948 to the ‘General Category’ in the 1970s. The focus of the state on redistributive policies continued even in the 1980s. It is pertinent to note that carving out a separate path for development by the state administration was made possible as a result of the autonomy it had over its economic and administrative decision making.

Despite better performance in Human Development, due to many reasons, the economic growth in the region has been impacted in the past few decades. A major factor that affected its economic performance is the prolonged political turmoil and militarised conflict in the state.

With the introduction of New Economic Policies in J&K now, the focus is being shifted away from the ‘social’ or ‘public’ sector to incentivization of the private sector for developmental activities. Significant efforts are being made to invite and secure a place for Indian capital in the valley. In this regard, Kashmir Reading Room has interviewed the President of Kash- mir Chamber of Commerce and Industries and an Indian trade unionist, Gautam Mody, to get their insights on the economic changes taking place.

Gautam Mody is the General Secretary of the New Trade Union Initiative (NTUI) of India. NTUI was formed when several independent trade unions in the organised and unorganised sector came together under the banner of the New Trade Union Initiative (NTUI) in the year 2001. It has built a democratic organization that now represents more than 1 million workers with a special emphasis on informal workers. Mody was also part of an eleven-member fact-finding team that visited Kash- mir at the end of September 2019.

Prominent businessman Mr. Sheikh Ashiq was elected as the President of the Kashmir Chamber of Commerce and Industry in 2018. KCCI was constituted in 1924 by the prominent businessmen of Kashmir. The Kashmir Chamber of Commerce

SECTION 3 - ECONOMY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 75 and Industry (Inc) is one of the oldest apex trade bodies in the subcontinent. Its major objective is to promote business, trade and economic relations. The Chamber continuously interacts with the Government of India and provides them feedback on bilateral issues relating to trade and investment. Kashmir Reading Room Speaks with KCCI President, Sheikh Ashiq

KRR: How has the economic situation of J&K deteriorated after August 5, 2019, the ensuing lockdown and commu- nication blockade? How has it been affected by the lockdown due to COVID pandemic?

SA: Actually, this all started on August 2, this advisory came from the J&K Government. The advisory instructed tourists and yatris to leave from the valley immediately as the situation was not safe. They warned that there were serious security concerns and non-locals started moving out of Kashmir, in view of this. Three days later, on August 5, Article 370 was amended, and everything was locked down. Subsequently, for months altogether, there was no business, no movement and it seemed like there was no life. It was not just for a day or two - I have been a witness to how long everything was shut.

After this, we were pushed into another lockdown due to the COVID pandemic. In Kashmir, administration had just re- sumed 10 days before the COVID lockdown was announced in India. Effectively, we never came out of the lockdown. We jumped from one lockdown to another. During the lockdown after August 5, we expected that there would be a revival by spring. We were hopeful that business will resume since we only have 6-7 months of business activity in Kashmir. Due to our climatic conditions, our highway is reliable for transport only for a few months. Rest of the months are unpredictable. Unfortunately, this year as spring approached, the pandemic caused everything to shut down again.

Regarding economic losses post-August, KCCI gave a ‘Preliminary Loss Report’ which was submitted to the J&K Govern- ment citing that we have suffered losses to the tune of 2.4 billion USD. KCCI also highlighted how around 4-5 lakh people lost their source of employment during this period. This report only took into consideration the first 120 days i.e. 4 months from August 5, 2019 to December 5, 2019.

This is not the first time that we are facing a lockdown, we have been through many lockdowns in the past. To be honest, in January or February we could open some shops, and transport services resumed as a few sectors were opened. However, our tourism industry was sick, our handicraft export was low, largely because of the internet shutdown which was still in place in February. The business community was just managing to get by, but now it has been almost a year since August 5, 2019. The internet is still restricted for Kashmiris allegedly because of security concerns. I don’t know how long it will take to restore ‘normalcy’, now that the whole world is going through this pandemic.

KRR: Could you give an estimate of losses after December 2019?

SA: When KCCI submitted the 120-day report from August 5 to December 5, 2019, we calculated everything that had been affected, and estimated a loss of USD 2.4 billion (INR 18,000 cr). Post the pandemic lockdown, according to our estimates, losses stand close to USD 5.3 billion (INR 40,000 cr). I shall elaborate with some rough estimates - the loss to the Indian economy per day has been estimated to be USD 4.64 billion. J&K contributes around 0.77% to Indian GDP, which comes down to INR 250 cr per day. The contribution of Kashmir alone is INR 130-140 cr per day.

Let us account for business of essential commodities alone. Everything is shattered or lost - bulk trade, the hotel industry and tourism related businesses are all closed and various other sectors have also been deeply affected.

Before the lockdown, our handicraft exports stood at INR 2000 cr but in the last year, we reached merely INR 900 cr. We don’t foresee a better situation in the coming year as well as demand may continue to be low. Joblessness in Kashmir has been a major issue. The Handicraft industry mainly employs women as it is a cottage/home-based industry. Therefore, we expect the women’s employment to be affected as well.

KRR: Can you tell us how daily wagers and the working population have been getting through in this period since there is no business activity?

SA: A few months after August 5, I started going around to observe the situation. I can say that we have faced a lot of stress

SECTION 3 - ECONOMY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 76 during this year. I could see artisans, shikarawalas, and people associated with transport service started making their ends meet by doing odd-jobs - like selling barbecues, manual labour, etc. I spoke with a lot of people who were otherwise skilled but had no jobs and so they did whatever they could to survive. The gravity of the situation can be understood from the fact that at this point, their major concern was survival rather than economic activity.

KRR: The Investor’s summit that was planned has been postponed due to Covid-19. What do you see as the larger intent behind these initiatives? Do you expect investors to flock to Kashmir? How beneficial will this kind of invest- ment be for our economy? Do you expect the benefits of this investment to reach the people in the state?

SA: Inviting investors to J&K was an idea that KCCI was a part of but it was conceived in 2018 before Article 370 was amended. We were also consulted at that time. We wanted to invite people to make collaborations with every sector so that young educated people can get more employment and opportunities. I remember that the TATA group came last year before revocation of autonomy and in March/April we had deliberations with them. They made it clear that they wanted joint col- laborations in J&K. The amendment of Article 370 changed all this.

This investors summit was already planned and a budget of INR 50 cr was allocated for this. KCCI has always believed that if investment takes place in Kashmir, we will welcome investors here. However, people in the region feared that ownership of land in industrial estates will be given to outsiders. I would like to clarify - nobody owns land in industrial estates. Even the erstwhile permanent residents of the state could not own such land. Land in industrial estates could only be leased out before amendment to Article 370. However, now there is confusion.

Indian media has been highlighting that Indians can own the land, whereas, in fact, nobody can own the land in case of industrial estates. There was a story in the media about a one-rupee premium to get land on lease in Kashmir. This is mis- leading - when I as a Kashmiri businessman cannot get a lease for land at such a premium, how can non-Kashmiris get it at that price? We have raised these queries with the appropriate authorities as this is our job. How can you differentiate between an applicant from outside Kashmir and a resident of Kashmir? You cannot give the applicant a lease at a throwaway price. If that were to happen, it will definitely cause the value of local Kashmiri businesses to depreciate.

KRR: The lieutenant governor has plans to make Kashmir an ‘economic paradise’. Is that possible given the politi- cal situation in the valley? Do you think purchase of land by those outside the Union territory of J&K could lead to problems for investors given the resistance of the people of Kashmir valley?

SM: This is a very good question. We would like for Kashmir to be made an economic paradise, something everyone loves to hear. But let us examine the practical reality. We have not seen any economic progress for decades together - as opposed to other regions that have been developed. We have been lagging behind in this regard.

Coming to domicile law, after abrogation we have been divided into two union territories - Ladakh and J&K. But all acts/ legislative changes are being implemented in J&K while nothing has been touched in the union territory of Ladakh. We don’t understand how it is possible that certain laws are applicable in J&K while the other part has been left out. It is some- thing which our political parties should ask. I don’t know where they are and what they are doing. Our position is that we are an apolitical organization - we are apolitical by Constitution. These questions must be raised by political parties.

KRR: You mentioned that a lot of job losses have happened in the valley. Could you please elaborate? What kind of losses have the 10 districts of Kashmir faced because of the internet shutdown?

SM: Yes, there is a proper estimate. As I mentioned, it is around INR 40,000 Cr till now and the internet shutdown and restrictions have played a role in this. Due to lack of high-speed internet, our export industry has suffered, and it is further going to suffer in the coming days. We are experimenting with new ways, like virtual exhibitions among other things. How- ever, in my opinion, post-COVID every export will be based on the internet. If your internet is slow, it may take hours just to upload a single file and you would lose out on opportunities.

KRR: How has the tourism industry been impacted? How will the new tourism policy affect tourism in the state? How does the new houseboats policy affect those who have been working in the sector?

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SM: These policies are good. But what is the use of a policy if stakeholders are not consulted and are kept out of consider- ations? We have made our remarks public that due time should be given before the houseboat policy is approved. Same is the case with the tourism policy.

Last year there was no tourism in the valley. I don’t see any possibility of the same this year either.

KRR: A number of new policies have been introduced by the Central government in Kashmir in 2020. An emphatic push towards private investment is envisioned through these policies. Has there been any consultation with interest- ed parties, or even KCCI? Or have these policies been introduced unilaterally in absence of an elected government?

SM: This time we have not been consulted. Earlier, when policies were drafted, given the procedural requirement, we were given time to deliberate. Our opinions and concerns were taken into consideration. We have raised objections on not being approached this time and we hope that in future we will be consulted on upcoming policies.

KRR: What has the COVID crisis revealed about the Health sector of J&K. Given the push towards private invest- ment in the Health and Education sector, how do you see these areas changing?

SA: Education policy was recently renewed, and we have encouraged young people to come forward. In the health sector and health infrastructure we need people to come forward. The government has not updated our Healthcare system because of which we have been lagging. For an emergency situation, we do not have adequate infrastructure - ventilators, emergency beds, etc. In my opinion, Healthcare and Education needs complete support at this moment.

KRR: Do you see the situation improving now that Internet connectivity has been restored?

SA: In this past year, we have moved from one crisis to another. This lockdown is new to the rest of the world, but we have been under lockdown since August 2019. Our health situation is deteriorating and the frustration among the people is on the rise.

KRR: How would the economic situation of J&K change in future?

SA: Let me state this clearly, it is our right to get a financial revival package. People have suffered a lot, and unless we get the financial support, we are going to see an economic disaster in the valley.

KRR: Can you shed some light on what should be expected from the government? What kind of economic support should be offered to J&K?

SA: We have discussed certain things with the J&K government and the Union government as well. We tried to explain to them how we have suffered over years, particularly over the last one year.

Consider for example, the case of small-scale entrepreneurs who have a capital of INR 10 lakh. When they convert this capital into some commodity and this commodity is kept in store for close to a year (due to the lockdown) - this capital is lost. Now, my objective is to bring back their honor and respect which was snatched away from them.

If people want to start any business, they should be given capital at a very low interest rate. 30 years ago, loans up to INR 50,000 were waived off. This was done because at that time, the economic situation was very difficult for people. In my opinion, today the situation is even worse for the Kashmiri business community. For shikarawalas, auto drivers, artisans, weavers, such a step will prove to be a huge relief. They must ensure a life of respect and dignity for the poor.

KRR: Is there anything else you would like to add for our readers?

SA: At last I would say pray for Kashmir; Kashmir is in a very bad state.

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Kashmir Reading Room Interviews Gautam Modi

KRR: The Lieutenant Governor has plans to make Kashmir an ‘economic paradise’. Is that possible given the polit- ical situation in the valley?

GM: The Lieutenant Governor enjoys extraordinary powers. By the decision taken on August 5, 2019, Government of India is responsible for converting not just the Kashmir valley but the entire erstwhile state of Jammu & Kashmir (J&K) into a liv- ing hell for its people. You can’t create an economic paradise by snatching people’s democratic rights away. The Lieutenant Governor must not merely engage in sloganeering. He must present a plan. Will this plan include free movement of people? Will there be freedom to communicate and freedom of speech? Will there be a just minimum wage so that people can live a decent life? Will there be freedom of association?

KRR: Do you expect investors to flock to Kashmir?

GM: It’s not improbable that outside businesses will invest in Kashmir. That is not the problem. I fear that J&K will receive predatory investment. Investors who are likely to invest in J&K are going to be politically connected sharks that make mon- ey from exploiting natural resources and cheap labour. This kind of predatory investment makes no quality or long-term investment and therefore contributes nothing to the community and society. These types of businesses are also typically based on significant capital subsidy from the government. So, we will have to really look very carefully at the policy when it is announced to see what kind of subsidy the government is offering.

KRR: How do you see the future of business in the region?

GM: There is no future of anything in J&K. People have effectively been jailed into their own homes, creative life has been wiped out, and an entire generation of young people have been silenced. There is no meaningful economic activity. There is no significant consumer demand. There are no new jobs. All jobs in the private sector have been completely destroyed by the draconian lockdown through this past year. When people see no future for themselves, what future will business have? Maybe there are a lot of opportunities for land sharks and hustlers. Maybe some super rich Indians are aspiring for their third or fourth homes in high security gated enclaves, protected by machine guns. But that is not economic activity, that is all about land grab.

India continues to reel under the economic effects of the pandemic lockdown which has still not been completely lifted. Every time there is news about how much the economy will shrink (between 2-3% points), the whole economy quivers. A year ago, when the Indian economy (GDP) was growing at about 5% there was consensus across the ideological divide that this was insufficient to propel the economy. There is also a consensus that pre-pandemic declining rates of growth in India are due to harsh and misguided policies put forward by the BJP government at the Centre over the past 6 years.

I say this because the region has faced political turmoil and economic distress since 2016. Following the lockdown of Au- gust 5, 2019, it is being suggested that the economy of J&K (GSDP) shrank by as much as 20% in the past year and will shrink at a similar pace in the next year. This means that by March 2021 the economy of J&K will be less than two-thirds or about 60% of what it was in April 2019. This will have grave implications on the consumption of basic goods, incomes and jobs for people and their general well-being. Is there any scope for businesses when the economy is in such rapid tailspin?

KRR: How do you see the new houseboats policy affecting the workers who have been doing this business for gen- erations? GM: Houseboats have been a part of the valley and especially Srinagar’s tourist cityscape for a century and a half. We are talking about something close to 950 houseboats. About 1000 workers are involved in managing and maintaining the house- boats throughout the year. 5000 workers are employed on the houseboats during the tourist season and 12,000-13,000 are indirectly employed providing goods and services to the houseboats during the season. If you add all this up, at least 20,000 families or 100,000 people derive their livelihood from houseboats. Now the houseboats have been shut for the past year. Has the government turned around to see what has happened to these hundred thousand lives? This is just one industry. It’s a symbol of what the lockdown has meant.

Now the government has announced a new houseboat licencing policy. New licencing norms require houseboats to meet high standards with respect to electricity, fire safety, , sewage disposal, etc. Objectively speaking these are good stan- dards. Houseboat owners are required to meet these standards in a small period of three months which effectively means

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- the houseboats will have to be substantially refurbished demanding significant expenditure. Who is going to bear these costs? The houseboat owners are not in a position to do so. Their businesses have been shut for a year.

Houseboat owners in J&K see this as an effort to push them out of business, force them into selling their boats at distress rates and replace them with large hotel chains and tour operators. Right now the houseboat policy does seem to be another mechanism to harass the people of J&K and to force the boat owners to sell their boats and quit their business.

Having said this, there has to be peace in the Kashmir valley for tourists to return. Only when tourists return, and peace is guaranteed will the houseboat owners invest afresh.

KRR: How do you see the opening of mining auctions for non-Kashmiris affect the local businesses?

GM: Let us not reduce it to Kashmiri versus non-Kashmiri issue. Problem arises when the government creates an entry barrier. Entry barrier is a cost, meeting standards in case of houseboats, or license fee or bid price in the case of the mine auctions. The threshold auction price was set so high that businessmen from J&K could not even bid for the mines. This is about creating an unequal field and using the government policy to push out one group to advantage another. This is not free movement of people – this is, in fact, just free movement of capital where big capital is given free rein to trample small local capital.

Since August 2019, the government has been actively using its penal powers and economic policy to transfer incomes and assets from the people of J&K to India’s bourgeois. This is a systemic policy. This is part of the BJP-RSS agenda. This in- cludes impoverishing people who ascribe to the Islamic faith. This happened after the 2002 Gujarat pogrom. Muslim owned businesses were attacked during the pogrom and large number of them were later captured by Hindu owned business with the support of the BJP government in the state.

Destroying Muslim owned businesses and creating a coercive environment for asset transfer is a part of the project.

KRR: How do you see the working classes and the small and medium enterprises getting affected due to this push for privatisation through the New Economic Policies being introduced in Kashmir?

GM: It’s been a long time since the public sector has been at the service of the people in India. And especially under the BJP it has become a cash cow to beef up government revenues. In J&K the experience has been worse. When we visited Srinagar in September 2019, we found that the availability and non-availability of BSNL landline telephone was being used as a mechanism of coercion. Similarly, the State Bus Transport Corporation and the railways have been used to obstruct the free movement of people on the one hand, while the same have been used to scale up the movement of troops and paramilitary forces. When an entire people have been subordinated by the army and police and have been made to live under the barrel of the gun, how does anything matter?

KRR: Could you make a comment on the J&K Industrial policy of 2020 as well as the Real Estate Policy?

GM: I think in the Real Estate Policy, the government is just talking of state legislation under the Real Estate (Regulation and Development) Act 2016. This had been brought into J&K but then got repealed through the J&K Reorganisation Act 2019. Now, they have to legislate it for the Union Territory of J&K. The Indian government will now try to argue that through this policy, they have ‘liberated’ real estate in J&K. What it will effectively do is that it will ‘liberate’ J&Ks land from the people of J&K itself.

I find it instructive that the Union Home Minister announced that there will be a new Industrial Policy for J&K. This tells you where all decisions are made regarding J&K. A few days ago, the LG said that the policy was at its final stage. It’s nice that they are keeping us informed. Either the Union government or the J&K government has somewhere said that in the past 70 years there was only INR 39,000 cr worth of investment. By 2024, there will be four times this investment i.e., INR 156,000 cr. I don’t think we would stop the BJP from bringing INR 156,000 cr to J&K. But where will it come from? They are finding it difficult to ensure this level of investment in the whole of India. Who will invest in a place in 2020 where there is no internet?

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Dismantling Land Reforms in J&K

Land Grab under the Garb of Developmentalism

Shinzani Jain

The Government of India recently abrogated the special status accorded to the erstwhile state of Jammu & Kashmir (J&K) under Article 370 of the Constitution of India. One of the main reasons cited by Home Minister Amit Shah while introducing the resolution in the Rajya Sabha on August 5 was that Article 370 has hampered the development of the people of J&K. Soon, this became a popular opinion.

Criticising this widely popular move, renowned economist and academic Jean Dreze voiced his dissent arguing, “It is not correct to say that Kashmir is a backward state, therefore, it was a must to remove Article-370. Of course, there are economic problems, but the living standard is quite good, nutrition is much better in Kashmir than Gujarat.”196 Dreze notes that J&K is, in fact, more developed than many of the other Indian states. He also makes a comparative analysis between the human development indicators of J&K and Gujarat.

Interestingly, Dreze attributes the better performance of J&K to the extensive land reforms that were carried out by the Na- tional Conference government in the 1950s and contends that it was, in fact, Article 370 that made these reforms possible. He says, “Because of Article-370, J&K has its own constitution and this constitution allowed distribution of land which the Constitution of India would not have allowed. I think it played an important part in reducing poverty and in laying the foundation of a relatively egalitarian economy in rural areas.”197

Sharply critical of the government’s move, former Finance Minister of J&K, Haseeb A. Drabu writes, “For the people of J&K, the biggest benefit of the state having greater legislative latitude under Article 370 has been the radical restructuring

SECTION 3 - ECONOMY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 81 of agrarian relations. It was the first state in India, much before the communist government in Kerala, to carry out non-com- pensatory land reforms.”198 J&K was, in fact, the only state to carry out land reforms without granting any compensation to former proprietors of land. Land was transferred to peasants free of costs and arrears.

Land reforms in Jammu & Kashmir Land reforms in J&K constituted a part of a spate of reforms, including health, education and agrarian reforms, introduced by the National Conference government between 1948 and 1976. Two major legislations through which these reforms were affected were – the Big Landed Estates Abolition Act, 1950 and the J&K Agrarian Reforms Act, 1976. Under the Big Land- ed Estates Abolition Act, the upper limit for landholding was reduced to 22.75 acres in 1950, which was further reduced to 12.50 acres through the Agrarian Reforms Act, 1976. All land in excess of the ceiling was expropriated by the state and was then transferred to the actual tillers. The decision on compensation was taken later in 1951 by the Constituent Assembly of the state which decided against paying any compensation to landlords.199 It was their belief that the system that resulted in this kind of stark disparity in land ownership was deeply exploitative and parasitic, and neither the state nor the beneficiaries of the reform owed compensation to the landlords who had benefited from this exploitative structure for centuries.

These reforms, as first envisioned and articulated by the leaders of the National Conference, were introduced by them in the Naya Kashmir (New Kashmir) Manifesto in 1944. The basic principles informing these land reforms – ‘abolition of intermediaries’ and ‘land to the tiller’ – were proposed in Naya Kashmir. J&K was the only state in independent India that refused compensation to landlords whose lands were expropriated by the state. These reforms were further supplemented with elaborate tenancy reforms.200

Naya Kashmir was launched by the leaders of the National Conference in 1944. This document laid down a comprehensive plan for socio-economic, political, and cultural reconstruction of the state of J&K. Drawing inspiration from the Soviet model, Sheikh Abdullah declared the vision that was being laid down for the newly emerging state would be socialist. He emphasised that real freedom is possible only after economic emancipation of the people. With this leaning, he resolved to build the foundation of democracy in the state on the bedrock of economic equality.201

The remarkable nature of land reforms can be assessed by contextualising it within the socio-political background of J&K during the Dogra rule. The state economy was predominantly agrarian with 80% of the peasantry constituted by Kashmiri Muslims. In her book ‘Languages of Belonging’, Chitralekha Zutshi details how, over centuries of rule under the Afghans, Mughals, Sikhs and Dogras, landownership in the region had become deeply skewed, with the majority of Kashmiri Muslim peasantry working as landless labourers. The people of Hindu community ascribed as ‘lower caste’ were placed similarly or worse. While this was the condition of the vast majority, exorbitant amount of lands came to be owned and controlled by Kashmiri Pandits and the Kashmiri Muslim communities of Syeds and Peers.202

What is the relationship between these reforms and Article 370? Drabu argues203 that when the J&K government divested the landed aristocracy of their land under the Big Landed Estates Abolition Act in 1950, the right to property was a fundamental right under Article 19 of the Indian Constitution and it was the autonomy under Article 370 thereof which prevented the annulment of this statute. Because of the existence of Article 370 and the autonomy ensured thereunder, Article 19 of the Indian Constitution was not applicable to the State of J&K. The same logic was put forth first by the then Finance Minister of J&K, Mirza Afzal Beg, to turn down the demand for compensation by the landlords whose lands were expropriated.204

Impact of Land Reform In an essay in the book ‘The Radical in Ambedkar’, Dreze argues, “Radical land reforms in J&K were immensely popular and laid a lasting basis for a relatively prosperous and egalitarian rural economy, with very low poverty rates by Indian standards.”205

Bhatia highlights how the Scheduled Caste (SC) community was numerically the biggest beneficiary of land redistribution in Jammu.206 Brecher approximates the number of SC beneficiaries in Jammu to be 2,50,000.207Dr. Ashish Saxena notes that

SECTION 3 - ECONOMY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 82 during 1950s-70s, out of the 672 kanals of surplus land taken away from Rajputs and Mahajans, 70.24 percent was allotted to tenants from SCs. This has resulted in an intergenerational shift in occupation pattern of the SCs from landless agricul- tural labourers to land-owning peasants from 0 percent landowning peasants in the grandfather’s generation to 47.1 percent landowning peasants in the present generation in Jammu.208Linking the prevalence of poverty and hunger in India with a failure of land reforms in India, Iqbal argues that both Central and State governments in India could take a leaf out of J&K’s book to alleviate their people’s suffering.209

According to Drabu, the factors underlying J&K’s better than national average human development indicators are that along with the land reforms, there was a massive debt write-off undertaken over a period of twenty years between 1951 and 1973. It is because of this that the incidence of indebtedness in J&K is at the second lowest. Landless labour in the state is nearly absent and land ownership translating into economic empowerment has led to more than 25% of the household earnings in J&K coming from own cultivation. As a result, the incidence of poverty in the state is remarkably low with households living below the poverty line at 10% against the all India average of 22%.210

The case of land reforms in J&K and the consequent prosperity within the society and economy presents us with a unique example in the history of Indian subcontinent. Rather than an objective study on what made this possible, what we have witnessed in the past year is an enormous propaganda machinery not only systematically propagating misinformation and falsehood, but also meticulously working to shift the agenda and discourse of public policy.

Debunking Developmentalism

Land reform has been called the forgotten agenda of the 1960s. The phase of decolonization was marked by the new post-co- lonial regimes adopting and implementing land reforms during the 1950s and 1960s. In his book ‘Land to the Tiller: The Political Economy of Agrarian Reform in South Asia’, Ronald Herring notes that land reform was frequently the first legis- lative act of a new regime in an agrarian society. Few issues arouse a comparable level of political controversy, manipulation of symbols and administrative energies, he argues.211 Faced with massive challenges, these new regimes struggled to deal with the scale of rural poverty, agrarian distress, inadequate food production and an overarching possibility of rural unrest.

The dual policy logic behind land reforms can be classified as:

1. Economic logic – the most rational and economic use of scarce land resources without any waste of labour and land. This logic warns against unproductive accumulation of land resources.

2. Redistributive logic – redistribution of land resources in favour of the less privileged classes with a view to ending exploitation.

This policy logic to land reform is termed by Herring, as the dyad of social justice and productivity. He links this dyad to a third legitimation of agrarian reforms - the threat of rural violence. He highlights how ‘concern for rural tensions,’ ‘harmo- ny,’ and ‘stability’ have dominated much of the policy logic, and land reforms frequently constituted the first legislative act of a new regime.

This influence can also be attributed to the simultaneously increasing influence of the communist ideology in the ‘Third World’ during the years of decolonization. Aijaz Ashraf Wani argues that this was a time when state-led developmentalism was favoured by the international environment and ‘development’ had become the major international concern since the emergence of ‘Third World’. The apprehension of International donor agencies and the US of the communist influence in poor countries pushed them to emphasising ‘state-led developmentalism’ as the essential means of modernizing and improv- ing the conditions of people.212 This strategy of development has been attested to by the scholars of history of development planning of India. K B Saxena argues that land reform was conceived as a major instrument for increasing agricultural pro- duction and productivity, restructuring agrarian power relations and of alleviation of rural poverty, particularly of informal tenants and agricultural labourers and was pursued with full vigour by the Central Government.213

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However, the ‘development-policy’ discourse around land reform has undergone a paradigm shift since the era of decoloni- zation. The current phase of land reform has its genesis in the overarching paradigm of the economic policy and ideology of neoliberalism. The discourse around developmentalism began to undergo a change after the arrival of the Reagan-Thatcher era with the emerging international paradigm of ‘equity’ and ‘growth’. Concern for the lowest 40 percent of the income pyramid, argues Herring, is currently in vogue due to this paradigm shift.

In his essay ‘Re-setting the Agenda of Land Reforms’, Professor K. B. Saxena notes that a reversal of the old architecture of land reforms has been taking place in India without a formal declaration. Post liberalisation, this is evident in the relaxation in ceiling provisions on agricultural landholdings for corporate bodies and aggressive official advocacy of liberalising ten- ancy. He adds, “There is virtual consensus among policymakers, neoliberal economists, agricultural scientists and experts from international financial organisations that the existing land reform policy on tenancy, ceiling, restrictions on transfer of land and change of land use poses serious constraints in achieving fast economic growth and realising optimal value.”214

‘Developmentalism’ as contextualized by Wani has always been used by the Indian state as a tool to manage Kashmir. The political rhetoric of Indian leadership, for decades, has been that development will bring normalcy in Kashmir. Recently, the same rhetoric has been applied by the Indian state to effect the abrogation of the special status accorded to the erstwhile state under Article 370 of the Indian constitution.

The shift in public policy discourse is revealing of how the logic of the market has rendered the discourse hol- low of principles of social justice. The social justice-productivity dyad is no longer dictating policy log- ic. Nor is there any fear of social unrest, as was the case according to Herring. The current ongoing shift in pol- icy discourse is being done under the garb of welfarist motivations and J&K is the most recent casualty of it.

Land grab under the garb of Developmentalism

In order to protect land rights of the indigenous population of Jammu & Kashmir after land reforms, a regime of laws was enacted by the state. These laws prohibited the alienation of land to non-state subjects and corporate players from outside the state. Some of the laws protecting land rights of the state subjects were enacted during the regime of the Maharaja as a result of people’s struggles for employment and land rights. This framework of laws includes Articles 370 and 35A of the Indian Constitution and state legislations – J&K Alienation of Land Act, 1938, Big Landed Estates Abolition Act, 1950, J&K Agrarian Reforms Act, 1976 and J&K Land Grants Act, 1960. Along with the revocation of the autonomy of the state, legislative and constitutional changes have been brought about by the central government to dilute this regime of laws pro- tecting land rights of the people of the state.

Article 35A conferred the power on the state legislature to enact laws defining classes that will constitute permanent res- idents of the state and will be conferred with special rights and privileges with respect to employment and ownership of immovable property. It was, in fact, based on Maharaja’s Notification of 20th April 1927, issued as a result of demands by Kashmiri Pandits who feared loss of employment and security in wake of influx of people to the state from Punjab.

A G Noorani explains that Article 35A was a result of a solemn pact between the Union and the state and could not be unilat- erally altered. Discussing the necessity of the provision in his statement in , Nehru said, “So the present Govern- ment of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sale qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places... So far as we are concerned, I agree that under Article 19, clause (5), of our Constitution, we think it is clearly permissible both in regard to the existing law and any subsequent legislation.”215

The de-operationalization of Article 370 in August 2019 has in turn led to a unilateral revocation of Article 35A by the Indian parliament. This means that the special rights ensured to the state population through the provision have also been annulled. In addition, on August 9, 2019, the J&K Reorganisation Act was passed through which state laws prohibiting transfer of land to non-state subjects were amended to permit such transfer. These amendments include – section 4 of J&K Alienation of Land Act, 1938, Section 20-A of Big Landed Estates Abolition Act, 1950, section 4 of J&K Land Grants Act, 1960 and section 17 of J&K Agrarian Reforms Act, 1976. All of these provisions have been repealed by the 2019 Act. Now, the government of India has vast land resources in its control, which are now available for Indian corporate players to buy, along with the land of the peasants.

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In addition to these legal changes, administrative decisions have been made at aggressive speed to clear forest lands and create land banks for ‘developmental projects’. Between August and October 2019, the Forest Advisory Committee of J&K has cleared a record 125 projects involving diversion of 271 acres of forest land for development projects.216 In February 2020, ahead of the global investor’s summit which was supposed to be held in J&K, an area of 60,000 kanals (7,500 acres) of the state land was identified and earmarked for industrial development.217 These decisions have been made in absence of an elected government in the state and in contravention of the procedure laid down under the J&K (Conservation) Act, 1997.

Land grab is not a new phenomenon in J&K. According to government records, the Indian military has grabbed 53,353 hect- ares of land in Kashmir under the guise of ‘national security’.218 In early 2018, former Chief Minister of J&K, Mehbooba Mufti informed the Legislative Assembly that 51,116 kanals of State land in Jammu and 3,79,817 kanals of land in Kashmir were under the unauthorised occupation of the India armed forces.219 Nabi and Ye argue that the occupation of agricultural land, forest land, state land and private buildings have led to dispossession, depeasantization and loss of livelihood for the peasant classes of Kashmir.220

The Indian state has always employed the ‘development discourse’ to justify its arbitrary actions and interference with the governance of the state. Under the garb of ‘developmentalism’ and ‘welfarism’ India is furthering its agenda of land grab and colonization of resources to dispossess and disenfranchise Kashmiris at an alarming speed.

Shinzani Jain is a researcher and writer. She has authored two books – ‘Thin Dividing Line’ with Paranjoy Guha Thakurta and ‘The Black Hole’ with Abhyankar. She is currently working as a Researcher with Tricontinental Institute for Social Research.

This article is an update on the author’s previous work published in Newsclick. The previously published work can be found at: https://www.newsclick.in/land-reform-development-jammu-kashmir; https://www.newsclick.in/book-review-what-hap- pened-to-governance-in-Kashmir-by-Aijaz-Ashraf-Wani.

END NOTES

197. Dreze, J (9 August 2019). ‘Economist Jean Dreaze: Article 370 helped reduce poverty in Jammu and Kashmir’. National Herald. Retrieved from https://www.nationalheraldindia.com/india/economist-jean-dreze-jandk-more-developed-than-gujarat-special-status-helped-reducing-poverty.

198. Ibid.

199. Drabu, H. A (8 August 2019). ‘Was special status a development dampener in J&K?’. Live Mint. Retrieved fromhttps://www.livemint.com/opin- ion/columns/opinion-was-special-status-a-development-dampener-in-j-k-1565248797810.html.

200. Jammu & Kashmir Constituent Assembly Debate, Part I, Vol. I (1951-1955).

201. Moza, M (1985). Agrarian Relations In J&K: A Case Study of Two Districts. University: New Delhi

202. Abdullah, S. M (1944). New Kashmir. Kashmir Bureau of Information: New Delhi.

203. Zutshi, C (2004). Languages of Belonging: Islam, Regional Identity, and the Making of Kashmir. Oxford University Press: New York.

204. Supra note 199.

205. Jammu & Kashmir Constituent Assembly Debate, Part I, Vol. I (1951-1955)

206. Yengde, S., Teltumbde, A (2018). The Radical in Ambedkar Critical Reflections. New Delhi: Penguin Random House

207. Bhatia, M (2014). ‘“Dalits” in J&K: Resistance and Collaboration in a Conflict Situation’.Asian Survey. 54, 5, pp. 941-965

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208. Brecher, M (1953). ‘Kashmir in Transition: Social Reform and the Political Furture’. SAGE Journals. 8, 2, pp. 104-112

209. Mathew, G (2011). ‘Land Reforms: J&K Shows the Way’. Yojana. 55, pp. 24-26

210. Iqbal, S (2018). Social Impact of State Development Policy in J&K: 1948 to 1988. : Srinagar

211. Supra note 199.

212. Herring, R. J (1983). Land to the Tiller: The political economy of agrarian reform in south Asia. Yale University Press: Connecticut.

213. Wani, A. A (2019). What Happened to Governance in Kashmir? Oxford University Press: New Delhi.

214. Saxena, K. B (2016). Re-setting the agenda of land reforms. In Trivedi, P. K. (Eds.), Land to the tiller: Revisiting the Unfinished Land Reforms Agenda (pp. xiii-xxiv). Land and Livelihood Activities Knowledge Hub: New Delhi.

215. Ibid.

216. Noorani, A. G (14 August 2015). ‘Article 35A is beyond challenge’. Greater Kashmir. Retrieved from https://www.greaterkashmir.com/news/ opinion/article-35a-is-beyond-challenge/

217. Scroll (21 October 2019). ‘J&K: 125 projects cleared on forest land since August, only 97 approved last year’. Scroll. Retrieved from https://scroll. in/latest/941222/jammu-and-kashmir-125-projects-cleared-on-forest-land-since-august-only-97-approved-last-year

218. Zargar, A (29 January 2020). ‘J&K Admin to Identify 7,500 Acres of State Land for Industrial Development’. Newsclick. Retrieved from https:// www.newsclick.in/jk-admin-identify-7500-acres-state-land-industrial-development

219. Nabi, P. G & Ye, J (2015). ‘Of Militarization, Counter-insurgency and Land Grabs in Kashmir’. Economic and Political Weekly. 46&47, pp. 58-64

220. Wani, F (10 January 2018). ‘Over 4.30 lakh kanals of land in J&K under occupation of security forces’. The New Indian Express. Retrieved from https://www.newindianexpress.com/nation/2018/jan/10/over-430-lakh-kanals-of-land-in-jammu-and-kashmir-under-occupation-of-security-forc- es-1750088.html 221. Nabi, P. G & Ye, J (2015). ‘Of Militarization, Counter-insurgency and Land Grabs in Kashmir’. Economic and Political Weekly. 46&47, pp. 58-64

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Ecological Vandalism in J&K:

The After-effects of Abrogating the Special Status

Sushmita

“Ann poshi teli yeli wan poshi (food will last as long as forests last)” is a popular Kashmiri saying that gives an insight into the important connection that Kashmir has had with its forests. Having a delicate ecological balance, Kashmir’s evergreen and lush forests have a direct bearing221 on the region’s agriculture and energy sectors. Despite the well understood relevance of these forests, even popularised in the teachings of saints and poets like Sheikh ul Alam, the forests have faced unprece- dented devastation alongside the cycle of physical violence and militarisation in the last three decades.

Moreover, as part of abolishing the semi-autonomous status of Jammu & Kashmir (J&K), the union government passed the Jammu and Kashmir Reorganization Act in the Indian parliament. The Act has been in effect since October 31, 2019. As per this Act, 153 Acts of the former state of J&K have been repealed, 166 Acts have been retained from the former state and 106 new laws have been applied to J&K. However, there has been a lack of clarity on which Indian laws are applicable and which have been implemented. For instance, the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006 has been made applicable but not implemented. Before the amendment of Article 370, the state’s forests were governed by the Jammu and Kashmir Forest Act 1987, which some believe was a robust law to protect the region’s forests.

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Fast paced forest clearances post amendment of Article 370

As per a 2017 report222 of the Forest Survey of India, forest cover in J&K increased with a net gain of 253 sq. km in com- parison to the forest cover in 2015. However, experts223 claim that out of 253 sq. km increase in forest area, a significant figure of 245 sq. km comes from outside the Line of Control (LOC). India officially claims the area and includes it as Indian territory in its maps despite it being under Pakistani administration since 1948.

The area under dense forests around in South Kashmir, which also happens to be a tourist destination, fell by 191 sq. km from 1961 to 2010 with an average annual loss of 3.9 sq. km, mainly due to illegal constructions. The districts that showed increase in forestation namely Budgam (61 sq. km), (34 sq. km) and (21 sq. km) did not see an actual increase in the forest area, but a shift to horticulture.

In a span of 33 days between September 18, 2019 and October 21, 2019, the Forest Advisory Committee (FAC), a statutory body which rules over the questions on the diversion of forest land for non-forest use in the state, approved diversion of over 727 hectares of forest land. It also approved felling of more than 1800 trees, which were unenumerated.224

Importantly, 60 percent of the diverted land was approved for diversion for construction of roads. 33 percent (243 hectares) of the diverted land was approved for diversion for the utilization of army and paramilitary forces in Pirpanjal (Gulmar Wildlife Sanctuary), Jhelum Valley, Samba and Jammu Forest divisions, as per the analysis of official documents.

Moreover, a review of official data revealed that a massive land hunt225 exercise has been going on in the region. So far 120000 kanals (15000 acres)226 land from 203020 acres of state owned land in Kashmir region has been identified for indus- trial infrastructure development. Understandably, most of this land is ecologically sensitive as it’s part of or close to rivers, streams and other water bodies.

What comes across more starkly is that a significant proportion of forest land/s diverted is for the use of army and paramili- tary forces. 33 percent (243 hectares) of 727 hectares of forest land was approved for such diversion between September 18, 2019 and October 21, 2019 in Pir Panjal ( Wildlife Sanctuary), Kehmil, Jhelum valley, Samba and Jammu forest divisions.

Official reason for such rushed decisions was - because of the implementation of the Jammu and Kashmir Reorganization Act from October 31, 2019, the Jammu and Kashmir Forest would be scrapped.227

Sand mining

In February 2020, going against its own studies that warned against large scale mining operations in the and its tributaries, the government started the process of opening up as many as 200 blocks in the river for mining of sand and other minerals.

In a report from 2018, prepared by the Central Water and Power Research Station (CWPRS) on the request from Department of Irrigation and Flood Control (IFC), the situation of the river was highlighted

“The dredging/desilting/sand mining of the main channel of Jhelum from upstream to Asham is not advisable and may cause difficulties for the flood management. Re-sectioning by increasing the waterway width may possibly be taken up at few places only as recommended in the tour report of CWPRS officers.”The study was supported by the World Bank.

Despite several recommendations issuing alerts on the fragile and delicate situation of the river, mineral blocks in the Jhe- lum and its tributaries were auctioned starting December228 2019. In wake of the internet shutdown and slow internet speed mainly non- Kashmiris were successful in these auctions. Shockingly, a member of Environmental Appraisal Committee of J&K which gives environmental clearance to mining and other projects, told thirdpole.net229 on the conditions of anonymity that they had “advised the government in a meeting in December last year that no mining should be allowed in Jhelum and other rivers till there is a basin wise scientific mining plan as to which area should be declared feasible for mining and which areas should be declared as river sanctuaries.”230

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Kashmir saw its worst floods in 2014 and now experts fear that intensive mining will leave an impact on local ecology as also on flood management in Kashmir.

Data deficient

Himalayas is one of the most data deficient areas231, compared to other mountain regions. Studies on climate change and environment in the region have suffered due to the lockdown. It has also meant that the continuity with which data was being collected has broken.232

How have new policies affected the state?

There is a wide consensus among the residents and experts in the region that the new forest laws under the J&K Reorgani- sation Act, 2019 are ineffective. Nadeem Qadri, an environment lawyer and executive director of Centre for Environmental Law said, “Laws in the erstwhile state of Jammu and Kashmir were more robust, as they were based on Maharaja’s principle of natural resource management and conservation.”233

This kind of mismanagement and confusion paved the way for timber smuggling during the Covid lockdown which has coincided with the ongoing communication blockade in Kashmir post the amendment of Article 370. Reports documenting an increase in the number of forest offences have emerged.

In another development the J&K General Administration Department (GAD) accorded sanction to the creation of Jammu and Kashmir Forest Department Corporation (JKFDC) as a registered company in the UT after repeal of Jammu and Kash- mir State Forest Corporation Act 1978.234

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The status of nomadic and tribal communities

As per 2011 census, Scheduled Tribes form 11.9 percent of Jammu and Kashmir’s population. However, tribal rights ac- tivists in the state claim that Gujjars and constitute upto 20 percent of the 12 million population.235 Gujjars and Bakarwals are the nomadic tribes of Kashmir. As March approaches, many of the tribespeople move236 from the plains (Jammu) and other areas towards Kashmir. The tribe has lived in precarious conditions and some have even been forced to resort to begging for their survival. Traditionally, Gujjars were responsible for dairy business, while Bakarwals took care of the cattle. It is widely known that the tribal communities guard the forests and protect them from timber mafias.

Bakarwals have faced double oppression because of the ongoing conflict in Kashmir. Apart from suffering persecution in forests by armed personnel237, they routinely face the issue of closing down of pastures due to security reasons.

Under the FRA, traditional forest dwellers are protected against forced evictions and their tenurial and customary rights (the right to graze cattle etc.) are recognized. However, a narrative has been created that if Gujjar Bakarwals (mostly Muslims) get rights under the FRA, it may lead to a demographic change in the area (mainly Jammu, , Sambha). Such narra- tives are fuelled by former-BJP ministers like Lal Singh, who had previously opposed the implementation of the Act. This has been one of the main impediments in the recognition of the rights of the tribal communities.

FRA also places the decision to carry out development projects in tribal regions with local bodies like Gram Sabhas. A narrative against tribals, as is common elsewhere too, has been created that they are encroachers and cattle smugglers, even though their co-dependence on forests and their role in preserving forests has been widely documented.

Conclusion

The rapid policy decisions being taken to clear long standing forests, especially for projects which were so far still under consideration may have a far-reaching impact on the delicate ecological balance of the region and may accelerate climate change. That the locals are completely shut out from the decision-making processes adds salt to injury. While regressive laws are implemented, the work to implement progressive laws like FRA has not even started. The lack of access to the region for purposes of independent research and reporting is another cause for concern as there is a huge vacuum of com- petitive and rigorous research on the impact of increasing pollution and land diversions for projects related to militarization and more.

Sushmita is a Mumbai based independent researcher working on issues of forest and agrarian rights, gender-based vio- lence, etc. She has been a part of an on-going assessment analysing the impact of COVID-19 on tribal communities:https:// www.fra.org.in/document/COVID-19%20Assessment%20Report.pdf

END NOTES

222. Jammu and Kashmir State Forest Policy, 2010. Retrieved from http://jkforest.gov.in/pdf/approved_forest_policy_28jan11.pdf

223. FSI assesses forest cover of the country every 2 years by digital interpretation of remote sensing satellite data and publishes the results in a bien- nial report called ‘State of Forest Report’(SFR). Beginning in 1987, 16 SFRs have come so far.

224. Parvaiz, A (12 December 2019). ‘Kashmir’s forests face the axe’. Thirdpole.net. Retrieved from https://www.thethirdpole.net/2019/12/12/kash- mirs-forests-face-the-axe/

225. Ibid.

226. Parvaiz, A (8 January 2020). ‘Forest Land identified for development after reorganization of Jammu and Kashmir’.Wire.in . Retrieved from https:// thewire.in/government/forest-land-jammu-and-kashmir

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227. Ibid.

228. Ibid.

229. Ahmad, M (25 June 2020). ‘Kashmir: Online bidding for mineral blocks leaves locals at a disadvantage’. Wire.in. Retrieved from https://thewire. in/government/kashmir-jhelum-mineral-blocks-bidding-online

230. Thethirdpole.net is a magazine covering issues related to the environment.

231. Ibid.

232. Parvaiz, A (11 October 2019). ‘Kashmir communications ban hits key climate studies’. thethirdpole.net. Retrieved from https://www.thethirdpole. net/2019/10/11/kashmir-communications-shutdown-impacts-key-climate-studies/

233. Javeed, A (29 November 2019). ‘Kashmir’s famous suffers during political uncertainty’. Thethirdpole.net. Retrieved from https://www. thethirdpole.net/2019/10/11/kashmir-communications-shutdown-impacts-key-climate-studies/

234. Javeed, A (9 June 2020). ‘Timber smugglers loot Kashmir’s forests during lockdown’. Eco-business. Retrieved from https://www.eco-business. com/news/timber-smugglers-loot-kashmirs-forests-during-pandemic-lockdown/

235. GK News Network (24 June 2020). ‘Government clears creation of forest dept Corp as company’. Greater Kashmir. Retrieved from https://www. greaterkashmir.com/news/jammu/government-clears-creation-of-forest-dept-corp-as-company/

236. Parvaiz, A (16 January 2020). ‘Tribal population of Jammu and Kashmir cries foul about non-implementation of Forest Rights Act. Mongabay. Retrieved from https://india.mongabay.com/2020/01/tribal-population-of-jammu-and-kashmir-cries-foul-about-the-non-implementation-of-the- forest-rights-act/

237. Sushmita (19 April 2018). ‘EXCLUSIVE! Implement Forest Rights Act to Protect Bakarwals of Kathua: Talib Hussain’. cjp. Retrieved from https://cjp.org.in/exclusive-implement-forest-rights-act-to-protect-bakarwals-of-kathua-talib-hussain/

238. Supra note 235.

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Tales of a Vanishing River238

Notes on Sand Mining in Kashmir

Basim-U-Nissa and Salik Basharat

Sand-mining is arguably one of the prime sources of environmental degradation in the world. More than 40 billion metric tons of sand is extracted every year, and over 50% of that is consumed by the construction industry. In the last few decades, several developing nations across the globe have co-opted rapid urbanisation into their national development policies. The foreseeable detrimental impact of these changes on the environment has been neglected. Urbanisation has been seen as a sure marker of ‘progress’. Urbanisation is achieved by standing upon the shoulders of the modern construction industry which depends on concrete prepared using sand. It’s no surprise then that sand is extracted at a large scale. India, a country that has obsessively focused on building urban spaces since the turn of the century239, is the 2nd largest producer of concrete in the world and one of the leading extractors and consumers of sand240.

Riverbed mining is a major form of sand extraction. According to a report by the Geological Survey of India, not only does it threaten the health and biodiversity of river systems, unchecked riverbed mining as it currently happens in India, has the potential to lead to the depletion of groundwater resources causing severe scarcity of river water, affecting irrigation and potable water availability all across the country241. Unfortunately, despite these dire warnings, many of India’s rivers, such as the Sutlej, Baes, Ganga, , Narmada, and Cauvery etc. are exploited unceasingly for river-bed sand.

In Kashmir, the primary casualty of this anthropocentric exploitation has been the Jhelum river, a 774 km long tributary of the Indus that flows right through the valley, physically and historically, and houses its sand mining industry. Whether due to the presence of an eco-spiritual heritage or Kashmir’s political instability or a mix of both, river-bed mining in Kashmir has traditionally obeyed the golden formula of harmonious natural living - which is, assuring that the rate of human-induced mineral extraction is always much lower than the rate of natural mineral replenishment. The sand extraction process in Kashmir has predominantly been a manual activity carried out by inhabitants from villages like , Litter, and San- gam etc., located alongside the bank of river Jhelum242. More recently, with a rise in the demand for urban spaces, a disregard for this age-old practice has seeped in.

Almost instantaneously, under the gambit of urban development, the valley has witnessed a rise in housing projects and other concrete based construction activities. Just recently, on the 17th of July, the administrative council of J&K led by Lt. Governor G.C. Murmu sanctioned a proposal for the adoption of J&K Housing, Affordable Housing, Slum Redevelopment and Rehabilitation, and Township Policy, 2020 which sets an initial target of constructing 1 lakh housing units over the next five years. In a similar move, amendments have also been approved to the Control of Building Operations Act, 1988 and The Jammu and Kashmir Development Act, 1970 to allow a special dispensation for carrying out construction activities in strategic areas, which enables the government to notify any area as an area of strategic interest for the armed forces and then carry out construction activities as they deem fit . And as mentioned earlier, construction demands sand. The present day sand mining industry in Kashmir employs an ever increasing number of workers, around 1.5 lakh from all over Srinagar, Baramulla, Shopian, and several other districts who benefit economically from sand extraction and transportation activities. The three main categories of employers for this work are mining companies approved by the government, sand syndicates or mafias, and native individuals/families engaged in small scale traditional mining.

The mineral extraction and allocation laws abided by the Department of Geology and Mining (DG&M) of Kashmir seem to be non-partisan and environmentally conscious on paper, but the story on ground is not reflective of the promise of these laws.

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Sand Mining in Kashmir before August 5, 2019

The DG&M, which is the regulatory body in charge of mining activities in Kashmir, has failed for years in curbing min- eral exploitation. As per a report by the Tribune, the DG&M loses INR 300 crores annually to illegal mining of riverbed materials243. Besides the excessive extraction of riverbed material at designated mining blocks, mining was carried out at locations that were not listed and auctioned as mining sites. Machines were increasingly employed for extraction by polit- ically well-connected contractors even though the Department of Irrigation and Flood Control (DI&FC) had laid emphasis on extracting materials manually. The DG&M and DI&FC were not only exposed to threats and political patronage used by the sand mafia, but also complained of receiving little support from the police244.

In a bid to curb illegal sand mining, a blanket ban on mining was imposed by the J&K High Court in 2017 and was executed by district administrations across Kashmir245. In its order, the High Court had stated that illegal mining was carried out in contravention of the Mines and Minerals Development and Regulation Act, 1957, the J&K Minor Mineral Concession Stor- age, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016 [SRO 1065 (Dated 31.03.2016)] and several other rulings of the Supreme Court of India and the J&K High Court246. Consequently, there was no existing valid mineral block allotment post-February 28, 2019 as per the SRO 93 of 2019 on February 1, 2019 of the Industries and Commerce Department of the J&K Government247.

In conjunction with this policy, the Additional Deputy Commissioner of - exercising powers envisaged under Section 133 of J&K Criminal Procedure Code - imposed a blanket ban on the unlawful extraction and mining of minerals from rivers, nallahs, water bodies, tributaries and offshoots in the district, and soil from the Karewas, carried out in any manner248. For the said purpose, the district administration also constituted area-specific task forces in order to ensure that guidelines were adhered to. The task forces were authorized to arrest any person operating earth movers and trucks and seize the machinery used. The order also called for initiating legal action against habitual offenders, and identification of the main sponsors, patrons and networks facilitating the illegal mining249.

Despite repeated efforts by governmental authorities, illegal mining continued unabated. Concerns over the inaction of the authorities were raised by the residents of the catchment areas of Jhelum with the Deputy Commissioner, Srinagar, regarding the “multi-crore sand and clay scam” in river Jhelum in 2018. The DC had directed the DI & FC to conduct an inquiry into the matter and furnish a detailed report. However, the fate of the inquiry is still unknown, and no such report is traceable. Officials in the DC office claimed that ordering the probe “was an eye-wash”, considering which locals allege that the in- volved brokers continued unlawful extraction as the authorities avoided acting against them250.

In many other reports about the rampant continuation of illegal mining, locals allege that there is a nexus between the min- ing mafia and the relevant government departments. For example, residents of Kupwara alleged that illegal sand and stone extraction in Nallah Mawar was being done by influential people at the behest of the district administration. Locals alleged that the mining mafia works in tandem with the relevant authorities, stating that, “It is surprising that just before any officials visit the site the extractors leave the spot.”251 Ecological Ramifications

Defiled in the past two decades by rising urban populations and pollution, increased deforestation, and changing land use patterns along its floodplains, the local rivers have been under grave threat of mechanised sand extraction that will further ravage the river system. The removal of vegetation and destruction of soil profiles have ruined habitats above and below the ground and have led to a decline in fauna. Fish spawning of certain indigenous species such as the Schizothorax species of fish, known locally as kaeshirgaad, has decreased drastically due to this exploitation. The fish catch per unit of the famed trout of Kashmir too has been dwindling over the years. As per a study conducted by Prof. Farooz Ahmad Bhat of Sher-i- Kashmir Institute of Agriculture Sciences (SKUAST), the lifting of sand, boulders, pebbles and stones from the riverbed is a prime cause of this decline252253.

Major lakes that are part of the Jhelum river basin, such as the Wular, are also facing threats from increased siltation due to river-bed mining. River channel widening has caused a shallowing of stream beds, and the riverbed has dried up in multiple locations due to an increased exposure to solar radiation. In several areas along the Jhelum riverbed mining has increased initial and premature failure of irrigation wells.

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The troubled hydrological functionality of the Jhelum floodplains is tested further by new habitations and concrete structures that are now coming up along its banks. All of these constructions are perpetually in immediate danger of flooding. As per a 2018 report by the Central Water and Power Research Station, “The dredging, desilting/sand mining of the main channel of Jhelum from upstream to Asham is not advisable and may cause difficulties for the flood management.254” Concomitantly, illegal mining carried out in Jhelum poses a threat to the Lower Jhelum Hydel Power Project, Uri255 besides endangering the pre existing embankments along the river. It’s almost as if the devastating Kashmir floods of 2014, in which at least 300 people lost their lives and millions were displaced, wasn’t enough of a warning for the government to tread with caution on the tightrope of urban construction.256,257,258

Sand Mining in Kashmir after August 5, 2019

In the aftermath of the de-operationalisation of Article 370, the J&K administration-initiated e-auctioning of minor minerals and riverbed materials for the first time in its history. The stated objectives of the move were to put in place a transparent process for the allocation of the mineral blocks259, and to boost the revenue generated by the DG&M260. The authorities were also considering granting ‘Short-term Permits’ to organizations like Border Roads Organization, National Highway Author- ity of India, Central Public Works Department, and Jammu Kashmir Projects Construction Company in order to ensure that developmental work could be carried out seamlessly.

For the same purpose, the administration had identified over 260 mining blocks along the Jhelum alone. In January 2020, e-auctioning of over 150 land banks in Kashmir was initiated. Most of these mining blocks, that have since been allotted, are concentrated in South Kashmir, with 36 in Pulwama alone.261 However, the process of allocation adopted by the admin- istration is questionable.

E-auctions were publicized in September 2019 when the internet ban, which had been imposed after the amendment of Article 370, was still in place. Applications were invited from potential bidders in December 2019 and early January 2020 while internet connectivity had still not been restored in the Valley262. The government advised local businessmen to bid from the government’s internet facilitation centers while some contractors were forced to move outside the union territory, amidst travel restrictions, to be able to access the internet and register their bid. Despite this, non-local bidders have been able to capture a majority of the auctioned mineral blocks and locals are left complaining about restricted access to the bidding process.

Shakir263, a local contractor, who managed to bid for three spots, even though unsuccessfully, summarizes the predicament of the local contractors who blame the internet ban for their losses:

“First, they banned the internet. And then they issued tenders for mining rights. Had they not been ill-intentioned, they would’ve waited for the restoration of the internet” The centrality of the access to internet to the bidding process can be assessed from the following data (table 1)264. Approx- imately, 73% of successful bidders across six districts are non-locals. The ratio is most bleak in districts like Srinagar and Bandipora which were among the first ones to be earmarked for e-auctioning. Mir and Khan, the only successful local bidders in Bandipora, speak of the bidding process – “During bidding, our computer showed us the sign ‘please wait’ after providing a new rate and till the page refreshed, the tenders were won by outsiders.”265 The percentage of successful local bidders is the highest in where the auction process was completed most recently (ending June 2020) when local businessmen had relatively better internet connectivity.

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Table 1: District-wise percentage of successful bidders by Residential Status

District Percentage of successful bidders local Percentage of successful bidders_non-local Srinagar 0.00% 100.00% Bandipora1 5.26% 94.74% 20.00% 80.00% Baramulla2 31.58% 68.42% Budgam 42.86% 57.14% Kulgam 66.67% 33.33% Average 27.73% 72.27%

In addition, opening up of mining leases for non-locals has led to a radical increase in the highest successful bid amount, as such, rendering locals incapable of matching the high bids. For example, all the bids in Srinagar were won by non-local contractors. The sum of highest bids made was 7158.6% more than the sum of the minimum reserve bids (see annexure 1). Similarly, the average successful bid per block across the 97 blocks that data is available for is a whopping 81.6 lakhs (ta- ble 2). In Pulwama, for example, the highest bid for a block went up to 3.25 crores as compared to 77 lakhs during the last auction.266 Local bidders also allege that non-local contractors purposely increase the bidding amount when applying for a block. Yousuf, a local contractor, contextualizes the sharp increase - “Until now the rate per block would not be much. Some of the blocks would cost around Rs 1 lakh”.267

Table 2: Average successful bid amount per block by district

District Number of blocks Corresponding sum of highest bids Average bid amount Pulwama3 12 178200000 14850000.00 Kulgam 15 157670000 10511333.33 Anantnag 15 156577000 10438466.67 Budgam 7 46711000 6673000.00 Baramulla4 38 201500000 5302631.58 Srinagar 10 50810000 5081000.00 Average 97 791468000 8159463.92

The closure of the bidding process, however, does not ensure the allocation of mining blocks to successful bidders. It is to be followed by a Letter of Intent – provided by the concerned district magistrate, an environmental clearance from the State Level Environment Impact Assessment Authority of J&K, a mining plan approved by the DG&M, and a consent to operate (CTO) obtained from the Pollution Control Board (PCB).268In connection with the recent allocations made by the DG&M, the Deputy Director of the Department, Dr. Amarjit Singh Sodhi assured that, “All the firms are bound to get Non-Objection Certificates (NOC) from all the departments falling under ministry of environment, forest, ecology and environment. Min- ing sites will be properly checked and [then] will be handed over to the firms.”269

However, it has been noted that mining operations in the blocks recently allotted to non-local contractors are already under- way even before obtaining environmental clearances. According to residents of Lassipora, heavy extraction vehicles have been deployed in Nallah Rambiara. These reports have also been confirmed by the regional Director of the PCB who claims to not have received any applications for the requisite CTO yet270.

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These illegal mining operations are being conducted well under the nose of the District administration as Shahnawaz, a local contractor working on behalf of a non-local firm, Hari, claims - “We have all the documents and we are expecting EC [environmental clearance] soon. We have been allowed by the district administration to operate since we are supplying material for government works - NREGA and PMGSY. All the officials including the DC of Pulwama knows we are extract- ing material. We are now waiting for EC which will come soon.”271 In absence of EC, even if awaited, any mining activity conducted is illegal.

The allocation of mining blocks to non-locals has been widely criticised especially as J&K is already grappling with high unemployment rates. Abdul QayoomWani - Chairman of Jammu and Kashmir Civil Society Forum, while calling for the immediate cancellation of contracts allotted to non-locals claimed that the government manipulated the bidding process in favour of the non-local firms in order to render bonafide residents of the valley jobless272. The Kashmir Chamber of Commerce also registered their objections with the allocations, referring to the policy as “alarming and against public in- terest”273. Critical voices were also heard from across the political spectrum. Members of Hurriyat alleged that the process was designed to benefit the non-locals and the COVID pandemic was being used to exploit J&K’s natural resources. CPI(M) leader, Mohammad Yousuf Tarigami also sought the cancellation of the contracts given to non-locals274.

Economic Displacement in the Traditional Industry

In the wake of issuing e-tenders for mining blocks, the livelihood of local labourers involved in manual extraction of sand has, in fact, been obliterated by the recent mining policy. Traditionally, most sand and stone extraction in Kashmir was done manually. Typically, the laborers involved in extraction, dumping, loading and transportation of the materials were inhabitants of villages (like Kakapora, Litter, Lassipora and Sangam etc.) that are located along the banks of local rivers. Consequently, manual extraction of riverbed materials has been a predominant occupation in these areas for generations and continues to be the primary source of livelihood for many families even today. An estimated 1.5 lakh families are dependent on the industry in Kashmir.275

In this context, the revision in the mining policies comes as a direct threat to the subsistence of these people. Speaking of the plight of the sand digger’s community, Sharik says –

“We (contractors and businessmen) might still manage. Traditional sand diggers are at the verge of begging. Someone who has earned his living from sand digging all his life can’t pick-up a new vocation when he is old.”276

As a result, sand diggers from various parts of Kashmir have been holding protests and have demanded that the Lieutenant Governor personally looks into the matter. However, no respite has been provided to the marginalized group yet.

Kashmiri Eco Spiritual Legacy

The disempowerment of local communities in Kashmir is not limited exclusively to the realm of politics. A systemic pa- tronage by the central government of India is usurping the powers of indigenous people over their land and resources. The inapplicability of the Forest Rights Act that empowers tribal communities in J&K, the conversion of the Forest Department of J&K into a government-owned corporation, the opening up of local quarries and land banks to non-local competition, government sponsored allocation of land to potentially hazardous industries, and other recent developments point towards a centralisation of authority and an institutionalized marginalisation of local communities. This concentration of authority brings with it a homogenising force which neutralises any alternate opinions.

The proposed model for development in Kashmir is a replication of the same models that have been long implemented in India’s peripheries, and have led to a blatant exploitation of resources, violation of rights and interests of local communities and have completely disregarded traditional knowledge systems and practices. The marginalisation of the Adivasi com- munity in India due to land alienation, loss of access and control over forests, enforced displacement due to development projects and lack of proper rehabilitation bears a testament to the failure of this mindless implementation of western devel- opmental model in local contexts.

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An eco-spiritual existence has been one of the pillars of the cultural landscape of Kashmir. Evidence for this can be found in the literature and architecture of Kashmir, in its intellectual and spiritual life, and even in local parlance. The creation legend of Kashmir itself speaks of a valley through which the Goddess in the form of the sacred purifying river Vitasta - also known as the Vyeth, the Hydaspes, the Jhelum - flows. Baba Bulbul Shah’s mosque, the shrine of Mir Ali Hamdani, , Rinchan Shah’s Mazaar, the Batyar temple, and several other religious structures are built along the Jhelum indicating its importance in Kashmir’s religious imagination. Nund Rishi’s 14th Century ecological wisdom reverberates through the halls of Kashmiri experience and into our modern dictionaries - “aanposhiteli, yeli wan poshi (nurture nature, for nature nurtures)”, he says, offering great insight into the ways of nature. Even Habba Khatoon, before forsaking material life, cleansed herself at Panda Chok in the Jhelum river for the river is said to purify all sins.277

There is abundant knowledge in our native experience from which we can draw inspiration and caution before fiddling with traditional modes of living. Yet, despite centuries of tradition and experience, a modern anti-culture called ‘progress’ which has wreaked havoc not only in the social and natural spaces of India, but the entire world is slowly burrowing itself into the valley. The defunct ecologically conscious laws and rising unmanaged urban construction hatched onto a canvas next to the de-operationalisation of Article 370 and the reassurance given to non-local mining companies and investors places before our eyes a bleak painting of a possible ecological, cultural, and social disaster. The tenets of environmental colonialism all check out. The creation of a competitive sand market will peak the interest of urban construction companies and lead to a greater exploitation of river-sand. This river-sand will be used to create modern compounds, complexes, housing and other structures to accommodate the increasing urban population and new settlers, inevitably displacing local communities, live- lihoods, and their cultural experiences. The floodplains of the Jhelum will suffocate, and this will not only destroy fertile land and ecosystems, but also put the constructed buildings and populations at great existential risk from flooding. The irony is that the very structures that were built at the expense of environmental exploitation will be consumed by the exploited environment.

One might be inclined to believe then that to be ‘developed’ is to develop endlessly. To sustain expansion is to disregard history and the wisdom of nature and pave a path for endless exploitation, until, of course, there is nothing left to exploit. For the politically tyrannised people of Kashmir then, what does India’s environmental colonialism and capitalist expansion hold in its future? Local Kashmiri wisdom, exposing itself in the poignant words of boatman, Noor Mohammad Pakhdoom- i,278 giggles at this concern, ‘The entire Valley can be brought to its knees, but the Jhelum will always have its own rules.’

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Annexure 1: List of successful bidders

Block num- PID of successful bid- Residential Sta- Minimum re- Highest bid ber District der5 tus6 serve bid amount 7 Anantnag sdmn_004 non-local na 1619000 3 Anantnag sdmn_005 non-local na 1339000 10 Anantnag sdmn_009 local na 9128000 2 Anantnag sdmn_014 non-local na 4500000 12 Anantnag sdmn_015 non-local na 7658000 18 Anantnag sdmn_017 non-local na 19359000 6 Anantnag sdmn_020 non-local na 2001000 11 Anantnag sdmn_020 non-local na 16989000 4 Anantnag sdmn_022 non-local na 16330000 19 Anantnag sdmn_024 non-local na 9655000 1 Anantnag sdmn_026 local na 10339000 17 Anantnag sdmn_027 local na 21577000 16 Anantnag sdmn_032 non-local na 25585000 20 Anantnag sdmn_034 non-local na 1188000 5 Anantnag sdmn_037 non-local na 9310000 10 Budgam sdmn_002 local na 13079000 4 Budgam sdmn_006 non-local na 883000 1 Budgam sdmn_007 non-local na 1315000 11 Budgam sdmn_009 local na 11733000 2 Budgam sdmn_015 non-local na 3116000 3 Budgam sdmn_017 non-local na 1006000 12 Budgam sdmn_033 local na 15579000 20 Kulgam sdmn_001 local na 5280000 9 Kulgam sdmn_003 local na 3730000 29 Kulgam sdmn_005 non-local na 45060000 3 Kulgam sdmn_008 local na 1770000 6 Kulgam sdmn_010 local na 1590000 27 Kulgam sdmn_011 local na 28890000 11 Kulgam sdmn_012 non-local na 6500000 16 Kulgam sdmn_014 non-local na 9870000 28 kulgam sdmn_017 non-local na 19420000 26 Kulgam sdmn_021 local na 14420000 17 Kulgam sdmn_028 local na 5480000 10 Kulgam sdmn_029 local na 1610000 30 Kulgam sdmn_034 non-local na 1080000 25 Kulgam sdmn_035 local na 6670000 21 Kulgam sdmn_036 local na 6300000 7 Srinagar sdmn_013 non-local 70000 16220000 10 Srinagar sdmn_015 non-local 60000 200000

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6 Srinagar sdmn_016 non-local 50000 3100000 8 Srinagar sdmn_020 non-local 80000 7800000 1 Srinagar sdmn_023 non-local 70000 190000 4 Srinagar sdmn_025 non-local 80000 10660000 3 Srinagar sdmn_030 non-local 80000 7200000 2 Srinagar sdmn_031 non-local 50000 210000 5 Srinagar sdmn_037 non-local 80000 4050000 9 Srinagar sdmn_037 non-local 80000 1180000

Basim-U-Nissa is a Research Fellow at the Trivedi Center of Political Data, Ashoka University. She is interested in the study of state repression, political violence and the media.

Salik Basharat is an MA student at Ashoka University studying English and Philosophy. His areas of interest include envi- ronmental ethics, Kashmiri mysticism, 19th-century philosophy, cultural studies, magic realism and poetry.

Annexure 1

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Annexure 2

END NOTES

239. The article shares its title with a book of humorous stories published by Earl Howell Reed in 1920. The title is reflective of the draining of the marshlands situated along the Kankakee River, at and around which the stories are situated. Today, the river is essentially a ditch.

240. Torkington, S (5 October 2016). ‘India will have 7 megacities by 2030, says UN’. World Economic Forum. Retrieved from https://www.weforum. org/agenda/2016/10/india-megacities-by-2030-united-nations/

241. United Nations Environment Programme (2019). ‘Sand and Sustainability: Finding new solutions for environmental governance of global sand resources’. United Nations Environment Programme. Retrieved from http://wedocs.unep.org/bitstream/handle/20.500.11822/28163/SandSust. pdf?sequence=1&isAllowed=y

242. Kohli, K (26 August 2013). ‘The Struggle Over Riverbed ’. International Rivers. Retrieved from https://www.internationalrivers. org/blogs/257/the-struggle-over-riverbed-mining-in-india

243. Bhat, S (12 February 2020). ‘Sandstorm’. KashmirLife. Retrieved from https://kashmirlife.net/sand-storm-issue-45-vol-11-223571/

244. Hakhoo, S (15 April 2015). ‘J-K losing Rs 300 crore annually due to illegal and sand mining’. Retrieved from https://www.tribuneindia.com/news/ archive/features/j-k-losing-rs-300-crore-annually-due-to-illegal-sand-mining-67920

245. Ibid.

246. The Kashmir Walla (7 July 2019). ‘Despite High Court ban, illegal extraction going on unabated in River Sindh’. Retrieved from https://thekash- mirwalla.com/2019/07/despite-high-court-ban-illegal-extraction-going-on-unabated-in-river-sindh/

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247. The Kashmir Walla (7 July 2019). ‘Delhi High Court ban, illegal extraction going on unabated in River Sindh’. The Kashmir Walla. Retrieved from https://thekashmirwalla.com/2019/07/despite-high-court-ban-illegal-extraction-going-on-unabated-in-river-sindh/

248. GNS (2 April 2019). ‘Blanket ban imposed on illegal extraction, mining of riverbed material in Pulwama’. Fast Kashmir. Retrieved from https:// fastkashmir.com/2019/04/blanket-ban-imposed-on-illegal-extraction-mining-of-river-bed-material-in-pulwama/

249. Ibid.

250. Ibid.

251. Early Times Report (3 February 2019). ‘What happened to the sand mafia enquiry?’. early TIMES. Retrieved from http://earlytimesnews.com/ newsdet.aspx?q=256211

252. Shah, M (13 January 2019). ‘Illegal sand mining in Kupwara under the nose of authorities’. Greater Kashmir. Retrieved from https://www.great- erkashmir.com/news/kashmir/illegal-sand-mining-in-kupwara-under-the-nose-of-authorities/

253. The Third Pole (18 April 2016). ‘The troubled trout of Kashmir’. TheThirdPole. Retrieved from https://www.thethirdpole.net/2016/04/18/the- troubled-trout-of-kashmir/

254. Shabir, Z. B (23 July 2019). ‘How illegal pursuit of riverbed material is threatening the habitat of Kashmir’s trout fish’. FreePressKashmir. Re- trieved from https://freepresskashmir.news/2019/07/23/how-illegal-pursuit-of-riverbed-material-is-threatening-the-habitat-of-kashmirs-trout-fish/

255. Parvaiz, A (17 February 2020). ‘Mining expands on Kashmiri rivers despite dire warnings’. The Third Pole. Retrieved from https://www.thethird- pole.net/2020/02/17/mining-expands-on-kashmiri-rivers-despite-dire-warnings/

256. Kashmir Age (15 April 2020). ‘Illegal Sand Mining Threats Lower Jhelum Hydroelectric Project, Uri’. Kashmir Age. Retrieved from https://kash- mirage.net/2020/04/15/illegal-sand-mining-threatens-lower-jhelum-hydroelectric-project-uri/

257. SANDRP (8 June 2017). ‘Jammu and Kashmir Rivers Profile (Jhelum and Chenab Basins)’.SANDRP . Retrieved from https://sandrp.in/2017/06/08/ jammu-and-kashmir-rivers-profile-jhelum-and-chenab-basins/

258. The World Bank (2018). ‘Jhelum and Tawi Flood Recovery Project. The World Bank. Retrieved from http://jtfrp.in/wp-content/uploads/2019/03/ Task1_Report_Final.pdf

259. Burke, J and Boone, J (11 September 2014). ‘Kashmir monsoon floods leave 460 dead and displace almost a million’. The Guardian. Retrieved from https://www.theguardian.com/world/2014/sep/11/kashmir-monsoon-floods-million-displace-pakistan-india-aid

260. Daily Excelsior (6 January 2020). ‘For transparency, e-auctioning of minor mineral blocks initiated for first time in J&K’. DailyExcelsior.com. Retrieved from https://www.dailyexcelsior.com/for-transparency-e-auctioning-of-minor-mineral-blocks-initiated-for-first-time-in-jk/

261. KNT News Desk (24 June 2020). ‘e-auction of sand blocks go to non-local contractors in Kashmir ‘Move will generate more revenue’. Kashmir News Trust. Retrieved fromhttp://kashmirnewstrust.in/2020/06/e-auction-of-sand-blocks-go-to-non-local-contractors-in-kashmir-move-will-gen- erate-more-revenue-2114/

262. Zargar, A (5 February 2020). ‘With Article 370 Gone, Locals Lose Majority Bids for Sand Extraction in Kashmir’. Newsclick. Retrieved from https://www.newsclick.in/Article-370-Gone-Locals-Lose-Majority-Sand-Extraction-Kashmir

263. Supra note 243.

264. This is an excerpt from an interview conducted by the authors. Names have been changed to maintain anonymity.

265. Also see annexure 1.

266. Supra note 243.

267. Percentage has been calculated using numbers from the following reports stating that only one out of the 20 blocks auctioned was secured by local contractors - https://kashmirlife.net/sand-storm-issue-45-vol-11-223571/

268. In absence of detailed data for , percentages have been quoted from the following report stating that 26 out of 38 blocks auctioned went to non-locals - https://www.greaterkashmir.com/news/business/non-local-firms-bag-majority-of-mineral-extraction-contracts-in-kashmir/

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269. Supra note 262. 270. Ibid. 271. In absence of detailed data for Pulwama, average bid amount has been calculated using the data quoted in the following report - https://kashmir- life.net/sand-storm-issue-45-vol-11-223571/ 272. In absence of detailed data for Baramulla (see annexure 1), average successful bid amount per block has been calculated from the following report stating that 38 blocks in Baramulla fetched 20.15 crores - https://www.greaterkashmir.com/news/business/non-local-firms-bag-majority-of-min- eral-extraction-contracts-in-kashmir/

273. Supra note 262.

274. Malik, I. A (25 February 2020). ‘Environmental hazards of sand mining wars’. The Kashmir Walla. Retrieved from https://thekashmirwalla. com/2020/02/environmental-hazards-of-sand-mining-wars/#:~:text=%E2%80%9CExcessive%20instream%20sand%20mining%20is,peo- ple%20make%20of%20the%20river.

275. Zargar, A (30 June 2020). ‘J&K: New Contractors Begin Extraction on Mineral Blocks Without Environmental Clearance’. Newsclick. Retrieved from https://www.newsclick.in/Jammu-kashmir-new-contractors-begin-extraction-mineral-blocks-without-environmental-clearance

276. Ibid.

277. Kashmir Pen (27 June 2020). ‘Allotment of sand extraction contracts to non-locals making locals jobless: QayoomWani “Cancel all such con- tracts, won’t allow it at all’. Kashmir Pen. Retrieved from https://www.kashmirpen.com/allotment-of-sand-extraction-contracts-to-non-locals- making-locals-jobless-qayoom-wani-cancel-all-such-contracts-wont-allow-it-at-all/

278. Outlook News Scroll (7 June 2020). ‘Revoke decision giving mining contracts to non-locals: Tarigami’. Outlook News Scroll. Retrieved from https://www.outlookindia.com/newsscroll/revoke-decision-giving-mining-contracts-to-nonlocals-tarigami/1879357

279. Ibid.

280. Supra note 243.

281. Round brackets represent clarifications added by the authors.

282. Kalla, K. L (1985). The Literary Heritage of Kashmir. Mittal Publications: Jammu & Kashmir

283. Dutta, P (17 October 2019). ‘Eternal Witness of Kashmir Valley: Tracing the Jhelum River’.Sahapedia. Retrieved from https://www.sahapedia. org/eternal-witness-kashmir-valley-tracing-jhelum-river

284. In order to avoid publishing the names of human subjects, PIDs are used. PID is a unique code assigned to a person/entity irrespective of the district. As such, a bidder will have the same PID across different districts.

285. The residential status has been assigned on the basis of name and address of the successful bidders.

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The state of Bakrawal Tribe in times of COVID crisis

Afreen Faridi

The erstwhile state of Jammu & Kashmir (J&K) recognized 12 Scheduled tribes within its territory, numbering more than 140,000 individuals who comprise 11.9% of the total population as per the Population Census of 2011. Over 90% of the tribal populace follows the religion of Islam in this region. These tribal communities are one of the most vulnerable groups in the subcontinent, having endured the vagaries of the partition, conflict, climate change, deforestation, neo-liberalization, and now a global pandemic, leading to their increased marginalization within the modern nation-state. Of the twelve tribal groups, the Bakarwals are the second largest in number, after the Gujjar tribe. The Bakarwals and the Dodhi-Gujjars com- prise one of the largest transhumance communities in South-Asia. They undertake bi-annual migration between the high-al- titude Himalayan pastures in Kashmir and Ladakh in summers, to the plains and the Pir-Panjal range in the Jammu region.

Such migrations are integral to the social, economic, and cultural milieu of these two communities, who have traditionally reared livestock as their primary source of livelihood. Hence, they refer to themselves as khanabadosh or nomads. Since Bakarwals and Gujjars are mostly Muslims in India Administered Jammu & Kashmir (IAJK), such a mode of existence draws its sanctity as - Sunnah or inspiration from the Prophet, making the community loathe to any change in their tradi- tional work practices.

The State of Bakarwals Post-Partition

The nomadic tribes have always had an antagonistic relationship to the modern state, which has actively criminalized, ex- ploited, and encroached upon their territories through the colonial project. After the end of British colonial rule in the Indian subcontinent, the independent Indian state took up its rein and expanded the colonial project in this Himalayan state of J&K. The brunt of partition in 1947 was faced by the Muslims of Jammu, a predominant tribal populace, when the erstwhile Ma- haraja of the Princely State, with the help of RSS, exterminated the local populace through a systemic genocide to engineer a demographic change in the Jammu region and reduce Muslims to a minority. Four successive wars with Pakistan- 1947, 1965, 1971 and 1999, along with the Sino-India wars, carved up traditional communitarian lands of the Nomadic tribes between the three nation-states of India, China, and Pakistan. The trifurcate claims of ownership over the region led to the establishment of impenetrable borders, drastically reducing the pastoral lands which the Bakarwals accessed for rearing their flock. The access to traditional pastures was further aggravated by the rise of the popular uprising in Kashmir during the late 1980s, when the colonial state of India, used military occupation to capture swathes of meadows, restrict and close access to traditional migra- tory routes via mountain passes, and forced recruitment of tribes as porters and guides, while usurping their livestock at will . Amidst contestations of nationhood and citizenship between the people of Kashmir and the Indian state, the Bakarwals have continually lacked representation over claims of ownership of land and resources. The land reforms of the 1950s in IAJK, did not benefit the Nomadic tribes, who, to their own detriment, did not recognize private property rights and did not lay claim over communitarian lands. It was only in 1991 that the Bakarwals were recognized as scheduled tribes by the state, which then accorded affirmative action to uplift them. A social milieu that existed outside the norms of private property, the nomadic tribes have been historically disenfranchised as they did not possess the documents requisite for the nation-state to acknowledge individuals as its ‘permanent residents’ in IAJK. Furthermore, state forest officials, in the absence of Forest Rights Act (2006), have been notorious of denying the nomadic tribes access to forests lands, extorting them, and evicting them from their Deras which granted the Bakarwals proximity to pastures, water bodies and minor for- est produce required for their daily sustenance. Hence, even after being recognized as Scheduled Tribes, state policies of affirmative action in the areas of education and employment could not be accessed by the members of the Bakarwal tribe. In addition to political conflict, state-led neo-liberalization and globalization have further marginalized- Bakar wals by forcing them to engage in the market-economy - an alien mode of production until recently for the no- madic tribes. Limited access to credit, modern veterinary medicine, along with increased competition from im- ported wool and low auction rates in times of high inflation have had a detrimental impact on the traditional work practices of this nomadic populace. As per an unpublished survey, about 39% of nomads have given up migration , owing to continued marginalization within IAJK, the Bakarwal community bears the highest incidence of illiteracy, child mortality, child labour and marginality of work amongst all social groups in the region.

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The socio-economic status of the Bakarwal tribes got a major hit after the rise of ethno-nationalism and the propagation of sectarian politics in IAJK, when the Bharatiya Janata Party (BJP) won the Indian Parliamentary elections in 2014 and formed a coalition with the Jammu & Kashmir Peoples Democratic Party to form the regional state government in IAJK. As a result, the bodies of the Muslim nomads became sites of communal violence, including sexual assaults The lowest moment being the 2018 sexual assault and murder of a minor girl from the Bakarwal tribe in Kathua, with polit- ical representatives of the BJP coming out in support of the accused. Such attacks by Hindutva non-state actors aim to stop Bakarwals from settling in the Hindu- dominated Jammu plains during winters. Furthermore, cow-vigilantes attack the tribes during migration, a tactic to terrorize and prevent Muslims from rearing cows and other milch animals, to wrest control of the dairy and meat industry from these nomads. The period leading up to the year 2019 witnessed the aggregation of the political, economic, and social forces, inspired by the vision of the Hindutva state, to further exclude the Bakarwal community from their claims over ownership of land and resources.

The State of Bakarwals After Invalidation of Article 370

On August 5, 2019, the Indian government unilaterally revoked the limited autonomy of IAJK, a special status accorded to the people of J&K through Article 370 of the Indian Constitution, which had been placed in recognition of the contestation of citizenship in the region. Such a move was undertaken in absence of a democratically elected local government during the (Indian) President’s Rule, bifurcating IAJK into two Union Territories of J&K, and Ladakh. Such a measure by the Indian government was to further its ethno-nationalist imagination of Akhand Bharat, to extend the idea of a Hindu Rashtra to the region by initiating a demographic change by changing the domicile law - which until now restricted non-natives from pur- chasing land and availing government jobs in the region. This move of disenfranchising the native populace, the subjugation of their democratic rights, and enforcement of a de facto economic blockade lead to political upheaval, against which the Indian state placed in force Section 144 (CrPC). Such a law enforced a moratorium on the normal functioning of the society by limiting the physical movement of all individuals, even as a communication blockade was initiated. Incidentally, the BJP continues to claim that their move of changing the federal relation with IAJK would benefit the nomadic tribes of the region by extending them the hitherto unavailable political reservation and extension of Forest Rights Act (2006).

While the Indian state representatives keep making loud claims of benevolence towards the tribal population, the amalga- mation of political shut down along with the pandemic lockdown for colonial considerations has brought nothing but misery to the Bakarwal nomads who had migrated and settled in the plains of Jammu during the winter. The shutdown immediately after the amendment to Article 370 of the Constitution of India, caught the Bakarwal community unawares and off-guard. Owing to the economic blockade and closure of markets, the nomadic community could not trade with the local meat and wool merchants. The nomads usually supplement their livelihood by engaging in unskilled work in the construction sector and by accessing employment schemes such as the MGNREGS. However, due to suspension of such public and private ac- tivities, the members remained out of work for the duration of the winter, while their subsistence costs drastically increased due to the logistical jam in the Public (Food) Delivery System which could have been used to access food grains at a subsi- dized rate. Furthermore, with the closure of educational institutions and suspension of policies such as Mobile Schools, the tribal children continued to be denied an education. All this while, the provincial administration failed to implement the now extended Forest Rights Act in the region, making the community vulnerable to evictions and denial of access to pastures in forest reserves in the Jammu region - limiting food sources for their flock. The shortage of food for the herd was exacerbat- ed with no access to veterinary medicines and fodder from the Animal Husbandry department in the region. The increase of sectarianism in the region post-amendment led to increased calls of eviction of the Bakarwal communities practicing Islam by Hindu nationalists of Jammu from the rented vacant plots that they inhabit in the region - leading to land conflicts, increase in rent, along with economic ostracisation of the community where the local populace refused to purchase dairy products from the Bakarwals, affecting their livelihoods.

Already battling the vagaries of the political shutdown, the COVID-19 pandemic has acted as the last straw on the camel’s back. Due to the imposition of nationwide lockdown measures to curb the spread of the virus, the Bakarwal community’s migration schedule has been massively disrupted. Even as the Central and State governments of India set up policies such as Vande Bharat, to aid the return of white-collar workers who had emigrated to foreign countries and across the nation during the lockdown, no such initiative was launched for this nomadic community.

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Almost 800,000 nomads got stuck in cramped rented plots in Jammu till late April of this year, a full month’s delay in setting out for the higher reaches . During this period, the provincial government failed to provide any substantial aid to the tribe in the form of rations, medical assistance, rent relief, and fodder for the livestock. The increased cost of living, fall in income, and delay in transhumance shall bear a cascading effect on the livelihood and the lives of the nomadic community. The health and numbers of the flock, which cannot bear the summer temperatures in the plains, significant- ly deteriorated and shall continue to plummet as the delay in reaching the pastures shall reduce the availability of good grass in the high-altitude pastures. It was only by April 23 that the provincial government of IAJK allowed Bakarwals to travel as a complete dera or household - including the young and the elderly. However, the road back to the summer abode remains fraught with obstacles for the tribe. The provincial government sat on its haunches in issuing Mattoos or written permits required by the community for passage to their forest lands, claiming lack of stationary pads. More- over, as stated by the J&K Advisory Board for Development of Gujjars and Bakarwals, the administration has refused to issue Mattoos for milch animals viz. cows and buffalos, this being in accordance with the sectarian aims of transferring ownership of such animals away from the Muslim community. With each milch animal costing as much as INR 40,000, the Bakarwal community is set for a huge financial setback. As the Bakarwals set out to migrate along their ancestral routes, often through COVID-hit zones, the administration failed to set up health facilities for the tribes folk and their livestock- both vulnerable to diseases and injury during the migration. The administration has also refused to allow the use of vehicles, which would have speeded up the movement of large ani- mals and safeguarded vulnerable members of the community. The road to the higher reaches continues to be treacherous as the state administration has not engaged in the upkeep and clearance of snows tfrom the route that the community used to migrate into regions as far as the range in Ladakh.

COVID Colonialism and the Future of Traditional Livelihood of the Bakkarwal Tribe

The distress and marginalization of the Bakarwal community are set to exacerbate owing to the unilateral promulgation and implementation of colonial policies by the BJP-led Indian government even as the COVID-19 Pandemic besieged the region. Using the pandemic as a state of exception the Indian state waylaid democratic processes and suppressed dissent to further their ethno-nationalist agenda in IAJK, which in the long run shall affect the traditional mode of social reproduction within the Bakarwal tribe.

After the implementation of Constitutional Orders numbered 272 and 273, the Indian state took away the autonomy of the natives of IAJK, including the tribes, by stripping them of the solely existing indigenously formulated Constitution in the Indian Union along with their land and statehood. This led to a political disenfranchisement through the dissolution of the Legislative Assembly and replacement of one with a reduced number of political representatives, bound to the Indian Parliament via a Lieutenant Governor. Unsurprisingly, the absence of any elected representatives and the presence of an administrative puppet of the Indian Union led to the implementation of anti-native policies that aimed to propagate colonial extraction within the region. Using the pandemic to enforce limitations on popular expression, the provincial government notified new Domicile Rules in the region . These rules regulate ownership of immovable private property and employment, opening up greater contestation over local resources from non-natives who had emigrated to the IAJK for employment but did not hold the status of permanent residents as per previous rules. As a means to actuate a demographic change in the region, the new regulations shall primarily allow members and families of Indian civil servants and the Indian military to compete for a greater share of local resources through political bargaining. Even though the BJP claims to set up political reservation of the tribes of IAJK, since, the Bakarwals barely access state institutions, own private property, and hold doc- uments issued by the modern state, they shall remain undocumented and underrepresented. In their place, the creamy layer within the Indian tribal groups, a part of the colonial machinery in IAJK, shall usurp the benefits supposedly extended to the nomadic tribes of the region.

The commensurate material marginalization through increased obstacles to transhumance mode of livelihood within the community is apparent. The extractive colonial policies of the Indian state have opened up the natural resources of J&K to Indian subjects and private corporations, allowing them to participate and establish exploitative hegemonies in the local economy. The traditional pastures, essential to the livelihood of the Bakarwal communities are at high risk of being subject- ed to mining activities, with already over 500 mineral blocks being auctioned - a sizable number in areas with a high tribal population such as Anantnag and Kulgam. In the absence of implementation of the Forest Rights Act, alongside the re-orga-

SECTION 3 - ECONOMY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 105 nization of the J&K Forest Corporation as a for-profit company, and the notification of draft Environment Impact Assess- ment 2020 - which has diluted environmental safeguards - it is quite clear that the Indian state is setting up local land, water, forest and mineral resources up for capitalist exploitation by large MNCs, with no heed for the indigenous tribes dependent on the same for their survival. Similarly, the tourism industry that the Bakarwals have used to supplant their livelihoods is set to be taken over by large private groups which shall potentially purchase large swathes of lands and gentrify the region, excluding the nomads from providing services to tourists in the vicinity of their projects.

One can foresee an imminent expansion of private ownership and militarisation of lands, that the Bakarwals have tradition- ally traversed as a community, leading to further shrinkage of spaces where the nomads have dwelled and secured their live- lihood. With the dilution of domicile laws , there shall be an expansion of the real estate sector for private settlements and industry in the region, mostly accessible to non-natives with disposable incomes and access to credit institutions. This could raise the cost of living and create private boundaries and borders, impeding the traditional migratory paths of the nomadic tribes, as with the establishment of Ladakh as a separate administrative territory. Furthermore, the Bakarwals are besieged with increased political turmoil, resurgent armed rebellion, and escalation of Sino-India conflict over claims of territoriality in the Galwan Valley, affecting a greater militarization in the region by the Indian forces, which seek out and occupy large swathes of grazing grounds for their bases. The militaristic occupation of tribal lands is worsened by impunity accorded to the Indian Armed forces via AFSPA , wherein they escape civil accountability for inflicting material damage on the commu- nity, such as running over their flock with their vehicles, as seen during the nomadic migration of the Bakarwals in the past.

The insidious nature of the colonial state also impedes the shift of traditional mode of production within the Bakarwal tribe on to the mainstream modes of livelihood which are highly skilled and require formal school education. The shutdown of public and private schools in conjunction with denial of 4G internet in IAJK since, August 5 last year; in addition to the state-backed shift to online modes of education during the pandemic, completely place the members of Bakarwal tribe at a disadvantage, who have historically been dependent on mobile schools for imparting traditional knowledge and culture to their children. This educational marginalization can be foreseen through the fact that 86% of children in the region cannot access online learning which is being valorized by the current Public Education Department. As private educational insti- tutions are set to increase in the region, ‘technocratic inegalitarianism’ while imparting education will only rise and further marginalize future generations of Bakarwals, and limit their inclusion in formal work economy; one only set for increased competition with the opening of access to the non-natives.

Given all the ‘developments’ in the IAJK, the Bakarwals are doomed to part with their traditional work practices and exist as undocumented workers ripe for exploitation by the Indian private and public sector, with limited recourse to state insti- tutions for representation and justice. The tribes face an almost insurmountable challenge of standing up to the sectarian colonial state for securing their social, economic, and political rights.

Afreen G. Faridi is a Ph.D. Candidate at the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi. His research seeks to locate the interstices of constitutionalism and conflict for determining their impact on work practices in Kashmir. His writings include poetry on conflict, trauma and memory.

END NOTES

286. Rashtriya Swayamsevak Sangh, a Hindu Nationalist Organisation

287. Naqvi, S. (10 July, 2016). The killing fields of Jammu: How Muslims become a minority in the region. Scroll.in. Retrieved from https://scroll.in/ article/811468/the-killing-fields-of-jammu-when-it-was-muslims-who-were-eliminated

288. Parvaiz, A. (16 June,2014). Military activities destroy Kashmir’s highland pastures. thethirdpole.net. Retrieved from https://www.thethirdpole. net/2014/06/16/military-activities-destroy-kashmirs-highland-pastures/

SECTION 3 - ECONOMY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 106

289. Faridi, A. Child Labour in a Pastoral Tribe of Jammu and Kashmir: Impact of Spatiality within the State of Conflict. In Posso, A. (Ed) (2020) Child Labor in the Developing World. Palgrave. (Forthcoming)

290. Parvaiz, A. (16 January 2020). ‘The tribal population of Jammu and Kashmir cries foul about the non-implementation of the Forest Rights Act.’ Mongabay. Retrieved from https://india.mongabay.com/2020/01/tribal-population-of-jammu-and-kashmir-cries-foul-about-the-non-implementa- tion-of-the-forest-rights-act/

291. Chakravarty, I (29 June 2019). ‘Why the BJP’s bid for delimitation in Jammu and Kashmir is being viewed with suspicion.’ Scroll.in. Retrieved from https://scroll.in/article/928324/why-the-bjps-bid-for-delimitation-in-jammu-and-kashmir-is-being-viewed-with-suspicion

292. Bhatnagar, G. (29 April 2018). ‘Kathua Case: A Part of Continuing Oppression of Pastoral Communities’. The Wire. Retrieved from https:// thewire.in/women/kathua-gangrape-murder-bakarwals-pastoral-community

293. Faridi, A. (Forthcoming).’ Child Labour in a Pastoral Tribe of Jammu and Kashmir: Impact of Spatiality within the State of Conflict.’ In A. Posso, Child Labor in the Developing World. Palgrave. (Forthcoming)

294. Hassan, F (4 May 2020). ‘In Jammu and Kashmir, inconsistent lockdown rules have disrupted seasonal livestock migration.’ Scroll.in. Retrieved from https://scroll.in/article/960770/in-jammu-and-kashmir-inconsistent-lockdown-rules-have-disrupted-seasonal-livestock-migration

295. Ahmad, M (21 June 2020). ‘Trouble Mounts for J&K’s Nomads During Annual Migration to Greener Pastures.’ The Wire. Retrieved from https:// thewire.in/agriculture/jammu-nomads-bakarwal-annual-migration-animal-rearing

296. Iyer, A (17 April 2020). ‘Worried & Confused’: 15 Lakh Bakarwals Begin Migrating to Kashmir. The Quint. Retrieved from https://www.thequint. com/news/india/jammu-and-kashmir-gujjar-bakarwals-worried-confused-migrate-lockdown

297. Ganai, N (1 April 2020). ‘Amid Coronavirus Lockdown, Govt Comes Up With Domicile Law For Jammu And Kashmir.’ Outlook. Retrieved from https://www.outlookindia.com/website/story/india-news-amid-coronavirus-lockdown-govt-comes-up-with-domicile-law-for-jammu-and- kashmir/349830

298. Bég, M (30 May 2020). ‘J&K’s New Domicile Order: Disenfranchising Kashmiris, One Step at a Time.’ The Wire. Retrieved rom https://thewire. in/rights/kashmir-domicile-law

299. Bhat, S (18 August 2019). ‘BJP to woo Gujjars, Bakerwals.’ Outlook. Retrieved from https://www.indiatoday.in/mail-today/story/bjp-woo-gujjars- bakerwals-1581881-2019-08-18

300. The Kashmir Monitor (25 June 2020). ‘Govt creates J&K Forests Dev Corp, company to take over erstwhile SFC.’ The Kashmir Monitor. Re- trieved from https://www.thekashmirmonitor.net/govt-creates-jk-forests-dev-corp-company-to-take-over-erstwhile-sfc/

301. Mohanty, A (6 July 2020). ‘Why draft EIA 2020 needs a revaluation.’ Down To Earth. Retrieved from https://www.downtoearth.org.in/blog/envi- ronment/why-draft-eia-2020-needs-a-revaluation-72148

302. Javaid, A (6 February 2020). ‘Outside firms enter the mining race in J&K, lease earnings touch crores from lakhs.’ The Print. Retrieved from https://theprint.in/india/outside-firms-enter-mining-race-in-jk-lease-earnings-touch-crores-from-lakhs/360175/

303. Kissu, S (27 June 2020). ‘Jammu Feels Betrayed, Kashmir in Panic After Domicile Certificates Issued’. NewsClick. Retrieved from https://www. newsclick.in/ammu-kashmir-felt-betrayed-kashmir-panic-domicile-certificates-issued

304. The Armed Forces (Special Powers) Act, 1958

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Section 4 Culture and Minorities

Colonel, Major among 5 personnel killed in J&K’s encounter

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Deification of land and the State

Industry-Military Complex in Kashmir

Swathi Seshadri

All over the world, tourism is popularly seen as a relatively harmless economic activity compared to dams and mines, in terms of its detrimental impacts on the environment and society. Tourism promotion and propaganda is centred around the joy that holidays bring to tourists, the income that it generates and the happy smiling faces of ‘hosts’ as they serve the ‘guests’. While it does create some employment opportunities and income, it is not as innocent an activity as the industry would like us to believe.

Like anywhere else, in the Kashmir valley too, tourism does generate some income in cities and towns like Srinagar, Pahalgam, , Gulmarg, etc. and is important for those who depend on it. However, viewed from a politi- cal-economic perspective, tourism in the valley takes on a completely different purpose where it is not merely an eco- nomic activity, but a political tool used to show the world that everything is ‘normal’. In 2015, the then Union Minister of Tourism made the State’s intent clear when he said, “We will combat terrorism with tourism in Jammu & Kashmir.”

In conflict areas, religious tourism in particular has been used as a political tool by the State to claim a historical right over the land. In Kashmir, the Amarnath has been a weapon to claim the land and ensure a steady stream of devotees from India into Kashmir.

This paper looks at dynamics of land, economy and religious tourism in Kashmir and its role in the nationalism project of the Indian State.

Conflict regions and religious tourism

One of the most documented cases of the role of religious tourism in conflict areas is Jerusalem. Studies on religious tourism have used two approaches to understand the resultant dynamics that emerge. One school of thought led by the symbolic anthropologist Victor Turner believes that religious tourism causes “a relational equality of full unmediated communication, even communion” with other individuals, “which combines the qualities of lowliness, sacredness, homogeneity, and com- radeship” - understood as Communitas. He argued that often managers of pilgrimages seek this sense of communitas to communicate universalism of the pilgrimage and religion. The Haj pilgrimage could be an example of this where according to the custom, all who perform the pilgrimage are equal and need to undertake the pilgrimage accordingly.

On the contrary, British anthropologists John Eade and Michael Sall (1991) argue that each pilgrimage has a cultural, social and historical context, within which they should be analysed. They argue that pilgrimages are actually sites of contestation of dis- courses, with different groups – for example, those managing the pilgrimage, tourists, and people living in the region – viewing

SECTION 4 - CULTURE & MINORITIES KASHMIR READING ROOM YEARLY REPORT 2019 - 20 109 and perceiving the pilgrimage differently as the sites would hold different meaning to different sets of actors.5 It is in the context of the second perspective that certain sites of religious tourism become a maelstrom, with the religious beliefs of the dominant community becoming the universal truth. A poignant example of this contestation is Jerusalem, which is the principal pilgrimage site for Judaism as well as important to Islam (after Mecca and Madinah).

Religious tourism in Kashmir: Orchestrating history

People of Kashmir have been in conflict with the Indian state since its formation in 1947. The Amarnath Yatra in Kashmir was the first experiment by the State to use religious tourism to push a political agenda. In this section we will see how three have been used to deify land and stake claim to it.

First the Amarnath Yatra, which has been politicised since the 1990s, coinciding with the renewed struggle for freedom in the valley. A Yatra to Buddha Amarnath began in 2005 and is well on its way to being institutionalised. The Kousar Nag Yatra, a recent one, was initiated in 2009. This will enable us to see how systematically the Yatra is orchestrated to serve the nationalist purpose.

Apart from these, Machail Yatra and Kailash Kund Yatra located in the hill districts of Jammu serve the purpose of ‘Hinduis- ing’ Muslim dominated regions of Jammu. The Sindhu Darshan Yatra in Ladakh politicises religion in -dominated Ladakh where it has been used to further the political interests of right wing organisations and parties.

Figure 1: Some important religious tourism sites in Jammu & Kashmir

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Amarnath Cave

Every year, lakhs of people, mostly Shaivites from India travel to the Amarnath cave in Kashmir during the Shravan month of the to pay obeisance to an stalagmite, which is believed to be an embodiment of the Hindu , . The Cave holds no importance to Kashmiri Pandits, and the current day rituals and beliefs of the Amarnath Yatra are only as old as 150–160 years. The Yatra first received state patronage around the 1850s under the Dogra kings and again during the mid 1990s. The Amarnath Yatra is a well-orchestrated event involving multiple institutions from the State government, with security being coordinated by the Indian government. In 2001, the Shri Amarnathji Shrine Board (SASB) was set up to coordinate the Yatra. Unlike other shrine boards where the District Commissioner is the Chairperson, the Chairperson of this Board is the Governor of Jammu & Kashmir (J&K). The Governor being a representative of the Union government makes the Board operate like a State within the State.

The district administration of Anantnag and are involved and preoccupied with the Yatra, while its commitment to the people living in these districts are abandoned. The Yatra is conducted under the shadow of the armed forces. While we do not have access to exact numbers, in addition to the massive presence of the armed forces in the valley, about 30,000 personnel are deployed along the route..

.Under the garb of acquiring land for the Yatra, attempts have been made since 2004 to usurp land to set up permanent infra- structure like offices, accommodation for yatris, toilets, etc. along the Yatra route, and for a township, to be named Amarnath Nagar. In 2004, the CEO of SASB initiated a process to acquire forest land to set up infrastructure for the Amarnath Yatra, which was first granted by the Forest Secretary but was eventually revoked. Between 2005 and 2008 attempts to acquire land continued. People of the valley perceived the land transfer and the permanent structures as a renewed cultural and political onslaught on the region. It is another way for the people of the valley to be dispossessed of their land and natural resources, changing the demographics of the valley, and along with the presence of the military, another form of colonisation of Kashmir. Widespread protests across the valley resulted in cancellation of the land transfer but not before an economic blockade and killing of 61 civilians by the armed forces. In August 2012, there was once again news that a road to the cave was being constructed and other infrastructure along the route was being installed. In 2016, proposals to build a series of tunnels from Chandanwari to and then to Baltal, which would further connect to the tunnel at Zojila Pass, one of whose exits would be barely a few kilometers from the cave, were reported.

Local economies do not particularly benefit from the Yatra as it clashes with the regular tourism season. According to the hotel, resort and shop owners in Pahalgam and Sonamarg, the Yatra, in fact, has a detrimental impact on it. Tourists do not prefer to visit the valley during the Yatra season due to large presence of armed forces, regular frisking of person and property, traffic jams and large crowds in the region. Tent, shop, pony owners and head load bearers are not particu- larly benefited since prices are fixed by the government without any consultation with the workers. organisations located in Punjab, Delhi, Haryana, UP, Jammu etc. stand to gain as they raise large amounts of money for community kitchens. The Kashmir Chamber of Commerce is also kept out of decision making linked to the Yatra, limiting the involvement of its constituent members.

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Buddha Amarnath,

The Buddha is located in the Poonch district near the India-Pakistan border. Socio-re- ligious organisations claim that this is a temple of a snow crystal linga and is therefore also colloqui- ally referred to as Baba Chattani. The Bajrang Dal started organising a Yatra to this temple in 2005. Like the Amarnath Yatra, this is also conducted in August, during the month of Shravan. The Yatra, initially for 2-3 days, is now conducted for 15 days. Unlike the Amarnath cave, this temple has access by road and is open throughout the year. According to Baba Amarnath and Buddha Amarnath Yatri Niyas, 2,00,000-3,00,000 people visit the temple every year, of which 50,000-80,000 visit during the month of August. Several Amarnath Yatra tour operators offer a visit to Buddha Am- arnath for free. As in the case of the Amarnath Yatra, only travel expenses are borne by the yatris, with food and stay taken care of by NGOs. The Yatri Niyas claim that “it is religion that takes people to such far-flung places like Buddha Amarnath and which creates a bonding for the religion across the country.”

Kousar Nag, Kulgam

Kousar Nag is a high-altitude lake situated at a height of 12,000 feet. Local people believe that this is an old route used by ‘Gujjar Bakkarwals’ who also held the lake as sacred. Legend says that the Gujjars would stop here and sacrifice a goat, whose head would be thrown in the lake, which if sunk, meant that they were safe to move onward.

Kashmiri Pandit organisations, like the All Parties Migrant Coordination Committee claim that a Yatra was conducted on Nag Panchami during the month of Shravan. An annual visit to the lake has been going on since 2009. There were concerted efforts in 2014 to mobilise people to participate in the Yatra, in an attempt for the community to lay claim to the lake. What was earlier a day’s visit by a few hundred people, was planned to be conducted as a 6-day Yatra from July 28 to August 2, 2014. More problematic was the support that the district administration of and Kulgam offered to this call - through logistical support including erecting sign boards - diverting yatris on pilgrimage to Reasi where the Yatra was to embark, with accommodation at their Kongwattan Base Camp. What has been unfolding there is uncannily similar to the way the Amarnath Yatra had changed over the years – escalation of the Yatra in a militarised Hindutva manner. Kousar Nag Bachao Front (KBF), stopped the progress of the pilgrims at Kakran. The entire Valley saw protests akin to those during the Amar- nath land row in 2008.

While the Yatra was discontinued in 2014, media reports in 2015 suggested that the Yatra was being conducted silently. According to VHP Vice-President of Jammu, conducting the Yatra silently without drawing attention is a strategy - he said: “once the Yatra is conducted regularly, after about 10–15 years, the younger generation would be made to believe that this was an ancient Yatra and that this new generation would keep the Yatra alive, thus lodging itself in the memories of the coming generations.”9

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Religious Tourism during COVID 19

On April 22, a day before the beginning of the month of Ramzan, the Anjuman Auqaf Jama Masjid, Srinagar in a statement said: “In view of the ongoing coronavirus pandemic, Anjuman Auqaf Jamia Masjid Srinagar, keeping in view the strict medical advisories of maintaining social distance by health experts will continue with the suspension of Friday congregations and Taraweeh prayers in Jamia Masjid, till the situation returns to normal, In Sha Allah.”

On the same day, the SASB issued a press statement cancelling the Amarnath Yatra since the Yatra passes through 77 COVID-19 Red Zones. Later on the same day, in a U-turn, the Lt. Governor in a fresh statement said: “Due to the current COVID-19 pandemic situation being dynamic, an appropriate decision can be taken on organising the (Amarnath) Yatra on reviewing the situation in the coming future” .

On June 6, the SASB announced that the Yatra would be conducted for 15 days, from July 21 to August 3, from the Baltal route. In July, the SASB announced that 1000 yatris by helicopter and 500 yatris by foot would be allowed per day. According to a JKCCS & EQUATIONS study, service providers present on the route are 1.5 to 2 times the number of ya- tris. This would take the total human presence on the route to 3750 to 4500 people per day, which over the 12 days would be 45,000 – 54,000 people. Important to note that on April 22 the total COVID-19 cases in Kashmir was 400, which rose to 10,153 by July 13. Compare the silence on the Yatra with the backlash, hate an ostracisation of the Muslim community in the wake of what came to be popularly called ‘Tablighi Virus’, ‘Corona ’, and ‘Muslim Virus’, when approximately 8,000 people visited the headquarters of the Tablighi Jamaat in Delhi in the beginning of March when the total cases in India less than 300! The Pratham Pooja (first pooja) for the Amarnath Yatra 2020 was conducted on June 5 as per schedule in the presence of the Lt. General of Jammu & Kashmir. The SASB also announced that the morning and evening aarti would be telecast live on Doordarshan every day from June 5 till August 3.

On July 2, an application was filed by Advocate Sachin Sharma in the High Court in Jammu asking for the Yatra to be prohibited in 2020. On July 13, the Supreme Court dismissed a case filed by Shri Amarnath Barfani Langars Organisation, which sought to restrict the access of general public and yatris in view of COVID-19. The petitioner argued that allowing the Yatra violates the June 29, 2020 guidelines issued by the Union Home Ministry under the Disaster Management Act, 2005. The Court evoked separation of powers and said, “we cannot enter into the arena of local and district administration.” Incidentally, in 2012, Justice Swatanter Kumar had filed a Suo Motu Writ Petition, after having undertaken the Yatra in a personal capacity, under which a Special High Powered Committee was constituted and in which case a detailed judgement on several aspects of the Yatra was passed. Furthermore, on July 13, a lockdown was imposed in several parts of Kashmir, and orders were passed for strict punishment under the Disaster Management Act, 2005. It appears that there is a differential treatment and policy for Kashmiris and Indian yatris.

On July 14, the High Court in its order observed that there were no facilities for quarantine and healthcare facilities in the Yatra route. Means of evacuation in case of a COVID mortality identified during the Yatra and removal of a dead body according to COVID 19 protocols were not put in place. The High Court asked the SASB to take a decision which would “address the concern of the health and security personnel, healthcare personnel, priests, the yatris and of the officials who would be involved in the arrangements and the conduct of the Yatra as also the residents of the Union Territory of Jammu &

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Kashmir.” On July 21, in a last minute decision taken on the day the Yatra was scheduled to start, the SASB announced the cancellation of the Yatra, for which all the preparations had been completed.

State-industry-military complex

On the one hand, the government and tourism industry talk about the need to increase tourism in the valley while on the oth- er, the state does not ensure the necessary conditions for tourism to prosper. Since Article 370 was amended a few days be- fore the end of the Yatra, it did not have a significant impact on it. However, the tourist season in 2019 was severely affected. The internet is the backbone of the tourism industry anywhere in the world. Despite there being an interest among potential tourists to visit Kashmir, the internet shut down has made it impossible for houseboat and hotel owners to connect to them. According to the response to an RTI filed by The Wire, Kashmir saw a 71% decline in tourism revenue. With the COVID-19 pandemic in 2020, Kashmir is facing a double lockdown and the tourism industry has missed two continuous tourism cycles.

The graph below shows that the number of secular domestic and foreign tourists visiting the Valley has steadi- ly decreased since 2016, while the number of Amarnath Yatris has remained relatively constant. In June and July, Kashmir received a steady flow of secular tourists which was 27% higher than the same period in the previous year. Between August and December 2019, Kashmir saw an 87% fall in tourists

N o. of touris ts a nd Ama rna th ya tris

2013 - 2019 1200000

1000000

800000 Domes tic and foreign touris ts 600000 Amarnath Yatra

400000

200000

No. of tourists / Amarnath yatris No. / tourists of 0 2013 2014 2015 2016 2017 2018 2019 Year

According to the 2016 Economic Survey, religious tourism does not contribute to the local economy in any significant way since religious tourists do not spend on luxury tours, spend very few days intheval- ley, stay at budget accommodations, eat in community kitchens and do not tend to purchase souvenirs. The aviation industry, helicopter companies and tour operators where the majority of the yatris come from, in contrast, stand to gain the most from the Yatra. The fall in the number of domestic and foreign tourists, and the income generating sector in tourism has had a significant impact on the people. On the other hand, since the state organises everything necessary for the Yatra and is not dependent on the industry, neither the conflict in the region nor the pandemic has had any impact on it.

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Another example of the State (military) – industry nexus is the border tour buses that operated in 2016 that goes through sites such as Ranbireshwar Temple, Mubarak Mandi, Balidaan Stambh, Suchetgarh Border. Diversion of forest land to the SASB, Amarnath Yatra infrastructure and Amarnath Nagar proposals are also examples of this partnership. More recently, there has been a surge in ‘re-discovery’ of pilgrimage sites. In 2013, the government compiled a list of 454 Hindu religious places and shrines. It appears that no attempts have been made to similarly identify Muslim and Buddhist shrines.

A new trend witnessed in Kashmir is to identify sites of religious importance for Kashmiri Pandits, following which mass events are organised around them with the support of socio- religious organisations. It appears that this strategy is being adopted in the context of the 2016 Maha Kumbh at Saidipora, Ganderbal and the proposed but contentious yatra to a cave in Beerwah, believed to be linked to Abhinav Gupta. In both instances, Kashmiri Pandits are at the forefront, supported by socio-religious organisations, some of whom have also been instrumental in furthering the Amarnath Yatra.

In the case of Amarnath, it was not just that the Board was set up to ensure State patronage, but this was actually only a front, and a premise for the Indian State to deploy its real might – its armed forces. If the purpose of the Yatra, as started by the Dogras, was to stifle dissent among the Kashmiris for being forced to accept them as kings, the Yatra in the post-1990s phase was infused with a nationalist agenda. People in India were mobilised to participate in the Yatra and show their loyalty to the country. Thus, religiosity of the Yatra was converted to a call for national pride as is evinced by the following quote from a Press Information Bureau release in 1997:

“Faith can move mountains, so goes an old adage. With a little variation to the saying, it is hoped that the yearn- ing for (salvation) can move the devotees to the challenging heights of Kashmir. This will also be a be- fitting gesture of solidarity with our valiant soldiers who have been fighting the enemy to defend our borders.”

Earlier in 1996, the Bajrang Dal had given a ‘Chalo Amarnath’ call all over India and were able to mobilise more than 50,000 people, with 21,000 being youth members of the organisation.

.

Figure 2: Confluence of State, Religion and armed forces (source:https://www.youtube.com/watch?v=Re5rcqMDrkQ )

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Once the sanctity of a space is secured, the next step is for the government to take upon itself the responsibility of providing amenities for the yatris, which means diversion of state resources to the yatra, but more importantly usurping land which are traditionally public commons.

In January 2015, the then Union Minister for Tourism, Mr. Mahesh Sharma said, “Aksai Chin mein agar koi dharmik sthal hota to chin ki himmat nehin hoti aur aksai chin Bharat seema ki suraksha karne ki zaroorat nehin hoti“ (If there was a religious centre in Aksai Chin, China would not have dared and there would have been no need for border secu- rity). “Declare a pilgrimage centre in Aksai Chin. It will take care of the security issue. This is a part of our religious thought.” He also reported to have said that “religious places like Vaishnodevi and Amarnath ‘protect the borders’.” Deification of land appears to be a well thought out strategy to lay claim to the lands of Kashmir.

Swathi Seshadri is a researcher and activist based in Bangalore. Her association with issues in Kashmir began in 2014 with her work on the Amarnath Yatra and subsequently through fact finding teams she was a part of in 2016 and 2019.

END NOTES

305. This paper draws from research conducted by the author as the principal researcher of a team formed to study the Amarnath Yatra. For more details on this issue please see the report “Amarnath Yatra: A Militarised Pilgrimage” by JKCCS and EQUATIONS released in April 2017.

306. The tourism industry uses the terms “tourism destinations,” “hosts” and “guests.” Organisations who hold a political perspective of tourism con- tend that “tourism destinations” are the homes and backyards of people who live in villages, towns, mountain and coastal regions etc. which have been promoted by the tourism industry. The tourism industry views communities who live in these regions with lives, livelihoods and rights as mere “hosts.” And tourism industry’s “guests” are tourists who consume what the industry sells to them.

307. ENS, (6 April 2015). ‘Union minister links terrorism, tourism; J&K govt not pleased’. . Retrieved from https://indianexpress. com/article/india/india-others/union-minister-links-terrorism-tourism-jk-govt-not-pleased/

308. Badone, El and Roseman, S. R (Eds.) (2004). Intersecting Journeys: The Anthropology of Pilgrimage and Tourism. University of Illinois Press: Urbana, Chicago and Springfield.

309. Di, G and Michael A. (2011). ‘Pilgrimage: Communitas and contestation, unity and difference - An introduction. Tourism: An International’. Interdisciplinary Journal. Vol. 59, No. 3.

310. In 1808, regions that were eventually ruled by Dogras came under Sikh rule. Maharaja bestowed Governorship on Gulab Singh, the head of the Dogras. With the purchase of Kashmir, the Dogras became rulers of the princely state of Jammu and Kashmir. This was resisted by the Muslims of Kashmir. In an attempt to establish their legitimacy and supremacy over Kashmir, the Dogras systematically planted markers of their form of across the valley. For more details on this read: Rai, Mridu. (2004). Hindu Rulers, Muslim Subjects: Islam, Rights, and the . Princeton University Press, Princeton, N.J.

311. In 1986 after the British defeated the Sikhs, they sold Kashmir to the Dogra kings. It is believed that the Yatra first received state patronage after this. Just four years after the Dogra kings set up the Dharmarth to manage religious institutions, Buta Mallik ‘discovered’ the cave. Institutional- ising a Yatra to the Cave, was interpreted as one way for Hindu kings to establish an ancient legitimacy on their Muslim subjects and their lands. It appears that this Yatra has had political compulsions even in the past.

312. The use of ‘State’ in this paper refers to the State as defined by Max Weber: A state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory. While ‘state’ refers to the administrative unit of Jammu & Kashmir.

313. JKCCS & EQUATIONS (2017). ‘Amarnath Yatra: A Militarised Pilgrimage’. Bangalore.

314. Choudhary, Zafar. (2008). Dangerous Politics Around 39 Acres of Land, Epilogue Volume 2, Issue 7.

Figure 2: Confluence of State, Religion and armed forces (source:https://www.youtube.com/watch?v=Re5rcqMDrkQ ) 315. Langars are community kitchens which serve free food to the yatris

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316. There is no transparency in the finances of these organisations and a senior SASB official has admitted to this. Please see ‘Amarnath Yatra: A Militarised Pilgrimage’. JKCCS & EQUATIONS (2017).

317. Jagran (27 August 2015). ‘Buddha Amarnath ke shradhalu utsahit’. Jagran News. Retrieved from http://www.jagran.com/jammu-and-kashmir/ -12793666.html.

318. Wani, F (1 August 2014). ‘Kashmiri Pandits’ Kousar Yatra Kicks up Controversy’. The New Indian Express. Retrieved from http://www.newind- ianexpress.com/nation/Kashmiri-Pandits%E2%80%99-Kousar-Yatra-Kicks-up-Controversy/2014/08/01/article2358631.ece.

319. Raafi, M (18 August 2018). ‘Silently, Kousar Nag Yatra Takes Off’.Kashmir Life. Retrieved from http://www.kashmirlife.net/silently-kousar-nag- yatra-takes-off-83663/ in December 2015.

320. ONS (22 April 2020). ‘No Friday, Taraweeh Prayers In Jamia Masjid: Anjuman’. Kashmir Observor. Retrieved from https://kashmirobserver. net/2020/04/22/no-friday-taraweeh-prayers-in-jamia-masjid-anjuman/

321. Dey, S (22 April 2020). ‘Amarnath Yatra U-Turn: Press Note Cancelling Pilgrimage Withdrawn’. NDTV. Retrieved from https://www.ndtv.com/ india-news/amarnath-yatra-2020-cancelled-due-to-coronavirus-pandemic-2216443

322. Livemint (6 June 2020). ‘Amarnath Yatra 2020 to begin on July 21 till August 3’. Livemint. Retrieved from https://www.livemint.com/news/india/ amarnath-yatra-2020-to-begin-on-july-21-till-august-3-all-details-here-11591418460889.html

323. Khajuria, R. K (7 June 2020). ‘Amarnath Yatra: 1,000 pilgrims on helicopters, 500 on foot to be allowed per day via Baltal track this year’. Hindustan Times. Retrieved from https://www.hindustantimes.com/india-news/amarnath-yatra-1000-pilgrims-on-helicopters-500-on-foot-to-be- allowed-per-day-via-baltal-track-this-year/story-THuiDktB0jUafuhVax4tSI.html

324. Tripathi, A (13 July 2020). ‘Supreme Court refuses to consider plea for restricting Shri Amarnath Yatra 2020’., . Retrieved from https://www.deccanherald.com/national/supreme-court-refuses-to-consider-plea-for-restricting-shri-amarnath-yatra-2020-860667.html

325. Suo Motu Writ Petition (Civil) No. 284 of 2012

326. Ali, S, Bhat, A. H and Toogo, H. J (14 March 2020). ‘A Strange ‘Normalcy’ is Breaking the Bones of Kashmir’s Tourism’. The Wire. Retrieved from https://thewire.in/rights/watch-kashmir-tourism-normalcy

327. Bhat, M and Choudhury, C (26 January 2020). ‘Number of Tourists in Kashmir Down by 86% in August-December 2019: RTI’. The Wire. Re- trieved from https://thewire.in/government/kashmir-tourism-article-370-rti

328. Pandit, S (9 December 2019). ‘87% dip in domestic tourists to Kashmir since August’. Times of India. Retrieved from https://timesofindia.india- times.com/india/87-dip-in-domestic-tourists-to-kashmir-since-august/articleshow/72430195.cms

329. Chowdhury, A (19 February 2020). ‘No sign of revival for Kashmir tourism ahead of spring season’. Economic Times. Retrieved from https://eco- nomictimes.indiatimes.com/news/politics-and-nation/no-sign-of-revival-for-kashmir-tourism-ahead-of-spring-season/articleshow/74215641.cms

330. Economic Survey, 2016, Directorate of Economics and Statistics, Government of Jammu & Kashmir.

331. State Times (2 July 2016. ‘Priya Sethi flags off border tour buses for Amarnath Yatris’.State Times. Retrieved from http://news.statetimes.in/priya- sethi-flags-off-border-tour-buses-amarnath-yatris/ in July 2016.

332. See website of Divisional Commissioner Kashmir, Jammu & Kashmir: http://kashmirdivision.nic.in/WebPages/HinduShrines/hindushrines.html

333. Press Information Bureau (1999). ‘Amarnath Yatra - 99 Acid Test of Devotion’. Retrieved from http://pib.nic.in/feature/fe0799/f1507992.html

334. Rath, D. K (2004). ‘Vishwa Hindu Parishad: A mass movement of Hindu assertion’. The Organiser. Retrieved from http://organiser.org/archives/ historic/dynamic/modulese098.html?name=Content&pa=showpage&pid=36&page=16.

335. Dash, D (22 January 2015). ‘A ‘religious’ centre in Aksai Chin would have scared away Chinese: Tourism Minister’. Times of India. Retrieved from https://timesofindia.indiatimes.com/india/A-religious-centre-in-Aksai-Chin-would-have-scared-away-Chinese-Tourism-minister/article- show/45973444.cms

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Coming Together on one Platform

Jang-Vijay Singh

“When the Walls Came Down and the Windows Went Up”

Alluding to the fall of the Berlin wall, Thomas Friedman in his book ‘The World is flat’ thought a lot of credit for bring- ing freedom to a large part of Eastern Europe beyond the iron curtain went to the rise of information and communication technology during that decade. The edifice of authoritarian regimes of that time was based on strict control of information. There is a reason most authoritarian regimes of that time persisted on heavy censorship – foreign and media, for instance, were heavily censored behind the iron curtain. As information and ideas slipped through the cracks, so did the cracks in the wall widen, and the wall fell.

Conflict is as normal as life – it is how we deal with it that distinguishes our civilisation. Most human beings don’t hold malice towards their fellow humans. This is not entirely true – as realists, we need to acknowledge that in a world governed by ‘might is right’, malice and aggression (and its associated characteristics like corruption, authoritarianism, oppression) might have paid. But it shouldn’t. And increasingly doesn’t. If we think clearly and pay attention. Both sets of examples can be found in the world from recent history and today and it is for us to observe and draw lessons (Why nations fail – The book’s title could be summed up in one phrase: greed and extractive institutions – violence and discord only serve these interests).

If there’s sincerity, there is no conflict that cannot be resolved by dialogue and communication. For many countries like East Germany, Poland, and Czechoslovakia (now the Czech Republic and Slovakia), that era was like a wasted half of a century. Whatever views one might have of globalisation, information and communication is a necessity today as basic as electricity.

The lead up to August 5, 2019

The year had a strange quality to it. Too many voices from India were taking an aggressive tone about Kashmir and its so- called ‘special status ’ (the term itself might have been partly to blame – it was a negotiated federal arrangement within a union, but focus on the word ‘special’ seemed to trigger unwelcome views from random quarters who could have done better to focus on their own regions). And there was a strange quality in them – many of the most vocal proponents of revocation of this so-called ‘special status’ did not seem to have any reasoned arguments or originality. In online discussions on public or private Indian groups, one could perceive a scripted barrage of arguments to drown any counterargument aggressively – it was clear that discussion was pointless and merely exposed one as a target. The Jammu and Kashmir legislative assembly had been suspended for more than a year – so the state had no democratic voice left, not even pretence of one.

July had an odd and sinister quality to it. Where else in the world are roads blocked to civilian traffic, to prioritise a pil- grimage? There are things that did not seem rational – it seemed as if events were engineered to cause the most discomfort to local civilians. Kashmiris have been known to go out of their way to accommodate visitors and pilgrims. But when there are constraints on highways and local resources, the sensible thing to do is to work with the locals. If I need to visit a Gurd- wara across town, I might choose to drive at a sensible time of lower traffic, or I might choose to walk, or I might choose to pray at home or a nearby Gurdwara. These are rational choices we make depending on our surroundings and infrastructure.

One of my goals for a long time had been to record interviews of elderly relatives who had seen the events of 1947 first hand. In the last few decades, their memories and testimonies were being lost one by one, as they aged and concluded their lives. Regardless of our political views today, recording their thoughts was significant. So, during the month of July, I got the chance to meet and record the first-hand memories of an elderly relative in my village. The end of my trip happened to be the last week of July by a sheer coincidence – rumours and news reports suggested further military build-up, so everyone knew something was about to happen. No one knew what. I must remain guarded in my words, but someone has to question why or how can a whole population of 7-8 million be subjected to such psychological torture? How can an administration

SECTION 4 - CULTURE & MINORITIES KASHMIR READING ROOM YEARLY REPORT 2019 - 20 118 advertise claims of ‘development’ on the one hand, and yet, create such extreme levels of uncertainty? There were reports of major roads and highways being blocked to civilians for days just so the vehicles of the armed forces could move.

As someone who identifies as Kashmiri Sikh (in the diaspora, but retaining a strong connection), I was asked to comment on these events from a Sikh perspective – but I can’t think of how this narrative could be any different from the perspective of any other citizen. That being said, there are issues and predicaments quite unique to Sikhs in the valley.

After 5 August 2019

On the 4th of August, a journalist friend working in London reached out to me and tried to get a comment from me. Rather than commenting myself, I offered to share contact numbers of some journalist friends based in Kashmir who had been vocal in their writings – documenting their experiences. A message I sent to a friend about this remained unread and un- answered. The Internet shutdown had started, and everyone was incommunicado. This was Kashmir, but to get an idea of what this might be like, one must imagine the whole populations of Norway, Denmark, or Scotland being subjected to such a blockade for months – all of these have a population similar to the province of Kashmir.

One could notice a marked change in the narrative around Kashmir after this day. There seemed to have been an almost overnight switch in the views that some people started expressing. Some Sikh friends stayed quiet, but I could notice a pe- culiar change in a few others. On the one hand, Sikhs of Kashmir, despite having suffered from the conflict themselves while being a non-party, have a deep sympathy with their Muslim neighbours, who numerically have been the largest sufferers of the conflict. On the other hand, Sikhs must work with every administration of the day for their daily existence – from public services to employment, which includes employment in police forces. Though Muslims have the same motivations, Sikhs as a minority group stand out.

There was a sudden glee in some sections of as well - the religious divide was visible and apparent - that frankly bordered on obscene considering the fact that the whole of Kashmir had been gagged – its newspapers shut, its internet and telecommunications blocked. There was an undeniably scripted quality to these narratives that could broadly be categorised into ‘development’, ‘women’s rights’, and ‘minority rights’ (the situation of Kashmir’s minorities being de- liberately conflated with ‘Hindus’ in general – state’s permanent residency laws were presented as discriminatory towards minorities).

Dissenting voices in the diaspora who could speak were, of course, labelled quickly with the usual list of nouns. We were frequently gaslighted and questioned whether we even knew Kashmir firsthand (the implication being that Kashmiris were now fully compliant with , and we were simply out of touch). The absurdity of this situation was that Kashmiris in Kashmir had no means of reaching out.

On such sensitive matters, it is unwise to lend credence to conspiracy theories or conjecture without a sound basis. The fact that investigations for events like Chitisinghpora had never reached a definitive conclusion and did not help. One was meant to accept either the state narrative (terrorists did it) or the alternative narrative (it was done by design to coincide with Clinton’s visit).

But for every major incident, it helps to analyse who the beneficiary of such an event might be. The terror attack in a Gurd- wara in was claimed to be in retaliation for Kashmir. Our Kashmiri Muslim compatriots were quite rightly vocal about denouncing it and clearly that had nothing to do with them or Kashmir’s politics. However, as co-religionists of a group that has seen steady dwindling from a once thriving and patriotic Afghan Sikh community to a few families who till now steadfastly held on to their country, many Sikhs cannot shake off nagging doubts over their own future in Kashmir. Does it matter who really is to blame for even one odd terrorist act, when either way, you might be staring at a prospect of a future like them?

Then there are occasional voices who seem to appear out of nowhere to give communal/sectarian angle to everything from thefts, acts of vandalism (e.g. news reports of break-in and theft in a Kashmir Gurdwara , oddly coinciding with vandalism

SECTION 4 - CULTURE & MINORITIES KASHMIR READING ROOM YEARLY REPORT 2019 - 20 119 in a UK Gurdwara by a man reported to be of Pakistani origin and claiming to do it in retaliation for Kashmir ), to more serious crimes like the targeting of a Sikh relative of a panchayat leader in Kashmir (and more recently a Kashmiri Pandit panchayat leader ). Clearly, our foremost concern is that people must not lose their lives to violent attacks, but the sectarian labelling of all these events makes matters worse and, in all scenarios, it’s Kashmiris as a whole that stands to lose.

From my observation, such concerns are always balanced by views of other Sikhs who readily point out the harmony and cooperation with which local communities live within Kashmir and the sad fact that Mosques had also been targets of thefts in unrelated incidents. A prime example was during the floods, when people regardless of religion helped each other – shel- tering each other in Gurdwaras and Mosques, ensuring the safety of tourists as well. And then, after the 5th of August 2019, Sikhs across India expressed solidarity with Kashmiris . This is how our religious values shine – those who seek to benefit by manufacturing religious conflict invariably have other more materialistic greeds.

Finally, in the immediate aftermath of the revocation of nominal state autonomy, some Sikhs did have an expectation of finally gaining some representation (both politically, in elected bodies, and in government services, in the form of reserva- tions). As far as one can tell, so far, they have been disillusioned on both aspects – as have all Kashmiris faced disillusion- ment for decades. We need to understand that only the people of J&K are in the best position to think of the best future for J&K, and the best interests are served when rights of all of its constituents are safeguarded – by sincere mutual dialog.

Sikhs of Kashmir

Our initiatives for engagement with the outer world can be meaningful when we start to recognise that the state of Jammu and Kashmir as a whole, and the province of Kashmir, have multiple internal stakeholders whose interests are intertwined in the interests of Kashmir (this is also true of the province of Jammu, of Ladakh, Gilgit-Baltistan, Poonch-Mirpur and other regions, but my discussion remains focused on Kashmir for now). This clearly does not mean denying the status or interests of any one group but ensuring that all stakeholders and their interests are taken into account. Like Kashmir’s other communities, majority Muslims and Hindus, Sikhs have had a historically significant role in Kashmir in all fields. Whether indigenous converts (Kashmir was one of the places regularly frequented by founder Gurus of Sikh faith) or settlers from within the last 300 years, Sikhs played a role in every aspect of Kashmir’s public life – from agriculture and horticulture to construction, transport, and education. For political reasons, during the Dogra era, Sikhs maintained a low-key existence far from urban centers and largely outside of positions of power at least till the early 1900s. The state transitioned to its brief

SECTION 4 - CULTURE & MINORITIES KASHMIR READING ROOM YEARLY REPORT 2019 - 20 120 era of democracy in 1947 after a deep trauma that remains a watershed moment in Sikhs’ existence in Kashmir. The tribal invasion of October 1947 remains ingrained on the Sikh psyche till today. The tragic aspect was that this happened even though there was no animosity between various communities who actually lived in Kashmir. The suddenness of this inva- sion can be ascertained from the fact that a mere ten days prior to the arrival of the first band of invaders, state officials had expressed neutrality and hopes of a Switzerland-like future for Jammu and Kashmir (people might doubt their sincerity and motivations, but at least they were on record on this). And yet, for a community who’s past and future lay with Kashmir had been uprooted from vast areas across the LOC – and nearly uprooted from deep within the valley from areas that invaders reached. The ray of hope was when the state transitioned to democracy and the first constituent assembly acknowledged the role of the state’s citizens in coming together in the face of that invasion – the conduct of Kashmiris in particular, was quite unlike people of the ‘plains’ who had turned on each other in deeply abhorrent ways. t is important to recognise that the tribal invasion of Kashmir and the violence in Jammu leading are two separate events. Jammu is a province bordering Punjab – both sides of Punjab were ethnically cleansed of ‘the other’. When Kashmiri in- tellectuals highlight the Jammu massacre of Muslims, there has to be an equal recognition of the fact that areas across the LOC (parts of Poonch, Mirpur, ) faced complete annihilation or exodus of their non-Muslim populations . Both these events deserve condemnation, and neither must be misrepresented as a consequence of the other. The influx of refugees with narratives of what they had faced on the other sides likely fed into a downward spiral of violence. The way these events are now presented to a less discerning audience has a bearing on community relations today and in the future. It might win momentary sympathy for one side, keeps us stagnated and divided – moreover, it allows outside powers to per- petually exploit this history for their own more sinister ends. A complex history that we within J&K need to take ownership of in an honest manner, is distilled down to one simple question: Hindu Rashtra, because ‘they’ invaded or Islamic Pakistan, because ‘Jammu massacre’.

It is important for people to imagine what an alternative future of Jammu and Kashmir might have been had there been no India-Pakistan partition on religious lines. If we go by the indigenous political activity within Kashmir, such as the tragic events of 1931, it was about transitioning from a feudal autocratic system to responsible government – a transition that hap- pened all over the world, but without the terrible human cost that was inflicted on Kashmir.

During the period of state autonomy

We have to assess this from the situation prior to the armed conflict and after. While being important stakeholders in the present and future of Kashmir, like Kashmir’s other minority groups, Sikhs are not actually party to the conflict – whichever direction the future of Kashmir takes, they need to ultimately secure their future and rights as a minority group in coopera- tion with other stakeholders.

The conflict is presented as either an India-Pakistan conflict or a Hindu-Muslim one. This is clearly the agenda of powerful parties involved and one wonders if they simply collude together while keeping up this presence of animosity, simply to shut down the voice of Jammu and Kashmir. The key stakeholders of the conflict, people of Kashmir, struggle to get even mentioned (such as the advice often received from western powers around how “India and Pakistan” must work together to resolve this). The whole subcontinent, and often Kashmiris themselves, have been trained to think in binaries of India-Paki- stan, Hindu-Muslim, -.

In school years, while we were fortunate to study English as this gave us a voice and reach beyond the subcontinent, the (and Dogri in Jammu) was a notable omission. As primary students in Srinagar, we had the “Hindi-Ur- du” lecture instead – Hindu (and most Sikh) students would opt to study Hindi, whereas Muslim students would join the Urdu class. There was no formal education in the Kashmiri language. This is the language that bound generations of Hindus and Muslims of the valley (whereas most Sikhs spoke variants of Punjabi or Pahari as their first language, they do know Kashmiri as the native lingua franca of the region). Focus on local language and culture could have united all groups on local issues and interests.

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Although initially well represented in the state constituent assembly, early governments, and government services, overall perception towards the later decades was that Sikhs faced a ‘ceiling’ on how far they could rise in government professions. In the Kashmir province at least, there was a perceived bias in favour of Muslims. We have to weigh in the fact that overall state administration seemed to function more by ‘machinations’ as opposed to representative democracy, and we cannot dis- regard the fact that the violent conflict basically impacted everyone’s prospects adversely regardless of religious affiliation.

Life, Liberty, Pursuit of Happiness… with honour

These are inalienable rights of every human being, but it is also the inalienable rights of every other human being. No belief system, whether religious or political, can treat another person as second class or subject to dictates that lead to denial of these rights. This is not a utopian ideal but something that mature and peaceful societies practice today.

The title is borrowed, but the aspiration dwells in every heart. What do we the people of Jammu and Kashmir want? What do human beings want anywhere in the world? Life, security, prosperity, liberty, clean air, and finally, reliable, accountable, and trustworthy institutions are goals that ALL human beings would seek as individuals and as collective groups. Many regions of the world have achieved these goals to varying degrees, so the world has examples to emulate.

The people of Jammu and Kashmir have diverse cultures, histories, languages, and concerns that are local and unique. But for various reasons, either historic or current, there has been a perceptible lack of a unified voice – not for the outer world, but for dialogue amongst themselves first. This has been surprisingly lacking even in the province of Kashmir, which is perceived to be a lot more homogenous. This perception itself is troubling – because though Kashmiri language, culture, and ethnicity is an important part of Kashmir, so are its minority populations – the Pahari, Punjabi, and Shina language speakers, the people across the LOC who aren’t Kashmiri speaking but speak various Pahari or Punjabi dialects. And now we come to religion – it is undeniable that religion is the primary marker of identity for Kashmiris and many South Asians. Kashmir has, therefore, come to be seen as a ‘Muslim’ province and ‘Jammu and Kashmir’ as a ‘Muslim’ state. Yes, it is a Muslim majority, but this focus on one particular religious group created situations where the state’s many minority voices simply get side-lined and creates situations which an openly Hindu-nationalist Indian regime can exploit. To start with, the state never got to exercise meaningful democracy. Because of the subcontinent’s trauma with Punjab’s partition on Hindu-Mus- lim lines, this has been the only criteria for any engagement whatsoever.

Chittisinghpora massacre: The site of killings near the gurudwara, preserved by the villagers by marking the bullet holes on the wall.

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Introspection

Outside powers with an eye on Kashmir are able to exploit internal differences when our internal discourse isn’t straight. Internally, within the state, our democracy should have ensured that all regions and all sections of society were adequately represented. Whereas interference starting from 1953 had an undeniable adverse impact, there were clearly shortcomings in the state’s policies – there was a paranoia around ‘demographic change’ that meant the state failed to redress the situation of Sikh and Hindu refugees from the other side of LOC (even referring to them as ‘west Pakistan’ refugees is an active de- nial of the fact that areas of Poonch, Mirpur, Muzaffarabad faced a complete annihilation of their non-Muslim populations ). These people were state subjects and yet lived like refugees for three generations. The situation with the com- munity who had served the state for decades was similar, they did not have full rights as permanent residents. As a diaspora Kashmiri, I wouldn’t expect to be treated second class (or would avoid living in a place where I might be), and yet, in our home, we failed on these fronts.

It is one thing to protest artificially engineered demographic aggression, and quite another to treat people with fairness, who by every standard have earned rights by virtue of their residence and contribution. If anything, the plight of Valmikis and others was exploited to justify the sinister settler-colonial project, against which, all peoples of Jammu and Kashmir should have had common cause.

We cannot control or change the past, but how we present our narrative today is in our control. Of foremost importance is intellectual honesty. Kashmiri intellectuals need to understand that the terrible events surrounding the Jammu massacre of a sizeable number of Muslims (reported November 1947) had equally terrible parallels with the complete annihilation of non-Muslim populations from across the LOC - And in turn, there were abhorrent events in neighbouring Punjab where both sides eliminated and expelled ‘the other’– we must guard against the tendency to present one event as a consequence of another.

Finally, all our communities need to hear each other out – whatever our ideologies or political views. When people with even the most extreme views are given an opportunity to present and justify them to an audience, they can get discredited fast (whereas it is easy to see how even legitimate political views are maliciously labelled as ‘extremist’).

We need to understand and respect the regional cultures and sensibilities of the state. No side can change the past and events of 1947 were not in control of anyone living today. The least we can do is acknowledge that wrongs were committed, the circumstances under which they were committed, and most importantly, why we must never allow a repeat. The focus here

SECTION 4 - CULTURE & MINORITIES KASHMIR READING ROOM YEARLY REPORT 2019 - 20 123 is on we – people of the state of Jammu and Kashmir who have all the capability (and right) to come together to define our future.

When I heard the news the early morning of the 5th of August, my first instinct was to download the state constitution and assembly debates. As an IT professional, I took hash measurements of the files and shared them with friends. I expected such documents to either disappear or be tampered with, but these measurements could be used to verify the integrity of all copies. In those documents, are some of the first examples of how people of the state first elected their representatives to speak for them – to speak with each other, there were representatives elected from all com- munities including many Sikhs, all working together, to create a better future.

Jang-Vijay Singh is a Baramulla born IT professional based in London with strong ties of family and ancestry to Kashmir. He has an MSc in Software Engineering from the University of Oxford.

END NOTES

336. Friedman, T (2005). The World is Flat, A Brief History of the Twenty-first Century. Farrar, Straus and Giroux : New York.

337. Acemoglu, D. and Robinson, J. (2012). Why Nations Fail; The Origins Of Power, Prosperity, And Poverty. Crown Publishing Group : New York.

338. Aljazeera (5 August 2019). ‘Kashmir special status explained: What are Articles 370 and 35A?.’ Aljazeera. Retrieved from https://www.aljazeera. com/news/2019/08/kashmir-special-status-explained-articles-370-35a-190805054643431.html

339. Iqbal, N (21 June 2019). ‘Amarnath Yatra: Secure highway links, says CRPF.’ Indian Express. Retrieved from https://indianexpress.com/article/ india/amarnath-yatra-secure-highway-links-says-crpf-5791592/

340. Bhat, A (21 March 2019). ‘Names of killers still reverberate in my ears’: 19 years after Chittisinghpora massacre, lone survivor recounts night that killed 35 Sikhs.’ Firstpost. Retrieved from https://www.firstpost.com/india/names-of-killers-still-reverberate-in-my-ears-19-years-after-chittising- hpora-massacre-lone-survivor-recounts-night-that-killed-35-sikhs-6299441.html

341. (30 May 2020). ‘Burglars loot cash from gurudwara in Srinagar’. KashmirLife. Retrieved from https://kashmirlife.net/burglars-loot-cash-from- gurdwara-in-srinagar-234872/

342. (25 May 2020). ‘Pak man held for vandalising UK Gurudwara, leaves note on Kashmir.’ the quint. Retrieved from https://www.thequint.com/ news/india/pakistani-man-arrested-for-vandalising-gurudwara-in-england

343. Singh, A.(12 January 2019) Kashmir: Sikh Panchayat Leaders in Pulwama Resign After Militants’ Threats. The Wire. Retrieved from https:// thewire.in/rights/kashmir-sikh-panchayat-leaders-in-pulwama-resign-after-militants-threats

344. Bhat, S. (10 June 2020) ‘Panic among panchayat leaders after murder of sarpanch in Kashmir Valley’. IndiaToday. Retrieved from https://www. indiatoday.in/india/story/panic-among-panchayat-leaders-after-murder-of-sarpanch-in-kashmir-valley-1687586-2020-06-10

345. (13 June, 2019). ‘The Supreme Sikh body urges solidarity with Kashmiris following revocation of special status.’ SIKHPA. Retrieved from https:// www.sikhpa.com/supreme-sikh-body-urges-solidarity-with-kashmiris-following-revocation-of-special-status/

346. ‘Massacre at Baramulla’ in Tony Grant (ed), More from Our Own Correspondent, London: Profile, 2008, pp.294-7

347. ‘Mission in Kashmir’ by Andrew Whitehead pp102: “23 October: ……Jammu had been beset by an armed rebellion against the maharaja, and by intense anti-Muslim violence in which the maharaja’s forces were reported to be complicit. On landing in Srinagar, they were told about the scale of the tribal raid launched very early the previous day. They initially appear to have believed that the state forces would be sufficient to repulse the invaders, perhaps unaware that a considerable number of the maharaja’s Muslim troops had either mutinied or deserted. As soon as the seriousness

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of the tribal invasion became apparent, there was frenzied diplomatic activity

348. Christopher Snedden ‘Understanding Kashmir and Kashmiris’ (pp167) “…while the violence against muslims in Eastern Jammu province was alarming, Muslims in western part of the province concurrently engaged in similar diabolical acts....”

349. Andrew Whitehead 2013 ‘The Kashmir Conflict of 1947: Testimonies of a Contested History’: “…Much of the earlier writing about Kashmir, including well researched accounts of its history, has been tarnished by partisan comment…”

350. Christopher Snedden, ‘Understanding Kashmir and Kashmiris’. p167: “…Many Hindus from Mirpur and Muzaffarabad not killed became inter- nally displaced people within J&K, although, to their chagrin, the J&K government never formally granted them this status” [Also concurs with personal testimonies of the affected families]

351. The bulk of “Jammu Massacre” of Muslims in which section of state troops are said to have been complicit and reportedly aided by combatants from Patiala seems to have taken place in November of 1947 – this is as per newspaper reports from the time that are widely circulated. (but as noted by Christopher Snedden, violence and counter-violence against different groups was concurrent on both sides of the province of Jammu, whereas it had been happening since summer in neighbouring Punjab). Sadly, while our aim ought to have been to understand and prevent com- munal violence in general, partisan groups often engage in establishing who did what first – I doubt it is possible or even useful to establish what triggered violence and counter-violence.

352. Christopher Snedden ‘Understanding Kashmir and Kashmiris’ (pp167) “…while the violence against Muslims in Eastern Jammu province was alarming, Muslims in western part of the province concurrently engaged in similar diabolical acts....”

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Kashmiri Sikhs after Abrogation

Khushdeep Kaur

Elected to power by an overwhelming majority in its second term, the Hindu nationalist BJP government in a bid to ‘end militancy and develop Kashmir’, on August 5, 2019, de-operationalised Article 370, the legal instrument defining Kashmir’s relationship to India ‘lock, stock and barrel’ , and took away Kashmir’s statehood by breaking the state into two parts and demoting erstwhile State of J&K to a Union Territory . The only Muslim majority state in India’s constitutionally secular polity, Kashmir had its own Constitution and could govern its own affairs, by decree of Article 370, which outlined the terms under which Kashmir acceded to India after the end of British colonial rule.

Rendering the state subjecthood that formed the very basis of Kashmiri being worthless, the government’s move, fundamen- tally altering the relationship between India and Kashmir, is being hailed both in the corridors of power and on the streets as the realization of an unfinished project of integration. Post-, according to the BJP (the ruling party of India) is now a completed project, with ‘One Nation One Constitution’. The two greatest changes that this move will usher in are, the opening of the possession of land and jobs to non-Kashmiris, both of which were restricted under Article 35-A of the Constitution of India.

It is not surprising that the brutal lockdown and erosion of Kashmiris’ fundamental freedom has been hailed by the Hindu right as a ‘recapture of the Valley from Islamists’ and celebrated by millions of Indians. The mainstream discourses on Kashmir have viewed the Kashmir conflict through a largely reductive lens of communalism: to the average Indian, it is a conflict between Hindu India and Muslim Pakistan. This narrative, reinforced when the heightened militancy in the 1990s led to the mass exodus of Kashmir’s Hindu Pandit community (discussed below), conveniently ignores the experiences of those minorities (including Pandit families ) who continue to live in Kashmir and bear witness to all of its trials and tribu- lations.

In 2018, I began my Ph.D. research with one such community, the Kashmiri Sikhs, a micro-minority community (a term they use to describe themselves), that constitutes less than 2% of the population of Jammu and Kashmir as per the 2011 Indian Census. Rendered invisible in this conflict, my research aims to afford the Kashmiri Sikh community the visibility that is their due while simultaneously nuancing our understanding of the multiple lived realities of Kashmiris beyond the Hindu-Muslim communal binary. Over the course of 10 months of ethnographic fieldwork, I conducted 70 formal inter- views with Kashmiri Sikhs and 30 with Kashmiri Muslims, in addition to hundreds of hours of observation and informal conversations. In this brief, I present a historical and contemporary overview of the Kashmiri Sikh experience, drawing on my research material, before discussing the implications of abrogation vis-à-vis this community.

The Kashmiri Sikhs: A Brief History

Having lived in Kashmir for generations, the Kashmiri Sikhs trace their lineage to the extensive and well-documented trav- els of the first Sikh guru (preacher), Guru Nanak , across Kashmir. advancement in Kashmir is also attributed to the travels of the sixth Sikh guru, Guru Hargobind . Each asthan (place) to which the gurus traveled is marked by gurudwaras that are the living testament of this history. Besides this, there is a second lineage which is traced to the rule of two Sikh rulers, Sukhjiwan Mal (1753-63) and Maharaja Ranjit Singh (1780-1839), under whose rule Sikh soldiers from the Punjab region were brought to Kashmir to serve allotted land and settled in Kashmir.

In 1947, as India and Pakistan were reeling from the horrors of the brutal Partition after their newly attained indepen- dence, the Kashmiri Sikhs fought tribal ‘invaders’ in what has become known in popular parlance as the ‘Kabali raid’

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. Over 30,000 Sikhs, by the community’s estimates, were killed in this barbaric violence that took place primarily in the Baramulla area in North Kashmir. There is even a Partition memorial that remains the sole marker of this violence, located in the beautiful village of Chandoosa (about 16 km from Baramulla).

At present, an estimated 60-80,000 Sikhs reside in Kashmir Valley. While the bulk lived in rural areas spread out across Kashmir, the militancy triggered a migration to urban areas, mainly Baramulla city and Srinagar. Many families, however, still live in villages or if they have migrated, still retain property and lands in their ancestral villages. Historically agricultur- ists, Kashmiri Sikhs also work in government services, own private businesses and are recruited in the police and military.

The Chittisinghpora Massacre

A multi-religious and multi-ethnic region, Indian-administered Kashmir is demographically predominantly Muslim (96.4%), with the two other distinct religious groups in the Valley being Sikhs (1.8%) and Hindus (2.4%) . A significant proportion of Kashmir’s Hindus are the Kashmiri Pandits. When Kashmir’s militancy - now in its fourth decade and which author Gowhar Geelani has characterized as largely symbolic - was at its height in 1989-90, militant outfits like the (HM), Lashkar-e-Taiba (LeT) and Jammu Kashmir Liberation Front (JKLF) issued public threats to the Valley’s minorities, informing them that their only choices were to ‘Ralive, Tsaliv ya Galive’ (either assimilate, run away or perish) , and orchestrated the killings of influential members of the Pandit community. Already feeling alienated by state-led policies which they believed favored the majority Muslim community, such as land reforms and political delimitation , the killings were the last straw for many, leading to the exodus of an estimated 170,000-300,000

Kashmiri Pandits .

As Kashmir stood recovering, from what many consider the most shameful event in its history, a mere decade later, the Sikh community, never before the target of violence, suddenly found itself under attack in Chittisinghpora village, located in South

Kashmir’s (about 70 km south of the capital, Srinagar).

Chittisinghpora is the largest of the 14 Sikh villages in South Kashmir, hidden away in the bosom of the Pir Panjal mountains. It is settled by nearly 400 Sikh and 80-100 Muslim families which live in close geographic proximity and are connected by strong economic but somewhat sparse social ties. On March 20, 2000, at around 7:45 in the evening, unknown men wearing army overalls made their way into the village, lined up 36 men on the pretext of conducting a routine ‘crackdown’ (search and seizure for militants) - eighteen in front of each of the two main gurudwaras in the village - and gunned them down moments later. Only 60-year old Nanak Singh, who lay in the pile of dead bodies left behind by the killers, survived.

The attack came as a shock to Kashmiris; for as long as anyone could remember, both Sikhs and Muslims had lived together peacefully. While no one knows who perpetrated the massacre, almost everyone - Sikh or Muslim - believes that this was the handiwork of ‘agencies’ of the Indian state. The popular narrative is that the attack was carried out to project to the then President of the United States, Bill Clonton, who was visiting India on that very day that there existed a problem of ‘’ in Kashmir and that Kashmir’s minorities were unsafe. he attack came as a shock to Kashmiris; for as long as anyone could remember, both Sikhs and Muslims had lived together peacefully. While no one knows who perpetrated the massacre, almost everyone - Sikh or Muslim - believes that this was the handiwork of ‘agencies’ of the Indian state. It is suspected that sinceThe popular narrative is that the attack was carried out to project to the , the then President of Americathe United States, Bill Clinton, who was visiting India on that very day,

SECTION 4 - CULTURE & MINORITIES KASHMIR READING ROOM YEARLY REPORT 2019 - 20 127 the Indian state intended to project that there existed an ‘Islamic extremism’ problem in Kashmir - a Muslim-majority region in the Indian Union - and that Kashmir’s minorities were unsafe.

Fearful that the massacre would trigger another minority exodus, prominent political leaders such as Shabeer Shah of the National Conference (NC) party of Kashmir, visited the community in Chittsinghpora upon being informed that Sikhs were contemplating leaving the Valley. Shah, as survivor Nanak Singh (real name) recalls, remarked, “aap hamari laashon se jayenge” (you will leave over our dead bodies) . Sikh leadership from the neighboring state of Punjab too visited the village immediately afterward, and after deliberating with them about whether they should leave, the Sikh community ultimately ended up staying, with only three out of the 400 households in Chittisinghpora migrating elsewhere .

Over the years, the Chittisinghpora case all but disappeared from public memory, only kept alive by the local commemo- ration that is held every year in the village. Although twenty years have passed, justice remains a far-fetched goal for the families of those killed in Chittisinghpora. Frustrated by the lack of any impartial inquiry and a series of court cases that appear to go nowhere, Nanak Singh remarked to me, “No one can do anything. The militants will say the government did it, the government will say the militants did it. We are scapegoats” . He followed up the statement by saying that at this time, the Kashmiri Sikh is helpless. “Whenever they need us, they will sacrifice us”, he said, implying that for either side, Sikhs are disposable pawns in this ongoing battle.

Rebuilding Trust

While militancy has triggered a slow migration to urban areas in the capital Srinagar and the highly urbanized Baramulla city in the north, the bulk of the Sikh population in south Kashmir still lives in rural areas in Anantnag and Pulwama dis- tricts. Several Kashmiris whom I interviewed - both Sikh and Muslim - repeatedly alleged that the intention behind targeting the micro-minority Sikh community was to create a Sikh-Muslim communal divide and similarly trigger a mass displace- ment of Kashmiri Sikhs.

While reconciliation still remains an ongoing process, both communities have worked hard to move past this horrific event, repairing the ruptures it left in its wake and building solidarities. Most respondents, Sikh or Muslim, are quick to point out that relations have now normalized between the two communities. Asked if she’s afraid of a repeat of 2000, one female respondent from Chittisinghpora replied, smiling, “They ask, ‘why should we kill our Sikh brothers?’. Even in this heightened militancy, they haven’t let any harm come upon us. When they (the mujahideen) kill the police, they don’t see whether he is Muslim or Sikh”

For Sikhs and Muslims in Kashmir, solidarities are based not on “an enforced commonality of oppression”, as Chandra Mohanty writes, but on the recognition of diversity and difference as central values “to be acknowledged and respected, not erased in the building of alliances” . To an outsider, it might be strange that they won’t eat at each other’s homes; but to them, these are simply ways of life to be respected. As several respondents explained, “we have tea in each other’s homes, but not food. We even attend each other’s weddings, but instead of serving them food, we sometimes give them a living chicken [so they can cook it how they like]”, because of religious rules governing the consumption of meat.

These alliances are also important because they help maintain peace on the ground, and in a context of pervasive violence and uncertainty make day to day living and safety possible for both communities. There are also important economic inter- dependencies that need to be maintained, as Nanak Singh explained. “All the labour here is Muslim. We cannot live without them and they cannot live without us” .

As for the conflict itself, the Sikhs as a community maintain a position of ‘neutrality’, meaning that they neither side with the militants, nor the Indian state. Perhaps this explains why while I expected violence to be central to discourses of everyday life, it was in fact discussed sparingly in my interviews. Instead, in almost all interviews, my respondents chose to discuss economic grievances arising from the limited economic opportunities in the Valley especially for young Sikhs, alleged discrimination in favour of other communities for representation in government positions, lack of political representation,

SECTION 4 - CULTURE & MINORITIES KASHMIR READING ROOM YEARLY REPORT 2019 - 20 128 the day to day inconveniences caused by frequent shutdowns and most importantly, the (perceived) threat of intermarriage between Sikh girls and Muslim boys.

Remaining Rooted

Despite experiencing violence, for many Sikhs, leaving was never an option. According to Pashaura Singh, not leaving Kashmir came down to two things - land ownership and government jobs. For others such as Darbara Singh, there was no question of leaving behind the land where his father’s blood had been spilled. Gurpal Singh, father of two young girls, who lost several family members in the ‘Kabali raid’, too felt that leaving would amount to a betrayal of the ancestors who had sacrificed their lives. And still for others such as Dimpi Kaur, whose husband was killed in the massacre, there simply was nowhere else to go.

One group of young Sikhs, who ally themselves with a Sikh missionary organization, recalled India’s actions in neighboring Punjab in 1984, when security forces had desecrated and attacked the Sikhs’ holiest shrine, the Golden Temple in Amritsar, to apprehend Jarnail Singh Bhindranwale, the man who became the face of the Punjab insurgency. The young Sikhs of this group believe that until India rights its wrongs in Punjab, the Sikh religious way of life will always be under threat in India. They explained that in Kashmir, they felt respected because should anything untoward happen to the community, “the lead- ers come within minutes and apologize”.

Regardless of the reason, the Sikhs chose not to leave, the Sikh position in Kashmir is one of simultaneous visibility and invisibility, whereby in times of crises, the community keeps a low profile while during periods of safety, it mobilizes.

Implications of the Jammu and Kashmir Reorganization Act

While the move was celebrated by many, the de-operationalisation of Article 370 has only prolonged the hardships of Kash- miris whose voices have been stifled through a variety of means, not least of all an internet blockade which has now become the longest in the world in a democratic nation. Although rapid changes are underway across Kashmir, such as the grant of domicile certificates to outsiders who meet the new criteria outlined by the J&K administration, the implications of these changes are difficult to assess for Kashmiri Sikhs, given the restrictions in mobility and communication and fear of reprisal that many express.

A consistent grievance of the Sikhs, there was little representation in government positions before abrogation. According to several respondents, Sikh youngsters have a difficult time obtaining coveted government jobs in Kashmir. Many respondents complained, saying that if there are 10,000 posts, “only one is for a Sikh”. With jobs across Kashmir now open to non-Kash- miris, there is fear that this will further dilute Sikh representation. A recent government order which calls for a 4% reservation for “Pahadi-speaking people” has deliberately left unaddressed what languages come under this classification, with Sikhs ar- guing that their dialect of Punjabi, is in fact, a Pahadi language. The order drew widespread condemnation from the community . A geographically dispersed and numerically minuscule community, the Sikhs don’t constitute an important enough ‘vote bank’ for the political leadership in Kashmir and are often left to advocate on their own behalf.

Another grave concern is the ongoing cycle of violence that despite Modi’s claims of having brought the militancy to an end, seems to have picked up in recent months. Although Sikh-Muslim solidarities exist, they are vulnerable to breaking down time and again, as they did in the months after Chittisinghpora. A series of recent events outlined below, has already attracted communal backlash from certain sections of the community and heightened the sense of vulnerability. With little to no hope of justice from the Indian state, these events, if left unresolved, can potentially weaken the already fragile soli- darities between these communities.

On March 14, 2020, a Sikh police officer named Davinder Singh was arrested by the Jammu and Kashmir police, on the charges of aiding and abetting terror activities in the state. Mere days after his arrest, news reports alleging that he was a ‘double agent’ working for Indian intelligence, surfaced . Singh was implicated to be connected with Afzal Guru; a Kashmiri Muslim sentenced to death on February 9, 2013 for his alleged involvement in the 2001 attack on the Indian Parliament. On June 19, 2020, Davinder Singh was granted bail by Delhi police, because the Delhi police had not filed a charge sheet within

SECTION 4 - CULTURE & MINORITIES KASHMIR READING ROOM YEARLY REPORT 2019 - 20 129 the stipulated 90 day period for doing so. However, Singh remains in judicial custody .

The Davinder Singh episode has once again raised the prospect of ‘deep state’ involvement in destabilizing Kashmir. The questions raised by this case are a stark reminder that Kashmir, as reporter Barry Bearak wrote of Chittisinghpora, “has a way of boiling truth into vapor. Every fact is contested, every confession suspect, every alliance a prelude to some sort of betrayal” . In the months that followed Chittisinghpora, that story too became complicated by a web of contradictions that remain unresolved.

On March 25, 2020, a dastardly attack on Afghanistan’s Sikh community in capital Kabul was purported to be revenge for “what had been done to Kashmir” . The attack, while denounced categorically by Kashmiris worldwide, again stands to communalize this relationship, as noted by a statement released shortly afterward by the advocacy group Stand With Kash- mir (SWK) .

This was followed two months later by a theft from a Srinagar gurudwara of Rs 2 lakh, and around the same time an attack on a Shia shrine , prompting a respondent (Kashmiri Muslim) to remark, “this seems like a return to the 90s” when at its peak, minorities began to become the target of the militancy.

Lastly, the death of a Sikh police officer from Pulwama, Anoop Singh, whose elder brother Sagar Singh too had been killed in counter-insurgency operations in Srinagar on December 9, 2009 , and the heartrending photos of his family that circulated afterward, did much to arouse the anger of the Kashmiri Sikh community. While the officer was killed in the line of duty, his death was a stark reminder that unlike the Modi government’s claims that abrogation of the ‘special status’ of Kashmir would curtail militancy, the struggle for Kashmiris on all sides is far from over.

Khushdeep Kaur Malhotra is a 6th year Ph.D. candidate at the Department of Geography and Urban Studies at Temple University, Philadelphia. Her dissertation examines the political and cultural economies of mobilities in conflict. Data for this report are retrieved from ethnographic fieldwork she completed with the Kashmiri Sikh community from March 2018-March 2019.

END NOTES

353. (29 June 2019) Statement by Ram Madhav, BJP National General Secretary. ‘J&K: Article 370 has to go lock stock and barrel, says Ram Madhav’. Indian Express, Retrieved from https://indianexpress.com/article/india/jammu-and-kashmir-article-370-bjp-ram-madhav-58)

354. For the text of the act, see The Gazette of India Extraordinary. ‘The Jammu and Kashmir Reorganization Act, 2019’, 08/09/2019, http://ega- zette.nic.in/WriteReadData/2019/210407.pdf

355. Within moments of the declaration by India’s Home Minister Amit Shah in Parliament, advertisements promising “heavenly” plots of land for sale in Kashmir went up on the web and RSS karsevaks (volunteers within the organization) appallingly, remarked, that they can now ‘bring beautiful Kashmiri girls’ as brides; IANS (7 August 2019 ) ‘Marry fair Kashmiri women now’: BJP MLA after Article 370 repeal’. Huff- ington Post. Retrieved from https://www.hindustantimes.com/india-news/marry-fair-kashmiri-girl-now-bjp-mla-after-on-article-370-repeal/ story-PN1M8vLCWdizTpGFuykWyI.html

356. For Kashmiri Pandit families that continued to live in Kashmir, see Trisal, N. (2007). Those Who Remain: The Survival and Continued Strug- gle of the Kashmiri Pandit “Non-Migrants”. Journal of Immigrant & Refugee Studies, 5(3), 99-114

357. The first Sikh guru and the founder of Sikhism in 1469, Guru Nanak traveled to Kashmir in the year 1516

358. Guru Hargobind’s visits to Kashmir are placed at around 1620 AD, according to the Sikh encyclopedia, Sikh Wiki. Retrieved from https://

SECTION 4 - CULTURE & MINORITIES KASHMIR READING ROOM YEARLY REPORT 2019 - 20 130

www.sikhiwiki.org/index.php/Guru_Hargobind_Sahib_in_J_%26_K

359. For a detailed account of the ‘Kabali raid’, see Whitehead, Andrew. “Partition Voices: The Bali Family”, BBC Radio (2003), Retrieved from https://www.andrewwhitehead.net/partition-voices-bali-family.html; ‘The forgotten massacre that ignited the Kashmir dispute’. Aljazeera. Re- trieved from https://www.aljazeera.com/news/2017/11/forgotten-massacre-ignited-kashmir-dispute-171106144526930.html

360. Census of India, “Religion”, 2011, https://www.census2011.co.in/census/state/jammu+and+kashmir.html

361. Geelani, Gowhar. (2019). Kashmir: Rage and Reason. New Delhi: Rupa.

362. (19 January 2016) ‘Exodus of Kashmiri Pandits: What Happened on January 19, 26 Years Ago?’, India Today. Retrieved from https://www.india- today.in/fyi/story/exodus-of-kashmiri-pandits-january-19-jammu-and-kashmir-304487-2016-01-19

363. Bhat, A (Ed).(2003) Kashmiri Pandits: Problems and Perspectives. New Delhi: Rupa.

364. While scholars put the number of displaced at approximately 170,000, Kashmiri Pandit leaders estimate closer to 300,000 were displaced. Trisal, Nishita. (2007) “Those Who Remain”, Journal of Immigrant & Refugee Studies, 5, no. 3, pp.99-114.

365. ‘Agencies’ refers to Indian (and international especially Pakistani, American and Russian) intelligence and bodies like the Research and Analysis Wing (RAW), Inter-Services Intelligence (ISI) and the Central Intelligence Agency (CIA) as per respondent interviews.

366. There has only been one inquiry related to Chittisinghpora, whose contents were never made public. It was also later discredited when new facts emerged. In the immediate aftermath of the massacre, most Sikhs believed that it was militants who carried out the attack. However, as the facts became murkier, most people started to think this was the work of the ‘deep state’. This is now a pervasive belief in Kashmir. In nearly all of my formal interviews and informal conversations, I was told that this was the work of ‘agencies’. Jaleel, M. (20 August 2017) “Why justice eludes the victims of Pathribal fake encounter?”, The Indian Express. Retrieved from https://indianexpress.com/article/india/why-justice-eludes-the-victims- of-pathribal-fake-encounter-4804985/

367. Except where indicated, all respondent names have been changed to protect their privacy

368. Author interview, Nanak Singh, Chitti village, 9th August 2017.

369. This number was given to me by my respondents. As per the Jammu and Kashmir Revenue Department, a total of 1714 families, or 6504 souls, have left Kashmir and are registered as migrants in Jammu since the 1990s. Statistics retrieved from http://jkmigrantrelief.nic.in/. Last accessed 07/08/2020.

370. Author interview, Nanak Singh, 06/18/2018

371. Author interview, Bitti Kaur, 06/19/2018.

372. Mohanty, Chandra Talpade (2003). “Introduction: Decolonization, Anticapitalist Critique, and Feminist Commitments”, in Feminism without Borders: Decolonizing Theory, Practicing Solidarity; p. 7.

373. Author interview, Nanak Singh Bedi, 08/09/2017.

374. Singh, J. (8 March 2020). ‘Sikh Kashmiris react sharply to Pahari speaking people reservation circular’. The World Sikh News. Retrieved from https://www.theworldsikhnews.com/sikh-kashmiris-react-sharply-to-pahari-speaking-people-reservation-circular/

375. Chaturvedi, S (14 january 2020). ‘Davinder Singh Arrest Raises Many Questions. How the NIA Handles It Could Raise More’. The Wire. Retrieved from https://thewire.in/security/davinder-singh-afzal-guru-nia

376. (19 June 2020). ‘Bail granted to suspended J&K police DSP Davinder Singh as Delhi Police fails to file chargesheet’. National Herald. Re- trieved from https://www.nationalheraldindia.com/india/bail-granted-to-suspended-jandk-police-dsp-davinder-singh-as-delhi-police-fails-to-file- chargesheet

377. Bearak, B (31 December 2000). ‘A Kashmiri Mystery.’ New York Times. Retrieved from https://www.nytimes.com/2000/12/31/magazine/a-kash- miri-mystery.html#:~:text=As%20it%20happened%2C%20several%20men,Kashmir%2C%20such%20things%20are%20possible.

378. Mir, S (26 March 2020). ‘#NotInMyName, Say Kashmiris After ISIS Claims Kabul Attack Was Revenge for Kashmir’. The Wire. Retrieved from https://thewire.in/security/notinmyname-say-kashmiris-after-isis-claims-kabul-attack-was-revenge-for-kashmir

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379. SWK. ‘Statement of Solidarity with the Victims of the Kabul Massacre’. https://www.standwithkashmir.org/kabul-massacre. Last accessed 07/07/2020

380. KNT (30 May 2020). ‘Money stolen from Jawahar Nagar Gurudwara’. Fast Kashmir. Retrieved from https://fastkashmir.com/2020/05/money-sto- len-from-jawahar-nagar-gurudwara/

381. Hussain, A (22 May 2020). ‘Slain Kashmiri Sikh cop second of 4 brothers to lay down life in militant attack’. HindustanTimes. Retrieved from https://www.hindustantimes.com/cities/slain-kashmiri-sikh-cop-second-of-4-brothers-to-lay-down-life-in-militant-attack/story-LwKxOpdG- FkYUA7X7U1dshJ.html

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Attacks on Religious Places of Minorities

Post Abrogation of Autonomy

Arman Kazmi

Introduction The year 2020 witnessed a different world, and the world a different year. The measures introduced by governments around the world brought about a huge change in people’s lives. Around the world, people found it difficult to cope up with new norms of lockdown. However, there was a place, where this lockdown was not a change but routine affair - Jammu & Kashmir (J&K). In J&K, it served an extension of an already existing and, in fact, much worse lockdown imposed by the Indian state since August 5, 2019, when the state de-operationalized Article 370 of the Indian Constitution. The marker of the lockdown which Kashmir shared with the world was not just the cases or deaths caused by Coronavirus but encounters, civilian killings, destruction of properties, codon operations, harassment of journalists, suspension of telecom services etc. According to the Bi-annual report of human rights situation in Indian administered J&K prepared by JKCSS and Association of Parents of Dis- appeared Persons (APDP), there were at least 229 killings in different incidents of violence . These six months witnessed extra judicial execution of at least 32 civilians, killing of 143 militants and 54 Armed personals. The report mentions that at least 48 houses were damaged in the first half of this year rendering a large number of families homeless during the Corona lockdown.

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Besides these, there has been the issue of attacks on religious places in Kashmir raising questions about the safety of minori- ty faith and practices in Kashmir.

Attacks on Religious Places

● 6 religious places were attacked in the months of May and June 2020 in Srinagar.

● On May 15th, a petrol bomb was hurled on Az Zahra Islamic Centre, an Imam Bara in HabaKadal.

● On May 17th, Amar Koul temple in Badamwari was attacked with Petrol Bombs.

● On May 19th, Masjid e Imam Ali & Astan e Agha Jaffer were attacked with Petrol Bombs.

● On May 30th, unidentified burglars broke into Kalvi Dhar Gurudwara at Jawahar Nagar, Srinagar and decamped with cash and other valuables.

● On June 5, the Shrine of Babul Hawaij Imam Musa Kazim was attacked with a Petrol Bomb. The shrine houses the manuscript of one of the oldest written Quran in the valley written by Imam Musa Kazim, great grandson of Prophet Mu- hammed.

● On June 19, unidentified burglars broke into Ziyarat e Khanqah e Mir Shams-ud-din Araki in Zadibal.

Besides the attacks in Kalvi Dhar Gurudwara and Khaqnqah Mir Shams ud Din Araki in which the apparent purpose was bur- glary, in all the other cases the purpose remains suspicious. All four attacks show a lot of similarity in their patterns. Firstly, all these religious places belong to minority faith/sect. Secondly, all these religious places are in Srinagar. Lastly, in every attack the petrol bomb was hurled at night in densely populated areas when valley was under a lockdown.

Community reactions after the attacks Following these incidents, the religious leaders from all the groups and communities condemned the attacks and asked people to maintain unity and harmony in these difficult times. Maulana Masroor Abbas Ansari, a religious leader of J&K Ittehadal Muslim, in an interview to the local daily said, “the pattern of these attacks shows a coordination. The aim is clearly to create a discord among the religious communities”.

Following these attacks, Jammu & Kashmir Anjuman e Sharie e Shian organised an interfaith dialogue in Kashmir, in which people from all the faiths and sects participated. In this dialogue, a joint resolution was passed that unanimously condemned the recent attacks on various religious places in Srinagar and urged for unity among all communities.

FIR was filed at several police stations about the attack on Chattabal Shrine mosque in both Kadal and temple in Badam- wari. Despite the pattern, the police said that there is no link between the events and claimed that the suspects are mischie- vous individuals with drug addiction. Although, they have given no reason for this claim. Why will a drug addict risk his life and only attack religious places of minorities in densely populated areas? Most residents considered these attacks to be a ploy of ‘some agency’, a euphemism for various intelligence agencies operating in Kashmir to torment sectarian strife.

Tormenting Sectarian Strife

These mysterious attacks on religious places raise questions around the purpose of this attack and safety of minority commu- nities in J&K. The residents as well as religious leaders of minority groups blamed ‘agencies’ of causing a sectarian divide among the people and portraying a picture of Kashmir where minority communities are under attack. These claims are not mere conjectures. People in the valley have strong reasons to believe this given the turn of events in 2019.

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In pursuance of its project of ‘Hindutva’ in Kashmir, the BJP government has tried to create a narrative in which majority Muslims (Sunni Muslims) are made to serve as symbols of terrorist violence, fundamen- talist religious impulses and sedition. Their attempt is to reduce Kashmiri Muslims to a symbol of Islam- ic terror both within the Indian nation and for minority communities in Kashmiri that BJP alone can defeat.

The BJP started its Lok Sabha election campaign in Kashmir under the same banner. They talked about the rights of Pandits and Shias in Kashmir. As this was their only chance to make some political gains and woo Muslim votes in the valley from a community that comprises about 14% of the population in Kashmir.

It is reported that BJP office bearers conducted a survey before the Lok Sabha elections in 2019, pertaining to various religious and ethnic sects in Kashmir. The survey carried out a profile of the Shia population at district and village level.

To gain sympathy and support from Shia voters, Ram Madhav, the National General Secretary of BJP, in a meeting de- vising the party’s strategy gave special attention to the rights of the Shia community. In this meeting the issue of giv- ing reservation to Shias and demarcation of constituencies with Shia majority was raised. The BJP leader also men- tioned revoking the ban on Muharram procession and formation of a separate Wakf Board for Shias of Kashmir.

The Indian government has been trying to portray itself as the supporter of minority communities in its neighboring coun- tries and Kashmir. The Citizenship Amendment Act was a legislative measure which was actually against the interests of Muslim community within India but was portrayed by this government as a measure to mitigate the plight of minority communities in neighboring countries. Similarly, in Kashmir, Article 370 and domicile law have been portrayed as being discriminatory against minority communities that have suffered at the hands of the majority community in Kashmir.

Religious Freedom Post the amendment of Article 370

In a controversial piece titled ‘After scrapping of Article 370 Shias in Kashmir are in a state of relief and caution’, Abhi- jit Iyer claimed that that Shia community are in a sense of relief because Article 370 is lifted and caution because things won’t get better for them. This contradictory claim was balanced by an assertion that the abrogation of autonomy was an opportunity for Shias to practice their religion freely again. No reason was given as to how the two were related. Post de-operationalisation of Article 370, the first part was not realized but the second part about ‘caution’ was as the situ- ation for the community did not get any better.

From September 8 - September 10, 2019, no Muharram processions were allowed by the state. On 10th day of every Muharram, Shias undertake processions to commemorate the martyrdom of the Imam Hussain, the grandson of Prophet Muhammad. In Kashmir, major processions were banned in 1980. Since then, the Shia community has been undertaking processions on gov- ernment designated routes, with certain limitations. During the Muharram following the abrogation, even limited processions were not allowed, and severe restrictions were imposed. Scores of mourners were injured as police and corps fired tear gas can- isters and pellet shots on the peaceful mourners. Many boys were arrested merely for wearing black. Locals claimed that the forces abused women and misbehaved with the mourners. Even the indoor mourning sessions witnessed police interference.

While the religious rights of the Shia community were violated, the minorities of other faiths received entirely differ- ent treatment. On August 25, 2019, Janmashtmi was celebrated with high fervour in parts of Jammu, were dec- orated, and special prayers were held by the Hindus of Kashmir Valley without any hindrance from the government.

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Similarly, on August 27, 2019, a 3-day Kailash-Yatra was organised in Bhaderwah and hundreds of devotees were allowed for the pilgrimage amid tight security restrictions. Police had made elabo- rate arrangements for the Yatra and foolproof arrangements for the pilgrims were made by security forces.

Despite J&K being a Muslim majority state, the religious rights of Muslims witnessed all forms of violations. Post ab- rogation, many major Muslim traditions being observed since ages were halted. Khwajha Diggar, is a congregational prayer that is held on 3rd Rabiul Awwal of the lunar Calendar at the Shrine of Khwaja Naqshband Sahab, , Srinagar. The tradition that was kept alive for 400 years was halted on 2 November 2019 due the indefinite lockdown.

On November 10, 2019, which marked the birth of the Prophet of Islam, people were not allowed to visit the Hazrat Bal Shrine to make special prayers on the eve of Eid-e-Milad-un-Nabi, a tradition that has been ongoing since ages.

On the other hand, even in the times of COVID-19, when the regional administration in Kashmir prohibited all social and religious gatherings in Kashmir, the Amarnath pilgrimage has been given a nod, allowing 500 pilgrims per day.

This duality in policy and biased nature of the government towards Muslims gives a clear message that the government is not impartial towards different religions and the people of Kashmir. It’s because of this biased nature that India has been categorized as a country of Particular Concern in the report of the United States Commission on International Religious Freedom (USCIRF), a report that was later rejected by Indian Government. This report observes that the situation took a downward turn in 2019.

Conclusion

With the amendment of Article 370, status of J&K being reduced to Union territory, and the new domicile law, the reli- gious rights as well as the identity of Muslim community in Kashmir is in grave danger. There are higher chances that to counter this narrative, an atmosphere of communal tension may be created to portray people from the majority community responsible for spreading hatred and oppressing the other communities. This will also fullfill the narrative BJP is trying to portray, that it’s because of the empowerment of the minority communities that Sunni Muslim of Kashmir have a problem with Delhi Policies.

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By far the agenda of causing communal tensions has been defeated on ground and the minority communities in Kashmir have displayed a responsible behavior in maintaining harmony. Otherwise, in many parts of South Asia such incidents have resulted in violence and riots.

These events also place the Shia community of the valley at a very sensitive place. On one hand, they have to be cautious so that they are not made a scapegoat of sectarian politics. As a result, they have to show their loyalty towards the movement within the valley which is questioned due to their image created by BJP and other vested groups. On the other hand, they suffer an equal wrath of the state as the other Muslim communities, under this biased Hindutva Government.

Arman Kazmi is a student of philosophy, currently pursuing his masters from University of Hyderabad. He did his Honours in Philosophy from Hindu College, Delhi University. His research areas include philosophy of science, religion, ethics and mysticism. His interests other than philosophy include poetry and exploring the socio-political history of Kashmir.

END NOTES

382. JKCCS & APDP (2020). ‘Six Monthly review of human rights situation in Indian administered Jammu and Kashmir (January to June 2020)’. Jammu & Kashmir Coalition of Civil Society & Association of Parents of Disappeared Persons. Retrieved from http://jkccs.net/wp-content/up- loads/2020/07/Bi-Annual-HR-Report-2020-JKCCSAPDP.pdf

383. Ibid.

384. Singh, K (9 June 2020). ‘“Aim to create discord” : Mysterious attacks on Religious Places in Srinagar’. TheKashmirWalla. Retrieved from https:// thekashmirwalla.com/2020/06/aim-to-create-discord-mysterious-attacks-on-religious-places-in-srinagar/.

385. Ibid.

386. Ibid.

387. Supra Note 382.

388. Ibid.

389. Kashmir News Service (20 June 2020). ‘Burglary incident in Ziyarat Khanqah-e-Mir Shams-ud-din Araki R.A’. Kashmir News Service. Retrieved from https://www.knskashmir.com/Burglary-incident-in--Ziyarat-Khanqah-e-Mir_Shams-ud-din-Araki-R-A-47545

390. Supra Note 384.

391. Observer News Service (6th June 2020). ‘Maulana Masroor Condemns Petrol Bomb Attack on Downtown Shrine’, Kashmir Observer. Retrieved from https://kashmirob- server.net/2020/06/06/maulana-masroor-condemns-petrol-bomb-attack-on-downtown-shrine/

392. The Kashmir Walla (16th June 2020). ‘Anjuman- Sharie-Shian organises “first ever interfaith dialogue” in Kashmir’. The Kashmir Walla. Re- trieved from https://thekashmirwalla.com/2020/06/anjumane-sharie-shian-organises-first-ever-interfaith-dialogue-in-kashmir/

393. Supra Note 384.

394. Ibid.

395. Rai, M(2019). ‘Kashmiris in the Hindu Rashtra’ in Angana P. Chatterji, Thomas B Hansen and, (eds), Majoritarian State: How Is Changing India. Harper Collins: London. pp. 259-271

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396. Khalid, W (2nd April 2019). ‘BJP’s strong plans to woo Shia voters for making inroads into electoral politics of Kashmir’. The Kashmir Press. Retrieved from https://thekashmirpress.com/2019/04/02/bjps-strong-plans-to-woo-shia-voters-for-making-inroads-into-electoral-politics-of- kashmir/

397. Hassan, A (29th March 2019). ‘Waqf Board, Muharram Processions and Haj Quota: BJP Eyes Shia Votes to Open Account in Kashmir Valley’. News 18. Retrieved from https://www.news18.com/news/politics/waqf-board-muharram-processions-and-haj-quota-bjp-eyes-shia-votes-to- open-account-in-kashmir-valley-2082343.html

398. Mitra, A (27th September 2019). ‘After Scrapping of article 370, Shias in Kashmir are in a state of relief and caution’. The Print. Retrieved from https://theprint.in/opinion/after-scrapping-of-article-370-shias-in-kashmir-are-in-a-state-of-relief-and-caution/297510/

399. Zargar, A (10th September 2019). ‘We are Reliving the Tragedy of Karbala in Kashmir’. Newsclick. Retrieved from https://www.newsclick.in/ we-are-reliving-tragedy-karbala-kashmir

400. Shias wear black at the occasion of Muharram to symbolise grief and mourning.

401. Supra Note 398.

402. (25th August 2019). ‘Janmashtami celebrated with religious fervour across India’. Asian News International. Retrieved from https://www.aninews.in/news/national/general-news/janmashtami-celebrated-with-religious-fervour-across-india20190825061806/

403. Press Trust of India (27th August 2019). ‘J&K Devotees leave Bhadarwah for 3 Day Kailash Yatra in Doda amid tight security arrangements’. India Today. Retreived from https://www.indiatoday.in/india/story/jammu-and-kashmir-kailash-yatra-bhadarwah-1592321-2019-08-27

404. Qadri, I (10th November 2019). ‘Police Ban Prayers in Kashmir’s Sufi Shrines on Auspicious Days’. Outlook India. Retrieved from https://www. outlookindia.com/website/story/india-news-police-ban-prayers-in-kashmirs-sufi-shrines-on-auspicious-days/342056

405. Ibid.

406. Sidiq, N (6th July 2020). ‘Kashmir bans Muslim gatherings but OKs Hindu Pilgrimage’. Anadolu Agency. Retrieved from https://www.aa.com.tr/ en/asia-pacific/kashmir-bans-muslim-gatherings-but-oks-hindu-pilgrimage/1900831

407. Lakshman, S (10th June 2020). ‘U.S. religious reports takes note of CAA, NRC,J&K status’. Retrieved from https://www.thehindu.com/news/ national/us-religious-freedom-report-takes-note-of-caa-nrc-jk-status/article31798724.ece

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END NOTES Section 5 Conflict and Society

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Debunking the Colonial Discourse:

Gender and Kashmir

Misbah Reshi

Introduction

Immediately after Article 370 of the Indian Constitution was amended to write down the special status guaranteed to Jammu & Kashmir (J&K), there was an outpouring of speeches and comments by Indian men rejoicing over the possibility of mar- rying Kashmiri women. Manohar Lal Khattar, Chief Minister of Haryana said, “Some people are now saying that as Kashmir is open, brides will be brought from there…”. BJP Member of the Legislative Assembly from Haryana, Vikram Saini said, “Muslim party workers should rejoice in the new provisions. They can now marry the white-skinned women of Kashmir.” There was also a surge in Google search for ‘Kashmiri girl’ post August 5 and scores of tweets and videos were cir- culated by Indian men celebrating the amendment as it was easing their chances of marrying Kashmiri women.

This provided an important insight into the larger purpose for which the amendment was brought, and more impor- tantly, how it was received by the people of India. Article 370 of the Constitution of India, argued the ruling govern- ment in India, was a barrier to development in the valley and specifically an obstacle to the emancipation of women and LGBTQ community. Jay Panda, the national Vice President of BJP argued that the removal of Article 370 would help eliminate discrimination against women and the LGBTQ community and would make the valley ‘infinitely better’.

Ironically, while Kashmir was still under a movement lockdown and an internet shutdown, on January 26 com- memorated as the Republic Day of India, the country invited Brazilian President Jair Bolsonaro, who is known to be openly sexist and homophobic. He has made statements like he would rather have his son die in an acci- dent than come out as a homosexual and he won’t rape a fellow female legislator because she “doesn’t deserve it”.

While the state’s explicit narrative remained progressive, the real intention was far from it, as was the reaction of the Indian masses. The objectification and fetishization of Kashmiri women along with a desire to control and conquer their bodies is a reflection of the deep-rooted desire to control such women whose identity has challenged the idea of India. It is an outcome of the hyper-masculine nationalist identity glorified under the current regime but one that has always existed in mainland India and has sought to assert its power through different forms of violence on the bodies of Kashmiri women. The reaction of Indians celebrating the amendment passed on August 5, 2019 was a direct and immediate reaction of the very desire to conquer and control Kashmiri women and the Kashmiri territory.

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Through this chapter, I will firstly identify the falsehoods propagated by the ruling government to further their narrative on the removal of Kashmir’s special status. I will then trace all the aggressions and violations meted out by the state in Kashmir on women and LGBTQ community and how they are evidence to challenge the state’s claim of empowerment and emancipation.

Peddling Misconceptions

There were many misconceptions and falsehoods that were deliberately propagated to the Indian masses for them to cele- Therebrate the were removal many ofmisconceptions Kashmir’s special and falsehoodsstatus. that were deliberately propagated to the Indian masses for them to cele- brate the removal of Kashmir’s special status. One such misconception, which was important for their narrative of women’s empowerment, was that Article 35A of the IndianOne such constitution misconception, prevented which Kashmiri was important women, forwho their married narrative non-Kashmiris, of women’s from empowerment, purchasing land.was thatIn the Article case of35A State of the ofIndian J&K constitution v. Dr. Susheela prevented Sawhney, Kashmiri the J&K women, High Court who marriedclarified non-Kashmiris, that a woman retains from purchasingher right to inheritland. In and the owncase propertyof State inof J&K evenv. Dr. after Susheela she marries Sawhney, a non- the Kashmiri.J&K High An Court interpretation clarified that by aa Kashmiriwoman retains lawyer her of rightthe definition to inherit ofand ‘state own subject’property instated J&K in even a notification after she marries dated Aprila non- 20, Kashmiri. 1927, is that, An interpretationNote-II of the bydefinition a Kashmiri is genderlawyer neutral. of the definitionIt states, “Theof ‘state descendants subject’ statedof the personsin a notification who have datedsecured April the 20,status 1927, of isany that, class Note-II of the ofstate the subjectsdefinition will is be gender entitled neutral. to become It states, the state“The subjects descendants of ofthe the same persons class” who hence have children secured of Kashmirithe status womenof any classwho areof the state state subjects subjects would will also be entitledbe considered to become state thesubjects. state subjects of the same class” hence children of Kashmiri women who are state subjects would also be considered state subjects. Another misconception peddled in the name of the LGBTQ community was that progressive judgments of the Supreme Court like the recognition of transgender as a third gender and the de-criminalisation of homosexuality, could not be im- Anotherplemented misconception in Kashmir due peddled to Article in the 370 name of the of Indian the LGBTQ Constitution. community In 1995, was the that J&K progressive High Court judgments in Jankar of Singh the Supreme v. State Court& Ors. like had the upheld recognition that judgments of transgender of the Supreme as a third Court gender of Indiaand the are de-criminalisation binding on the courts of homosexuality, in Jammu & Kashmir. could not The be im- same was concurred by multiple jurists and legal scholars, as well as former High Court judge, Justice Hasnain Masoodi. plemented in Kashmir due to Article 370 of the Indian Constitution. In 1995, the J&K High Court in Jankar Singh v. This provides evidence to the fact that there was no merit in the claims made by the ruling government that their motives wereState for& Ors.the benefit had upheld of the that community. judgments of the Supreme Court of India are binding on the courts in Jammu & Kashmir. The same was concurred by multiple jurists and legal scholars, as well as former High Court judge, Justice Hasnain Masoodi. TheThis complete provides communication evidence to the andfact movement that there waslockdown no merit imposed in the inclaims the valley made postby the August ruling 5, government detrimentally that impacted their motives women and members of the LGBTQ community, more than others. Given that the state claimed the change in the legal were for the benefit of the community. status of the valley was for the betterment of its vulnerable communities, it made no provisions for their needs during the lockdown. This exposed how the use of their identities was an afterthought justification for the state, and not a policy decision.The complete communication and movement lockdown imposed in the valley post August 5, detrimentally impacted women and members of the LGBTQ community, more than others. Given that the state claimed the change in the legal status of the valleyBabloo, was a transgender for the betterment person ofwas its reported vulnerable as communities,saying, “India ittook made a drasticno provisions step by forscrapping their needs Article during 370 the and lockdown. did it at the This wrong time. Everything has vanished. We do matchmaking and cater to families who are associated with businesses, how exposed how the use of their identities was an afterthought justification for the state, and not a policy decision. will they pay us when they do not have means to survive for themselves. I have not earned a single penny after the abroga- tion of Article 370 and I am completely dependent on my brother.” The August 5 state-imposed lockdown severally affect- edBabloo, the ability a transgender of transgender person persons was reported to sustain as saying,themselves. “India Without took a providingdrastic step for by any scrapping welfare benefits,Article 370 the and state did imposed it at the thewrong lockdown time. Everything leaving the has already vanished. socially We anddo matchmakingeconomically andvulnerable cater to community families who to fendare associated for themselves. with businesses, how will they pay us when they do not have means to survive for themselves. I have not earned a single penny after the abroga- August 5, 2019 marked an important date not only for Kashmiris but also for the transgender community in India as Lok Sabhation of passedArticle the370 Transgender and I am completely Persons (Protectiondependent onof myRights) brother.” Act, 2019The August on the 5same state-imposed date. This Actlockdown has been severally a cause affected of concernthe ability for of members transgender of the persons transgender to sustain community, themselves. who Without in large providingnumber vehemently for any welfare rejected benefits, it, for being the state discrimina imposed- the lockdowntory and violative leaving ofthe their already basic socially rights likeand theeconomically right to self-identify. vulnerable Thecommunity transgender to fend community for themselves. of Kashmir was under a communication shutdown which made it impossible for them to be aware of the developments that were taking place. AugustFurther, 5,despite 2019 protestsmarked anagainst important the Act, date the not government only for Kashmiris of India released but also draft for therules transgender for the Act community during the COVID-19in India as Lok lockdown, seeking comments and suggestions. Kashmir had access to only 2G internet services and in many places even Sabha passed the Transgender Persons (Protection of Rights) Act, 2019 on the same date. This Act has been a cause of that was erratic which meant that there was an information blackout for the transgender community in Kashmir who could notconcern contribute for members their point of the of viewtransgender on the policy.community, Since who the internetin large shutdownnumber vehemently and the notification rejected it, on for the being draft discriminatory rules were bothand violative passed under of their the basicauthority rights of like the centralthe right government, to self-identify. it is clearThe transgenderthat there was community no intention of Kashmirof the government was under to a com- municationredress the concernsshutdown of which transgender made it persons impossible in Kashmir for them and to workbe aware for their of the upliftment. developments that were taking place. Further,

SECTION 5 - CONFLICT & SOCIETY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 141 despite protests against the Act, the government of India released draft rules for the Act during the COVID-19 lockdown, seekingThe state comments also made and no suggestions.provisions for Kashmir special hadcircumstances access to only that 2G exclusively internet services affect women. and in many A 26-year-old places even pregnant that was errat- woman, while in labour, could not reach the hospital and was on the verge of giving birth on the roadside. Security forces, ic which meant that there was an information blackout for the transgender community in Kashmir who could not contribute despite knowing her condition, refused to allow her to move past the various checkpoints that had been set up by them. their point of view on the policy. Since the internet shutdown and the notification on the draft rules were both passed under Violencethe authority by of Authorities the central government, it is clear that there was no intention of the government to redress the concerns of transgender persons in Kashmir and work for their upliftment. Women in Kashmir have historically been active participants in the resistance to state machinery. They were active partici- pantsThe state during also the made1931 rebellionno provisions against forDogra special rule, incircumstances 1940s during thatQuit exclusivelyKashmir movement, affect women. and even A during26-year-old 1990s whenpreg- nantviolence woman, in Kashmir while wasin labour,extreme. could Women’s not reach participation the hospital in protests and waspost Auguston the 5,verge 2019 of was giving inevitable birth andon scoresthe roadside of .women Security took forces, to the despite streets knowingto assert hertheir condition, complete refusedrejection to of allow the government’ her to moves pastmove the stated various to be checkpoints for their benefit. that had Unsur been- prisingly, the authorities in the valley responded to their protests with violence. set up by them. It was reported that Rabiya, a lady from Soura in Srinagar was briefly detained by the police and kept in a room full of male detainees. She stated, “I kept asking them to let me go as I have a two-year-old daughter to feed. To which the SHO (policeViolence officer) By Authorities replied ‘don’t worry, if your baby dies, they will bring the body here.’ He also threatened me saying he’ll slaughter the people of my neighbourhood.”

In Renawari, Srinaar, the authorities, specifically the Station House Office of J&K Police, were targeting women. It was reported, “The SHO asked her to deliver the baby on the road but did not allow her to visit the hospital. I ask, which law is this police officer following,”

While searching for protestors in Noorbagh in Srinagar, 16-year-old Soliha Jan, was beaten mercilessly by the police to the point where she vomited blood and fainted. She was admitted in the hospital’s emergency ward and it took her two weeks to recover.

Prominent female voices in the valley have also been suppressed. , a Kashmiri photojournalist was booked under UAPA for covering the human impact of the conflict and posting them on her social media, which the state calls “anti-national posts with criminal intention to induce the youth.”

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Militarisation

The valley has been a site of violence and conflict for decades with the existence of heavy militarised presence andThe exceptionalvalley has been laws a sitelike of The violence Armed and Forces conflict (Jammu for decades And Kashmir) with the Specialexistence Power of heavy Acts, militarised 1990 and presence Jammu andand ex - Kashmirceptional lawsPublic like Safety The Armed Act, 1987. Forces This (Jammu has created And Kashmir) a culture Special of impunity Power Acts, in the 1990 valley and where Jammu there and Kashmirhave been Public Safety8000+ Act, enforced 1987. Thisdisappearances, has created a 70,000+culture of deaths,impunity countless in the valley cases where of torture there have and been sexual 8000+ violence enforced and disappearances, discovery 70,000+of 6000+ deaths, unknown countless and unmarkedcases of torture mass and graves. sexual As violence reported and bydiscovery Jammu of Kashmir 6000+ unknown Coalition and of unmarked Civil Societies, mass graves. a humanAs reported rights by group Jammu in Kashmir,Kashmir Coalition the first ofsix Civil months Societies, of 2020 a humanwitnessed rights the group extrajudicial in Kashmir, executions the first ofsix at monthsleast 32of civilians in J&K, in which 3 were children and 2 were women. 2020 witnessed the extrajudicial executions of at least 32 civilians in J&K, in which 3 were children and 2 were women. This culture of impunity has created a hostile environment for all Kashmiris but more so for women and LGBTQ individuals. They have been subjects of sexual violence at the hands of armed forced in the valley, much of which has been reported and documented. On February 23, 1991, in the villages of Kunan-Poshpura, This culture of impunity has created a hostile environment for all Kashmiris but more so for women and LGBTQ individu- army men from 4 Rajputana Rifles, 68 Brigades were accused of mass rape of women (number varying from 32 als. They have been subjects of sexual violence at the hands of armed forced in the valley, much of which has been reported to 70) during a night crackdown. The police didn’t lodge the First Information Report (FIR) and incessantly de- niedand documented. the charges On against February the 23,army. 1991, On in May the villages 30, 2009, of Kunan-Poshpura,in the southern districtarmy men of fromShopian, 4 Rajputana the dead Rifles, bodies 68 ofBrigades two youngwere accused women, of massNeelofer rape ofJan women and Asiya (number Jan, varying aged 22 from and 32 17 to respectively,70) during a night were crackdown. found lying The in police the stream. didn’t lodge The the policeFirst Information refused to Report register (FIR) a First and Informationincessantly denied Report the (FIR) charges or againstto send the the army. bodies On for May post-mortem. 30, 2009, in theBased southern on fo dis- - trictrensic of andShopian, autopsy the dead reports, bodies it wasof two confirmed young women, that theNeelofer two Janwomen and Asiyawere rapedJan, aged and 22 there and 17was respectively, willful tampering were found of lyingevidence in the to stream. perpetuate The silence.police refused On June to register 26, 1990, a First members Information of the Report Border (FIR) Security or to send Force the (BSF) bodies raped for post-mortem. Hasina, a young girl from during a search operation. The accused members were charged of rape based on medical Based on forensic and autopsy reports, it was confirmed that the two women were raped and there was willful tampering of evidence like vaginal bleeding and bite marks on her face, chest, and breasts, yet there was no further follow up onevidence the case. to perpetuate In another silence. case, Onthe June rape 26, and 1990, murder members of a bride of the and Border her Securitypregnant Force aunt (BSF)by BSF raped personnel Hasina, isa youngevidence girl offrom non-compliance Sopore during a with search ordinary operation. laws The of accused the land. members In 2016, were a sixteen-year-old charged of rape based girl fromon medical Handwara evidence was like sexually vaginal assaultedbleeding and by bite a soldier marks onwhile her face,she waschest, using and breasts, a public yet bathroom. there was no further follow up on the case. In another case, the rape and murder of a bride and her pregnant aunt by BSF personnel is evidence of non-compliance with ordinary laws of the land. InThe 2016, state a hassixteen-year-old made no efforts girl from to bring Handwara the victims was sexually of sexual assaulted violence by a to soldier justice while and she has was in factusing denied a public the bathroom. occur- rence all such cases. The denial of victimhood and not providing them with a fair trial is antithetical not just to rule of law, but also to all liberating progressive politics including feminist and LGBTQ political frameworks.

TheConclusion state has made no efforts to bring the victims of sexual violence to justice and has in fact denied the occurrence all such cases. The denial of victimhood and not providing them with a fair trial is antithetical not just to rule of law, but also to all liberatingIndia, much progressive like its Britishpolitics colonisers,including feminist has a saviour and LGBTQ complex. political It creates frameworks. the imagery of a villainised Pakistan along with a villainised male Kashmiri Muslim who is not only a threat to Indians but also its own community’s vulnerable sections like women and LGBTQ persons. India portrays itself as the nation that needs to save and Conclusionprotect Kashmiri women and the Kashmiri LGBTQ community, while in reality its actions have only caused their marginalisation.

ButIndia, the muchcurrent like regime its in BritishIndia hascolonisers, a larger plan. has Ideologicallya saviour drivencomplex. by theIt RSS,creates Kashmir the playsimagery an integralof a vil- lainisedrole in their Pakistan Hindutva along agenda, with as athey villainised claim the maleregion Kashmiri to have rootsMuslim of the who Hindu is spiritualnot only ideology. a threat The changeto In- diansin the domicilebut also law whichits ownallows community’s Indians to purchase vulnerable land andsections settle is alike big stepwomen in changing and theLGBTQ demography persons. to their desire and a step to owning and conquering the land and bodies of Kashmiri women. The existence of India portrays itself as the nation that needs to save and protect Kashmiri women and the Kashmiri LGBTQ community, a vast majority that have not only strongly resisted Hindutva, but all statist forces, is a barrier to their larger plan.while Thein reality state its of actions affairs have in Kashmir, only caused with their incessant marginalisation. violence on marginalised bodies, is hence a reaction to such resistance. But the current regime in India has a larger plan. Ideologically driven by the RSS, Kashmir plays an integral role in their Hindutva agenda, as they claim the region to have roots of the Hindu spiritual ideology. The change in the domicile law

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Kashmiriwhich allows women Indians and to LGBTQpurchase landindividuals and settle are is beinga big step used in bychanging the Indian the demography state to further to their oppressive desire and and a step violent to own - ingpolicies and conquering in Kashmir. the There land and is nobodies truth of in Kashmiri the claim women. that the The removal existence of of the a vast special majority status that of have Kashmir not only was strongly benefi re- - sistedcial for Hindutva, them. Their but all voices statist beingforces, allowed is a barrier to existto their without larger plan.coercive The stateaction of affairsonly when in Kashmir, they are with congruent incessant to violence the onstate’s marginalised narrative bodies, is anti-empowerment. is hence a reaction The to such real resistance.emancipation of marginalised identities lies in formulating pol- icies with their participation and in listening to their voices, even if they, at the cost of discomfort to the Indian state, collectively echo azaadi. That is the only future that should be envisioned. Kashmiri women and LGBTQ individuals are being used by the Indian state to further oppressive and violent policies in Kashmir.Misbah Reshi There isis nofrom truth Indian in the Administered claim that the removalKashmir. of Shethe special graduated status from of Kashmir St. Stephen’s was beneficial College for and them. is currently Their voices studying law at Campus Law Centre, Faculty of Law, University of Delhi. She has contributed to various human being allowed to exist without coercive action only when they are congruent to the state’s narrative is anti-empowerment. rights reports focusing on minority rights in India and violations in Kashmir. The real emancipation of marginalised identities lies in formulating policies with their participation and in listening to their voices, even if they, at the cost of discomfort to the Indian state, collectively echo azaadi. That is the only future that should be envisioned. END NOTES

Misbah Reshi is from Indian Administered Kashmir. She graduated from St. Stephen’s College and is currently studying law 408. Bhat, A (21 August 2019). ‘Kashmir women are the biggest victims of this inhumane siege’. . Retrieved from https://www.aljazeera. at Campuscom/indepth/features/women-biggest-victims-inhumane-siege-190820122327902.html Law Centre, Faculty of Law, University of Delhi. She has contributed to various human rights reports focusing on minority rights in India and violations in Kashmir. 409. Siddiqui, Z (8th August 2019). ‘Indian men who see new policy as chance to marry Kashmiri women accused of chauvinism’. Reuters. Retrieved from https://www.reuters.com/article/us-india-kashmir-women/indian-men-who-see-new-policy-as-chance-to-marry-kashmiri-women-accused- of-chauvinism-idUSKCN1UY104 410. BBC News (11th September 2019). ‘India’s Kashmir move: Two perspectives’. BBC News. Retrieved from https://www.bbc.com/news/world- asia-india-49521419

411. Shukla, S (16th November 2019). ‘Homophobic, misogynist and a bigot’ – meet Jair Bolsonaro, India’s Republic Day chief guest’. ThePrint. Re- trieved from https://theprint.in/world/homophobic-misogynist-and-a-bigot-meet-jair-bolsonaro-indias-republic-day-chief-guest/321549/

412. Batool, E (2018). ‘Dimensions of Sexual Violence and Patriarchy in a Militarised State’. Economic and Political Weekly. 53, 47.

413. Press Trust of India (22nd January 2019). ‘J&K women marrying non-natives don’t lose residency rights: Expert’. Business Standard. Retrieved from https://www.business-standard.com/article/pti-stories/j-k-women-marrying-non-natives-don-t-lose-residency-rights-expert-119012201079_1. html

414. Kaul, A (13th August 2017). ‘My Kashmir is “Almost Matriarchal” – Our Inheritance Laws Are Proof’. thequint. Retrieved from https://www. thequint.com/voices/opinion/rights-of-female-state-subjects-of-kashmir

415. Jankar Singh v. State And Ors. Jammu & Kashmir High Court (1995). 1995 CriLJ 3263

416. Outlook Bureau (7th September 2018). ‘Supreme Court Judgment On Section 377 Applicable To J&K, Say Legal Experts’. Outlook. Retrieved from https://www.outlookindia.com/website/story/sc-judgment-on-377-applicable-to-jk/316214

417. Nabi, S (20th February 2020). ‘‘Article 370 Scrapped At Wrong Time’: Plight Of Kashmiri Transgenders Post-Abrogation’. The Logical Indian. Retrieved from https://thelogicalindian.com/exclusive/transgenders-kashmir-article-370-19850

418. Sofi, Z (13th August 2019). ‘In a Ravaged Kashmir, One Woman’s Fight to Give Birth. TheWire. Retrieved from https://thewire.in/rights/kash- mir-article-370-srinagar-curfew-lal-ded-hospital

419. Watali, N. A (9th October 2019). ‘Women Overlooked in Kashmir’s Resistance against India’s iron-fisted Policy’. TRTWorld. Retrieved from https://www.trtworld.com/perspectives/women-overlooked-in-kashmir-s-resistance-against-india-s-iron-fisted-policy-30463

420. Zargar, A (30th September 2019). ‘Kashmir: Women in Rainawari Accuse Local Police of Unleashing ‘Reign of Terror’’. Newsclick. Retrieved from https://www.newsclick.in/Kashmir-Women-Rainawari-Accuse-Local-Police-Unleashing-Reign-Terror

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421. Rehbar, Q & Zahra, M (26th November 2019). ‘This is how women are suffering under India’s crackdown’. TRTWorld. Retrieved from https:// www.trtworld.com/magazine/this-is-how-women-are-suffering-under-india-s-kashmir-crackdown-31692

422. FP Staff (20th April 2020). ‘Masrat Zahra booked under UAPA: Kashmiri photojournalist’s work focussed mostly on women, conflict report- ing in Valley’. FirstPost. Retrieved from https://www.firstpost.com/india/masrat-zahra-booked-under-uapa-kashmiri-photojournalists-work-fo- cussed-mostly-on-women-conflict-reporting-in-valley-8278721.html

423. IPDK & APDP (2015). Structures of Violence: The Indian State in Jammu and Kashmir. The International Peoples’ Tribunal on Human Rights and Justice in Indian-Administered Kashmir [IPTK] and the Association of Parents of Disappeared Persons [APDP].

424. JKCCS (1st July 2020). ‘Bi-annual HR Review: 229 killings, 107 CASO’s, 55 internet shutdowns, 48 properties destroyed’. Jammu and Kashmir Coalition of Civil Society. Retrieved from https://jkccs.net/bi-annual-hr-review-229-killings-107-casos-55-internet-shutdowns-48-properties-de- stroyed/

425. Anjum, A (2018). ‘Moving from Impunity to Accountability Women’s Bodies, Identity, and Conflict-related Sexual Violence in Kashmir’. Eco- nomic and Political Weekly. 53, 47.

426. Zia, A. ‘The Killable Kashmiri and Weaponized Democracy’. ThePolisProject. Retrieved from https://thepolisproject.com/the-killable-kashmi- ri-and-weaponized-democracy/#.Xww5m20zZ0x

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Punitive Childhood

Child Rights Post Abrogation

Malika Galib Shah and Junaid-Ul-Shafi

The valley of Kashmir has been an epicenter of the conflict, primarily between India and Pakistan, for seven decades now. This conflict has been marked by grave human rights violations and humanitarian crises over these decades. While there has been some study on its impact on the economy of the valley, loss of human lives, and to a little extent even the sexual abuse of women, one grave aspect remains barely touched - children in this conflict. Through this paper, the authors aim to exam- ine the impact of siege enforced by the state after the unilateral revocation of the Jammu and Kashmir (J&K) Constitution on the children of Kashmir. Through this paper, the authors seek to determine its impact on children’s daily lives – from their education to their socialisation; the loss of children’s lives as the aftermath of this decision; as well as the rampant illegal detention in prisons for juveniles as a means of harassment, all of which stands in clear violation of India’s obligation under the Municipal law as well as its obligation under the International Law.

Introduction

August 5, 2019, marks the watershed moment in the history of the erstwhile state of Jammu and Kashmir where the Govern- mentAugust of India,5, through2019, amarks Constitutional the watershed amendment, moment decided toin strip the the statehistory of its ofspecial the statuserstwhile that formed state the ofbasis Jam of the- state’smu and accession Kashmir to India. where This unilateralthe Government abrogation notof only India, resulted through in the degradation a Constitutional of the status amendment,of J&K from statehooddecid- toed thatto ofstrip a Union the Territory, state ofand itshence, special directly status under Controlthat formed of the Centralthe basis Government, of the butstate’s also inaccession the unilateral to abroIndia.- gation This unilateral of the Constitution abrogation of not J&K. only All resulted this was in thedone degradation without taking of the into status confidence of J&K from the entirestatehood population to that ofof athe Union region, Terri the- sametory, andpopulation hence, directlythat was under most Controlaffected of by the this Central decision. Government, but also in the unilateral abrogation of the Constitution of J&K. All this was done without taking into confidence the entire population of the region, the same population that was most affected by this decision. SECTION 5 - CONFLICT & SOCIETY Immediately before this announcement, the entire state was put un- der a total siege, and a curfew was imposed in this highly militarised region. As a regular modus operandi, all means of communication were shut – landlines, mobile phones, and in- ternet connections, only this time to be the longest a modern-day democracy has ever witnessed. Under a complete communication clampdown and siege, children formed the worst affected victims of this clampdown. The impact being both multi-fold and long term.

Education

Education has been one of the primary casualties in areas of armed conflict, along with the life and liberty of young children. World over, it has been found that the children are the worst sufferers of conflicts whether in a large-scale armed conflict like Syria or Afghanistan or in a conflict encompassing siege and occupation as seen in Palestine and Kashmir.

The occupation and destruction of educational institutions and in some places forced closure of these in- stitutions amount to a violation of the basic rights of children protected under International law. The destruction of schools and health infrastructures, along with housing, has a di- rect effect on schooling and health for exposed populations. According to a World Bank report, economic and social costs of conflict persist for years even after the end of the conflict. The Global Coalition to Protect Education fromAttack (GCPEA) in their flagship report – ‘Education Under Attack’ 2018 revealed that deliberate and indiscriminate attacks on schools, universities, students, and staff are becoming more widespread in conflict situations across the world. Globally, there have KASHMIR READING ROOM YEARLY REPORT 2019 - 20 146

Immediately before this announcement, the entire state was put under a total siege, and a curfew was imposed in this been more than 12,700 attacks on education facilities that have harmed over 21,000 students and educators between 2013 and 2017. highly militarised region. As a regular modus operandi, all means of communication were shut – landlines, mobile phones, Such militarisation of educational institutions or spaces in armed conflicts results in reduced school enrolment, highand internet dropout connections, rates, lower only educational this time to beattainment, the longest poor a modern-day schooling democracy conditions, has and ever thewitnessed. exploitation Under aof complete children. communication clampdown and siege, children formed the worst affected victims of this clampdown. The impact being both multi-fold and long term.

KashmirEducation and its children have been no exception to these casualties. After the announcement of the abroga- tion of the Constitution of J&K, including most of the statutes passed by the erstwhile State, all educational insti- tutionsEducation including has been Universities, one of the primary colleges casualties and, schools in areas were of armed shut downconflict, and along within with months the life of and the liberty siege, of ayoung two and a children.half month World-long over, winter it has break been wasfound declared that the childrenin all these are theinstitutions. worst sufferers Even of when conflicts the Indianwhether government in a large-scale continued armed conflictto claim like the Syriareturn or ofAfghanistan normalcy or inin thea conflict valley, encompassingthe grassroots siege reality and occupationwas very asdifferent. seen in AllPalestine educational and Kashmir. institu - tions remained shut till February 2020. These institutions re-opened partially only for a week when the students Thewere occupation again confined and destruction within ofthe educational four walls institutions of their and homes,in some thisplaces timeforced due closure to theof these spread institutions of the amount COVID-19 pandemic. to All a violationeducational of institutionsthe basic rights continue of children to remain protected shut even under to Internationalthis date. law. The destruction of schools and health infra- structures, along with housing, has a direct effect on schooling and health for exposed populations. According to a World BankWhile report, this kind economic of a school and social closure costs has of been conflict the firstpersist in forIndia years and even the afterworld, the it end has of been the conflict.a regularThe situation Global Coalitionfor Kash- tomiri Protect students. Education They from have Attack had to (GCPEA) miss an entirein their academic flagship yearreport sitting – ‘Education within theUnder confines Attack’ 2018of theirrevealed homes. that While deliber one- atemay and feel indiscriminate that in the present attacks scenario on schools, the universities,situation of students,Kashmiri and children staff areis atbecoming par with more that widespreadof the rest ofin conflictthe world, situ yet- there is a stark difference. While India and the rest of the world have taken to online education, the children of ations across the world. Globally, there have been more than 12,700 attacks on education facilities that have harmed over Kashmir have no access to the same because of the limited/curtailed 2G internet connectivity available to them. 21,000 students and educators between 2013 and 2017. Such militarisation of educational institutions or spaces in armed conflicts results in reduced school enrolment, high dropout rates, lower educational attainment, poor schooling conditions, Inand thethe exploitation entire ofregion children. of Jammu and Kashmir, internet connectivity remained shut for al- most six months in a row after which only limited 2G internet access was enabled. KashmirDespite dedicatedand its children efforts have of various been no school exception authorities to these for casualties. providing After online the learning, announcement the limited of the internet abrogation connectivity of the has madeConstitution it hard ofto createJ&K, includinga conducive most learning of the statutesenvironment. passed Moreover, by the erstwhile it has confined State, all theeducational right to education institutions to the including students of certainUniversities, affluent colleges schools and, alone schools that canwere afford shut thedown kind and of within infrastructure months ofneeded the siege, to impart a two online and a learning, half month-long leaving thewinter rest in a completebreak was state declared of ignorance in all these and institutions. despondency, Even deprived when theof their Indian basic government right to education. continued This to claim is worthy the return to note of herenormal that- the rightcy in tothe education valley, the is grassrootswell-recognised reality both was nveryationally different. as well All aseducational internationally. institutions remained shut till February 2020. These institutions re-opened partially only for a week when the students were again confined within the four walls of their Thehomes, Constitution this time due of India,to the underspread Article of the COVID-1921A, provides pandemic. for free All and educational compulsory institutions education continue of children to remain as a fundamental shut even right.to this The date. importance of this right in the Indian Constitution can be gauged from the fact that this right was moved from the position of a non-enforceable Directive Principle in Part IV of the Constitution to the enforceable fundamental right in Part IIIWhile of the this same kind Cofonstitution a school closure through has the been 86th the Constitutional first in India Amendment and the world, Act it in has 2002. been Further, a regular the situation Union governmentfor Kashmiri has enactedstudents. the They Right have to hadEducation to miss Act an entire(2009) academic making ityear obligatory sitting within on the the State confines to ensure of their free elementaryhomes. While education one may to feel every childthat in in the the present age group scenario of six the to situationfourteen yearsof Kashmiri of age. children is at par with that of the rest of the world, yet there is a stark difference. While India and the rest of the world have taken to online education, the children of Kashmir have no access to Atthe thesame international because of level, the limited/curtailed the right to education 2G internet has been connectivity recognised available by several to them.international and regional legal instruments: treaties (conventions, covenants, charters) and also in soft law, such as: general comments, recommendations, declarations, and frameworks for action. Article 26 of the Universal Declaration of Human Rights (UDHR) provides for this right, not In the entire region of Jammu and Kashmir, internet connectivity remained shut for almost six months in a row after which only as a right in itself but also as a means to attain human development, and promotion of human rights, tolerance and peace. only limited 2G internet access was enabled. Despite dedicated efforts of various school authorities for providing online Similarly, Articles 13 & 14 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 24 on learning, the limited internet connectivity has made it hard to create a conducive learning environment. Moreover, it has the Convention of the Rights of Child (CRC), also provides for the Right to education. The right to education is one of the confinedkey principles the right underpinning to education the toEducation the students 2030 of Agenda certain andaffluent Sustainable schools Development alone that can Goal fordaf 4 (SDG4)the kind adoptedof infrastructure by the inter - needednational to community. impart online SDG learning, 4 is rights-based leaving the and rest seeks in a completeto ensure statethe full of enjoymentignorance and of the despondency, right to education deprived as offundamental their basicto achieving right to sustainable education. Thisdevelopment. is worthy However, to note here in thethat valley the right of Kashmir,to education this is right well-recognised stands in clear both violation nationally of India’s as well ob as- internationally.ligation under its law as well as the International law. The Constitution of India, under Article 21A, provides for free and compulsory education of children as a fundamental Azaan (name changed), a fifth-class student from in has not attended school since August 2019. He right. The importance of this right in the Indian Constitution can be gauged from the fact that this right was moved from misses his daily routine, his studies, and his interaction with his classmates, teachers, and friends. He still is one of the lucky the position of a non-enforceable Directive Principle in Part IV of the Constitution to the enforceable fundamental right in few who has some teaching support at home that allows him to stay in touch with his study routine even while the schools Part III of the same Constitution through the 86th Constitutional Amendment Act in 2002. Further, the Union government remain closed. In a similar case, Bushra (name changed), a 7th standard student from DPS, Srinagar has been to school only hasfor aenacted week in the an Right entire to academic Education year, Act like (2009) everybody making elseit obligatory in the region. on the O Statenline toclasses ensure are free a struggle elementary for botheducation the teachers to everyand students child in with the limitedage group internet of six access. to fourteen A major years portion of age. of the class time goes into repeating and re-repeating a paragraph

SECTION 5 - CONFLICT & SOCIETY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 147 or two as students lack proper internet connection to support their online learning. Frequent lags and disruptions form a regularAt the international part of their onlinelevel, thelearning right toexperience, education withhas beenlittle recognisedgain at the endby several of hours international of struggle. andIt is regionalpertinent legal to mention instru- here ments:that DPS treaties is one (conventions, of the very few covenants, schools thatcharters) has been and ablealso toin providesoft law, some such kindas: general of an online comments, teaching recommendations, arrangement with its declarations,well-established and infrastructure. frameworks for For action. the majority Article of26 theof thestudent Universal population, Declaration even this of Human kind of Rightslimited (UDHR) learning providesset up remains for thisa distant right, dream. not only as a right in itself but also as a means to attain human development, and promotion of human rights, tolerance and peace.Similarly, Articles 13 & 14 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 24 on the Convention of the Rights of Child (CRC), also provides for the Right to education. The right toThis education problem is has one not of beenthe key limited principles to school underpinning children alone, the Education but also extends2030 Agenda to students and Sustainable enrolled in Development important professional Goal 4 (SDG4)courses likeadopted medicine. by the Seeratinternational (name community.changed), an SDG MBBS 4 is rights-basedstudent hasn’t and been seeks able to toensure access the the full internet enjoyment to keep of the herself right toupdated education on the as fundamentallatest development to achieving in the sustainablemedical field, development. especially However,in the wake in theof COVID-19valley of Kashmir, and the fastthis rightprogressing stands indis - coveries and developments in the area. According to her, it takes her hours together to research a simple question on the clear violation of India’s obligation under its law as well as the International law. internet owing to the limited speed. She, like a lot of others in the valley, has been unable to prepare for foreign medical examinations despite having paid a hefty amount for the same. Such courses require an active internet connection to which Azaan (name changed), a fifth-class student from Aharbal in Kulgam district has not attended school since August 2019. the students in the valley have no access. He misses his daily routine, his studies, and his interaction with his classmates, teachers, and friends. He still is one of the lucky few who has some teaching support at home that allows him to stay in touch with his study routine even while Thesethe schools students remain stand closed. little chanceIn a similar at excelling case, Bushra with their(name counterparts changed), a in 7th India, standard leave student alone theirfrom counterparts DPS, Srinagar from has the been rest ofto schoolthe world. only In for a timea week and in age an ofentire technological academic year,advancement, like everybody the students else in of the the region. valley Online have forcefully classes are been a struggle made techno for - logicallyboth the teachershandicapped and students and educationally with limited backward, internet access.by the veryA major government portion of that’s the classsupposed time togoes enable into humanrepeating development and andre-repeating personal a growth paragraph of its or people, two as especiallystudents lack children. proper internet connection to support their online learning. Frequent lags and disruptions form a regular part of their online learning experience, with little gain at the end of hours of struggle. It is pertinent to mention here that DPS is one of the very few schools that has been able to provide some kind of an online teachingMental Health arrangement with its well-established infrastructure. For the majority of the student population, even this kind of limited learning set up remains a distant dream.

ThisApart problem from the has high not impact been limited on their to education, school children this prolonged alone, but siege also extendshas also toimpacted students the enrolled mental in health important of the professional children of coursesKashmir. like With medicine. schools closed,Seerat (namestreets changed),under curfew, an MBBS and playgrounds student hasn’t a no-go-area, been able children to access have the been internet confined to keep to theirherself homes. They can hardly venture out of their homes amidst sporadic protests, tear gas shelling, and the threat of pellet injuries. The updated on the latest development in the medical field, especially in the wake of COVID-19 and the fast progressing complete suspension of telecommunication services also restricted any chance of connecting to their friends. With little left discoveries and developments in the area. According to her, it takes her hours together to research a simple question on the to do for these children, some of them as young as 8, have taken to street protests shouting slogans for gun culture in Kashmir. internet owing to the limited speed. She, like a lot of others in the valley, has been unable to prepare for foreign medi- This prolonged siege, followed by the COVID pandemic, has also seen frequent instances of violence in the valley. Encounters, lead- ingcal toexaminations civilian deaths despite and injuries, having including paid a hefty children amount casualties, for the andsame. destruction Such courses of property require form an partactive of the internet daily lives connection of the people. to which the students in the valley have no access. These students stand little chance at excelling with their counterparts in India, leave alone their counterparts from the rest Theseof the world.developments In a time haveand age led of to technological a serious impactadvancement, on the the mental students and of psychologicalthe valley have health forcefully of thesebeen madeyoung tech chil- - drennologically in the handicappedvalley. Locked and upeducationally in their homes, backward, children by the have very been government witnessed that’s to suffersupposed from to anxietyenable human and restlessness. develop- Mentalment and health personal professionals growth of areits people,concerned especially with an children. “epidemic of psychological disorder” among the children in the val- ley. Children form the most vulnerable victims of psychological disorder due to their inability to extract the trauma from Mentaltheir memory Health which may manifest differently in the later part of their lives, at times hampering the development of brain structure. IMHANS-K has seen around 200 mental health cases in the last 12 months as a result of frequent crackdowns by armedApart fromforces the in high the region.impact Ofon theirthese, education, around 80% this belong prolonged to pre-adolescence siege has also impacted and early the adolescence mental health age ofgroups. the children As part of of theKashmir. ongoing With conflict schools from closed, one streetsepisode under to another, curfew, the and situation playgrounds in Kashmir a no-go-area, is unlike children any other have classic been confinedpost-traumatic to their stress homes.disorder They and iscan peculiar hardly toventure the region. out of Thesetheir homes children amidst are at sporadic a higher protests, risk of becomingtear gas shelling, prey to and drug the abuse threat and of depression.pellet injuries. The complete suspension of telecommunication services also restricted any chance of connecting to their friends. With little left to do for these children, some of them as young as 8, have taken to street protests shouting slogans for gun cultureRecently in the Kashmir.This picture of a youngprolonged three-year siege,- oldfollowed child sitting by the on COVID his dead pandemic, grandfather’s has also corpse seen was frequent widely instancescirculated of in violencethe media. in theExposure valley. Encounters,to violence leading toat civilian such deaths a andyoung injuries, ageincluding leaves children a casualties,long-lasting and destructionmental, of propertyemotion - alform partand of thephysical daily livesharm of the people.such as extended periods of stress, depression, criminality, etc. Not only their mental health but the physical health of these children are also being adversely affected. Stud- Theseies have developments revealed thathave spendingled to a serious more impacttime oninside the mentalthe house and psychologicalmakes children health vulnerable of these young to the children effects in theof in- door pollution which can affect their brain development leading to limited development of cognitive abilities. valley. Locked up in their homes, children have been witnessed to suffer from anxiety and restlessness.Mental health professionals are concerned with an “epidemic of psychological disorder” among the children in the valley. Children form the most vulnerable victims of psychological disorder due to their inability to extract the trauma from their memo- ry which may manifest differently in the later part of their lives, at times hampering the development of brain structure.

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IMHANS-K has seen around 200 mental health cases in the last 12 months as a result of frequent crackdowns by armed forces in the region. Of these, around 80% belong to pre-adolescence and early adolescence age groups. As part of the ongoing conflict from one episode to another, the situation in Kashmir is unlike any other classic post-traumatic stress disorder and is peculiar to the region. These children are at a higher risk of becoming prey to drug abuse and depression.

Recently the picture of a young three-year-old child sitting on his dead grandfather’s corpse was widely circulated in the media. Exposure to violence at such a young age leaves a long-lasting mental, emotional and physical harm such as ex- tended periods of stress, depression, criminality, etc.Not only their mental health but the physical health of these children are also being adversely affected. Studies have revealed that spending more time inside the house makes children vulnera- ble to the effects of indoor pollution which can affect their brain development leading to limited development of cognitive abilities.

Illegal Detention and Torture

The young children in Kashmir don’t have to battle mental health and loss of education alone but a large number of these children have been frequently subjected to inhuman treatment by the state paramilitary forces and state machinery. Illegal detention, accompanied by torture, cruel and undignified behaviour has marked the lives of numerous Kashmiri children, again, all against the national and international norms. Children have been victims of illegal detention even before August 5, but after the abrogation of Article 370 such detentions have gained pace, partly as a means to showcase the states’ pow- er against the helpless population of the region, and partly to break down the courage and resilience of the people using humiliation as a vital tool. Children even below the age of 11 have been picked up, detained, and tortured. However, very few cases of illegal detention have been reported due to strict blockade on press and telecommunication in the region.

An 11-year-old boy from the region in Kashmir was picked up by the forces and illegally detained, without any formal record, between the 5th of August and 11th of August, 2019. In a fact-finding report by All India Democratic Women’s Association, the army has been accused of illegally detaining boys as young as 13 and torturing them for months together. The army officials are also accused of ransoming poor families for the release of their children claiming any- where between INR 20,000 - 60,000 from the families of these young, tender aged detainees.

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In another incident, 5-year-old Muneefa, was badly injured in her right eye after an army jawan deliberately hit her with a stone from his catapult. This incident happened when the young girl was heading home with her uncle. Two teenage boys, aged 14 and 16, were picked up and illegally detained from their residence in Mehjoor Nagar area in Srinagar, on the intervening night of August 19 and 20. A 17-year-old teenage boy was illegally detained and beaten up with chains at the Soura Police station On August 20, when he was heading to the hospital with food for the relative admitted there. Similarly, a 12-year-old was picked up by the forces, beaten with the butt of a gun, and slapped on the face before being illegally detained in the Safa Kadal Police station lockup. He had gone to get some bread when protests broke out in the area.

In another incident of torture and illegal detention, a 17-year-old boy was picked up and detained on August 6 in a mid- night raid by the police at around 1:30 am. According to the teenager, these policemen had their faces covered. They yelled and punched at the young boy before he was thrown inside the police vehicle, with 6 other minors who were picked up similarly. None of these children were presented before any court or sent to any juvenile home. He was illegally de- tained for 37 days with 15 other minors in a small dark cell with hardly any light. There was a blocked latrine adjacent to the cell which used to stink, as a result of which all of these illegally detained young boys fell ill.

According to the fact-finding report, nearly 13,000 teenagers have been illegally detained after the abrogation ofArticle 370. However, official figures denote that only 144 young children/ juveniles have been detained in the valley post abroga- tion, some of whom were kept in observation homes for varying periods as a preventive measure. A 9-year-old boy from Srinagar finds his place in this list of 144 officially accepted illegal detentions. Illegally detained on the 7th ofAugust, the young orphan was kept in the police station for two long days.

In the absence of an FIR or any other formal record of such detentions, it becomes difficult for the families to file a Bail Application before the concerned court. Between August 5 and September 30, 2019, nearly 330 Habeas Corpus petitions have been filed before the concerned Court. Communication blockade, later accompanied by the COVID 19 lockdown, has made it difficult for families to seek justice in such petitions. Out of all the Habeas Corpus petitions filed before the High Court after August 5, 99% of the petitions remain pending.Most of these illegally detained children are lodged in far- flung jails, where they are unfamiliar with the climatic conditions and unbearable heat of the region.This further breaks down these young boys, both mentally and physically.

Deaths

Besides being victims of illegal detention and torture, children of the valley have also been killed in cold-blooded murder post abrogation. In one of the many incidents, a 15-year-old boy committed suicide after allegedly being assaulted by the army.In another one, a 16-year-old boy, Osaib Altaf, drowned in river Jehlum after allegedly being chased by paramilitary forces on his return from his cricket match. Similarly, the killing of a 4-year-old in an encounter in the valley is another example of the lives Kashmiri children are living in the conflict zone.

Such actions of the government are against the well-established national and international legal principles. These actions by police are an assault on the principles of Fairness and Rule of Law. As a party to the most important Convention deal- ing with child rights internationally, the UN Convention on the Rights of the Child (CRC), India has consistently under- performed and failed in fulfilling its obligation towards children in . Article 19 of the Convention lays down an obligation on the state to take all appropriate “legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, mal- treatment or exploitation”. It also provides that such protective measures should provide for the identification, reporting, investigation, and judicial involvement among other prevention techniques.

Article 39 of the CRC further lays down an obligation on its member states to take appropriate measures “to promote physical and psychological recovery and social reintegration of a child victim of any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflict”. Such recov-

SECTION 5 - CONFLICT & SOCIETY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 150 ery and reintegration are to be ensured in an “environment which fosters the health, self-respect and dignity of the child’’. Article 37(b) of CRC prohibits the unlawful or arbitrary deprivation of a child’s liberty. All arrests, detention, or imprison- ment of children has to be in conformity with the law and as a measure of last resort, for the shortest appropriate period of time.

UN CRC grants 4 sets of rights to every child - Right to survival, which includes the right to life health and good stan- dards of living; Right to protection, which includes the protection of children from exploitation, inhuman treatment, violence, abuses, and also including the right to special protection in critical situations of emergency, civil and armed conflicts; Right to development , which includes the right to education, childhood care, and development, social security and recreation and cultural activities; and Right to Expression, which includes respect for the views of the child, freedom of speech and expression, freedom of thought and conscience, etc.

India’s own Constitution imposes a duty on the State to protect the life and liberty of all its citizens which includes Juve- niles. The provisions of Juvenile Justice (Care and Protection of Children) Act, 2015 and the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013, have also been brazenly violated. These Acts clearly provide for no juvenile to be arrested and put in a regular prison. Instead a whole separate detailed procedure is provided in the legisla- tions for dealing with children in need of care and protection as well as children in conflict with the law.

Even the Supreme Court of India in Re: Exploitation of children in orphanages in the state of vs Union of India, directed the Juvenile Justice Boards (JJB) not to be silent spectators to instances of juvenile detention in regular prisons or police lockups. Instead, it cast a duty on the JJBs to ensure that the child is immediately granted bail or sent to an observation home or a place of safety. The highest court of the land reiterated that the Act could not be flouted by anybody, least of all the police.

Despite the legal guarantees, protection, and human rights available to every child both nationally and internationally, the children in Kashmir are deprived of the same. They are living in an environment of fear, humiliation, torture, and rampant illegal detentions and killings. There is a complete absence of juvenile justice machinery in place. All the JJBs and the Child Welfare Committees (CWC), which form an important part of the Juvenile Justice Act, stand abolished, just like the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013.

In the absence of state machinery as important as this, there is little protection available to the children of the valley. Even the extension of India’s Juvenile Justice Act 2015 to the region will only prove detrimental for its children aged 16 and above who can now be tried under the regular criminal justice system. This central JJ Act will make legal what was other- wise being done covertly. It will now legally allow the detention of children aged 16-18 years for heinous offences even if the act involves mere sloganeering in peaceful demonstrations.

As the state continues to conveniently bypass its national and international obligations, it’s this budding generation that is being dispossessed of what they are legally entitled to.

Conclusion

India’s unilateral revocation followed by a complete clampdown on its civilian population has been violative of the basic human rights of its population, especially children. It has also been a deviation from the well-established principles of the Rule of Law. For the last one-year children have been deprived of some of the most valuable and basic human rights like the right to education, and socialisation. They have been living in a black hole, cut off from the entire world, cocooned in a shell of violence and terror. Their social interaction and outdoor activities have gone down to zero - two activities that are of utmost importance to a child’s overall development. With no opportunities to vent their feelings, socialise, and develop, there has been a grave impact on the mental health of these children. Illegal detentions, torture, and death of children form part of the law in the region. Close to a year to the abrogation, there has been little change in the situation of the children of the valley. The most recent incident being that of the three-year-old child sitting on his dead grandfather’s body. Marred by child rights violations, the erstwhile state is yet to have an established juvenile justice machinery in place.

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The new Juvenile Justice Law implemented in the region still remains in Statute alone with no on the ground ap- plication, except for the detrimental power to hold 16 years old accountable under the regular criminal justice sys- tem, when the International Community continues to define every human being under 18 years of age as achild.

There is an urgent need to look at the children’s rights and their violations in Jammu and Kashmir. The perpetrators need to be held accountable for such violations rather than being provided state support. The best interest of the child globally forms the essence of the larger human rights issues and debates across all spectrums. A blind eye to child rights violations and disregard for child rights will only leave an entire generation of illiterate, socially misfit, troubled, and in need of mental health support.

Malika Galib Shah LLM at UCL, London Chevening Scholar, 2017-18

Junaid-ul-Shafi LLM in Law and Development at Azim Premji University, Bangalore

END NOTES

427. Gettlemen, J and ors (5 August 2019). ‘India Revokes Kashmir’s Special Status, Raising Fears of Unrest’. New York Times. Retrieved from https:// www.nytimes.com/2019/08/05/world/asia/india-pakistan-kashmir-jammu.html

428. Kashmir Monitor (29 October 2019). ‘Addt’l 70k troops to stay put till April 2020’ Kashmir Monitor. Retrieved from https://www.thekashmirmon- itor.net/addtl-70k-troops-to-stay-put-till-apr-2020/; also see Outlook Bureau (30 March 2018). ‘Children In J&K Living In Most Militarised Zone Of The World, 318 Killed In Last 15 Years, Says Human Rights Group Report’ Outlook Magazine. Retrieved from https://www.outlookindia.com/ website/story/children-in-jk-living-in-most-militarised-zone-of-the-world-318-killed-in-15-yea/310230

429. Fareed, R (5 September 2019). ‘Anger and defiance mark one month of Kashmir siege One month since a lockdown was imposed in Kashmir, residents vow to resist New Delhi’s move to scrap its special status’ Aljazeera. Retrieved from https://www.aljazeera.com/news/2019/09/anger- defiance-mark-month-kashmir-siege-190905060143123.html

430. Devakumar,D et al.(2015). ‘Child health in Syria: recognising the lasting effects of warfare on health’. Conflict and health. Vol. 9, pp. 34. DOI :10.1186/s13031-015-0061-6

431. Massad, S; Stryker, R; Mansour, S. & Khammash, U. (2018). ‘Rethinking Resilience for Children and Youth in Conflict Zones: The Case of Pal- estine, Research in Human Development’. 15:3-4, 280-293, DOI: 10.1080/15427609.2018.1502548

432. International Declaration concerning the Laws and Customs of War, 27 August 1874, not ratified, 1 American Journal of International Law (1907) Vol.1(supp.),p p.96

433. The World Bank Annual Report 2003. http://documents1.worldbank.org/curated/en/259381468762619763/pdf/270000PAPER0English0WBAR- 0vol-01.pdf

434. Education Under Attack 2018; A Report By The Global Coalition To Protect Education From Attack.

435. The effects of armed conflict on schooling in Sub-Saharan Africa. Int J Educ Dev. 2012;32(2):341–351 Convention

436. Zargar, S (23 May 2020). ‘In Kashmir, school children have barely gone to classes for nine months’. Scroll.in. Retrieved from ://scroll.in/- cle/962295/in-kashmir-school-children-have-barely-gone-to-classes-for-nine-months.

437. PTI (12 May 2020). ‘2G internet services restored in 8 of Kashmir’s 10 districts’. The Economic Times .Retrieved from https://economictimes. indiatimes.com/news/politics-and-nation/2g-internet-services-restored-in-8-of-kashmirs-10-districts/articleshow/75687435.cms

SECTION 5 - CONFLICT & SOCIETY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 152

438. Zargar, S ( 23 May 2020). ‘In Kashmir, school children have barely gone to classes for nine months.’ Scroll.in. Retrieved from https://scroll.in/ article/962295/in-kashmir-school-children-have-barely-gone-to-classes-for-nine-months.

439. Universal Declaration of Human Rights - Art 26 (2)

440. Gettleman, J (30 September 2019). ’In Kashmir Growing anger and misery’. New York Times. Retrieved from https://www.nytimes.com/2019/09/30/ world/asia/Kashmir-lockdown-photos.html?action=click&module=RelatedLinks&pgtype=Article

441. Kashmir caged Fact finding Report also seehttps://peoplesdispatch.org/wp-content/uploads/2019/08/Kashmir-Caged-final-report.pdf

442. Yadavar, S and Parvaiz, A (14 September, 2019). ‘Ground Report: Kashmir’s Blackout is triggering a new wave of mental health issues’. The Wire. Retrieved from https://thewire.in/health/kashmir-blackout-report-mental-health; Mathew, A and Ors. (27 September 2019) ‘Childhoods lost in a troubled paradise’. The Hindu. Retrieved from, https://www.thehindu.com/opinion/lead/childhoods-lost-in-a-troubled-paradise/article29522893. ece

443. Ashiq, P (2 July 2020) ‘Children in Kashmir valley vulnerable to ongoing trauma, say doctors’ The Hindu. Retrieved from https://www.thehindu. com/news/national/children-in-kashmir-valley-vulnerable-to-ongoing-trauma-say-doctors/article31972531.ece

444. Husain, A (2 July 2020). ‘Photo of toddler sitting on slain grandpa angers Kashmiris’. Washington Post. Retrieved from https://www.wash- ingtonpost.com/world/asia_pacific/photo-of-toddler-sitting-on-slain-grandpa-angers-kashmiris/2020/07/02/01268632-bc45-11ea-97c1-6cf116f- fe26c_story.html

445. https://www.nrf.ac.za/content/effects-violence-children

446. Franklin PJ. Indoor air quality and respiratory health of children. Paediatr Respir Rev. 2007; 8:281–6

447. Shah, M. G (2020). ‘Children of conflict: an analysis of the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013’ In- dian Law Review, 4:1, 105-119, DOI: 10.1080/24730580.2019.1703490 Last accessed on 8th of July 2020

448. Kashmir Caged also see https://countercurrents.org/2019/08/kashmir-caged-fact-finding-report/

449. Ibid.

450. Wallen, J (25 September 2019). ‘Young boys tortured in Kashmir clampdown as new figures show 13,000 teenagers arrested’. Telegraph. Re- trieved from https://www.telegraph.co.uk/news/2019/09/25/young-boys-tortured-kashmir-clampdown-new-figures-show-13000/

451. Irfan, S (19 May 2019). ‘The lives behind Kashmir’s Pulitzer-winning photographs’. TRT World. Retrieved from https://www.trtworld.com/mag- azine/the-lives-behind-kashmir-s-pulitzer-winning-photographs-36451;

452. WP (Civil O.) OF 1166 of 2019 before Supreme Court of India ; https://www.livelaw.in/pdf_upload/pdf_upload-364417.pdf pg 25-26

453. WP (Civil O.) OF 1166 0f 2019 before Supreme Court of India ; https://www.livelaw.in/pdf_upload/pdf_upload-364417.pdf pg 27

454. WP (Civil O.) OF 1166 of 2019 before Supreme Court of India ; https://www.livelaw.in/pdf_upload/pdf_upload-364417.pdf pg 28

455. Javeed, A (22 November 2019). ‘Accounts of four minors contradict the Jammu and Kashmir Police’s claims on illegal detentions’. Caravan Magazine. Retrieved from https://caravanmagazine.in/conflict/jammu-kashmir-minor-illegal-detention-police

456. TRT World (23 September 2019). ‘Estimated 13,000 boys arrested in Kashmir since India’s crackdown’. TRT World. Retrieved from https://www. trtworld.com/asia/estimated-13-000-boys-arrested-in-kashmir-since-india-s-crackdown-30168

457. Ananthakrishnan G, Adil Akhzer, (2 October 2019). ‘144 minors were detained, Jammu and Kashmir admits to top court’. Indian Express . Retrieved from https://indianexpress.com/article/india/144-minors-were-detained-jk-admits-to-top-court 6046447/#:~:text=144%20minors%20 were%20detained%2C%20Jammu%20and%20Kashmir%20admits,provided%20by%20the%20police%20and%20other%20state%20agencies.

458. Raina, M (7 October 2019). ‘9-year-old out to buy bread beaten, locked up’. Daily Telegraph, Kolkata. Retrieved from https://www.telegraphindia. com/india/kashmir-9-year-old-out-to-buy-bread-beaten-locked-up/cid/1710267

459. Vincent, P (31 October 2019). ‘Grim report from Kashmir’. Daily Telegraph Kolkata. Retrieved from https://www.telegraphindia.com/india/grim-

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report-from-kashmir/cid/1715947

460. 99% Habeas Corpus Pleas In J&K Hc Pending Since Aug. Kashmir Times.Retrieved from Http://Www.Kashmirtimes.Com/Newsdet.Aspx- ?Q=103378

461. Yusuf, S (23 March 2020). ‘Bandipora youth shifted back from UP jail’. Greater Kashmir . Retriedved from https://www.greaterkashmir.com/ news/kashmir/bandipora-youth-shifted-back-from-up-jail/

462. Wallen, J. (25 September 2019). ‘Young boys tortured in Kashmir clampdown as new figures show 13,000 teenagers arrested’ Telegraph. Re- trieved from https://www.telegraph.co.uk/news/2019/09/25/young-boys-tortured-kashmir-clampdown-new-figures-show-13000/

463. Ehsan, M (8 August 2019). ‘16-year-old drowns in Jhelum after alleged chase by CRPF personnel’. Hindustan Times. Retrieved from https://www. hindustantimes.com/india-news/16-year-old-drowns-in-jhelum-after-alleged-chase-by-crpf-personnel/story-9oUP4D6bVvBOpdx2QMOzyK. html

464. Rehbar, Q (30 June 2020). ‘Kashmir: 4-Year-Old Boy Killed in Cross Firing Between Militants and CRPF’. The Wire. Retrieved from https:// thewire.in/rights/kashmir-minor-boy-killed-crossfiring-militants-crpf

465. United Nations Treaty Collections. 11 . Convention on the Rights of the Child”. Retrieved from https://treaties.un.org/pages/viewdetails.aspx?s- rc=treaty&mtdsg_no=iv-11&chapter=4&lang=en#EndDec

466. United Nations Convention on Child Rights Article 19(1)

467. United Nations Convention on Child Rights Article 19(2)

468. United Nations Convention on Child Rights Article 39

469. United Nations Convention on Child Rights Article 37(B)

470. Convention on the Rights of the Child Adopted and opened for signature, ratification and accession by General Assembly Resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with Article 49 also see https://www.ohchr.org/en/professionalinterest/pages/ crc.aspx,

471. The Constitution of India, Article 21

472. Juvenile Justice Act 2015 Chapter V and Chapter VI

473. A Child In Conflict With Law Cannot Be Kept In Jail Or Police Lockup Under Any Circumstances: SC . LiveLaw. Retrieved from https://www. livelaw.in/top-stories/a-child-in-conflict-with-law-cannot-be-kept-in-jail-or-police-lockup-at-any-circumstances-sc-read-order-152644

474. The Jammu and Kashmir Juvenile Justice Act was abrogated along with J&K Constitution.

475. The Central Act treats juveniles aged between 16 and 18 accused of heinous offences as adults.

476. Convention on the Rights of the Child Adopted and opened for signature, ratification and accession by General Assembly Resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with Article 1 also see https://www.ohchr.org/en/professionalinterest/pages/ crc.aspx,

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Have you ever wondered what a child dreams of after being tortured in an army camp in Kashmir? Have you ever wondered how the experience of seeing your 11-year-old flesh burn can affect a child? Ahil was 11 years old when he was tortured in a camp in Nowhatta. He was stripped naked and electrocuted in a BSF camp where he saw people being brutalized, death chairs, throats being slit, and bodies being mutilated. He was 11 years old. Kashmir Reading Room has created this rendition of a recurring nightmare that is all too real every day in Kashmir.

Between 2003 and 2017 alone, 136 children were killed in Kashmir, of which 53 were killed in South Kashmir, 47 were killed in Central Kashmir and 62 were killed in North Kashmir. “It is an Indian variant of genocide,” said Annie Raja, the General Secretary of the National Federation of Indian Women while calling on India to release all Kashmiri children de- tained in Kashmir since August 5.

Indian armed forces routinely ignore procedural safeguards when persons are taken into custody. Although Indian law requires that everyone taken into custody must be produced within 24 hours before a magistrate, the detainees are rarely produced at all.

The Indian People’s Tribunal describes the plight of Kashmiri children in these terms: “their memories of childhood consist of an atmosphere surcharged with fear, terror, constant violence, unrest, and constant insecurity.” The scenario of minor rape victims is a phenomenon that has dramatically increased in the valley. Young and minor girls become particular targets of the Indian armed forces. Cases of vaginal tears, pelvic infection, excessive bleeding are increasingly reported. According to the Kashmir Bar Association, Srinagar, there are now 30,000 orphans within the age group of 1 to 14 years.

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Mental Health and Kashmir:

A Longitudinal Perspective

Dr. Amit Sen

Atifa was 14 when I first saw her. She was bright and acutely perceptive and was scrutinizing me from head to toe. It took her a while to open, and once she did there was no stopping her. She was articulate and vivid in her descriptions, especially with her experiences on the streets of Shopian, a town in South Kashmir where she was growing up. Considered to be very intelligent in school and amongst her family, she was expected to break away from the mould and do great things, like be- coming a doctor, which was her dream. She was the class topper till grade 8 and was also known for her talent in Art, but things changed once she came to grade 9. Atifa started having fainting attacks in school, at home, and even when she was walking the streets of Shopian at times. She was rushed to the district hospital for the first few times, who referred her to the Sher-I-Kashmir Institute of Medical Sciences in Srinagar. A range of investigations didn’t reveal any medical condition, and therefore, she was referred to a psychiatrist. One of my colleagues in Srinagar directed the family to consult me in Delhi 3 years ago, as there was no child psychiatrist in Kashmir those days, although many things have changed since then (Srinagar now has a dedicated child and adolescent mental health service with trained professionals responding to consequences of the series of socio-political and medical crises in innovative ways). Atifa came to see me from time to time for the next 2 years, and as I got to know her better, a complex picture of what young people in Kashmir were going through started unfolding before me. Atifa had got caught, on a few occasions during her journey to school or back, in the crossfire between local boys pelting stones and security forces firing from automatic weapons, and had seen young people from her community bleeding and writhing in pain after being hit by pellets. Some of them would end up losing their vision or get maimed for life. Few of the older youth would try to persuade her to join them in their reprisal against the state, and that would tear her apart, given her ambition of becoming a doctor/healer in her community. She started getting vivid dreams and flashbacks of disturbing memories that kept her awake at night. There were mood swings, severe anger outbursts towards her family and friends, and she found it increasingly difficult to focus on studies. Her academic grades were slipping, and she started missing school, which used to be her favorite place, often. She would be overwhelmed with intrusive and distressing negative thoughts and even thoughts of self-harm and suicide. Atifa was clearly suffering from the consequences of traumatic experiences and was diagnosed with depression, dissociative disorder, and post-traumatic stress disorder. We met sporadically, as and when her family could get her to Delhi for treatment but lost touch once the political shutdown was imposed in August 2019.

My relationship with Kashmir has been long and intimate. The first time I visited was when I was 14 years old, with my fam- ily in the summer of 1974, expecting to experience paradise, as you do when you are told about Kashmir, especially in the romantic teenage years. The trip was far from perfect, but I remember being struck by the sheer magnificence of the in Pahalgam where we had camped for a couple of days or the magic of the serene waters of Dal Lake reflecting the hills and the majestic gardens arching around it. I was also intrigued by the people who were so different and earnest, and the food blew my mind (and taste-buds). I was not concerned about mental health, of my own or anyone else’s those days, but these rich experiences left a mark deep enough to make myself a promise that I will return one day for a longer period.

So, I did not lose the first opportunity I got to work there, as soon as I completed medical school. In January 1983 Cantt, where I lived next to the hospital I worked in, was cold and detached from the rest of Srinagar. Not because of the heavily armed and fortified walls that we see today, but due to the distance and scanty transport during winter months. Yet, I would take a public bus or hitchhike my way into town quite frequently after work. Interacting with local shopkeepers and people at snack bars, gorging on street food in and around , walking along the canals leading up to Dal Lake, watching children play as the colours of spring cut through the grey winter, my intrigue and wonder about the valley and its culture kept growing. Although I was not trained in mental health back then, my natural curiosity and observations about people gave me a good understanding of life in the Valley. They were generous and hospitable people who were proud of the distinct identity that they believed was separate from the rest of India. As an outsider, I was made to feel welcome and included, even in their passionate and often charged discussions about politics in the region, which has always been fraught

SECTION 5 - CONFLICT & SOCIETY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 156 and complicated even in the best of times. But those were pre-insurgency days and there was a basic level of trust and open- ness amongst people and towards each other. And the children were everywhere, running and prancing over the steps of Bagh, going to school in Shikaras, picnicking by the rapids in Pahalgam and snowboarding – on makeshift wooden boards – down the winter slopes of Gulmarg. There was spring in the air for most of the year.

The next time I visited Kashmir was in 2003, in the role of a child mental health professional, as part of a team that was giv- en to address the needs of traumatized children and fractured families in the valley. This time, the picture-perfect landscape had been punctured by protruding nozzles of automatic guns from camouflaged security bunkers at close intervals through- out the city of Srinagar. Over the next 3 years, through multiple visits, we met dozens of children and adolescents, many of them orphans and others from families that were damaged and disintegrated due to insurgency, terrorism, and excesses from security forces. Some 8-year-olds had lost the ability to play spontaneously, and instead, would sing songs of martyrdom where they proudly proclaimed that the only objective in life was to march to their death in the quest for freedom. Teenagers and the youth, initially mistrusting and reticent, would break down and pour their hearts out once they got to know us better. There were accounts of children and families getting caught in the crossfire between terrorists and security forces, fathers and brothers being picked up by men in uniform never to return, and young men getting ruthlessly murdered in front of their kin. We met parents who appeared jaded and burdened by the looming threat, uncertainty, and inability to ensure safety for their children and families.

Such repetitive and violent trauma in endemic war zones can be deeply damaging for the community, especially children and adolescents who could be scarred for life and pass on their fear and anger to generations that follow. The impact of such trauma could be wide and complicated. It could range from stunted growth and severe behaviour disorders in young children, substance misuse and self-harm behaviours during the teenage years, to depression and anxiety disorders in late adolescence. Others develop a range of physical symptoms that are disabling and warrant repeated visits to the doctors. And some turn their anger into hatred and violence towards others, including family and their community at times, or towards people they see as their oppressors or adversaries. They don’t need to be tutored or indoctrinated to form extreme attitudes and prejudices. They learn from the brutal life lessons that surround them - that repeatedly break their trust in people whom they expected would care for them and protect them.

The last time that I went to Kashmir was the end of September 2019, with a fact-finding team that wanted to take a close look at the ground realities after the shocking shutdown of Kashmir on the 5th August 2019. This time there were no children on the streets or the gardens; in fact, they were not even in schools. The streets of Srinagar were completely deserted, and it felt like a ghost town in the center of the city (Lal Chowk) on a Sunday afternoon when I landed there.

Mental Health (MH) services and their functioning had been badly hit. The footfall of children and families at the newly formed Child Mental Health Center in Srinagar, of both new registrations and follow up cases, saw a sharp decline in the month of August after the shutdown. The numbers were picking up slowly when I visited them but were nowhere near the

SECTION 5 - CONFLICT & SOCIETY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 157 footfall in June/July. It was believed that the lack of transport, communication, and lack of trust in government agencies might have contributed to this decline. Attempts by MH professionals to reach out to the community was met with extreme hostility from local youth at first, but they had found innovative ways of collaborating with community leaders and work- ers to provide Psychological First Aid (PFA) to children from smaller towns and villages. The clampdown on all forms of communication had hugely hampered the exchange of notes and important data between the different MH centers and organisations in the state, which is essential for good practices of mental health.

The children and adolescents coming for PFA in Pulwama and Kulgam, the only two districts the mental health teams could reach out to at that time, were reporting extreme violence at the hands of security forces, which had created an atmosphere of terror and panic amongst young people and their families. They were sharing experiences of paralysing fear, acute anx- iety, panic attacks, depressive and dissociative symptoms, post-traumatic symptoms, suicidal tendencies, and severe anger outbursts. Grassroot workers were unable to refer children showing clear signs of trauma and abuse, to more centralised facilities that are better equipped to deal with such complex cases, due to the lack of transport and connectivity. There was a marked increase in psychological distress in 70% (as estimated through a survey at that time) of the population, although how that would translate into mental health disorders was yet to be seen.

After long months of oppression and shutdown, the Valley opened to a semblance of normalcy with the advent of spring this year. Schools reopened after 8 months at the beginning of March, only to be shut down again in 3 weeks, this time due to the COVID-19 lockdown. “The anxiety surrounding political uncertainty has given way to fear of life; Kashmiris have to deal with both now”, lamented one worried MH professional in Srinagar. Fortunately, the 2G internet and social media services were started sometime in March 2020, the impact of which on children has been mixed according to my trusted colleagues working in Kashmir. While many have taken to online classes and learning with enthusiasm, there are many others whose routines are completely disrupted as they can’t let go of screens till late night/early morning hours. There are complaints from parents of behaviour problems in the form of disobedience, rudeness, mood swings, and aggressive outbursts. Some of them are showing clear signs of screen addiction. Given the fear of contacting COVID and the reluctance of families to venture out, MH professionals are finding innovative ways of working with children and families, most often through online services.

The footfall of adult patients, on the other hand, has been increasing steadily since winter months and has hit its peak now; the numbers attending the psychiatric outpatients at the Institute of Mental Health and Neurosciences (IMHANS), Srinagar are seeing record highs. However, for every person coming to seek help, there may be multiple others who choose not to avail of government services due to the massive breakdown of trust between the common man and the State. We are, per- haps, nowhere near knowing the real numbers of people in acute psychological distress or those with a full-blown mental health disorder. Professionals working on the ground believe that the aftermath of this imbroglio and the trauma suffered by thousands of people will become evident in the months and years to come.

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What is evident is that it will require revolutionary vision, deep , and humongous resources to begin to address the suffering, mental health needs, and healing of the Kashmiri people. I sincerely hope that all stakeholders are willing to put their differences aside and can pull together to respond to this glaring need.

Dr Amit Sen completed his MD in Psychiatry from NIMHANS, Bangalore and trained in Child and Adolescent Psychiatry in the UK. He has worked with national (Haq, CSJ, The Foundation) and international organizations like UN Human Rights Commission and UNICEF in the area of Trauma, child sexual abuse and juvenile justice. Dr Sen is the co-founder & direc- tor of Children First, a multidisciplinary institute that provides clinical & community-based services, training and research in child and adolescent mental health. He was part of an eleven-member team that visited Kashmir in September 2019.

END NOTES

477. Name changed for purpose of privacy and security of the individual

478. ‘Imprisoned Resistance: 5th August and its aftermath’ (October 2019) http://www.pucl.org/sites/default/files/reports/Imprisoned%20Resis- tance-final%20for%20dissemination.pdf

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Kashmir has 1 ventilator for 71,000 people. A total of 93 for 7 million people.

1 doctor for every 3900 patients.

1 gunman for every 10 Kashmiris.

The exact number of India’s military and paramilitary presence in Kashmir is not known but it is safe to estimate that there is one Indian gunman for every 10 Kashmiris. It is the world’s most densely militarised zone. India claims to spend 10% of all Central grants and funds on Kashmir which is 1% of India’s population. If any of this money were actually spent on Kash- miris, the effect would be evident. If the central grants were actually spent for Kashmiris, each Kashmiri family would get Rs. 40,000 - every single year. But this money is spent on the upkeep of the world’s second-largest army, their movement, their maintenance, and expenses.

While the world is fighting against a deadly disease, Kashmir is at God’s mercy with less than 100 ventilators for a popula- tion of 7 million. We have 1 doctor for every 3900 patients. SKIMS has 40 ventilators, SMHS has 18 ventilators, and Chest Diseases Hospital has 16 ventilators, the Children’s Hospital has 10, Lal Ded Hospital and Bone and Joints Hospital have 2 each. South Kashmir’s GMC Hospital at Anantnag has 2 ventilators, while North Kashmir’s GMC Hospital has 3. Kup- wara and Bandipora district hospitals have no ventilator. The cost of each ventilator is INR 600000 (GBP 600). According to officially declared figures, India spends INR 6 crore, per day, on its army in Kashmir (GBP 600,000). A single day’s expenditure is sufficient to buy 100 ventilators. The national allocation for defence during the fiscal year 2020-21 stood at INR 471,378 crore- enough to buy 78,56,300 ventilators.

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Militarism in Kashmir Since August 5, 2019

Sarthak Tomar

During the early hours of August 5, 2019, the Jammu & Kashmir(J&K) Police started detaining political leaders and activ- ists from their homes. Over the next two weeks, somewhere between 4000 to 6000 people were detained – many without any formal charges. On November 20, 2019, the Ministry of Home Affairs informed the Indian Parliament that 5,141 peo- ple were detained since August 5, 2019, while reiterating that the situation in J&K is ‘normal’. Amongst these detained, more than a hundred were minors, few as young as 9 years of age. Police officers told journalists that there were instances of detention without any formal police documentation for the same. Many of these detainees were moved to prisons in other states of India.

Military Planning Before August 5, 2019

Within hours after the announcement of the abrogation of Article 370 and 35A the city of Srinagar was under lock-down under a new strategy, reportedly planned by either an American or Israeli contractor. With complete restriction on move- ment even journalists with ‘curfew pass’ were regularly stopped, beaten and denied access at checkpoints. The Internet was completely shut down and telecommunications highly restricted. The intelligence agency National Technical Re- search Organisation (NTRO) set up a massive Internet and telecommunications surveillance network. In terms of direct military planning and strategy there seems to have been no major shift after August 5, 2019. Except in smaller pockets and reduced frequency there were almost no major protests that required a shift in crowd control tactics. In November 2019, the Cabinet Secretariat notified that “the Ministry of HomeAffairs would be responsible for all matters relating to the Union Territory of Jammu and Kashmir or Union Territory of Ladakh, including counter terrorism within Jammu and Kashmir, and coordination with the Ministry of Defence as regards manning and managing the Line of Control between India and Pakistan, but excluding those matters with which the Ministry of External Affairs was con- cerned.”

In 2018 the number of boots on ground in J&K was 4.7 lakh personnel including the 1.3 lakh strong State police force. These numbers exclude the non-combatant military personnel and divisions of the Indian armed forces not engaged in any counterinsurgency or crowd-control operations within the state. The number of engaged armed forces in Kashmir valley alone in 2018 was 2,10,000 – 28.5 personnel for 1000 civilians. In August 2019, over 1.75 lakh new troopers were de- ployed in the State, mostly in the Kashmir Valley. An official called the preparation “war like”. Most of the soldiers were from CRPF (40,000). Expecting confrontation and violence at least 100 doctors were also brought in for the soldiers.

On 2020-21, the budget allocation to the Ministry of Defence has been the highest among all ministries of the central government. In 2020-21 the total Ministry of Defence budget is INR 4,71,378 cr. India’s defence expenditure constitutes 15.5% of the central government’s budget and 2.1% of India’s estimated GDP for 2020-21.Tellingly, the budget for Health is a paltry INR 69,234 cr, around five-six times less than the defence spending.

This budget was introduced on February 1, 2020, when almost every country in the world was preparing its healthcare system to adequately deal with the global spread of COVID-19.

House Raids by Indian Armed Forces in Kashmir

On May 8, 2020 a series of house raids by Indian armed forces were undertaken in . The personnel involved, engaged in property damage, looting, beating and attacking civilians by rubbing salt in their eyes and as one woman recalled “they shoved the barrel of their guns in our mouths” to stop us from screaming. Many houses and shops

SECTION 5 - CONFLICT & SOCIETY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 161 were raided and heavily damaged. There are multiple reports of increase in the number of raids since August 5, happening almost every day or at least a few times every week especially in villages in south Kashmir and in Srinagar. In a report the modus operandi has been described as:

“‘They barge into the village screaming abuses and throwing stones at the houses breaking window panes. Almost all the houses in the villages and some neighborhoods in Srinagar, have broken windows owing to the stones thrown by the army. One of their favorite taunts is that they are going to choose girls from this village to get married to and that they are going to take over all the land in the village and nothing can be done to them. During these raids, which are usually past midnight, the Army jawans are usually drunk though not the police. The men are rounded up on the main road and their mobile phones are taken away from them and checked. Simultaneously the armed forces enter all houses in the name of conducting checks, women and girls are physically frisked by male army personnel, are sexually abused and molested. If they try to defend themselves, they are physically abused.’ We were told that the sexual abuse is rampant, as one youth said, ‘Maa kya hote hain, behan kya hote hain, unko kya maloom’. In a village we visited we were told, ‘Of late, people shut the doors and windows and stay indoors at night, in fear of raids. The armed forces now come and arbitrarily throw stones at windows to instigate the people to step out and if they do so, they force in and ransack the house. This harass- ment continues all night, leading to fear and mental breakdown amongst those in the neighborhood’. In several villages we were told that the jawans take away whatever they please and any protest is met with the choicest of abuses and beatings. In another village we were informed that even the SOG [Special Operations Group, a special Police force in J&K] robs gold and money during these raids. The jawans taunt people saying that ‘sala azaadi maangta hai, Modiji azaadi diya hai’.’ ”

In many of the raids, boys under the age of 18 and young men are asked to come to the police station, army camp or Joint Interrogation Camp. Family members are detained for questioning in lieu in absence of the person. The families are un- aware of the location of detention, person’s whereabouts and have no legal recourse.

House damaged in Arampora sopore encounter

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Excessive use of Force in 2019

The J&K SHRC in its report ‘Details of Pellet Victims of 2016 Unrest’ said that 3967 people were injured by the met- al pellets firing shotgun used by armed forces. These were introduced in the valley in 2010, under the UPA in center. In 2017 and 2018, the number of injured people was 164. In 2019, at least three civilians lost their lives from pellet injuries and four from tear gas and pepper gas used for crowd control by the police and CRPF during protest or near the militant encounter sites. After August 5, the media significantly reduced reporting injuries from crowd control measures but at least 100 people received pellet injuries in the Zadibal area between September 1 and September 10, 2019. The use of pellet guns is considered against international legal standards and has been noted to violate proportionality principle, not in the least for the violation of right to life. Such force is not only used against protesters throwing stones at armed forces, peaceful protesters are beaten regularly.

In June 2019, the CRPF requested Long Range Acoustic Device (LRAD), a sound cannon as a new tool for crowd control. They also intended to use it in mainland India and there are reports of anti-riot vehicles being equipped with LRAD in . Acoustic weapons cause permanent damage and could be fatal for people with special conditions.

Army man stand near gunfight sopore

‘Hit lists’ ‘CASOs’ and Killing of Militants

In 2016, after the encounter of , a new and massive protest wave erupted in the Kashmir Valley. The Indian military initiated Operation Calm Down in its response and 4000 new troopers were rushed into the four districts of South Kashmir--Pulwama, Shopian, Anantnag and Kulgam. In next few months the national security establishment created a hit-list as a part of Operation All-Out in mid-2017 with 136 Lashkar-e-Taiba, 95 Hizbul Mujahideen and 23 Jaish-e-Mu- hammad militants. Op. All Outs’ major components are the Cordon and Search Operations (CASOs). According to a 2019 Office of the United Nations High Commissioner for Human Rights report, the “[s]o-called ‘cordon and search opera- tions’, a much-criticized military strategy employed by the Indian security forces in the early 1990s, was reintroduced in the Kashmir Valley in 2017. According to national and international human rights organizations, cordon and search opera- tions enable a range of human rights violations, including physical intimidation and assault, invasion of privacy, arbitrary and unlawful detention, collective punishment and destruction of private property.”

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In 2017, 206 militants were reported to have been killed in these operations. Since 2017, these operations have been focused in South Kashmir, but reports suggest that they will shift their focus and move north from July 2020. Between January 1 and June 19, 102 militants had been killed during CASOs, with higher rates during the COVID-19 lockdown – 72 between March 20 and June 19. There were 120 cases of property damage, 31 private houses completely burned down in 2017. While there is no available data of property damage during ongoing CASOs the number seems to be on the rise. January - June 2020, recorded 48 cases of property damage. In over 300 such cases in the last 3 years, none of the families have received any compensation.

In 2020, between January 1 and June 6, 135 Over Ground Workers (OGWs) were arrested by J&K security forces. Al- though, an OGW is usually defined as a person directly engaged in assisting militants by providing logistics, financial -as sistance, safe houses, etc. The categories and definitions are used pretty much freely to justify various instances of civilian killings.

On June 10, 2020 Ajay Pandita, a Congress affiliated sarpanch from Lukbawan was killed by two unidentified gunmen. Since August 5, 2019, the personal security for Congress leaders has been revoked making them more vulnerable to mili- tants. According to one report, “[i]mmediately after the killing, the state Congress chief Ghulam Ahmad Mir had said that Mr. Ajay Pandita had informed the district authorities that he had felt vulnerable since a few months and had requested security cover from the district police. His requests, Mir added, were not entertained by the district authorities.” In 2020, attacks on health care workers by security forces continued including on epidemiologist Dr. Muzaffar Ahmad, by CRPF, and on ambulance driver Tariq Ahmad and cardiologist Dr. Syed Maqbool, by the police.

India’s Military Strategy

One Indian military analyst in 2017 noted that, “[t]he reasons for this tactical shift (in last decade), from population-cen- tric measures forming the foundation of the counter-insurgency (COIN) strategy to one where some degree of collateral impact is acceptable, is fundamentally linked to the belief that the enemy centric tactics used by the British, the French and the Algerian strategists are suitable only for colonial or interventionist armies fighting in foreign lands” and, that “it can be concluded that a large gamut of India’s COIN response is being conducted either without any doctrinal assistance or has been shaped by the legacy of the British, ironically by the ways and methods in which the former colonial masters dealt with the natives.”

India does not have a single COIN doctrine. The 2006 “Doctrine For Sub Conventional Operations” has a more broad scope and focuses only on the Army while the CASO like operations involve the police and at times other special forces. But the overall aim of such doctrine or “grand strategies” are general and remain constant: To “provide an insight into var- ious lines of operations undertaken by the (armed forces) to create a secure and conducive environment for the fulfillment of national policy strategy.”

Nitin Gokhale, while praising Modi, called the post 2016 military actions in Kashmir as part of “peace first, political outreach later” approach. ‘Peace’ here is a technical term which means ‘a secure and conducive environment for’ whatever New Delhi desires and as in this case, does not necessarily mean termination of the cycle of violence. What it desires and what the ‘national policy strategy’ seeks must be clear to the reader from other chapters in this publication. Military establishment knows there are no military solutions to insurgencies. According to one analyst, by the mid-1980s Indian “army officers appeared convinced that only political solutions could end insurgencies.” What the armed forces hope to achieve is to keep militant groups on the defensive, reduce the damage they can cause and prevent them from gaining enough momentum to grow from guerrilla groups to some form of formal military formation. One wonders if this requires 4-7,00,000 troopers.

The goal of such heavy militarization seems to be the maintenance of control over the street and life in the valley. One would recall that the 2019 - ‘war like’ mobilization was not in response to any increased risk of militant activities but due to the fear of 2016 like protests. The rationale for maintaining such control in the most brutal fashion is sometimes called the Doval doctrine, according to which the hostile natives should realize that “[i]n the game of power the ultimate justice lies with the one who is strong.”

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Conclusion

In the last one year, the number of boots on ground has significantly increased, the surveillance systems have penetrated more deeply, civilian deaths by militants and Indian forces have continued to rise. Systemic harassment, sexual violence, property damage, mass and arbitrary detention and torture continue to be the norm. Civilians are maimed for life and are killed regularly and systematically in the name of crowd control. The draconian laws like Armed Forces Special Powers Act and Public Safety Act that enable these atrocities remain intact. There have been no independent and impartial inqui- ries by the Indian state into the countless human rights violation cases, the 8000 missing people or the unmarked graves in the valley.

The first wave of militants in Kashmir emerged due to Kashmirs’ complete political disconnect from New Delhi and today, by not addressing the social and political grievances, enforcing a settler colonial apparatus, humiliating and degrad- ing day to day life of the people, the Indian state and its military planners are ensuring further rise in militancy, an ever increasing and never ending ‘hit-list’ and an ever increasing military budget, which is already eating away most of Indian social spending.

It appears that in the foreseeable future, the approach and main strategy of the Indian national security leadership will be the use of brute force, oppression and suppression under the pretext of controlling militancy.

Sarthak is an activist and labour organiser. His writings focus on media, climate crisis and national security.

END NOTES

479. (October 2019), ‘Imprisoned Resistance - 5th August and its Aftermath’, Page 5. Retrieved from http://www.pucl.org/sites/default/files/reports/ Imprisoned%20Resistance-final%20for%20dissemination.pdf.

480. ‘4,000 detained in Kashmir since autonomy stripped: govt sources’, France24 (18 August 2019). Retrieved from france24.com/en/20190818-4- 000-detained-in-kashmir-since-autonomy-stripped-govt-sources.

481. Express Web Desk (20 November 2019). ‘Parliament Winter Session highlights: Both Houses adjourned for the day’, Indian Express .Retrieved from indianexpress.com/article/india/parliament-winter-session-live-updates-lok-sabha-rajya-sabha-6127956/.

482. Mathur, A (1 October 2019). ‘9-year-olds among 144 minors detained in Kashmir since Article 370 abrogation: Reports’. India Today. Retrieved from https://www.indiatoday.in/india/story/children-among-minors-detained-kashmir-article-370-abrogation-reports-1605322-2019-10-01.

483. Donthi, P (16 August 2019). ‘One Solution, Gun Solution’. The Caravan. Retrieved from https://caravanmagazine.in/conflict/one-solution-gun- solution-gun-solution-kashmir-in-shock-and-anger.

484. (2 November 2019). ‘MHA to continue to have final say on AFSPA in J&K’.KashmirLife . Retrieved from https://kashmirlife.net/mha-to-continue- to-have-final-say-on-afspa-in-jk-218598/

485. Shukla, A (3 July 2018). ‘How many soldiers in Kashmir?’. Business Standard. Retrieved from https://www.business-standard.com/article/opin- ion/how-many-soldiers-in-kashmir-118070201160_1.html

486. Sharma,V (18 August 2019). ‘Forces deploy 1 million to guard every inch of Kashmir valley’. . Retrieved from https://www. deccanchronicle.com/nation/current-affairs/180819/forces-deploy-1-million-to-guard-every-inch-of-kashmir-valley.html

487. Ibid.

488. PRS (14 February 2020). ‘Demand for Grants 2020-21 Analysis: Defense’. PRS. Retrieved from https://www.prsindia.org/parliamenttrack/bud- gets/demand-grants-2020-21-analysis-defence

SECTION 5 - CONFLICT & SOCIETY KASHMIR READING ROOM YEARLY REPORT 2019 - 20 165

489. ibid.

490. Ahuja,R & Kumar,A (3 February 2020). ‘Health budget: blessing in disguise?. Economics Times. Retrieved from https://health.economictimes. indiatimes.com/news/industry/health-budget-blessing-in-disguise/73895586

491. Singh, K (11 May 2020). ‘Shoved gun barrels in mouths, tied civilians to trees: A ransacked Budgam village’. The KashmirWalla. Retrieved from https://thekashmirwalla.com/2020/05/shoved-gun-barrels-in-mouths-tied-civilians-to-tree-a-ransacked-budgam-village/.

492. Sexist verbal abuse

493. Supra Note 479 at Page 34.

494. Nair, R (21 July2016). ‘Pellet Guns in Kashmir: The Legal Use of Non-Lethal Weapons’. The Wire. Retrieved from https://the wire.in/rights/ kashmir-lethal-pellet-guns.

495. Supra Note 479 at Page 41.

496. Office of the United Nations High Commissioner for Human Rights(8 July 2019). ‘Update of the Situation of Human Rights in Indian-Adminis- tered Kashmir and Pakistan-Administered Kashmir from May 2018 to April 2019’. United Nations Human Rights Office of the High Commission- er. Retrieved from https://www.ohchr.org/Documents/Countries/IN/KashmirUpdateReport_8July2019.pdf .

497. Andrabi, K (17 July 2020). ‘Family accuses 20 year old son beaten by army: I thought he will die’. The KashmirWalla. Retrieved from https:// thekashmirwalla.com/2019/03/family-accuses-20-yr-old-son-beaten-by-army-i-thought-he-will-die/ .

498. Bhalla, A (26 June 2019). ‘No more pellet guns? Sound cannons could soon replace them’. India Today. Retrieved from https://www.indiatoday. in/india/story/pellet-guns-sound-canon-1556412-2019-06-26 .

499. TNN (5 August 2019). ‘Arunachal Pradesh adds 5 anti-riot vehicles to the state police fleet.’. . Retrieved from https://timesof- india.indiatimes.com/city/itanagar/arunachal-pradesh-adds-5-anti-riot-vehicles-to-state-police-fleet/articleshow/70531602.cms .

500. PTI (13 July 2018). ‘Army quietly launches operation Calm Down in South Kashmir’. The Economic Times. Retrieved from https://economic- times.indiatimes.com/news/defence/army-quietly-launches-operation-calm-down-in-south-kashmir/articleshow/54311657.cms .

501. Singh, J.B. (22 June 2017). ‘Operation All-Out: Army’s master plan to flush out all terrorists from Kashmir’.India Today. Retrieved from https:// www.indiatoday.in/india/story/kashmir-terrorism-all-out-plan-lashkar-hizbul-jaish-militants-984216-2017-06-22 .

502. Supra note 496 at page 4.

503. (1 January 2018). ‘206 militants killed in Jammu and Kashmir in 2017’. The Week. Retrieved from https://www.theweek.in/news/india/206-mil- itants-killed-jammu-kashmir.html

504. Malik, I. (20 June 2020). ‘J&K Militancy Suffers Significant Losses as Security Forces Amp Operations Amidst Lockdown’.The Wire. Retrieved from https://thewire.in/security/jk-militants-commanders-gunfights-army

505. Monitor News Bureau (19 June 2020). ‘Eight militants killed in south Kashmir gunfights’.The Kashmir Monitor. Retrieved from https://www. thekashmirmonitor.net/eight-militants-killed-in-south-kashmir-gunfight/ .

506. Supra note 496 at page 17.

507. Shah, F (9 June 2020). ‘All is gone: Four families of Shopian devastated after two gunfights.’.The KashmirWalla. Retrieved from https://thekash- mirwalla.com/2020/06/all-is-gone-four-families-of-shopian-devastated-after-two-gunfights/.

508. Supra note 496 at page 11.

509. Jahangir, M (7 June 2020). ‘Security forces arrested 135 over ground workers in Kashmir this year, say officials.’.The Tribune. Retrieved from https://www.tribuneindia.com/news/j-k/security-forces-arrested-135-over-ground-workers-in-kashmir-this-year-say-officials-96224.

510. Majumdar, N (6 March 2018). ‘Army says it killed OGWs in Shopian, Mufti says they weren’t. Who is an OGW?’. The Print. Retrieved from https://theprint.in/defence/mufti-refutes-army-claim-about-ogws-in-shopian-but-who-is-an-ogw/39609/.

511. Singh, K. et al (10 June 2020). ‘We’re in disbelief: Ajay Pandita’s killing reminds of Kashmir’s vulnerable grassroot politics.’. The KashmirWalla.

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Retrieved from https://thekashmirwalla.com/2020/06/were-in-disbelief-ajay-panditas-killing-reminds-kashmirs-vulnerable-grassroots-politics/.

512. Supra note 496 at 21.

513. Routray, B. P (2017). ‘India: Fleeting Attachment to the Counterinsurgency Grand Strategy, Small Wars & Insurgencies’. 28:1, 57-80, DOI: 10.1080/09592318.2016.1266129

514. ‘Doctrine For Sub Conventional Operations’, Integrated HQ of MoD (Army).pg 3.

515. Gokhale, N.A. (2017). Securing India the Modi Way. Bloomsbury India Publishing Private Limited: New Delhi.

516. Rajagopalan, R (2008). Fighting Like a Guerrilla: The Indian Army and Counterinsurgency.Routledge India: New Delhi.

517. Aaron, S (16 September 2016). ‘Narendra Modi is implementing the Doval Doctrine in Kashmir’. Hindustan Times. Retrieved from https://www. hindustantimes.com/analysis/narendra-modi-is-implementing-the-doval-doctrine-in-kashmir/story-uPZfR9aNCPwFCD3VkTnWZN.html.

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Enforced Homelessness

Collective dispossession and punishment in Kashmir

Mariyeh Mushtaq

On May 19, 2020, over 14 houses were burned down in a locality of Nawakadal, Srinagar by the Indian armed forces whilst carrying out a gunfight with two militants, who had taken shelter in the area.The residents alleged that apart from razing their houses to the ground, their valuables like gold, cash, etc. were stolen by the armed personnel during the encounter.

Videos and photos of women wailing and crying at the theft of gold jewellery from their damaged homes surfaced on the internet. In the videos, the women can be seen pointing out the broken lockers and the empty jewellery boxes to the journalists. More recently, after the Reban encounter, videos of children looking for the torn pages of their school books buried underneath the shattered bricks of what they called home also made rounds on social media. Subjecting Kashmiris to this form of collective punishment is not new. The destruction of civilian prop- erty is as normalized as is the killings of civilians. Jammu & Kashmir Coalition of Civil Society’s annual reports from 2016-2020 provide detailed documentation of the destruction of property by the Indian armed forces with absolute impunity.

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I spoke with two families from a village in north Kashmir whose houses were burnt down during an encounter KASHMIR READING ROOM YEARLY REPORT 2019 - 20 168

in 2019. The encounter had lasted over 70 hours. Akhtar (name changed), a 52-year-old woman, said that shortly before the encounter, all the villagers were asked to vacate the houses in the mahalle (locality) where the militants were apparently hiding. She lives in a joint family and said that they were separated in this sudden pandemonium. “For three days, I didn’t know the whereabouts of my family, I was praying for their safety the whole time… es- pecially after we heard the sound of IED blasts, I knew that doom had befallen on us”, she added.

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Encounter in Kashmir is also a site of plunder, loot, and theft. Akhtar’s daughter Rubeena, 28, told me, “When we came back to our home after 3 days, we found out that our cow-shed and storeroom had been torched to the ground and all of our ration had also been spilled on the floor. They had taken our 5-litre oil tin and sprayed it all over the floor and the walls. Our bistar (bed) was tossed upside down, everything was upside down. It was like a tornado, my mother fainted at the sight of it”. Many reports suggest that the forces have been involved in the plunder of the empty homes caught in the midst of gunfights. The authorities deny these allegations each time they are raised. Kashmiri homes continue to be collateral damage much like the bodies which inhabit them.

In recent years, the frequency with which destruction of property has been carried out at the encounter sites war- rants more focused research in order to gauge the total damage and the cost incurred by the victim families.

As the 2019 JKCCS report noted:

The vandalism and destruction of window panes, people claimed, were to impose collective punishment and to dissuade the people from protesting – particularly against the abrogation of Article 370, 35-A and splitting the J&K state into two separate Union Territories.

…use disproportionate force to inflict damage on a civilian property, sometimes resulting in the death of civilians as well, as the killing of 12-year-old Atif Mir reveals. (p.39)

Recounting the horrors of experiencing an IED blast in her neighbourhood, Mehreen said, “when they (blasted) the house, we could feel our home, which was half a kilometer away, shiver and shake. It was as if our house was scared too, just like us. They say that during the blast, the tremors are so powerful that if you have a baby you must put something in their mouth otherwise their teeth can fall out due to the impact”

The villagers recalled that the cowshed was burnt as well, while the cow was trapped inside. “When the army left, we went to the site. Everything was reduced to dust and in the corner we saw a burnt carcass of the cow. It was a devastating sight. Everyone in the village had a heavy heart that day.”

After the encounter is over, the locals come together for fund-raising campaigns to collect relief, in cash and kind for the victim families. Because of the informal nature of these initiatives and processes, no work has been done to assess the extent to which these campaigns help, the families rebuild their home, and how long it takes. In the case of the aforementioned Nawakadal incident, the locals were able to collect over 3 cr in one week following the encounter. But it is not clear whether the funds are enough to rebuild all the destroyed/damaged property.

The trauma associated with enforced homelessness is related to both material loss and emotional distress. It seeps into the psychological and mental well being of the victims. Often these (now shelterless) families take refuge in the homes of their relatives or neighbours, leaving the women and girls particularly vulnerable to abuse and harassment. No study has been conducted to investigate such cases.

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In order to estimate the extent of losses Kashmiris have incurred in the last thirty years due to damage to property in ‘conflict-related’ encounters, I filed an RTI application in June 2019.

2019 RTI

Considering the lack of information available on the exact number of buildings damaged in the ‘turmoil of Kash- mir’, a Right to Information (RTI) application to the PIO, District Commissioner Office was filed in 2019. I sought details of damaged buildings classified as government-owned and civil. I also sought details on the extent of losses (in monetary terms) and the compensation (or lack thereof) received by the families. Letter no. ACR/ RTI/19/1759 dated 30.05.2019 was received and redirected to offices in five districts of Kashmir. The findings are discussed below:

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Interestingly, one of the response letter dated 02.07.2019 (from PIO, Srinagar) misread the RTI which sought information ‘related to turmoil in Kashmir valley since the inception of militancy from 1989 to till date’. The PIO instead responded to ‘damages to houses and Govt/Civil buildings due to militancy since 1989’. The information given was:

No. of residential homes: 156 | No. of Govt Buildings: 48 | No. of Civil Buildings: 46

Most of the other information supplied did not present any specifics. In fact, no information was divulged. The reason cited for not divulging this information was that it ‘pertained to the revenue department and the concerned quarter’. Nevertheless, it is clear even from the figures cited by the government that the rate of compensation remains significantly low. This could also be a result of the fact that no complaint is allowed to be made if the au- thorities claim that the family had voluntarily given shelter to the militants. It must be noted that no substantiation is required at any stage of the process, for these claims made by the authorities.

In the past few years, due to the disturbing rise in military operations, enforced homelessness has increased alarmingly in the region and is at its highest since the 1990s. The prevalence of this kind of ‘collective punish- ment’ leads one to conclude that this is a concerted strategy to discourage the masses from protesting against grave human rights abuses in the region. By destroying homes with institutional impunity and rendering families homeless, the Indian state’s agenda of disenfranchising Kashmiris becomes even more clear. How is it that the destruction of homes of Kashmiri Pandits invokes collective empathy and outrage whereas the sight of Kashmiri Muslim homes being demolished hardly makes a case of sorrow in the Indian imagination?

In 2018, in an interview, a retired lieutenant general of the Indian Army was asked about this ruthless policy of bombing and burning of civilian homes. He responded saying, “there are ‘no idealistic rules’ in wars”, pointing to a war strategy that has been around “since times immemorial”. When asked, “Why do you bomb cities?”, he said, “To break the will of the people’.

This article is just a preliminary exploration of the subject of enforced homelessness as a war crime. It suggests an urgent need to investigate further and analyse how these routine crimes are executed and normalized by the Indian armed forces, including the Jammu & Kashmir Police (JKP), in the valley of Kashmir. Enforced homelessness is a crisis and should be addressed with a sense of urgency by civil society groups and human rights organisations across the globe.

Mariyeh Mushtaq is an independent researcher based in Srinagar, Kashmir. Her research analyses the intersec- tion of gender, militarization and precarity with a focus on the disputed region of Kashmir. She recently completed her Masters in Gender, Sexulity and Culture at Birbeck University of London. At present, Mariyeh is working on two projects related to research and documentation of the socio-cultural impact of militarization in Kashmir.

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Section 6 Media

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Amidst harassment and persecution, Resilient Journalism Continues

Freny Manecksha

The amendment of Article 370 and turning Kashmir into a Union Territory was front page material for all major national Indian papers. Some of the newspaper headlines on August 6, 2019 read:279

“Kashmir is now Union’s Territory” (The Times of India)

“Territory of the Union” (The Hindustan Time)

“History, in one Stroke” (The Indian Express)

But, for anyone perusing the archives decades and decades from now, there will be no mention of such history reflected in Kashmir’s newspapers or websites. Jammu & Kashmir’s (J&K) vibrant press of some 414 empaneled newspapers, of which 172 are in Kashmir (about 60 in Urdu and 40 English), were muzzled by the covert operations of the Indian state and by measures that had been put in place for over a week.

These included - (1) a complete telecommunication shutdown with snapping of special lines for internet services of news portals and online editions of papers from midnight; (2) a similar shutdown of internet, mobile phones and even landlines; (3) restrictions on physical movement with concertina wire rolled out and checkpoints blocking access to highways, roads and even smaller lanes of towns and cities; (4) a vast carceral operation that included imprisonment of hundreds and hun- dreds of mainstream political leaders, activists, lawyers and youths. In addition, hundreds of youths were picked up and held under illegal detentions in police stations.

So, whilst national papers could publish a tightly controlled government narrative, the English daily Greater Kashmir could, in comparison record the historic run up to events with only this last update on its website at around 1.20 am on August 5, 2019:

“Omar Mehbooba Lone placed under house arrest, restrictions imposed in Srinagar, mobile internet suspended.”

Besides a halt in uploading and updating the online editions, the free flow of information came to a grinding halt. As senior journalist Parvaiz Bukhari, associated with a foreign news agency pointed out, it was impossible to counter the propaganda peddled by the state because of the internet shutdown. Moreover, journalists were unable to verify and confirm any infor- mation they received because of the total disruption of mobile phones and landlines. Even the authorities were not able to triangulate it.280

Editors lost contact with their stringers or reporters. Those who had vital and important information to share were unable to impart it. Offices were shut. Vital communication and links with people were snapped.

Kaisar Andrabi, a freelancer who writes for The Wire, First Post and so on said, “It was frustrating to be unable to report despite having information.”281

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There was also the issue of being part of the news but unable to record it. Qazi Zaid who runs and edits the news platform Free Press Kashmir recalled how one of the last stories they did was on the panic: how panic was being manufactured and how it affected them too. “We aren’t just reporting the conflict. We are living it.”

The severe restrictions on movement for at least two weeks, and state surveillance made it difficult for editors to even phys- ically go in search for their reporters in rural areas, one editor pointed out.

Urban researcher and writer Stephen Graham has argued that infrastructure is not just a ‘thing’ or ‘system’ or an ‘output’, but a complex social and technological process that enables or disables particular kinds of action in the city. He has analysed the way it can be used as new militarism especially citing Palestinian dispossession. One can well use this insight for Kashmir where the complete dismantling of infrastructure and the deployment of ‘security’ concerns to suppress democratic dissent, had a profound and lasting impact on print journalism.

Most newspapers were not able to bring out editions and were forced to suspend publications till August 17 at least. In some cases, the newspapers had run out of newsprint. About three major publications and some five to six others came out with truncated editions with a much lower print order, but were also hampered by erratic distribution.282 For news portals like Free Press Kashmir, the entire revenue model was almost totally destroyed by a prolonged spell of shutdown. Entrepreneur Qazi Zaid was forced to go out of Kashmir and try and think out ways and means to ensure his 15 young journalists were not rendered jobless with the closure that went on for more than four months.283 The publications also underwent a dramatic metamorphosis in content and tone, with almost total capitulation, echoing the government’s Naya Kashmir narrative. As Majid Maqbool notes, the crucial stories and issues of the shutdown on the region’s economy and healthcare went missing from the front pages of Kashmir’s major dailies. Editorials and opinion col- umns practised self-censorship, or, in a most bizarre manner, chose non-political subjects like changing food habits, benefits of Botox therapy, climate change: anything but the humanitarian crisis unfolding around them.284

Newspapers even carried full page government advertisements pronouncing ‘benefits of Abrogation of Article 370.’ This provided the key to understanding this capitulation. Earlier, in February the government had banned advertisements for Greater Kashmir and Kashmir Reader. The drastic decrease in revenue forced newspapers to curtail salaries. Majority of papers in Kashmir are dependent on advertisements by the Department of Information and Public Relations (DIPR).

The editors had also been summoned by a federal investigation agency concerning the conflict in Kashmir. Such coercive tactics and threats of financial throttling had the desired effect. Papers began curtailing reports and details of militants’ fu- nerals even before the siege. In Kashmir, funerals have for long served as a very emotive and passionate space for dissent. In fact, the government has now used the pandemic as an excuse not to hand over bodies of those slain in encounters to relatives and family.

Besides these tactics, there was increased surveillance of newspapers and intimidation. It was ratcheted up considerably just before and during the August siege. Qazi Shibli, the young editor of was summoned on July 27 by the J&K Police about a news story relating to information about a government order on troop movements. That was the last his family saw of him for nearly 10 months. Shibli was arrested under the Public Safety Act and flown to jail and released only this year, that too after a prolonged online campaign. In December, TIME magazine listed Shibli on the fifth spot in ‘10 Most Urgent Threats to Press Freedom’.285

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Irfan Malik of who worked with Greater Kashmir was also picked up by police from his home. His distraught family travelled all the way to access the government-controlled Media Centre that had been set up in Srinagar on August 10 to convey the news to other members of the press since the offices of Greater Kashmir were closed. His detention and release on a personal bond were reported in the Indian media and he was released on a personal bond but the reasons for his arrest were never made clear.286

In another example of pressure being unofficially applied, senior journalists like Fayaz Bukhari, Aijaz Hussai and Nazir Masoodi, working with reputed publications or associated with the international media, were verbally asked to vacate their government allotted accommodation.287

On August 31, Gowhar Geelani, whose book had just been released, was prevented from flying to Germany to attend a workshop. He was stopped by immigration authorities and no reason was offered.

One important intervention with regard to the struggle for Kashmir’s access to a free media came in mid-August when Anuradha Bhasin, editor of the Srinagar edition of Kashmir Times approached the Supreme Court arguing that the internet is essential for the modern press and that by shutting it down the print media had come to a grinding halt, and that she had been unable to publish her newspaper. This, and the restrictions to movement, she argued, were violations of Article 19 of the Indian Constitution which guarantees the right to freedom of expression.

Meanwhile, the government had set up a Media Facilitation Centre at a private hotel with five computers, a BSNL internet line and one phone controlled by officers, attached to the Directorate of Information and Public Relations (DIPR). Journal- ists had to queue up for hours to access the internet for emails, communicate with editors and then upload their stories or even entire pages. A whole day could be spent in uploading just one file. As one journalist pointed out the tedious process was a cruel irony in a world where breaking news demands information flows at lightning speed. At the Facilitation Centre,

SECTION 6 - MEDIA KASHMIR READING ROOM YEARLY REPORT 2019 - 20 176 journalists would have to pitch stories, wait for response, upload reports or visual images and then provide details or clari- fications when sought by editors, and this two-way process could take days.

More importantly, as Majid Maqbool pointed out, such complete dependence on the government and submission to its reg- ulations in a bid to tame journalists made a mockery of the notion of freedom of press.288

And yet with near impossible working conditions, fears of personal safety and increased surveillance, Kashmir’s journal- ists, many of whom were freelancers, rose to the challenge and ground level stories from Kashmir began coming out in the international media and some news portals in India. The information flow was re-established by intrepid journalists and photojournalists, going into the rural regions and parts of Srinagar and sending out reports and visual images and videos through flash drives carried out of Kashmir by travelers.

Yasin Dar, senior photo journalist with the foreign agency AP, who was honoured with the Pulitzer in 2020 along with Mukhtar Khan and Channi Anand, described the process: “It was always cat-and-mouse,” he said. “The challenges made us more determined than ever never to be silenced.”289

His agency, AP, paid tribute to the way the trio had captured images of protests, police and paramilitary action, and daily life by snaking around roadblocks, sometimes taking cover in strangers’ homes and hiding cameras in vegetable bags.

These tactics and their determination could well apply to many of the other photojournalists from Kashmir, most of whom felt compelled as Kashmiris to responsibly record the people’s voices. Among the independent photojournalists were two young women, Sanna Irshad Matto and Masrat Zehra, whose images, many of which have a gender perspective, have been carried internationally with reputed agencies and publications.

By September, the truth was out, and India’s controlled narrative had been shredded. Reports of torture and forced labour in army camps, the healthcare crisis, the protests in Saura on August 8 and renewed defiance and the huge arrests appeared in publications like BBC, Guardian, Al Jazeera, , Washington Post, France 24 and so on. For years no foreign media had been allowed to report out of Kashmir but, now, as the joke in Kashmir’s Press Club went, Kashmir’s local journalists had gone international.

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Ahmer Khan, a freelancer and his team were also honoured by the 24th Human Rights award for a short video on the resis- tance by people of Aanchar. It is yet another example of acknowledgement by the world of Kashmir’s turbulence captured by its media. Ahmer Khan also received the Kate Webb award for successfully documenting tension, concerns and frus- trations of the residents of Srinagar and other areas in Kashmir. He personally travelled to New Delhi to file his stories.290

If the awards were seen as a collective honour for Kashmir’s journalists, their collective stand against the growing intimi- dation was reflected by a post on social media initiated by senior journalists Muzamil Jaleel and Auquib Javeed. Entitled “Operation Enforced Silence” it lists the names of those who have suffered beatings, intimidation by the police and had FIRs filed against them:

In the growing list are the following:

On November 2, Muzamil Mattoo was beaten up by police in whilst covering prayers.

On November 30 Basharat Masood of Indian Express and Hakeem Irfan of Economic Times were summoned by the counter-insurgency grid and grilled for stories they had carried.

On December 2, Ishfaq Reshi had an FIR fied against him for naming government forces in a report he filed on the burning of haystack in Budgam.

On December 17, Anees Zargar was beaten up in public view and threatened for his reports against police officers.

On December 17, Azaan Javaid was similarly beaten whilst covering a protest and he was threatened for filing re- ports against police officers.

On February 8, Haroon Nabi was summoned to the counter insurgency centre and questioned in connection with a report carrying a statement by the JKLF.

On February 8, an FIR was also filed against Naseer Ganai for a report carrying a JKLF statement.

On April 17, Mushtaq Ahmed was beaten up in Bandipora for reporting during the lockdown.

With the restoration of 3G, another trend of heightened surveillance of social media was noted, with the cyber-police now charging journalists with various crimes. The first instance was of senior journalist Peerzada Ashiq of the Hindu, who was summoned by the Anantnag police in connection with the headline of a report regarding the exhumation of bodies of three militants. Ashiq had quoted the relatives as saying that permission had been given for exhumation291 but police claimed it had not been given and termed his report as ‘fake news.’ Ashiq’s report was based on a conversation with the kin who had mistaken curfew passes with exhumation. It was argued that whilst there was a technical error his entire report could not be termed as fake news.

Days later, the young woman photojournalist Masrat Zahra learnt from social media that she had been charged under the dra- conian Unlawful Activities Prevention Act (UAPA). At first it was not even clear why and for what she was being charged. It later emerged she was charged for uploading one of her older images that had been used earlier by an international website. The image depicted a Shia procession with one of the participants carrying a poster of Burhan Wani, the deceased command- er of the Hizbul Mujahideen and the epithet ‘shaheed.’

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Then Gowhar Geelani also learnt he had been charged under UAPA. He was summoned and questioned by police and charged with conducting unlawful activities through social media posts, but no specific post was named. A huge outcry has followed these latest instances of intimidation on the front runners of journalism, the reporters and photojournalists. Sig- nificantly, it is now UAPA, a law with very stringent measures that is being applied. It is, as Sanjay Kak argues, something much more serious than interference in the performance of journalistic duties. “In her [Masrat Zahra] case they did not even use the word journalist about her, she was charged just for doing what she had done, as an individual using social media. I see these as signals meant to terrorize young people and stem the circulation of ideas at the very source, in the spaces where those thoughts are generated.”292

She has since been awarded the Anja Niedringhaus Courage in Photojournalism Award for “depicting conflict in Indian con- trolled Kashmir and its toll on local communities” and was praised by the jury for her photographs, which were described as being filled with a sense of “dread and community.”293

Another strategy adopted by the cyber police is to call upon all Kashmiris to publicly acknowledge that they are under sur- veillance by making them sign an undertaking that they will not post anything that has ‘unlawful content’.

The definition of unlawful can remain as vague and ambivalent as the authorities see fit. Remarking on the constricted spaces for Kashmir’s media, a veteran journalist remarked that whilst there was nothing new about intimidation, the scale and brazenness was messaging as clear as it can get. But, he added, who in the world has ever succeeded in stopping journalism?

Freny Manecksha is an independent journalist from Mumbai. She has authored ‘Behold, I Shine. Narratives of Kashmir’s Women and Children’.

END NOTES

518. Onmanorama (6 August 2019). ‘‘History, in one stroke’: How front pages of English newspapers reported Article 370 cancellation’. Onmanorama. Retrived from https://www.onmanorama.com/news/nation/2019/08/06/english-newspapers-jammu-and-kashmir-coverage-media.html

519. Aafaq, Z (2 October 2019., ‘‘We may have to shut down permanently’: Online Media In Kashmir Has Come to a Grinding Halt’. The Polis Project. Retrieved from https://thepolisproject.com/we-may-have-to-shut-down-permanently-online-media-in-kashmir-has-come-to-a-grinding-halt-by- zafar-aafaq/#.XvieFigzZPY

520. Ibid.

521. Bakshi, A (18 October 2019. ‘Dystopia vs development: The Kashmir paradox’. Livemint. Retrieved from https://www.livemint.com/mint-lounge/ features/dystopia-vs-development-the-kashmir-paradox-11571377960811.html

522. Ibid.

523. Maqbool, M (16 January 2020). ‘Keeping journalism alive in Kashmir’. Himal. Retrieved from https://www.himalmag.com/keeping-journal- ism-alive-in-kashmir/

524. Sharma, Y (3 May 2020). ‘A Kashmiri journalist on his recent detention’. Popula. Retrieved from https://popula.com/2020/05/03/kashmiri-jour- nalist-qazi-shibli-on-his-recent-detention/

525. Ahmad, M (17 August 2019., ‘Kashmir: Journalist Detained by Security Forces Released’. The Wire. Retrieved from https://thewire.in/media/ kashmir-journalist-irfan-amin-malik-detained

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526. (4 September 2019). News Behind the Barbed Wire: Kashmir’s Information Blockade. Retrieved from http://www.nwmindia.org/images/arti- cles_pdf/Kashmir_2019_News_Behind_the_Barbed_Wire_A_Report.pdf

527. Supra note 523.

528. Peltz, J (5 May 2020. ‘AP wins feature photography Pulitzer for Kashmir coverage’. Associated Press. Retrieved from https://apnews. com/366a717b2c1b9a677fcbd533e9b225c2

529. FPK (7 May 2020), ‘Defending Kashmir: Ahmer Khan and team awarded 24th Human Rights Press Award’. Free Press Kashmir. Retrieved from https://freepresskashmir.news/2020/05/07/defending-kashmir-ahmer-khan-and-team-awarded-24th-human-rights-press-award/

530. Ashiq, P (19 April 2020). ‘Families of slain militants given curfew pass’. The Hindu. Retrieved from https://www.thehindu.com/news/national/ families-of-slain-militants-given-curfew-pass/article31378804.ece

531. Qanungo, N. G (5 June 2020. ‘Sanjay Kak: ‘Kashmir lays India bare. Old clichés of democracy, constitution, free media now look very shallow’’. The Polis Project. Retrieved from https://www.thepolisproject.com/sanjay-kak-kashmir-lays-india-bare-old-cliches-of-democracy-constitution- free-media-now-look-very-shallow/#.Xvs9_CgzZPY

532. Staudenmaier, R (11 June 2020. ‘Kashmir conflict photographer Masrat Zahra wins top photojournalism award’.DW. Retrieved from https://www. dw.com/en/kashmir-conflict-photographer-masrat-zahra-wins-top-photojournalism-award/a-53775419

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Bureaucratic strangleholds over Media Freedom

Geeta Seshu

What explains the singular obduracy of the Indian state in its refusal to restore full internet connectivity to the valley, despite numerous reports of the havoc caused by it? The harsh effects were evident in statements and pleas by journalists, students and even doctors who have struggled to combat the COVID-19 pandemic without timely access to information, treatment or even the latest notifications from health agencies.

The unprecedented and total shutdown of communication in Jammu & Kashmir (J&K) since August 4, 2019, a day before the amendment of Article 370, left people completely bereft in a way they had never experienced before, despite living through 70 years of turmoil and violence. The total inability to pick up the phone and talk to family, friends, colleagues and even neighbours, nearly resulting in total isolation and alienation, leaving them devoid, not just of information but of support systems and emotional succour.

The situation may have eased somewhat with 2G internet allowed in the valley from mid-January 2020, but this has made little or no difference to the plight of people, with the worst affected being health care workers and students grappling with the COVID-19 pandemic. A year on, the harassment, intimidation and false cases against journalists and slow and steady erosion of independent media has only got worse, aided by a repressive media policy that serves as additional warning to the media to behave or else…

A two-member team, of which this writer294 was a part, investigated the impact of the ban on communication on the media in Kashmir. Coming as it did as part of a larger shutdown, it was put into effect by the imposition of Section 144 of the Code of Criminal Procedure and the large-scale detention and arrests of leaders of mainstream political parties, separatist leaders, lawyers and youth.

There was a total communication ban, unlike in the past when Internet shutdowns were imposed on the people of Kashmir (180 since 2012 and 54 times before the current ban in 2019 alone).295 It resulted in the shutdown of mobiles, landlines, broadband and cable television. It also resulted in the easier dissemination of a one-dimensional state-controlled narrative in an information vacuum.

Two court cases challenged the communication blockade and an examination of the resultant judicial orders suggests that the court granted limited reprieve from the exercise of excessive administrative powers. Paradoxically, the orders denied the litigants any relief.

The effects of this shutdown and the manner in which journalists grappled with new challenges to disseminate information have been dealt with elsewhere in this report. But the two major administrative measures to curb freedom of expression – the communication blockade from August 4, 2019, and the media policy announced on June 11, 2020 reveal so much of the punishing regulatory approach of the government.

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The Media policy Nothing demonstrates this more than the ‘revised media policy’ made public more than a month after being formulated. Ostensibly to “carry the message of welfare, development and progress to the people in an effective manner”, it spells out in detail the advertising revenue policy for media houses, which would be strictly regulated for empaneled media that does not carry “anti-social and anti-national” news.

The Department of Information & Public Relations (DIPR) issued the media policy in a government order on May 15, 2020. It is a 53-page document which lays down guidelines for owners of media houses as well as the journalists they employ. The objective of the new media policy is to create “a sustained narrative on the functioning of the Government in media”.

It has exhaustive guidelines for print and electronic media and also makes it clear that government communication will move away from print towards new media. Thus, non-print media makes it to the list of ‘empaneled’ media (audio-visual and electronic media like FM, radio, satellite and cable TV channels).

But it is the guidelines for print media that need greater examination as it clearly reveals the thrust of the government’s media policy: to intimidate and warn independent media houses that they will be under scrutiny.

There are more than a thousand registered newspapers and periodicals in Kashmir. Over the last decades, print media had grown in Kashmir and was a vibrant and independent medium, drawing several talented journalists who reported on the ongoing conflict and highlighted numerous stories of the plight of the people.

Advertisements have been a major source of revenue but also of control. Since 2010, the newspaper Kashmir Times has struggled to get government advertisements. Other newspapers like Rising Kashmir and Kashmir Reader also suffered, the latter even facing a ban for a few months in 2018. No reason is ascribed for the suspension of government advertising, save reports that the newspapers were ‘anti-national’!

The policy document says that the DIPR will go into the “antecedents of the paper/news portal as well that of its publishers/ editors/key personnel” before empanelment. Similarly, it will do a “robust background check including verification of an- tecedents of each journalist.”

According to the empanelment guidelines, which lays down the criteria for media’s eligibility to obtain government adver- tisements, “DIPR shall examine the content of the print, electronic and other media for fake news, plagiarism and unethical or anti-national activities. Any individual or group indulging in fake news, unethical or anti national activities or in plagia- rism shall be de-empaneled besides being proceeded against under law. There shall be no release of advertisements to any media which incite or tend to incite violence, question sovereignty and integrity of India or violate the accepted norms of public decency and behavior.”

The media policy seeks to justify these measures by stating that “J&K has significant law and order and security consid- erations. It has been fighting a supported and abetted from across the border. In such a situation, it is extremely important that the efforts of anti-social and anti-national elements to disturb the peace are thwarted.”

For a media already struggling with slow speed internet, severely strapped by an economic shutdown and depleted revenue, the control over government advertising and the largesse that is promised to pliant media houses, spells the death knell for any kind of independent news that is even slightly critical of the powers that be.

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The Bhasin petition: The Internet shutdown devil

The Executive Editor of Kashmir Times, Anuradha Bhasin, filed a petition in India’s Supreme Court arguing against the internet ban. The petition said that the ban resulted in an information blackout. It became impossible for her newspaper to get in touch with district correspondents and obtain any authentic news. The ban forced the suspension of publication of the newspaper’s edition from Srinagar since August 6, 2019.

The information blackout was a ‘direct and grave violation of the right of the people to know about the decisions that di- rectly impact their lives and their future’ and prevented the media from reporting developments and knowing the opinions of the citizens of the state.

There was no mandatory official notification for the imposition of the internet ban, the petitioner pointed out during the hearings. However, no stay order was given on the ban and the final order, delivered on January 10, after being reserved for almost two months, held that an indefinite suspension of internet services was illegal.

A two-judge bench of Justices N.V. Ramana and V. Ramasubramanian said that orders for an internet shutdown must satisfy the tests of necessity and proportionality. However, the Court did not lift the ban on the internet, instead it directed the gov- ernment to issue formal notification and review the shutdown every seven days!

The Court did make critical noises about the fact that the state failed to produce orders or notifications by which communi- cation has been blocked in the State of J&K. It added that as a general principle, the State must proactively produce orders if there is a challenge made regarding the curtailment of fundamental rights and ensure that all the relevant orders are placed before the Court.

While the Court stopped short of getting into whether the right to access the internet is a fundamental right (despite an ex- cellent judgement of the Kerala High Court before it), it did state that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under Article 19(1)(g), using the medium of internet, is constitutionally protected.

The Court examined the Suspension Rules under Section 7 of the Telegraph Act, under which different states were restrict- ing telecom services including access to the internet and a Review Committee to examine these directives within five days. The court said:

“Keeping in mind the requirements of proportionality expounded in the earlier section of the judgment, we are of the opinion that an order suspending the aforesaid services indefinitely is impermissible.”

Coming down strongly on the use of Sec 144 the judges said:

“The power under Section 144, Cr.P.C., being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an “emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed... The power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.”

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But the judgement rejected the petitioner’s contention that the blockade meant that the “people of Kashmir were plunged into a communication blackhole and an information blackout.” Despite enough and more evidence that the internet shut- down completely crippled news media and suspended websites, hampered news gathering and rendered journalists depen- dent on artificial mechanisms like a centralized media centre with limited internet access, the order said:

“Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self-serving purpose.”

The net result of this order was that the Internet ban continued. There was nevertheless a relaxation, in terms of restoration of the 2G lower broadband speed, or Internet kiosks maintained by the Government, and the introduction of ‘whitelisting’, first with around 150 sites that were permitted, with more slowly added on. No mainstream news media were in the list.

According to research296 monitoring the whitelisted sites, by February 14, 2020, around a thousand sites were added to the list, but even this was hardly of any use and several sites were non-existent URLs or names misspelled. As this research into the whitelisted sites pertinently asked:

“Who chooses these websites?”

“What is the methodology to choose the websites?”

“What is the rationale of choosing 2G speed and banning VPN usage?”

“Why even whitelist?”

FMP petition: The COVID-19 lockdown deep sea

In any event, the phase-wise restoration of landlines and broadband and the continuing slowdown of the internet had disas- trous implications for health workers and doctors dealing with the COVID-19 pandemic.

Despite pleas that internet access was crucial to keep abreast of health developments to understand the nature of the virus and provide timely and effective healthcare to patients, the courts continued to remain obdurate. Another Writ Petition filed by the Foundation for Media Professionals (FMP) in March 2020 said that the internet slowdown had “deprived the people of their right to access healthcare, education, livelihood, justice and information during the COVID-19 pandemic.”

On May 11, 2020, the Supreme Court ordered that a Special Committee consisting of the Secretary, Ministry of Home Af- fairs, Secretary, Department of Telelcom and the of the Union Territory of J&K will meet to “decide whether the internet slowdown in J&K was necessary and proportionate after balancing competing concerns of terrorism and human rights.”

On May 16, the FMP wrote to the Special Committee to “pay heed to the Supreme Court’s holding that internet restrictions are proportionate only if they are geographically and temporally limited.”297 The FPM said that blanket orders to slow down the internet could not be issued without providing specific reasons. Besides, internet restrictions could not be a tool to ad- dress terrorism, the FMP reiterated.

The FMP filed a contempt petition before the Supreme Court since the special committee was not formed as per the directive of the Apex Court. However, on June 24, the Union Ministry of Home Affairs (MHA), in an affidavit, said that a special committee was constituted to look into the issue of restoring 4G internet in J&K and decided against resuming full services.

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In an affidavit filed earlier this week, in response to contempt petition against the J&K administration, the MHA said: “Based on a considered and wide-ranging assessment of the prevailing situation in this sensitive region, the committee ar- rived at a decision that no further relaxation of restrictions on internet services, including 4G services, could be carried out at present.”298

And so it goes on. In this miasma of bureaucratic strangleholds, what remains is the denial of the right of people of the valley to get online, to reach out to their near and dear, to join virtual classrooms or access course or job applications, to access the latest health bulletins and to speak out about their issues. This online silencing and invisibilising, which started out as a government’s collective policing to curb all manner of expression, including expectations of protest and resistance, is digital punishment in the extreme.

Geeta Seshu is a journalist and co-editor of Free Speech Collective. She is based in Mumbai, India.

END NOTES

533. (4 September 2019) A two-member team from the Network of Women in Media, India (NWMI) and the Free Speech Collective (FSC), compris- ing Laxmi Murthy and Geeta Seshu, visited the Valley between August 30-September 3,2019, and met more than 70 journalists, correspondents, editors of newspapers and news-sites in Srinagar and south Kashmir, members of the local administration and citizens. Our report entitled “News Behind the Barbed Wire: Kashmir’s Information Blockade”. FreeSpeechCollective . Retrieved from https://freespeechcollective.in/2019/09/04/ news-behind-the-barbed-wire-kashmirs-information-blockade/

534. Report from Software Freedom Law Centre, Retrieved from https://internetshutdowns.in/

535. R.Kracekumar (21 February 2020), “1000 more whitelist sites in Kashmir, yet no Internet”.Retrieved from https://kracekumar.com/ post/190951734050/1000-more-whitelist-sites-in-kashmir-yet-no/

536. IFF (May 2020), “FMP approaches Special Committee established by SC for restoration of 4G internet in J&K”, Internet Freedom Foundation. Retrieved from https://internetfreedom.in/fmp-approaches-special-committee-established-by-sc-for-restoration-of-4g-internet-in-j-k/

537. Hindustan Times (25 July 2020). ‘No relaxation in J&K 4G curbs yet, Centre tells SC’. Hindustan Times. Retrieved from https://www.hindustan- times.com/india-news/no-relaxation-in-j-k-4g-curbs-yet-centre-tells-sc/story-RILP9SPhDPMs8shbFdThrM.html

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State of Supreme Lawlessness

Mirza Saaib Bég

When it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme.

—Supreme Court of India, Shreya Singhal v. Union of India, March 24, 2015

During the communication shutdown in Kashmir, many Kashmiris living outside Kashmir were unable to speak to their families for over 70 days. Some were fortunate to have parents who could walk a few miles to the nearest working phone, at the local police station, wait in lines and speak for a few seconds.

PM Modi’s Prediction

On September 16, a Supreme Court bench299, headed by Chief Justice of India, heard some of the tagged matters300 con- cerning the developments in Kashmir and something peculiar occurred. One by one, senior counsels came up and reiterated different constructions of the same issue- Even after 70 days of collective punishment by way of communication ban, the people of Kashmir still had not been given any information on what authority of law had been used to impose this ban. There was no order in the public domain that informed the public why this ban had been imposed. There was no official communi- cation by the Government on how long it was going to last. An act that inflicted such sweeping and collective punishment, against free speech, was shrouded in mystery and darkness. Ironically, in June 2014, after a month in office, Prime Minister Narendra Modi asserted “our democracy will not sustain if we can’t guarantee freedom of speech and expression.”301 Most listeners assumed he was cautioning them but his actions make it seem that he was actually making a prediction.

Abdication of Duty by the Court

On August 13, 2019, the 8th day of communication blockade, a three-judge Supreme Court bench, headed by Justice Arun Mishra, accepted the argument made by India’s Attorney General KK Venugopal, the Government’s highest ranked law officer, that the shutdown of communication was needed for law and order, adding further that “it will be settled soon.”302 The court accepted this submission and observed that “if the situation continues, the petitioner can come to court.” Even 5 months into the communication blockade, the petitioners came to court many times but there were no answers and no directions from the Court.

The intention of the Government can be gauged - If the order or the grounds of blockade are properly disclosed, affected in- dividuals will pursue appropriate legal remedy. By deflecting all calls for such disclosure, the state was effectively delaying any opportunity of pursuing a legal remedy. It appeared to be an exercise of grotesquely undemocratic means.

If the Supreme Court of India fails to rise to the occasion and exercises its power to ensure appropriate disclosure, it would amount to a repudiation of principles that the Court is expected to stand by. In one of the hearings on the developments in Kashmir, a lawyer for the petitioners suggested that the Government wanted to suppress the Court from discharging its duties. The Chief Justice of India firmly replied, “we know our duties.”303

Eventually when the Court ruled on this issue in January, 2020, five months into the blockade of communication, the Court refrained from striking down the ban and did not even comment on the legality of the blockade- which was the primary duty of the Court in this case.

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Situation on ground

There were many fact-finding teams of journalists304 and activists305 that have visited Kashmir and every team has reported that the situation is nearing a catastrophe. According to the report306 by Network of Women in Media307 and Free Speech Collective308, newsgathering in Kashmir has been “in peril” and newspapers/ periodicals were forced to suspend publica- tion after August 5. The “key findings” state “it is clear that the government pulled off the total ban on communication by ordering private telecom operators and cable television service providers to suspend their services. None of this appears to be in writing.”

The report309 by Kavitha Krishnan, Jean Dreze and their team reiterates on similar lines, “at least 600 political leaders and civil society activists are under arrest. There is no clear information on what laws are invoked to arrest them, or where they are being held.” The report also highlights the “undeclared censorship” on media in Kashmir through a conversation with a local journalist- “Without the internet, we do not get any feed from agencies. We were reduced to reporting the J&K re- lated developments in Parliament, from NDTV! This is undeclared censorship.” Due to the blockade of the internet, there is a shortage of medicines in the region. The report captures the situation in this paragraph - “an asthmatic auto driver in Srinagar, showed us his last remaining dose of salbutamol and asthalin. He had been trying for the past several days to buy more - but the chemists’ shops and hospitals in his area had run out of stocks. He could go to other, bigger hospitals - but CRPF would prevent him. He showed us the empty, crushed cover of one asthalin inhaler - when he told a CRPF man he needed to go further to get the medicine, the man stamped on the cover with his boot.”

Petition filed by Dr. Sameer Kaul A petition310 filed before the Supreme Court of India, by oncologist Dr. Sameer Kaul highlights the case of Bilquees Majeed Naqash w/o Rafi Kirmani R/o Ellahibagh Srinagar - who was operated for astrocytoma tumors and now requires radiother- apy and chemotherapy treatment. Without internet access at the hospitals, she has not been able to get treatment from her oncologists from the last one month. Another case highlighted in this petition is that of a patient from Sopore, undergoing tests for cancer. He had undergone a biopsy test on July 27, 2019 from a collection centre in Sopore. He has been unable to receive the report due to lack of internet access in hospitals resulting in delay to a possible treatment.

The petition urges that at the very least medical and other essential centres be allowed to resume communication lines. Most hospitals host their databases on servers online. Shipping of drugs and instruments, ordering, making payments and subsequent tracking of shipment all happen online. Pharmacists relying on online delivery systems, baby food supplies and a host of other services that relied on online systems are all affected.311 The petition refers to machines like MRI and CT scanners that require constant updates from servers312 requiring Internet connections and highlights the recklessness of the on-going internet blockade - “Instead of effectively providing health and medical services and making sure that no one is allowed to cause hindrance in discharge of such services, the government is itself creating a situation, where access to health and medical care is disturbed and hindered by blocking access of hospitals and medical establishments to Information and Communication Technology. Such an action is clearly in violation of the fundamental right of health and medical care which has been recognized and included as a part of right to health as enshrined under Article 21 of the Indian Constitution.”313

International obligations and UN Article 25 of the Universal Declaration of Human Rights states: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemploy- ment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” The reckless actions of the Government of India are in clear violation of the UDHR. In 1979, India ratified the International Covenant on Civil and Political Rights, which sets forth internationally recognized standards for the protection of freedom of expres- sion.314

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In the case of People’s Union for Civil Liberties v. Union of India315, the Supreme Court of India has held that Article 21 of the Constitution of India in relation to human rights has to be interpreted in conformity with international law. India is also a party to the International Covenant on Economic, Social and Cultural Rights. The rights of citizens in the online world have to be treated with yardstick as the rights in the offline world. The Internet shutdowns are a violation of the Constitutional Right to Freedom of Speech and Expression. In 2016, at the 32nd session of the United Nations General Assembly, a resolu- tion was passed316 condemning these shutdowns and online access and/or dissemination of information.

During the blockade in 2019, UN representatives made statements reminding India that these communication blockades were violation of Article 19 of the Universal Declaration of Human Rights.317 United Nations independent rights experts is- sued a statement318 calling for withdrawal of the restrictions. The experts highlighted again that the restrictions are “without justification from the Government”, and “are inconsistent with the fundamental norms of necessity and proportionality.” A similar statement was also issued by the United Nations experts in 2017.319 In 2016 the Human Rights Council, the central human rights body in the UN system, condemned such online disruptions and called upon states to avoid such shutdowns. However, none of these international condemnations seems to have made any difference.

Position of Law

It is a well-established principle of law that fundamental rights cannot be infringed upon in absence of law.320 The general common law rule is that delegated legislation does not come into force until it is published. There are also precedents by the Supreme Court of India that can help guide the Court on this issue - In the cases of Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal (1995) and Sabu Mathew George v. Union of India (2017) the Supreme Court held that the citizens have the right to access, receive and disseminate information through any electronic media.321 The principle established in Johnson v. Sargant322 is that delegated legislation does not come into effect until it is published. Johnson v. Sargant was expressly followed in a British Columbia case, R. v. Ross323 and in India in Harla v. State of Ra- jasthan.324 In Harla v. State Of Rajasthan, Justice Bose held that natural justice requires that a law must be promulgated or published before it can become operative. The Court went on to state that “the thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property …. is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way.”325

Elected leaders, three ex-Chief Ministers, all shades of political opinion and “accredited representatives” in Kashmir have not been given any access to the laws under which the steps are being taken. There is no information/publication coming from the Government of India regarding the communication ban. A security advisory was published by the Government of Jammu and Kashmir on August 2, 2019 advising all Hindu pilgrims, in Kashmir, to immediately curtail their pilgrimage and leave Kashmir as soon as possible. After that, the only news on the development has come by way of opinion pieces and reporting in the media. On August 6,.2019, a report published in reported on the communication blackout that had engulfed Kashmir since the amendment of Article 370 on 5th of August. Since then, many news and media outlets have reported on the scale and effect of this blackout but there was still no official publication from the Government until 4 months into the blackout.

Shutdown of Internet Internet shutdowns in India have been ordered under the Code of Criminal Procedure 1973 (CrPC) and Indian Telegraph Act 1885.326 Section 5(2) of the Telegraph Act of 1885 allows the central or state governments to restrict or interfere with the transmission of messages, “in the interest of public safety and for maintaining public order,” though it has not been updated327 to specify safeguards or procedures for internet shutdowns.328 In 1996, the constitutionality of Section 5(2) was challenged before the Supreme Court in the case of People’s Union for Civil Liberties v. Union of India. The court held that the power can be resorted to only when “necessary.”329 If we are to accept the premise put forward by Attorney Gen- eral KK Venugopal on August 13, 2019 that communication needed to be stopped for law and order when e-commerce, financial services, e-governance, cloud computing, media streaming also stopped. The position does not fit the criteria of

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“necessary” as required by the 1996 Supreme Court judgment in PUCL v. UOI. Further, we still have no order indicating that the procedure for such ban has been adhered to- In August 2017, the Department of Telecommunications of the Central Government issued new broad rules under the Telegraph Act to regulate the temporary suspension of telecom services.330 According to these rules, an order for suspension of telecom services can be made by a ‘competent authority’ which would be the Secretary in the Ministry of Home Affairs if suspension is made by Government of India, or the Secretary to the State Government in-charge of the Home Department if the suspension is made by the State.331 However, ‘in unavoidable circumstances’, such an order might be issued by an officer of the rank of Joint Secretary or above who has been duly authorised by the Union Home Secretary or State Home Secretary. If the order is not confirmed by the competent author- ity within 24 hours it will cease to operate.332 The rules mandate that a copy of the order shall be forwarded to a Review Committee comprising Cabinet Secretary, and Secretaries of Legal Affairs and Department of Telecommunication or Chief Secretary, Legal Affairs and Secretary to the State Government within 24 hours. The Review Committee will have to meet within five working days of the issuanceof order and record its findings on the suspension order whether it is in accordance with the provisions of sub-section (2) of section 5 of the Indian Telegraph Act. In the last 45 days of communication ban, there is nothing available to the public to verify that this process has been followed.

Right to Information Act

India’s Right to Information Act is a useful tool to seek information that may be passively recorded but during an on-going situation of suspension of fundamental rights, it is misplaced to expect someone to wait patiently for 30 days to hear a re- sponse. As such, the RTI Act can not be the remedy/choice for emergency situations. If the entire state is under lockdown with even government offices and post-offices are shut, where can a Kashmiri file such an RTI? With the internet shut and travel restrictions imposed within Kashmir, how can one even make such an application? The affected persons have a right to know the instructions issued by the Home ministry and it is the responsibility of the Government to ensure that adequate steps have been taken to inform people of such instructions. However, in 2016, a Right to Information application revealed that no state authority knew who imposed the ban.333 Similarly, an RTI application seeking information about the 3 month long Darjeeling internet shutdown was declined, because the order authorising such indefinite shutdown was deemed “ex- empted from disclosure.”334 In such a situation, the Supreme Court must not refrain from passing directions that the order be made public instead of implying that in the interest of national security, collective punishment without disclosure of law and authority of such punishment can be an acceptable position.

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Economics of Shutdowns

J&K has seen more than 180 internet shutdowns in the past few years.335 In 2018 alone, internet services in the Kashmir were cut off 65 times336; In 2019, 55 such shutdowns have taken place this year thus far. According to a report337 by Delhi-based Software Freedom Law Centre, India routinely employs internet shutdowns. It is now the country with the highest number of shutdowns in the world.338 In 2016 the longest duration of internet shutdown in India was observed in Kashmir in 2016 due to the agitation caused by the killing of Burhan Wani on 8th July 2016. Mobile Internet Services were suspended for 133 days. While mobile Internet services on postpaid numbers were restored on November 19, 2016. Mobile Internet ser- vices for prepaid users were resumed in January 2017 implying that they faced almost a six-month Internet shutdown. In Kashmir, sometimes, the internet is allowed to remain ‘connected’ but the speed is reduced so much that uploading photos or videos would be hampered. In 2017, while most parts of Kashmir had the internet suspended, some areas were reduced to 128 Kbps.339 Further, there are also undefined limitations placed on content and Kashmiri social media users are routinely find their accounts suspended or deleted for social and political activism. Apart from being subject to surveillance and pri- vacy violation, the problems for Kashmiri activists do not end with punishment in the virtual world. Many have faced legal prosecution, harassment and even physical attacks.

Day-to-day transactions, communication, online business, financial transactions and flow of information has been brought to an abrupt halt with no warning. The economic loss of such shutdowns needs to be factored in the making of such deci- sions. In its country report on India, Freedom House said that while the Indian government has been restricting access to the internet since 2010, especially during so-called periods of unrest. A 2016 study by Brookings Institution340 that looked at 81 instances of internet shutdowns across 19 countries between July 2015 and June 2016 found that they had cost the world economy a total of USD 2.4 billion. India alone, at a conservative estimate, lost nearly USD 1 Billion during this period. In contrast, similar but far less frequent bans cost USD 69 million in Pakistan and Bangladesh, and USD 48 million in war-torn Syria. The Indian Council for Research on International Economic Relations Jammu & Kashmir estimated341 that Jammu & Kashmir lost over USD 600 million due to these shutdowns. A Deloitte study342 estimates the number of IoT (internet of things) units is increasing faster than ever. With this increase in IoT, the cost of an internet shutdown will increase as well. Deloitte studies data from 96 countries and estimated that

● For a country that has high internet connectivity: Per day impact of USD 23.6 million per 10 million population

● For medium-connectivity country: Per day impact of USD 6.6 million per 10 million population

● For Low-connectivity country: Per day impact of USD $0.6 million per 10 million population

The report343 by Indian Council for Research on International Economic Relations, a New Delhi-based think tank, states that 16,315 hours of internet shutdown in India from 2012 to 2017 cost the economy more than USD 3 billion. Apart from the economic impact, the cost of these intermittent shutdowns on mental health is also immense. People subject to these communication blockades are cut off from their families making them feel isolated.

Conclusion

The structure of the internet is too vast to be defined merely as a tool for communication. It affects every possible activity, many of which are not “communicative” in the human sense of communication. Governments in the past have blocked the use of specific social media apps like Facebook and WhatsApp so there are alternatives available to a blanket ban on the internet. In this light, these indefinite bans must be viewed as arbitrary, sweeping and an unconstitutional violation of the fundamental rights of people affected. The final arbiter of the issues in India is the Supreme Court of India and it is relevant to remind the Court that “national interest”, as defined by a government in power, is not a ground that qualifies the test of reasonable restriction on fundamental rights and basic human rights.

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Mirza Saaib Bég is a Kashmiri lawyer and an alumnus of NALSAR University of Law. He is currently in the UK to pursue a Master’s in Public Policy at the Blavatnik School of Government, University of Oxford as a Weidenfeld- Hoffman scholar.

END NOTES

538. Press Trust of India, (30 June 2020) ‘Supreme Court to hear pleas against Article 370’. Hindustan Times. Retrieved from https://www.hindu- stantimes.com/india-news/supreme-court-to-hear-pleas-against-article-370-move-kashmir-curbs-today/story-PXBZr1R6cpQVD0pkvk6cfJ.html 539. India Today,(16 September 2020) “Kashmir media restrictions, political detentions”. India Today. Retrieved from https://www.indiatoday.in/ india/story/supreme-court-to-hear-fresh-batch-of-pleas-questioning-abrogation-of-article-370-today-1599496-2019-09-16 540. Human Rights Watch, “Stifling Dissent” (24 March 2016) https://www.hrw.org/report/2016/05/24/stifling-dissent/criminalization-peaceful-ex- pression-india 541. Vaidyanathan, A & Sanyal, A (13 August 2019) ‘J&K situation very sensitive, Government should get time’ NDTV, Retrieved from https://www. ndtv.com/india-news/jammu-and-kashmir-situation-very-sensitive-reasonable-time-should-be-given-to-government-to-ensure-n-2084456 542. Withnall,A. (28 August 2019 ) ‘Kashmir: India’s top court is asked to reverse decision on revoking special status’ Independent. Retrieved from https://www.independent.co.uk/news/world/asia/india-kashmir-article-370-supreme-court-challenge-modi-pakistan-a9082221.html 543. Free speech collective, ‘News Behind the Barbed Wire’ (4 September 2019) https://freespeechcollective.in/2019/09/04/news-behind-the-barbed- wire-kashmirs-information-blockade/ 544. Kashmir Caged: A Fact-Finding Report by Jean Drèze, Kavita Krishnan, Maimoona Mollah and Vimal Bhai 14 August 2019 https://www.nchro. org/index.php/2019/08/14/kashmir-caged-a-fact-finding-report-by-jean-dreze-kavita-krishnan-maimoona-mollah-and-vimal-bhai/ 545. NWMI reports ‘News Behind the Barbed Wire’, Free Speech Collective. Retrieved from https://freespeechcollectivedotin.files.wordpress. com/2019/09/news-behind-the-barbed-wire-nwmi-fsc-report-2.pdf 546. Network of women in media, India. Retrieved from http://nwmindia.org/ 547. Free speech collective. Retrieved from https://freespeechcollective.in/ 548. Peoples Dispatch, “Kashmir Caged Report”. Retrieved from https://peoplesdispatch.org/wp-content/uploads/2019/08/Kashmir-Caged-final-re- port.pdf 549. Chaudhary, N (12 September 2019) “National Conference Leader Moves SC For Restoration Of Internet And Landline Services In J&K Hos- pitals” Live Law. Retrieved from https://www.livelaw.in/top-stories/national-conference-leader-sc-restoration-of-internet-and-landline-ser- vices-in-jk-hospitals-147989 550. Goyal, V. Singh, K. & Yasir,S (14 August 2019) ‘India Shut Down Kashmir’s Internet Access’, New York Times, Retrieved from https://www. nytimes.com/2019/08/14/technology/india-kashmir-internet.html 551. Yadavar, S and Parvaiz,A (6 September 2019)‘Healthcare Crisis in J & K’, The Wire, Retrieved from https://thewire.in/health/ground-report- healthcare-crisis-in-j-ayushman-bharat-suspended- At the Shafie Diagnostic Centre, a public-private partnership at the Bone and Joint Hospital, the MRI machine--one of three in government hospitals here--suffers glitches, but it is not getting its software updates and company technicians have not been able to find out what is wrong. 552. Plea in SC seeks restoration of Internet, phones at hospitals across Jammu and Kashmir, The Hindu, 12 September 2019 https://www.thehindu. com/news/national/plea-in-sc-seeks-restoration-of-internet-phones-at-hospitals/article29402548.ece 553. UN Treaty Body Database https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=79&Lang=EN 554. (1997) 1 SCC 301 555. United Nations, General Assembly, Human Rights Council, Promotion and protection of all human rights, civil,political, economic, social and cultural rights, including the right to development., Thirty-second session, Agenda item 3, 27th June 2016. 556. UN rights experts urge India to end communications shutdown in Kashmir, United Nations Human rights office of high commissioner, UN, “Kashmir communications shutdown a ‘collective punishment’ that must be reversed” https://news.un.org/en/story/2019/08/1044741 557. https://ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24909&LangID=E 558. UN HRC, (11 May 2017) ‘India must restore internet and social media networks in Jammu and Kashmir’, Retrieved from https://www.ohchr.org/ EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21604&LangID=E 559. Kharak Singh v. State of UP https://indiankanoon.org/doc/619152/ ; Also see Gautam Bhatia “The 16th September Order and the Supreme Court of Convenience” Indian Constitutional Law https://indconlawphil.wordpress.com/2019/09/18/the-16th-september-order-and-the-su- preme-court-of-convenience-or-why-separation-of-powers-is-like-love/?fbclid=IwAR3jSTaxYLHmbuX9eWQkB474P_tSL9Z5-frN6qVPniW_ aqtS44EO_P98lA4

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560. Bhattacharya, P. “Human Rights and Internet Shut-Downs in Jammu & Kashmir” Oxford Human Rights Hub. Retrieved from https://ohrh.law. ox.ac.uk/human-rights-and-internet-shut-downs-in-jammu-kashmir/ 561. [1918] 1 K.B. 101 562. [1945] 1 W.W.R. 590, noted (1946) 24 C.B.R. 149. Also see Minister of Mines v. Harney [1901] A.C. 347 (P.C.) (minister’s decision to forfeit a lease not effective until notified to lessee). Prerogative legislation by proclamation could not generally come into effect until published. 563. 1951 AIR 467, 1952 SCR 110 564. Municipal Board, Sitapur v. Prayag Narain Saigal & firm 1970 AIR 58; Raza Buland Sugar Co. Ltd v. Municipal Board, Rampur 1965 AIR 895. 565. Software Freedom Law Center, (10 August 2018) ‘Parliament’s Last Opportunity to Modify Telecom Suspension Rules?’ The Quint. Retrieved from https://www.thequint.com/voices/opinion/parliament-telecom-suspension-rules 566. Human rights watch India ‘20 Internet Shutdowns in 2017’. Retrieved from https://www.hrw.org/news/2017/06/15/india-20-internet-shut- downs-2017 567. Schmall, E. (29 August 2019) ‘India seeks to portray a sense of calm in locked-down Kashmir,’ Ap News . Retrieved from https://www.apnews. com/45cf214d417745b1b1ea24941b8655ba 568. Nayak, N.(6 October 2017) ‘The Recently Notified Rules on the Suspension of Telecom Services’, Caravan Magazine. Retrieved from https:// caravanmagazine.in/vantage/suspension-telecom-services-rules-legitimise-internet-shutdowns-facilitate-voice-call-bans 569. Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, August 7, 2017, http://www.dot.gov.in/sites/de- fault/files/Suspension%20Rules.pdf?download=1. 570. Pahwa, N. (28 August 2018), ‘Government of India issues rules for Internet Shutdowns’ Medianama. Retrieved from https://www.medianama. com/2017/08/223-internet-shutdowns-india 571. Software Freedom Law Centre, ‘Temporary Suspension of Telecom Rules’, Retrieved from https://sflc.in/new-rules-temporary-suspension-tele- com-services-case-public-emergency-or-public-safety 572. Saha, A.(3 June 2017) ‘Kashmir internet ban: No one knows who ordered the shutdown,’ Hindustan times. Retrieved from https://www.hindustan- times.com/india-news/kashmir-internet-ban-no-one-knows-who-ordered-the-shutdown-shows-rti/story-db6f78xiCysL3iTDIY8x8H.html 573. Software Freedom Law Centre, ‘Darjeeling Internet Ban’. Retrieved from https://sflc.in/rti-darjeeling-internet-ban-3-months-and-counting 574. Mahajan,S.(12 September 2019) ‘How the communications shutdown is hampering medical and health services in Jammu & Kashmir’. Bar and Bench. Retrieved from https://barandbench.com/how-the-communications-shutdown-is-hampering-medical-and-health-services-in-jammu-kash- mir-pil-in-sc-reveals/ 575. Barik, S. (30 July 2019)‘India saw 6 internet shutdowns in July, 65 so far in 2019’, Medianama . Retrieved from https://www.medianama. com/2019/07/223-india-saw-6-internet-shutdowns-in-july-65-so-far-in-2019/ 576. Software Freedom Law Centre, “Living In Digital Darkness Internet Shutdowns Handbook” https://sflc.in/sites/default/files/reports/Living%20 in%20Digital%20Darkness%20-%20A%20Handbook%20on%20Internet%20Shutdowns%20in%20India%2c%20May%202018%20-%20 by%20SFLCin.pdf 577. Bahree, M.(12 November 2018) ‘India Leads The World In The Number Of Internet Shutdowns’ Forbes, . Retrieved from https://www.forbes.com/ sites/meghabahree/2018/11/12/india-leads-the-world-in-the-number-of-internet-shutdowns-report/ 578. (29 January 2018) ‘Shopian killings: Valley shuts in mourning’, Kashmir Monitor. Retrieved from https://www.kashmirmonitor.in/Details/142069/ shopian-killings-valley-shuts-in-mourning 579. West, D. ‘Internet shutdowns cost countries $2.4 billion last year’ Brookings Institution, https://www.brookings.edu/wp-content/uploads/2016/10/ intenet-shutdowns-v-3.pdf 580. Rajat Kathuria, Mansi Kedia, Gangesh Varma, Kaushambi Bagchi, Richa Sekhani, ‘Measuring the Economic Impact of Internet Shutdowns in India’ Indian Council for Research on International Economic Relations http://icrier.org/pdf/Anatomy_of_an_Internet_Blackout.pdf 581. Rithu Thomas, Preetha Devan, Abrar Khan, “The Internet of Things,” Deloitte Insights https://www2.deloitte.com/content/dam/insights/us/arti- cles/4420_IoT-primer/DI_IoT-Primer.pdf 582. Rajat Kathuria, Mansi Kedia, Gangesh Varma, Kaushambi Bagchi, Richa Sekhani, “Measuring the Economic Impact of Internet Shutdowns in India” Indian Council for Research on International Economic Relations http://icrier.org/pdf/Anatomy_of_an_Internet_Blackout.pdf

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Part 2

Letters, Statements and Reports by Kashmir Reading Room

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Open Letter to Keir Starmer

Dear Keir,

We, the undersigned, strongly oppose your recent repositioning of the Labour Party’s stance on the issue of the Kashmir conflict. This repositioning goes against fundamental values core to the integrity of the party and severely under- mines the trust of voters and members who support and champion these values.

While you claim that the Labour Party is an internationalist party, which stands for the defence of human rights everywhere, your focus on building “business ties” with India’s far-right government while maintaining silence on human rights violations in Kashmir represents an openly hypocritical stance. Human rights abuses in Kashmir are widespread and egregious. There are numerous of cases of torture, rape, arbitrary detentions, enforced disappearances, pellet blinding, un- marked mass graves and violence against civilians which are well-documented by international organisations including the United Nations, Human Rights Watch and Amnesty International calling for investigations within the region. The threat of the current crisis is so severe that Genocide Watch has issued a genocide alert for Indian-administered Kashmir.

Human rights violations in Kashmir do not take place in a vacuum. At the root of these appalling violations lies a historical denial of the right of self-determination to the people of Jammu and Kashmir. We call on the Labour Party to demonstrate firm commitment regarding human rights violations and to campaign for its democratically-agreed 2019 conference policy demanding “the restoration of basic human rights and…. the right to self-determination” in Jammu and Kashmir.

The revocation of Article 370 and Article 35A on the 5th August 2019 can also not be ignored by the Labour Party. This unilateral action, taken without the concern, consent or active participation of the people of Jammu and Kashmir, is unconstitutional, undemocratic and violates existing international law. Since 5thAugust 2019, Kashmir has faced a commu- nications blackout, the world’s longest running in any democracy. Children as young as the age of 9 have been detained, in contravention of Hague Conventions, and numerous Kashmiri journalists, political leaders, as well as lawyers, have also been detained. Chair of the Bar Council of England & Wales, Richard Atkins QC, and Chair of the Bar Human Rights Com- mittee of England & Wales, Schona Jolly QC,wrote to India’s Prime Minister in November 2019 expressing serious concern over the effective suspension of Habeas Corpus rights.

The Kashmir conflict is neither a bilateral issue between India and Pakistan, nor it is an internal matter of India. It presents an extremely grave threat to national, regional and global security, considering India and Pakistan’s record of inter-state wars and hostile engagement as nuclear powers. It is a conflict which has robbed millions of Kashmiris of their basic human rights and continues to this day to inflict untold suffering. The conflict continues to be of substantial concern to British Kashmiri diaspora living in the UK.

We call on the Labour Party to:

1. Stand against the repositioning of its stance on Kashmir, which abdicates the party’s internationalist respon- sibilities and places Labour on the wrong side of history.

2. Stand by its 2019 conference policy, which supports human rights and right of self-determination of the

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people of Jammu and Kashmir

3. Work with the UK government towards effective multilateral engagement with representatives from India, Pakistan and both sides of Jammu & Kashmir for justice, peace and an ultimate resolution of the conflict.

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Office of the United Nations High Commissioner on Human Rights (UN OHCHR) Geneva cc.

Special Rapporteur on minority issues

Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence

Special Rapporteur on extrajudicial, summary or arbitrary executions

Committee on the Rights of the Child (CRC)

Subject: URGENT: Civilian murdered by Indian forces in Sopore Kashmir

We are writing to report grave violations of human rights by Indian forces in Sopore, Kashmir. Mr. Bashir Ahmad Khan, age 65 years, was traveling to Sopore in north Kashmir on personal business with his three-year-old grandson when his vehicle was stopped by troopers of Golf Coy 179 Bn CRPF. He was pulled out of the vehicle and shot dead in cold blood (photos and video testimony from family attached). While official accounts claim that he was killed in crossfire by militants, eye- witnesses and video evidence contradict this344. This cold-blooded killing is part of a pattern of escalating violence against civilians by Indian forces in Kashmir345.

In addition to this murder, a three-year-old child was forced to sit on the dead body of his grandfather and photographed. Later, his photographs and videos in blood-soaked clothes were widely circulated on all social media platforms without hiding his identity.346 The Indian forces also used the child as a prop for their media PR campaign. They clicked his pictures with the man in uniform and shot the video in a police van consoling the child. The tragic scene of his grandfather’s murder followed by insensitive treatment of Indian forces are severely traumatic for a three-year-old child. Children in Kashmir are one of the most affected sub-groups because of the ongoing conflict. The crimes perpetrated against children in Kashmir include killings, arrests, sexual violence, mental harassment and attempts to denythem their right to education by destroying schools and blocking internet.347

The United Nations has condemned the killing but despite the available testimonies and evidence, the condemnation has been ambiguous about the state’s responsibility in this incident. It is the responsibility of the United Nations to facilitate a peaceful resolution of this conflict.

As the likelihood of war in this region increases rapidly we urge you to take the following urgent actions:

1. Remind the Indian government of its obligations under international law to protect civilians in situations of conflict.

2. Demand that the Indian government allow independent international human rights experts especially UN Special Man- dates holders to visit Kashmir.

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Kashmir Reading Room

July 2, 2020

Evidence:

Video testimony from the daughter of Mr. Bashir Ahmad Khan (in Kashmiri) https://mobile.twitter.com/ArsalanBhat11/status/1278217806295691264

Translation: My father worked for a salary of INR 6000-7000. He had gone to Sopore to get his cheque. He was accom- panied by my three-year-old son. How blind are they (CRPF)? They didn’t even realise my father was accompanied by a child. He was brought down from his car and shot dead. He was a man with kids, He was the only breadwinner of our family because my brother is a full-time student. I don’t want anything else, just shoot the culprits. Just shoot them in front of my eyes. Shoot that person who killed my innocent father. My son doesn’t live without my father. Imagine, they brought him down in the car and shot him in front of a three-year-old kid.

Video testimony from the son of Mr. Bashir Ahmad Khan (in Urdu) https://mobile.twitter.com/ashraf_wani/status/1278205216576303104

Translation: He left at 6:00 am in the morning for Sopore. He had some work there. When firing started in Sopore; the CRPF started firing in retaliation and that is when CRPF killed him.

Wife of Mr. Bashir Ahmad Khan on treatment of her grandson https://mobile.twitter.com/Gaamuk/status/1278242828116586497

Translation: They kept a three-year-old on his stomach after shooting him. He was just a small employer. He was not a militant; He was not a militant. The kid had blood stained clothes.

Relevant information:

Video from the site

LETTERS, STATEMENTS & REPORTS KASHMIR READING ROOM YEARLY REPORT 2019 - 20 197 https://mobile.twitter.com/CRolanova/status/1278197412822220800

Demand for an impartial inquiry into the killing, Greater Kashmir, July 1, 2020 https://www.greaterkashmir.com/news/latest-news/jkap-demands-time-bound-probe-into-civilian-killing-in- sopore/?amp&__twitter_impression=true

Conflicting narratives and a 3-year old witness https://www.trtworld.com/magazine/the-killing-the-indian-narrative-and-a-3-year-old-kashmiri-witness-37769/amp?__ twitter_impression=true

Amnesty International: Police post violates child rights https://mobile.twitter.com/AIIndia/status/127829882868939981

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Resolving the Kashmir Conflict: Humanitarian crisis in Kashmir valley and expectations from the UK government

A brief prepared for the UK parliament by Kashmir Reading Room

June 2020

London

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Executive Summary

The Kashmir Reading Room is a group of Kashmiri working professionals that includes lawyers, journalists, academics and activists. Our work covers the legal, political, economic and policy issues surrounding the Kashmir dispute and we advocate for Jammu & Kashmir’s right to self-determination as defined in the UN charter.

▪ The purpose of this brief is to focus on the role of the UK government in the emerging issues in Jammu & Kashmir, post-annexation on 5th August 2019. This report assesses the impact since the Jammu and Kashmir Reorganisation Act, 2019. The report seeks to highlight the security concerns with Pakistan and China, degradation of human rights in Kashmir, lack of access to medical treatment, the internet/communication and the auctioning of natural resources to non-Kashmiris.

▪ It is imperative that efforts be made towards creation of a platform to facilitate the dialogue process for a peaceful settlement of the dispute. It requires the resumption of dialogue process led by legitimate representatives of people of Kashmir valley involving India, Pakistan and the United Nations.

1.1. Abrogation of the Autonomous Status

▪ On 5th of August 2019, the Indian government unilaterally revoked348 the autonomous status of Jammu & Kashmir. This autonomy has been guaranteed under the Instrument of Accession, 1947 that gave India control over communication, defence and foreign affairs349. The British government, through Lord Mountbatten, the governor general of British India, is a signatory to this instrument. Under this arrangement, all other aspects of governance had been retained by Kashmir within its own legislative powers. As such, the Indian government has no right to legislate in matters of the state except on what has been granted under the instrument. This arrangement permitted Kashmir to have a separate constitution, a flag and until 1964 an elected Prime Minister.

▪ It is imperative to add that the amendment brought about by the Indian government to effect the de-operationalisation of Article 370 is a unilateral and unconstitutional action taken without the concern, consent or active participation of tthe Kashmiri people. In absence of any consent or participation of the Kashmiri people and in absence of any legal right of the Indian government to decide on behalf of the disputed territory of Jammu & Kashmir, this action fails the test of democracy and legislative competence.

▪ By de-operationalising Article 370 of the Indian Constitution, India has attempted to end the dispute unilaterally350. India’s actions are in violation of the 4th Geneva Convention, the Shimla Accord 1971 between India and Pakistan and the established international law under the UN charter.

▪ Humanitarian Crisis Since 5th August 2019

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1.2. Genocide Alert

▪ The threat of the current crisis is so severe that Genocide Watch has issued a genocide alert for Indian-administered Kashmir.351

1.3. Communication Blackout and Lockdown

▪ Immediately before the amendment of Article 370, on 5th August 2019, the entire state was placed under lockdown and a complete communication blockade was imposed. The internet blackout imposed has been the longest in the history of any democracy352 which began on 5th August, 2019. Even as this report is being written, the internet restrictions continue though 2G internet has been permitted since February, 2020.

▪ Experts from the United Nations have described the communication blackout, which has been in place for 9 months, as a form “of collective punishment for the people of Jammu and Kashmir, without even a pretext of a precipitating offence.”353 Patients have been denied medical care, children have been detained and tortured, women have been ha- rassed and sexually assaulted and there has been a tremendous increase in mental health deterioration amongst Kashmiri people.

▪ The Supreme Court of India has ruled against restoration of normal communication and high-speed internet in Jammu & Kashmir despite the reckless action of the Government of India being in violation of fundamental rights guaranteed by the Indian Constitution and Article 25 of the Universal Declaration of Human Rights. In 1979, India ratified the Inter- national Covenant on Civil and Political Rights, which sets forth internationally recognised standards for the protection of freedom of expression.

▪ In 2016, at the 32nd session of the United Nations General Assembly, a resolution was passed condemning shutdowns that blocked online access and/or dissemination of information. UN representatives have made statements in the last few months reminding India that these communication blockades are a violation of Article 19 of the Universal Declaration of Human Rights.

1.4. Fact-Finding Missions

▪ Since August 2019, many fact-finding teams of journalists, activists and lawyers have visited Jammu & Kashmir and have reported that the situation is nearing a catastrophe with gross human rights violations, mass detentions and media blackout.354

▪ The information gathered in these fact-finding visits indicates that in the first two weeks since the clampdown began, Indian security forces have abducted young school-age children in night raids. During these night raids, girls in these homes have allegedly been molested and threatened with sexual abuse.355

▪ Reports indicate that loss of life, on the scale seen in 2016, has been prevented. However, as indicated in this report by the Independent,356 it is important to note that Indian officials have not been issuing death certificates and so the

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verification of any numbers of dead is not possible. In August last year, a 16-year-old student of class 11, passed away. Indian security forces recorded that the cause of death was an injury by a stone. However, medical reports indicate that he had suffered multiple pellet-gun wounds and a skull injury.357 The boy’s family stated that Indian security forces did not allow his body to be buried in their family graveyard.

1.5. Arbitrary Detentions

▪ The legal system has been crippled358 with the arrest of hundreds of lawyers by the Indian government in contravention of United Nations Basic Principles of the Role of Lawyers (1990).359 Hundreds of Kashmiri lawyers have been arrested including the President of the High Court Bar Association of Jammu and Kashmir, Mian Abdul Qayoom. There is no charge against him and yet the High Court rejected his petition based on his “ideological differences” with India’s ruling government.

▪ In this regard, Chair of the Bar Council, Richard Atkins QC, and Chair of the Bar Human Rights Committee of England and Wales, Schona Jolly QC, wrote360 to India’s Prime Minister expressing serious concern over the effective suspension of Habeas Corpus.361

▪ In November 2019, the Centre informed the upper house of the Indian Parliament that a total of 5151 people have been detained since August.362 Whereas other reports indicate towards a detention of around 13,000 boys, some as young as the age of 14.363The policies implemented here are similar in function and execution, as those employed by Israel in Palestine.

1.6. Freedom of Press

▪ There have been numerous attempts to muzzle freedom of the press including charging journalists with terrorism for reporting on the developments in Kashmir. Two laws, in particular, are used to this end.

▪ The first is the UAPA (Unlawful Activities Prevention Act) under which dissenting individuals can be declared terrorists without trial for up to 2 years. The law was originally intended for acts of terrorism but in its current form and imple- mentation, it allows for arrest and custody of people who are protesting the policies of the government, without having to substantiate any allegations. The final adjudication of guilt or innocence is years away, but in the meantime, long incarceration, lack of procedural rights such as bail, and the ignominy of being branded a terrorist, effectively punish a person through the process itself.

▪ Three journalists have been booked under UAPA in the last month. Under this law, journalist Aasif Sultan has been wrongfully imprisoned since August 2018, for reporting on rebels in Kashmir. Last month three journalists were charged under the same law - Masrat Zahra, Gowhar Geelani and Peerzada Ashiq in April 2020.364

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▪ The Public Safety Act is another law that is abused by the authorities to keep Kashmiris in administrative detention with no recourse to lawyers. This law was originally intended to curb timber smuggling but it is now deployed in Kashmir to keep people out of circulation. Journalist Qazi Shibli was arrested under the Public Safety Act and lodged in jail for 9 months, thousands of miles from home till his release on 13 April 2020.365

▪ Journalists in Jammu & Kashmir are routinely assaulted, offended and summoned for doing their job as reporters.366

1.7. Internet Ban & Its Impact on Health

▪ Most hospitals host their databases on servers online. Shipping of drugs and instruments, ordering, making payments and subsequent tracking of shipment - all happen online. Pharmacists relying on online delivery systems, baby food supplies and a host of other services that relied on online systems are all affected. The petition refers to machines like MRI and CT scanners that require constant updates from servers, requiring internet connections and highlights the reck- lessness of the on-going internet blockade - “Instead of effectively providing health and medical services and making sure that no one is allowed to cause hindrance in discharge of such services, the government is itself creating a situation, where access to health and medical care is disturbed and hindered by blocking access of hospitals and medical establish- ments to Information and Communication Technology. Such an action is clearly in violation of the fundamental right of health and medical care which has been recognized and included as a part of right to health as enshrined under Article 21 of the Indian Constitution.”

▪ Another case highlighted in this petition is that of a patient from Sopore, undergoing tests for cancer. He had undergone a biopsy test on 27th July 2019 from a collection centre in Sopore. He has been unable to receive the report due to lack of internet access in hospitals resulting in delay to a possible treatment. The petition urges that at the very least medical and other essential centres be allowed to resume communication lines.

▪ A petition filed before the Supreme Court of India, by oncologist Dr. Sameer Kaul highlights the case of Bilquees Ma- jeed Naqash w/o Rafi Kirmani R/o Ellahibagh Srinagar - who was operated for astrocytoma tumour and now requires radiotherapy and chemotherapy treatment. she had not been able to get treatment from her oncologists, without internet access at the hospitals.

▪ With the COVID-19 pandemic, the situation on the ground has exacerbated. People with symptoms fear visiting doctors since the infection has been stigmatized and criminalised by police. Even doctors are facing harassment at the hands of the Indian Armed Forces. Despite the worsening health crisis, the Indian government has denied a restoration of high- speed internet in the valley. Doctors in Jammu and Kashmir have reported difficulty in accessing updated information due to internet ban.

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1.8. Mental Health Crisis

▪ As a result of prolonged militarized conflict in Kashmir, mental health of people has been in crisis for more than two decades.367 This situation has only been worsened by the complete lockdown and communication blockade imposed by the government of India in Kashmir since August 2019.

▪ Local medical professionals have reported an increasing rise in suicides and disturbingly high rates of domestic abuse.368 There are fewer than 60 psychiatrists in Kashmir at present. It has been reported in April 2020 that doctors are seeing more than 500 patients a week.369

▪ In 2016, a report by ActionAid estimated that in Kashmir, 11.3 percent of the population suffers with mental health issues as compared to a national estimate of 7 percent.370

▪ According to a 2016 report by Medecins Sans Frontieres, 41 percent people exhibit symptoms of probable depression, 26 percent show symptoms of probable anxiety and 19 percent show symptoms of probable PTSD.371

1.9. Impact on Education

▪ There are many reported cases of teachers, professors, academics and other members of the educational community being taken prisoner, held in captivity, beaten and tortured and killed in custody by the Indian armed forces.372The re- port from TRT world highlights how earlier in 2019, a chemistry teacher was killed in police custody.373 The report374 NDTV, an Indian TV channel, reports how the Indian army admitted to the killing of another teacher in 2016 after he was picked up in an overnight raid.

▪ Schools are regularly within the line of fire by paramilitary even in Srinagar, where often teargas shells are fired into schools and in the schools near the LOC, live ammunition often finds its way in. In 2014, heavy shelling by Indian forces on the border villages in Charwar sector caused 120 government schools to shut and caused heightened levels of fear and distress for local communities.375

▪ An Economic Survey 2017, released by the Chief Economic Advisor of India reported that due to nearly 150 days of forced closure of schools in 2016, students from class 1 to class 9 had to be given mass promotion without exams. Af- ter each incident of disturbance, schools and colleges remain shut for months. This has been the case since 2008 when almost every year schools are closed indefinitely. In 2016 schooling for the whole year was conducted only for a total of 3-4 months.376

▪ The paramilitary forces are routinely accused of directing tear-gas shells into schools and hospitals which there are chil- dren inside.377 Both schools and universities are damaged. In addition, there have been many attacks of arson on schools and the government is unable to identify who perpetrated the attacks. In 2016 alone, 32 school buildings were burned

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down by unknown people. Either the Government of India is incompetent, or they are complicit. Here are some reports by BBC and Aljazeera that covered this incident. 378

▪ In 2016, shelling across the border led to closure of 25 girls’ and 34 boys’ schools. On December 16th 2016, a school van was hit by shelling, killing the driver and wounding eight children.379 On 25th July, 2017, a school building in Poonch was heavily damaged due to shelling. The week before, 25 schools closed380 due to ceasefire violations.381

▪ Due to continued disruption in communication since August, students have suffered continued loss of education. All public life has been suspended since 5th August, 2019. As such, there are no opportunities for children to pursue their education. Just like in 2016, tuition centres, schools, universities are all shut, and, in many cases, the educational build- ings are taken over by the security forces.382

1.10. Stumbling Economy

▪ Even before the world economy began reeling under an unprecedented global economic crisis, the local business com- munity in Jammu & Kashmir had suffered severely due to the undemocratic and arbitrary actions of the Indian govern- ment. Jammu and Kashmir’s economy had suffered a loss of Rs. 17,878.18 crore (nearly 2.4 Billion USD) from August to December 2019.383

▪ In February 2020, online auctions for mining rights of Kashmir’s natural resources (including Sapphire and sand for the provision of aggregate for construction). These auctions were held online in the state for the first time and 100 per cent of these rights were won over by companies from outside the state. It is telling of the Indian government’s plans that this auction was held at the time when high-speed internet was banned in Kashmir thereby preventing anyone living in Kashmir from participating in it.384

1.11. Border Violence

▪ Cross-border shelling between India and Pakistan on the Line of Control (LOC) continues to cause loss of life and damage to infrastructure.385 After consulting the active militant groups in 2003, India and Pakistan signed a cease-fire agreement,386 however, both countries ignored this agreement as their other bilateral agreements.

▪ There are various civilian settlements in the border region and mass migration is not a favourable solution.387 People of this region have been surviving in a war like situation for decades. In addition to security situation, sexual harassment is a big issue for women in the area.388 Border skirmishes challenge India’s claim of the Kashmir Conflict being an internal issue.

▪ India and Pakistan have made nuclear threats to each other and both have a long history of war. Recently tension has risen on the Ladakh side of the region where China is now laying claim over a significant portion of Indian-Admin-

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istered Kashmir known as Galwan Valley. In an initial unarmed confrontation, the Indian army has officially reported that 20 Indian soldiers were killed.389 The two countries share one of the world’s longest unsettled land borders and the India-China border is the world’s longest unmarked frontier, stretching about 2,500 miles. Given the nuclear capabilities of both powers, it is clear that a war between the two would be calamitous and would have far reaching implications, both regionally and globally.

3.0 Domicile Law and Demographic Changes

▪ In May 2020, the Indian Government passed the Jammu and Kashmir Grant of Domicile Certificate (Procedure) Rules, 2020, granting rights to eligible classes of Indians to gain a domicile status within the Union Territory of Jammu and Kashmir.

▪ These rules create a new class of citizens who are now eligible for domicile certificates that is mandatory for admission in schools, it enables them to purchase land and obtain employment opportunities in Jammu and Kashmir. Indian citi- zens who

(a) have resided in Jammu & Kashmir for a period of 15 years, or

(b) have studied in Jammu & Kashmir for a period of 7 years, or

(c) have parents who have served in Jammu & Kashmir for 10 years

▪ They are now eligible for domicile of Jammu and Kashmir. These rules provide a fast-track procedure for issuance of Kashmiri domicile certificates, within 15 days, to people from any part of India who meet the criteria. The sense of urgency to legalise the region’s new status is further underscored in the new rules since non-compliance with the time frame provided attracts a penalty of Rs. 50,000 from the salary of an errant officer.

▪ There is no space for a diaspora Kashmiri whose parents do not have an existing certificate of permanent residence, to obtain domicile without living in the region for 15 years or serving the Indian government for 10 years390. Effectively, the child of an Indian citizen from any part of the country is eligible, even if the child has never lived in Kashmir, but the child of a diasporic Kashmiri may not be eligible if the parent does not possess an existing certificate of residence.

▪ Only 30% of land in Kashmir is habitable and fit for cultivation. Already as admitted by the pro-India Mehbooba Mufti government – 50,000 acres, or 20,000 hectares of land are under occupation of the Indian army.391 So there is very little habitable land to go around for the new domiciles without deforestation in Kashmir. The unplanned influx of Indians has the capacity to cause irrevocable damage to the ecology and livelihood of the people of Kashmir.

▪ We see this as another step by the Indian administration to alter the demography of the disputed territory. Until now, only Kashmir’s legislature had the power to define a “resident” or “state-subject.” The Indian Constitution has no provision that authorises the central government to suspend the Constitution of Jammu & Kashmir or alter the existing state-sub- ject law, however, India has abolished the state-subject (citizenship) law in Kashmir unilaterally, thereby removing all restrictions on the purchase of immovable property and employment.

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▪ Through the Jammu and Kashmir Reorganization Order 2020, passed in March 2020, 29 state laws have been repealed and 109 have been amended to remove any restriction on the powers of the Indian government to proceed with this plan. Essentially, this order attempts to settle non-Kashmiris, families of employees of the Indian government and members of the Indian Armed Forces in the disputed territory by overriding all protections in place for the last 72 years that have guaranteed protection to land rights to Kashmiris.This is a forcible demographic change that may even violate the Ge- neva Convention.

4.0 UK and India in 2020

▪ Since the Bharatiya Janata Party (BJP) came into power in 2014, communal riots, constant dehumanization of religious and social minorities, and the imposition of Hindu culture are some of the strategies that have increased at an alarming rate, especially during local elections.392 This is a new normal in India, spearheaded by well organised groups like the RSS, VHP, Bajrang Dal, Shiv Sena and many others.393 The Freedom house394 declared Indian government as “Hindu Nationalist Government ‘’ because of the discriminatory policies towards Muslims and other minorities.

▪ In the large parts of India, unresolved, internal conflicts and border issues with neighbouring countries are a constant threat to India’s economic development. They have imposed severe risks and additional costs. Long-standing disputes like the Kashmir Conflict, insurgency movements in the North Eastern states of India, border issues with China and Nepal are increasing India’s military budget and decreasing the scope of the bureaucratic and diplomatic role.

▪ The increase in state violence to suppress the demands for autonomy, equal rights and secession is resulting in massive human rights violations. The aforementioned political and security situation of India accompanied by massive human rights violations gravely threaten the core democratic principles of the . Even the UN has highlighted these concerns in its reports on Kashmir in 2018 and 2019395.The also expressed serious questions about the human rights violations in India and its impact on regional stability.396

▪ There are reports suggesting that the British Government should maintain a good relationship with India397. The British Council published a vision 2050 document for India and the UK in 2015.398 This report outlined the nature of the UK’s bilateral relationship with India and emphasised the point that India has the potential to become a superpower in the future. That said, it is important for the UK government to review its foreign policy and reconsider its engagement with the current Indian government, whose exclusionary policies, disregard for democracy and human rights, are informed by the ideology of Hindutva399.

Recommendations

We urge you to remind India, and its supporters, of its responsibilities under the Geneva Conventions, International Human Rights Law, United Nations Convention of the Rights of Child, Convention Against Torture, Genocide Convention, Inter- national Covenant on Economic, Social and Cultural Rights, as well as United Nations International Covenant on Civil and Political Rights.

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Considering the urgency of the matter, the Foreign Affairs committee should:

● Invite experts on Jammu & Kashmir to deliberate upon the ground situation in Kashmir.

● Invite the representatives of India and Pakistan to clarify the respective state’s position and commitment towards the resolution of the conflict and uphold the right of self-determination as defined in the UN Charter.

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END NOTES

583. https://twitter.com/tkwmag/status/1278329333870809088

584. JKCCS’S Bi-annual HR Review in Kashmirhttp://jkccs.net/bi-annual-hr-review-229-killings-107-casos-55-internet-shutdowns-48-properties-de- stroyed/

585. Convention on the Rights of the Child https://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx

586. http://jkccs.net/wp-content/uploads/2018/03/2018-Impact-of-Violence-on-Children-of-JK-JKCCS.pdf 587. https://www.washingtonpost.com/opinions/global-opinions/indias-repression-in-kashmir-is-not-compatible-with-democra- cy/2019/10/13/31b5af60-eaba-11e9-9306-47cb0324fd44_story.html

588. https://www.aljazeera.com/news/2019/08/kashmir-special-status-explained-articles-370-35a-190805054643431.html

589. https://www.securitycouncilreport.org/un-documents/jammu-and-kashmir/ 590. Genocide Watch. 2019. Current Alerts Genocide Watch: India: Kashmir. Available from: https://www.genocidewatch.com/copy-of-current-geno- cide-watch-aler

591. https://www.washingtonpost.com/world/asia_pacific/indias-internet-shutdown-in-kashmir-is-now-the-longest-ever-in-a-democracy/2019/12/15/ bb0693ea-1dfc-11ea-977a-15a6710ed6da_story.html

592. The Wire. 2019. ‘Collective Punishment’: UN Experts Slam Kashmir Communication Clampdown. [Online]. [Accessed 30th October 2019]. Avail- able from: https://thewire.in/rights/collective-punishment-un-experts-slam-kashmir-communication-clampdown 593. Report by journalists-

https://freespeechcollective.in/2019/09/04/news-behind-the-barbed-wire-kashmirs-information-blockade/ ; report by activists- https://www.nchro.org/index.php/2019/08/14/kashmir-caged-a-fact-finding-report-by-jean-dreze-kavita-krishnan-maimoona-mollah- and-vimal-bhai/ Reporters Without Borders (RSF), 2019 https://rsf.org/en/news/rsf-breaks-silence-forced-journalists-indian-administeredkashmir ; Rifat Fareed, 2019. “‘We Risk Everything’: Reporting Kashmir Amid Lockdown, Harassment.” Al Jazeera, September 1,

https://www.aljazeera.com/news/2019/08/risk-reporting-kashmir-lockdown-harassment190830075931481.html ; Scroll, 2019. “Help Us Find our Jailed Editor, Kashmir News Website Appeals,” August 28,https://scroll.in/latest/935374/help-us-find-our-jailed-editor-kashmir- news-website-appeals 594. https://indianculturalforum.in/2019/08/14/kashmir-caged-a-fact-finding-report/ 595. https://www.independent.co.uk/news/world/asia/kashmir-india-death-certificates-jammu-protests-violence-modi-a9079371.html 596. https://www.aljazeera.com/news/2019/09/kashmiri-teenager-dies-pellet-tear-gas-shell-wounds-hospital-190904181621345.html 597. Vineet Khare, 2019. “Kashmir’s Crippled Courts Leave Detainees in Limbo” BBC, October 3,https://www.bbc.com/news/world-asia-in- dia-49848899 ; may also see 62 FrenyManecksha. 2019. “In Kashmir, the Justice System Is in Limbo.” The Wire, November 4.https://thewire.in/ law/kashmir-justice-system-limbo 598. Arrests include former bar council president, Nazir Ahmad Ronga, Abdul Salam Rather (President, Baramulla District Bar Association) and FayadSodagar (President, Anantnag District Bar Association). 599. http://www.barhumanrights.org.uk/wp-content/uploads/2019/11/191121-BC-and-BHRC-letter-to-Prime-Minister-of-India-re-Kashmir.pdf

600. Wire, 2019. “Over 250 Habeas Corpus Petitions in J&K High Court Since August 5,” September 20, https://thewire.in/law/over-250-habeas-cor- pus-petitions-in-jk-high-court-since-august-5

601. https://thewire.in/government/jammu-and-kashmir-detentions-parliament

602. The Telegraph. 2019. Young boys tortured in Kashmir clampdown as new figures show 13,000 teenagers arrested. Available from: https://www. telegraph.co.uk/news/2019/09/25/young-boys-tortured-kashmir-clampdown-new-figures-show-13000/

603. https://theprint.in/india/jailed-kashmiri-journalist-who-won-us-media-award-was-arrested-after-burhan-wani-profile/281597/

LETTERS, STATEMENTS & REPORTS KASHMIR READING ROOM YEARLY REPORT 2019 - 20 209

604. https://thekashmirwalla.com/2020/04/kashmiri-journalist-qazi-shibli-released-from-jail-after-nine-months/

605. https://www.aljazeera.com/news/2020/04/kashmir-journalist-charged-anti-national-social-media-posts-200420100952020.html

606. https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(19)31939-7/fulltext|

607. https://www.nytimes.com/2020/04/26/world/asia/kasmir-india-mental-health-coronavirus.html

608. https://www.nytimes.com/2020/04/26/world/asia/kasmir-india-mental-health-coronavirus.html

609. https://www.actionaidindia.org/publications/mental-health-illness-in-the-valley/

610. https://www.msfindia.in/msf-scientific-survey-45-kashmiri-population-experiencing-mental-distress/

611. https://www.aljazeera.com/news/southasia/2019/03/clashes-kashmir-teacher-dies-police-custody-190319133729126.html

612. https://www.trtworld.com/opinion/a-teacher-is-killed-in-kashmir-where-is-the-justice-25152

613. https://www.ndtv.com/india-news/army-admits-teacher-killed-by-soldiers-says-unacceptable-unjustified-1446197

614. http://www.pakistankakhudahafiz.com/india-resumes-shelling-ajk-sialkot-villages/

615. https://indianexpress.com/article/education/kashmir-unrest-education-sector-badly-affected-says-report/

616. https://www.aljazeera.com/news/2017/04/kashmir-teen-shot-dead-54-students-wounded-clashes-170415190505282.html; May also see- https:// time.com/4743988/kashmir-jammu-india-pakistan-unrest/

617. https://www.aljazeera.com/indepth/features/2016/11/burning-kashmir-schools-161102102009566.html; Also see- https://www.bbc.co.uk/news/ world-asia-india-37819842

618. https://www.aljazeera.com/news/2016/12/dead-indian-shelling-school-van-kashmir-161216132132004.html

619. https://www.outlookindia.com/website/story/pakistan-army-shelled-schools-it-is-not-something-we-would-do-says-indian-army/299788

620. https://reliefweb.int/report/pakistan/impact-explosive-violence-students-and-education-kashmir

621. https://www.firstpost.com/india/schools-in-kashmir-turn-into-armed-fortresses-as-students-watch-in-muted-horror-2980890.html

622. https://thewire.in/economy/after-august-5-kashmirs-economy-has-suffered-rs-17878-crore-in-losses)

623. https://kashmirobserver.net/2020/02/10/in-a-first-outside-companies-earn-100-percent-mining-rights-in-kashmir/

624. https://www.aljazeera.com/news/2020/04/civilians-killed-india-pakistan-trade-fire-kashmir-200412153620705.html

625. https://www.nytimes.com/2003/11/26/world/indian-and-pakistani-forces-agree-to-cease-fire-in-kashmir.html

626. https://www.usip.org/sites/default/files/PW131-Ceasefire-Violations-in-Jammu-and-Kashmir-A-Line-on-Fire.pdf

627. https://www.nytimes.com/2020/05/15/world/asia/kashmir-pakistan-shelters-assault.html

628. https://thewire.in/security/indian-army-officers-killed-china-galwan-valley

629. https://thewire.in/rights/kashmir-domicile-law

630. https://www.greaterkashmir.com/news/jammu/428000-kanal-land-under-illegal-possession-of-forces-in-jk-cm/

631. https://www.theguardian.com/world/2020/feb/20/hindu-supremacists-nationalism-tearing-india-apart-modi-bjp-rss-jnu-attack

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632. https://www.newyorker.com/news/daily-comment/has-narendra-modi-finally-gone-too-far-india-protests

633. https://freedomhouse.org/sites/default/files/2020-02/FIW_2020_REPORT_BOOKLET_Final.pdf

634. https://www.ohchr.org/Documents/Countries/IN/KashmirUpdateReport_8July2019.pdf

635. european-parliament-slams-india-over-kashmir-human-rights-violations

636. https://publications.parliament.uk/pa/cm201719/cmselect/cmfaff/1465/146511.html

637. https://www.britishcouncil.org/research-policy-insight/insight-articles/india-and-uk-2050-vision

638. https://onlinelibrary.wiley.com/doi/abs/10.1111/wusa.12318

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Part 3

UN Report

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Dossier # 1: Indian war crimes and crimes against humanity in Kashmir

Submission to the UN Human Rights Council, 44th Session

Prepared by Kashmir Reading Room

July 2020

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I. Summary

The global COVID-19 pandemic has given the Indian government an opportunity to step up its repression and abuse of the population in Indian-administered Kashmir. The disputed region has already suffered through a partial communications blockade and ban on all political activity since August 5, 2019, when India unilaterally revoked Article 370 of its Constitu- tion which gave Kashmir some limited autonomy.

This dossier places the continuing internet blockade and repression in Kashmir in the context of earlier Indian policies; blocking disaster relief efforts during major calamities like the 2005 earthquake and 2014 floods. It views the continuing human rights abuses by Indian forces in Kashmir in the context of long-term patterns of human rights violations over the decades and identifies these as gross violations of the human rights guaranteed in various human rights and humanitarian treaties including the ICCPR, Convention Against Torture (CAT), the Geneva Conventions and the Genocide Convention.

The current situation demands urgent attention. The international community must fulfill its obligations to prevent further abuses and initiate political processes to guarantee non-recurrence of the abuses. The UN Human Rights Council must bring human rights abuses in Kashmir within the framework of international human rights and humanitarian law, and as a result for demanding the right to self-determination. The HRC must make recommendations to the UN Security Council and General Assembly to urgently seek a political and mediated solution to the Kashmir conflict on the basis of the principles of justice and self-determination.

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III. Indian actions in Kashmir during the COVID-19 pandemic constitute war crimes and crimes against humanity

Despite the dangers posed by the global COVID-19 pandemic, Indian repression in Kashmir continues, as does the con- tinued ban on high speed internet, making healthcare, education and economic activity almost impossible. This is a con- tinuation of long-standing Indian policies which have blocked relief efforts during major natural disasters despite the near absence of relief efforts from official sources. From the 2005 earthquake and the catastrophic 2014 floods, it has always been difficult for the people of Kashmir to deal with the destruction caused by natural calamities in addition to conflict. The massive Indian military presence has always delayed relief efforts, making it clear that its presence is used only to further subjugate the population. 400

In the current crisis, local NGOs are trying their best to provide some relief to people in distress. However, structural and invisible constraints on movements in addition to physical barriers are affecting the efforts to provide relief supplies to vulnerable families. So-called ‘Red Zones’ demarcated by the Indian administration have been isolated using permanent barricades to block access. The barriers have prevented medical and other emergency services from reaching those inside these areas, as was seen in a recent house fire in a Srinagar neighborhood.

The people of Kashmir have seen widespread and systematic violations of human rights for the last three decades. The Human rights violations are properly documented by various local, regional and international NGOs including the recent reports by Office of the High Commissioner for Human Rights (OHCHR) in 2018 and 2019401. These include collective imprisonment, enduring impunity laws, sexualized violence, enforced disappearances, displacement, torture, extrajudicial executions, juvenile detentions and the burial of civilians in unknown and mass graves in the mountain areas of Kashmir.

The unilateral amendment of Article 370, by India’s Hindu right-wing ruling Bharatiya Janata Party (BJP) on August 5, 2019 was accompanied by increased repression and communication blackout in Kashmir. Following the abrogation of Ar- ticle 370, India has introduced a new domicile law aimed at changing the demographic balance of the region402. The impact of the post-August 5th lockdown has been documented by numerous human rights groups403. Due to continuing internet lockdown, more than eight million Kashmiri people are unable to use the internet to get reliable information about the coronavirus pandemic, attend classes online or work from home404. Despite calls from the UN Secretary General to cease or suspend conflicts during the pandemic, India and Pakistan continued shelling across the Line of Control, killing and injuring civilians.405

Taken altogether, these actions constitute grave violations of the Geneva Conventions, specifically Convention (IV) rela- tive to the Protection of Civilian Persons in Time of War. These acts of commission and omission are part of the long-term patterns of human rights abuses by Indian forces in Kashmir, violating international treaties including the International Covenant on Civil and Political Rights (ICCPR), United Nations Convention against Torture (UNCAT) and the Genocide Convention.

The scale and continuity of the violations underscore the urgency of holding Indian military rule in Kashmir accountable un- der international human rights and humanitarian law. There are few mechanisms for accountability under international law, but there are some important precedents. International criminal tribunals and civil and criminal prosecutions under universal jurisdiction have been used to bring human rights abusers from around the world to justice. As a signatory to the Geneva Conventions and the Genocide Convention, India falls under the jurisdiction of the International Court of Justice. Under the Genocide Convention, member states have the duty to prevent and stop the crime of genocide and to punish the perpetrators.

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IV. Violations of international human rights and humanitarian laws

The actions by the Indian government in Kashmir listed below in the Dossier - and many others which cannot be listed here due to lack of space - violate international human rights and humanitarian laws and treaties. These violations include the following.

1. Violation of the International Covenant on Civil and Political Rights (ICCPR)

Indian actions in Kashmir are in violation of the following rights and freedoms, inter alia, guaranteed by the ICCPR406.

●

● Article 1: The right to self-determination

The people of Jammu & Kashmir have not been given any opportunity to determine their own future. Successive elections have been held in India and Pakistan administered Jammu and Kashmir, however, these elections are meant for local gover- nance and municipal issues. They do not replace the right to self-determination to establish if the region wants to join India, Pakistan or remain independent.

● Article 2: The right to a remedy in law

India has a fully functioning structure of courts; however, the courts are unable to discharge their duty to dispense justice in the case of Kashmir. The Armed Forces Special Powers Act, despite being called draconian and colonial, has never been repealed. The courts also fail to hold the government accountable. Take for example the petitions challenging the consti- tutionality of orders passed by the Indian government against communication ban in Kashmir, as discussed in this report. Instead of ruling on their constitutionality or unconstitutionality, the Supreme Court, after 4 months of deliberation while the communication ban continued,407 merely asked the Indian government to examine the order while passing no adverse remark against the non-application of mind in those orders.408 Cases of human rights violations like rape, torture, harassment have gone unpunished. Despite the overwhelming human toll taken by the conflict and the ensuing human rights violations, there is hardly anyone from the Indian Armed forces that is serving a jail sentence for crimes committed in Kashmir. As such, the people of Kashmir do not have a right to a remedy in law.

● Article 4: No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed”.

● Article 7: The prohibition of torture

As detailed in this report, Kashmiris are subject to torture with impunity by the Indian Armed forces. The continued deten- tion of Kashmiri prisoners in undisclosed locations is a cause for major concern especially during the Covid-19 pandemic outbreak. Kashmiris accuse forces of resorting to violence and intimidation during night-time raids amid ongoing lock- down.409 This torture often leads to murder, corporal punishment, mutilation and sexual abuse in Kashmir.410

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● Article 8: paragraph 3a: The prohibition on forced labor

In Kashmir a phenomenon known as “begair” goes back many years and is well documented411- the Indian army often takes young men to perform labour and construction work for the army.412 This is done with intimidation and fear of physical assault. The men are not paid for this work. They are also sometimes used as human shields by the Indian military. Slavery and servitude are prohibited even under article 4 of the European Convention on Human Rights. These practices in Kashmir are a clear violation of the same.

● Article 9: The prohibition on arbitrary arrest and detention

As detailed in this report, arbitrary arrests and detention are the norm in Kashmir. Young boys and men are often held under illegal detention either in the nearby army camp or at the police station. Most of the times the arbitrary arrests happen during the night raids, where the army picks up a few boys and takes them to the nearby Joint Interrogation Camps (JIC) for “ques- tioning.”413 In the first month alone, the authorities have reportedly detained nearly 4,000 people414, including supporters of political parties, separatist leaders, lawyers415 and journalists.416

● Article 10: The right of detained persons to be treated with dignity and humanity

Amnesty International has documented a clear pattern of the Indian authorities arbitrarily detained activists, politicians and even children if they are thought to hold dissenting opinions.417 There is a pattern of the authorities using excessive force and intimidation. Almost every detained person interviewed by Amnesty described being beaten and threatened, with several of these cases amounting to torture or other cruel, inhuman and degrading treatment. There have been serious allegations of torture and beatings. Many detainees have not been allowed to contact their families or lawyers.418

● Article 12: Right to liberty of movement

Arbitrary curfews and checkpoints severely curtail freedom of movement, preventing people from going to work, seeking medical treatment and carrying out essential and urgent tasks. The arbitrary checks to liberty of movement also apply to emergency services like ambulances and fire brigades, causing hardship and loss of life and property.

● Article 14: The right to a fair and public trial

Anyone who has been detained in Kashmir without evidence of a crime should be immediately and unconditionally re- leased. However, hardly any of the 500 Habeas Corpus cases filed since August 5, 2019, have been resolved by the court. It has now been 11 months since then.419 In a letter sent to the Chief Justice of India, the Jammu & Kashmir Bar association informed that almost 13,000 people from Kashmir have been arrested under J&K Criminal Procedure Code and hundreds booked under PSA after 5 August 2019.420

● Article 18: Right to freedom of thought, conscience and religion

Eid ul Adha was celebrated soon after August 5, 2019 but amidst the lockdown, Kashmiris were not allowed to offer prayers. Police cars were patrolling ordering people to stay indoors. Due to the restrictions after annexation, no Friday prayers were held in over 4 months in Kashmir’s largest mosque.421

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● Article 19: Right to freedom of expression

For months after August 5, Indian government blocked422 all mobile services, landlines and the internet in Jammu and Kash- mir, making it impossible for Kashmiris to communicate with each other and the outside world.423 David Kaye, the U.N. Special Rapporteur on Freedom of Opinion and Expression, also commented that the communication blackout is a ‘dispro- portionate’ interference with the rights of Kashmiris.424To date, 4G internet services are banned in Kashmir by the Indian government, causing severe harm to the economy and education, and hampering medical efforts during the pandemic.

● Article 21: Right to peaceful assembly and Article 22: Right to freedom of association

Any criticism of the government can draw penal rebuke, including sedition allegations, which can stifle peaceful dissent.425 India has imposed restrictions on assembly and association in Kashmir in the name of maintaining order, however, months of a broad-based clampdown on civil liberties cannot be justified by vague claims of maintaining order.426

● Article 25: The right to participate in public affairs

As detailed in this report, Kashmiris have been denied any participation in public affairs due to the restrictions and penal- ization of such participation. The right to participate in public affairs, is codified in international law in article 21 of the Universal Declaration of Human Rights (UDHR), article 25 of the International Covenant on Civil and Political Rights (IC- CPR), as well as in articles of other international treaties such as the Convention on the Elimination of all forms of Discrim- ination Against Women (CEDAW), the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), and the Convention on the Rights of Persons with Disabilities (CRPD). These articles lay out the key elements of the right to participate in public affairs, including not only those relevant to genuine elections, but also to the myriad of other ways that citizens can and should participate in the governance of their country.

Article 25 of the ICCPR codifies the right to participate in public affairs.

This article was further elaborated by the Human Rights Committee in General Comment 25, where they took a broad inter- pretation of the right to participate in public affairs, to include the right of citizens to participate:

• Directly by voting in referendum, by being elected, or presumably by participating in other means of direct democracy (no such referenda have been accorded to the Kashmiris).

• Through freely chosen representatives that are elected according to international election obligations and standards (elec- tions in Kashmir do not meet international election obligations).

• Through consultative processes (no consultation with Kashmiris took place in the last year).

• Through debate and dialogue (no space has been granted to Kashmiris for any debate and dialogue on the changes taking place).

• Individually and with others and

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• By establishing and joining organizations, including civil society organizations, unions and political parties; and through equal access to public service positions, including employment in public positions.

As this report will elaborate, none of these criteria has been met in the case of India’s actions in Kashmir over the last one year.

2. Violations of the Geneva Conventions of 1949

● The actions of the Indian government in Kashmir described here constitute violations of the Geneva Conventions of 1949, specifically Common Article 3 which extends the Conventions to non-international armed conflicts, and the 4th Geneva Convention which protects civilians in war time.

● Specifically, Common Article 3427 establishes fundamental rules which are non-derogable and which require humane treatment for all persons in enemy hands. It prohibits murder, mutilation, torture, cruel, humiliating and degrading treatment, extrajudicial executions, the taking of hostages and unfair trial. It also requires care of the wounded and sick. The Fourth Geneva Convention also prohibits attacks on hospitals and medical personnel, collective punishment and intimidation, and depriving the population of food, medicines and essential supplies.

● All parties to the Convention have the obligation to seek out and punish those committing grave breaches of the Con- ventions. No party to the Conventions may absolve itself of grave breaches.

3. Violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Con- vention)

The actions by the Government of India, described below, are violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the “Génocide Convention”).

Article II of the Genocide Convention defines the crime of genocide428:

“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”

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Articles III and IV define the crimes relating to genocide that are punishable as well as the punishment of individuals re- sponsible for the crime.

● Article III

The following acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide; (e) Complicity in genocide.

● Article IV

“Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are consti- tutionally responsible rulers, public officials or private individuals.”

The Genocide Convention also enjoins State Parties to prevent and to punish the crime of genocide, including by creating appropriate international criminal tribunals. Further, Article VIII enjoins States Parties to “call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the pre- vention and suppression of acts of genocide or any of the other acts enumerated in article III.”

● Kashmiri Muslims subjected to the crimes of genocide by Indian forces :

The 2019 report by the UN OHCHR on Kashmir recognizes Kashmiris and especially Kashmiri Muslims as a distinct na- tional/ethnic/religious group. Kashmiri Muslims have been subjected by Indian forces to crimes of genocide, on account of their membership in this group, with the intention to destroy the group in whole or in part.

● India has violated the Genocide Convention through the following actions, inter alia: a. Killing Kashmiris b. Rape and other forms of sexual violence on women and girls c. Torture, beatings and other forms of cruel treatment d. Causing serious bodily and mental harm to Kashmiri Muslims e. Deliberate destruction and denial of access to food, shelter, harvests, and other essentials of life in a manner that is cal- culated to destroy the group in whole or in part

In the absence of any international criminal tribunal with jurisdiction over individuals associated with the acts of genocide described below, it is the responsibility of the UN Human Rights Council to create appropriate juridical mechanisms to stop the crimes of genocide and to punish the perpetrators.

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4. Violations of the Convention Against Torture (CAT)

● The section below highlights how the Indian state’s actions since 1989 and especially from March 2020 onwards have violated the provisions of CAT. CAT itself is an agreement by all signatories including India to ensure non-employment of torture and other cruel, inhuman or degrading treatment or punishment by signatory countries. These events are not unique and must be seen in context within the broader history of Indian state’s use of torture in Jammu & Kashmir429.

● The continued detention of Kashmiri prisoners in undisclosed location is a cause for major concern especially during the Covid-19 pandemic outbreak. The information has been provided about the location or condition of these prisoners after a long time and much tedious process. There has been a demand for release of all Kashmiri prisoners - including children.430 431

● Further, the harassment of doctors432 and journalists433 during the Covid-19 pandemic directly violates Article 1 of CAT which defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the insti- gation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”. There have been multiple records of harassment of medical staff.

Defnition war crimes under the Rome Statute of the International Criminal Court .5

While India is not a signatory to the International Criminal Court (ICC), the definitions of war crimes and crimes against humanity in the Rome Statute establishing the Court have become part of customary international law and are binding on all member states of the international community434.

The definition of crimes against humanity in Article 7:

(b) “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;...

(e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;...

(g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;...

(i) “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

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V. The problem of impunity

Indian forces in Kashmir operate under laws that give them impunity from prosecution for violations of human rights. The Armed Forces Special Powers Act (AFSPA) has been in effect in Kashmir since 1989 and the 2019 UN OHCHR notes that it is:

“...remains a key obstacle to accountability. Section 7 of the AFSPA prohibits the prosecution of security forces personnel unless the Government of India grants a prior permission or “sanction” to prosecute. In nearly three decades that the law has been in force in Jammu and Kashmir, there has not been a single prosecution of armed forces personnel granted by the central government. The Indian Army has also been resisting efforts to release details of trials conducted by military courts where soldiers were initially found guilty but later acquitted and released by a higher military tribunal.”435

A history of impunity is one of the key indicators for continuing human rights violations, and this has been proven true in the case of Kashmir. The escalating abuses are a direct consequence of this impunity as well the failure of the international community to hold India accountable for its record of human rights abuses in Kashmir.

VI. Actions required by the UN Human Rights Council

In the absence of any functional justice mechanisms in Kashmir and the lack of redressal for massive and continuing viola- tions of human rights, it is the duty and responsibility of the international community to create international justice mecha- nisms to address grave human rights violations in Kashmir.

Given the urgency of the situation, we recommend that that Human Rights Council takes the following steps:

1. Address human rights violations and crimes against humanity by Indian forces in Kashmir. These should include viola- tions committed since the start of the armed conflict in 1989.436

2. Appoint a Special Rapporteur on Kashmir

3. Allow free and full access to all UN Special Procedures mandate holders to examine and monitor allegations of human rights abuses

4. Use all available documentation to educate the international community through UN bodies like HRC, the Security Council, General Assembly and OHCHR about the grave and continuing violations of human rights and humanitarian by India in Kashmir and remind member states of their obligation under the Genocide Convention to stop or prevent genocide.

5. Request an Advisory opinion from the International Court of Justice (ICJ) whether abuses by Indian military personnel meet the legal definition of crimes against humanity and what measures the international community should take in this regard.

6. Request the UN Security Council to take up the urgent task of seeking a peaceful and negotiated settlement of the Kash- mir conflict based on the right of self-determination.

7. Ensure the safety of human rights defenders, journalists, medical personnel and others documenting abuses and provid- ing aid to the victims in Kashmir.

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VII. Dossier

1. Censorship: attacks on the freedom of the press and persecution of journalists

● Threats to Kashmiri journalists have been listed among top ten threats to free press in the world by Time magazine.437 There have been numerous attempts to muzzle freedom of the press including charging journalists with terrorism for reporting on the developments in Kashmir. Two laws, in particular, are used to this end.

● The first is the UAPA (Unlawful Activities Prevention Act) under which dissenting individuals can be declared terrorists without trial for up to 2 years. The law was originally intended for acts of terrorism but in its current form and imple- mentation, it allows for arrest and custody of people who are protesting the policies of the government, without having to substantiate any allegations. The final adjudication of guilt or innocence is years away, but in the meantime, long incarceration, lack of procedural rights such as bail, and the ignominy of being branded a terrorist, effectively punish a person through the process itself.

● Three journalists have been booked under UAPA in the last month. Under this law, journalist Aasif Sultan has been wrongfully imprisoned since August 2018, for reporting on rebels in Kashmir. Last month three journalists were charged under the same law - Masrat Zahra, Gowhar Geelani and Peerzada Ashiq in April 2020.438 There are many journalists that have faced similar harassment in the past such as Kamran Javed, Asif Sultan, Aqib Ahmad.439 The Kashmir Working Journalist Association, International Federation of Journalists (IFJ) as well as its affiliate the Indian Journalist Union (IJU) have widely condemned these actions.440

● The Public Safety Act is another law that is abused by the authorities to keep Kashmiris in administrative detention with no recourse to lawyers. This law was originally intended to curb timber smuggling, but it is now deployed in Kashmir to keep people out of circulation. Journalist Qazi Shibli was arrested under the Public Safety Act and lodged in jail for 9 months, thousands of miles from home till his release on 13 April 2020.441

● Journalists in Jammu & Kashmir are routinely assaulted, offended and summoned for doing their job as reporters.442

2. Communication Blockade : collective punishment

● Immediately before the amendment of Article 370, on 5th August 2019, the entire state was put under an indefinite cur- few and a complete communication blockade was imposed. The internet blackout imposed has been the longest in the history of any democracy443 which began on 5th August 2019. Even as this report is being written, the internet restric- tions continue though 2G internet has been permitted since February 2020.

● Experts from the United Nations have described the communication blackout, which has been in place for 9 months, as a form “of collective punishment for the people of Jammu and Kashmir, without even a pretext of a precipitating offence.”444 Patients have been denied medical care, children have been detained and tortured, women have been ha- rassed and sexually assaulted and there has been a tremendous increase in mental health deterioration amongst Kashmiri people445.

● The Supreme Court of India has ruled against restoration of normal communication and high-speed internet in Jammu & Kashmir despite the reckless action of the Government of India being in violation of fundamental rights guaranteed by the Indian Constitution and Article 25 of the Universal Declaration of Human Rights. In 1979, India ratified the Inter- national Covenant on Civil and Political Rights, which sets forth internationally recognised standards for the protection of freedom of expression.

● In 2016, at the 32nd session of the United Nations General Assembly, a resolution was passed condemning shutdowns that blocked online access and/or dissemination of information. UN representatives have made statements in the last few months reminding India that these communication blockades are a violation of Article 19 of the Universal Declaration of Human Rights.

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3. Censorship and physical attacks on medical personnel

On multiple occasions during the COVID pandemic, doctors have been arrested and assaulted by Indian soldiers present in Kashmir. On June 3, 2020, a renowned epidemiologist was physically assaulted by Indian armed forces personnel in Cha- doora town of Central Kashmir’s Budgam district.446 Another doctor suffered severe bone injuries in a similar assault and is admitted at District Hospital Budgam.447 In his statement, he has alleged that despite revealing his identity he “was hit with batons, dragged on the road, kicked in my chest by armed forces.”

4. Permanent barricades and continuing lockdown despite easing of restrictions in India

The Indian government has created permanent barricades by digging up roads and installing iron-barricades around local- ities in Kashmir, preventing any free movement of essentials.448 As a result people in need of emergency assistance during an outbreak of fire have not been able to receive timely assistance.449 In one case, a house was burned down because the fire tenders could not reach in time to douse the flames450

5. Use of Excessive Force against Civilians

● Indian forces continue to cause severe bodily harm to Kashmiris through multiple and continuing acts of violence.

● In 2017, Amnesty International highlighted 88 cases that illustrated how pellet firing shotguns are inherently inaccu- rate weapons and should not be used for crowd control. In 2020, pellet guns are still being used by law enforcement in Kashmir.451 On June 2, 2020 a 9-year old child was blinded by pellet guns fired by Indian forces.452 These weapons are increasingly used in Kashmir with no directions from the court to exercise restraint453.

● Multiple fact finding teams have revealed a grim and despairing picture of the media in Kashmir.454 The common strat- egies to stifle dissent include surveillance, informal ‘investigations’ and even arrest of journalists who publish reports considered adverse to the government or security forces; controls on the facilities available for print publication; gov- ernment advertising limited to select publications; restrictions on mobility in select areas (including hospitals) and the most crippling communications shutdown of all time.455

6. New domicile law promulgated by India to change the demographic character of the disputed territory of Jammu and Kashmir

Pursuant to a unilateral annexation of Jammu & Kashmir, the Indian government announced the rules for domiciles in Kash- mir that have caused a fear of demographic change in Kashmir.456 These rules create a new class of citizens who are now eligible for domicile certificates that is mandatory for admission in schools, it enables them to purchase land and get em- ployment opportunities in Jammu and Kashmir. Indian citizens are now eligible for domicile of Jammu and Kashmir; who

(a) have resided in Jammu & Kashmir for a period of 15 years, or

(b) have studied in Jammu & Kashmir for a period of 7 years, or

(c) have parents who have served in Jammu & Kashmir for 10 years

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Effect of the Domicile Law

1.Prior to the “Jammu & Kashmir Reorganization Order 2020” a total of 4.8 lakh Grade A to D government jobs were avail- able only for domiciles but the new arrangement opens the field for anyone that meets the criteria without taking the consent of the people of Kashmir. The 2016 Economic Survey Report had pegged 25% of Jammu &Kashmir’s population between 18 and 29 as unemployed. The new changes are set to increase the levels of unemployment.

2.Further, only 30% of land in Kashmir is habitable and fit for cultivation. Already as admitted by the MehboobaMufit government – 4 lakh kanals, or 50,000 acres, or 20,000 hectares of land are under occupation of the Indian army. So, there is very little habitable land to go around for the new domiciles without deforestation in Kashmir. The unplanned influx of Indians can cause an irreparable impact on the ecology and livelihood of the people of Kashmir.

3. This is a forcible demographic change, of a disputed territory, in violation of established international law, in particular Article 49 of the 4th Geneva Convention.

7. Continued deprivation of the right to education

● In Kashmir, school children have barely gone to school for the last nine months since August 5. 2019.457There are also many reported cases of teachers, professors, academics and other members of the educational community being taken prisoner, held in captivity, beaten and tortured and killed in custody by the Indian armed forces.458 The report from TRT world highlights how earlier in 2019, a chemistry teacher was killed in police custody.459 The report460 from NDTV, an Indian TV channel, reports how the Indian army admitted to the killing of another teacher in 2016 after he was picked up in an overnight raid.

● Schools are regularly within the line of fire by paramilitary even in Srinagar, where often teargas shells are fired into schools and in the schools near the LOC, live ammunition often finds its way in. In 2014, heavy shelling by Indian forces on the Sialkot border villages in Charwar sector caused 120 government schools to shut and caused heightened levels of fear and distress for local communities.461

● An Economic Survey 2017, released by the Chief Economic Advisor of India reported that due to nearly 150 days of forced closure of schools in 2016, students from class 1 to class 9 had to be given mass promotion without exams. Af- ter each incident of disturbance, schools and colleges remain shut for months. This has been the case since 2008 when almost every year schools are closed indefinitely. In 2016 schooling for the whole year was conducted only for a total of 3-4 months.462

● The paramilitary forces are routinely accused of directing tear-gas shells into schools and hospitals which there are chil- dren inside.463 Both schools and universities are damaged. In addition, there have been many attacks of arson on schools and the government is unable to identify who perpetrated the attacks. In 2016 alone, 32 school buildings were burned down by unknown people. Either the Government of India is incompetent, or they are complicit. Here are some reports by BBC and Aljazeera that covered this incident.464

● In 2016, shelling across the border led to closure of 25 girls’ and 34 boys’ schools. On December 16th, 2016, a school van was hit by shelling, killing the driver and wounding eight children.465 On 25th July, 2017, a school building in Poonch was heavily damaged due to shelling. The week before, 25 schools closed466 due to ceasefire violations.467 Due to continued disruption in communication since August, students have suffered continued loss of education. All public life has been suspended since 5th August 2019. As such, there are no opportunities for children to pursue their education. Just like in 2016, tuition centres, schools, universities are all shut, and, in many cases, the educational buildings are taken over by the security forces.468

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8. Deliberate destruction of homes by the army in gun battles with militants and during the search operations

● According to Articles 50, 51 and 147 of the Geneva Convention I, II and IV, “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” are grave breaches.

● Broken window panes are one common sight across the valley, every person fact finding teams have met blamed the armed forces for this. In village after village, locality after locality, we heard the anger and anguish in voices of people as they related the manner in which the armed forces threw stones and broke window panes and damaged vehicles parked outside their houses.469 Additionally, some houses are also set on fire.470

● In some instances, they narrated how the armed forces stormed into the houses and vandalized it by breaking TVs, re- frigerators and mobiles and destroying their food grains. In colony after colony in Srinagar, when we visited people’s homes we were taken through the house by the women and showed the extensive damage and loss caused to them

● In the Quimoh region of Kulgam we saw houses and vehicles that were damaged reportedly by the armed forces and that they also threw out the refrigerator, TV set and other items from the houses and broke them in public view, causing fear and panic among the villagers. One person commented that, “the army had been doing all it can to terrorize the people”.471

Testimonies:

Witness 1: The woman in one of the homes told us that the CRPF and the J&K police had come into the house, broken win- dow glasses, opened their refrigerator and discarded all the food out including the meat from the goat sacrifice made during Bakri Eid. She said “about 8 - 10 of them came in and pulled out everything, opened the cupboard and tore the clothes. They mixed salt and turmeric powder, threw oil on the floor and damaged vessels. They even broke the new LED TV and the washing machine”. She told us how she sold her gold earrings to buy a new TV. It is not merely the damage of the property and the resultant financial burden on the family, but it surely causes a lot of mental trauma to recover from. Her husband told us that, “The earlier Deputy Superintendent of Police (DSP) was a good person, when the boys were about to pelt stones he personally spoke to the boys and dissuaded them from pelting stones. Hence, there was no pelting in the locality, peace was maintained. However, after the amendment of Article 370 there were some minor incidents of stone pelting and the DSP responded in an aggressive and violent way.

Witness 2: A woman from a neighborhood in Srinagar informed us about damages of property and sexual assault. The armed forces entered and ransacked her house. They physically assaulted her and pulled her dupatta (scarf) from her head.

9. Refusal by army to return bodies of those killed, whether militants or civilians, to families

● In the past the bodies of Kashmir’s young rebels would be handed over to their families once they were killed by the Indian army, they are now brought to Srinagar, sampled for DNA, and buried in secret.472 The Indian government claims this is being done to maintain social distancing norms during the pandemic; that large funerals might spread the virus. Yet even those families that want to bury their boys quietly are told the same.473 It is alleged that the real reason was never COVID-19.

● This treatment is not just for rebels, but it is also being meted out to civilians as well. In Handwara, the body of a 14-year-old boy was not handed over to his family after he had been killed by the Indian army.474 He was buried in se- cret, 30km from his village.

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● Reports indicate that loss of life, on the scale seen in 2016, has been prevented. However, as indicated in this report by the Independent,475 it is important to note that Indian officials have not been issuing death certificates and so the veri- fication of any numbers of dead is not possible.476 In August last year, a 16-year-old student of class 11, passed away. Indian security forces recorded that the cause of death was an injury by a stone. However, medical reports indicate that he had suffered multiple pellet-gun wounds and a skull injury.477 The boy’s family stated that Indian security forces did not allow his body to be buried in their family graveyard.

10. Arbitrary arrests, illegal detentions and political prisoners

● The legal system has been crippled with the arrest of hundreds of lawyers by the Indian government in contravention of United Nations Basic Principles of the Role of Lawyers. Hundreds of Kashmiri lawyers have been arrested including the President of the High Court Bar Association of Jammu and Kashmir, Mian Abdul Qayoom. There is no charge against him and yet the High Court rejected his petition based on his “ideological differences” with India’s ruling government.

● In this regard, Chair of the Bar Council, Richard Atkins QC, and Chair of the Bar Human Rights Committee of England and Wales, Schona Jolly QC, wrote to India’s Prime Minister expressing serious concern over the effective suspension of Habeas Corpus.

● In November 2019, the Centre informed the upper house of the Indian Parliament that a total of 5151 people had been detained since August 16. Whereas other reports indicate a detention of around 13,000 boys, some as young as the age of 14.

● Arbitrary arrests and detentions are normal illegal practices of Indian forces. In every village we went to, we were in- formed by young boys and men from that village, being held under illegal detention either in the nearby army camp or at the police station. Most of the times the arbitrary arrests happen during the night raids, where the army picks up a few boys and take them to the nearby Joint Interrogation Camps (JIC) for “questioning”

● Case 1: In one of the villages, 5 – 8 men were picked up by the Rashtriya Rifles (RR), South Order at 11.30 p.m. follow- ing night raids. Two of the men were present at our meeting. Their family runs a bakery, which was shut due to the hartal and threats from the army.The men informed that they were not even part of any protest or any incidents of stone pelting and were yet targeted. They informed that the RR arbitrarily conducted night raids at their homes and dragged them out. The mother of the men said that her husband was beaten when he tried to follow them out. He pleaded and tried to stop them. He was told he would be killed if he came after them. She said the RR officials were drunk and ruthlessly beat her sons. When the wife of one of the men begged the officials to let him go, the officials threatened to shoot her.

● We learnt from the various conversations that the family members of the persons in the illegal custody, often run be- tween the army camps in the area and the police station in search of them. This is the worst time for the family especially since they are unaware of the whereabouts of the missing persons, and there is no legal recourse whatsoever or no way of seeking help from family members given the communication blockade. For those family members at home, this time when the others are searching for those illegally detained is the most anxious time since they constantly fear that even they too would be arrested and tortured.

● Those picked up are illegally kept in the camps of the armed forces for one night or days on end as per the whims and fancies of the armed forces during which time they are subject to torture and humiliation. They are also compelled to do forced labor in the camp.

● After the armed forces are done with him, they are released to the police who keep them in the police lockup for days on end. Once they reach the police station, it is the turn of the police to terrorize, intimidate and humiliate those detained. The police make monetary demands from the family members to release those arrested. These amounts range from Rs. 20,000/- and Rs. 30,000/-. Depending on the police cases are filed against those arrested including fixing them in old cases where there are open First Information Reports (FIRs)

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● Case 2: We met with the families of the 4 young men who were in the TADA Court when we visited and asked them the details of the incident leading to the arrest of these young men. We were informed that they were picked up during a night raid in their village during which the women and girls were molested and sexually abused.

● The boys were illegally held in the nearby Army camp where they were tortured and then taken to the police station. The family members were thereafter informed that it was an old case of stone pelting and that serious provisions of UAPA had been invoked. During this entire time the family members were unaware of their whereabouts.

● They were extremely heartbroken about the manner in which the young boys were tortured and humiliated. They were distressed because of the immense hardships heaped on them post August 5, 2019. They are unable to contact anyone since there is no landline in their village and are scared to let their families out of sight also due to the possibility of arbitrary arrests and detentions. They have been trying to get them out on bail, ever since they learnt the whereabouts of their boys. However, they couldn’t succeed.

● People were particularly angry and anguished with the decision to incarcerate detainees outside the State. Family mem- bers of detainees explained the impossibility of traveling to unknown cities in unknown States to try and meet those detained in a prison system that they had no access to. They were also scared about their own safety in making these trips, saying “aap keya haan to lynch mob hai” (there are lynch mobs operating in India).

● This is outside of the huge financial implications involved in accessing the judiciary to secure the release of their loved ones and the huge travel and stay expenses especially now when there is no livelihood. a. Community bonds as another form of collective punishment

● A new practice of community bonds has been introduced along with the illegal detentions. Many are detained and re- leased after a few days (1 day to 15 days) after obtaining community bonds before the Superintendent of Police (SP). The SP demands that 50-60 residents from the community appear before him (called “Mulakkat”) and take responsibil- ity that the detainees shall not participate in any protest and to maintain peace in the area. Earlier J&K police used to be in charge of law and order but this time the CRPF has taken over. They pick up youth and detain them without producing them before a magistrate. In some cases, in the villages of Shopian, in addition to community bonds, individual bonds before magistrates were also taken from those detained.

● Newspapers have reported that a 11-year-old was illegally picked-up under section 107, J&K Criminal Procedure Code 1989 (which permits preventive detention), on August 5, 2019 while a 9-year-old and an 11-year-old were picked up on August 7, 2019 from Batamaloo478. These were not stray incidents and we learnt it was the normal practice for young boys to be picked up and thereafter released after community bonds were secured from the villagers and local commit- tees. Newspaper reports are replete with details of instances of violence on children during this period.

● During our visit we learnt that scores of men and young boys have been arbitrarily picked up in village after village under the guise of proceedings under section 107/151 of the Jammu and Kashmir Code of Criminal Procedure, 1989479. People informed that in most villages there were arrests under section 107/151 CrPC, and the local Auqaf committee480 was forced to give community bonds to the Tahsildar to get the arrested boys released. There is no notion of community bonds in law and in fact it amounts to collective punishment. It is a practice that has emerged with the complete involve- ment of the top police leadership.

● Dilbag Singh, the Jammu and Kashmir Director General of Police, in an interview with Indian Express110 admits the use of community bonds and proudly claims that “… In some 300 cases, we have used community bonds to pick up and then release stone-pelters in Srinagar alone481. And if 10 people come to seek release of 10 people per case, we have successfully engaged 3,000 people. They are released the same day…” b. Open FIRs: In Kulgam, we learned about another practice. A few lawyers informed us that there have been no stone pelting incidents since August 5, 2019, yet boys are picked up on the basis of criminal cases registered with regard to incidents of stone pelting last year on the basis of “open FIRs”.

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Testimony: One Advocate narrated to us the case of one family that had come to him that day for preparing an Affidavit cum undertaking / bond for a young boy detained on the charge of stone pelting. The family informed him that the DSP has demanded a bribe of Rs. 50,000 along with an affidavit cum undertaking from the brother that the detainee will not indulge in stone pelting. The lawyer said that the police had been using old open FIRs of stone pelting to arbitrarily arrest youth instead of filing new FIRs. However, in some cases new FIRs are also being filed. c. In-lieu arrests: We heard that one of the accepted practices is the arrest of any male family member in lieu of a person whom the armed forces are looking for, until the required person turns themselves in. Sometimes, when the army does not find anybody who it is specifically looking for, it picks up other members of the family. They specifically pick up the brothers or the father.

● They take them to the army camp, tortures them for a few days, and then release them with the threat that if the sought for member is not given up to them, then the entire family would be picked up and tortured again. Every single village and locality we visited had such a tale to tell.

● Case 3 : In a colony in Srinagar we met with a family where a Owais, 19-year old, accused of stone pelting, has been detained under PSA and transferred to Agra while others were arrested and spent illegal time in the police lock-ups while the police searched for Owais. On August 9, 2019, around 5.00 p.m. when a raid was conducted by J&K police in the area after incidents of stone pelting took place earlier, the same day. DSP Furqan and SHO. Adil along with police and STF teams entered their house and asked the family if Owais was at home. However, Mir had gone out with local friends to play cricket. One of the policemen tried to hit Mir’s sister, cursed her and broke windows of their houses. His brother- in-law, Ghulam was arrested instead of Owais and kept in detention in Police Post till August 10, 2019 evening and then released.

● Case 4: In a village in Kulgam we met with a man, who was just released after 15 days of illegal detention. The man informed us that he had been released at 9.30 p.m. the previous night after 15 days of detention. He recalled that ill-fated day and shared his memories with us. Earlier on the day when he was picked up, his son was sitting with 5 - 6 boys on the road, when they sighted an approaching army truck. Since there had been earlier instances when the army would come into the village and shower pellets on groups of people on the road, the boys got scared and quickly started dis- persing.

● While running away from the site, his son’s phone fell on the ground. He did not realize until he was nearing home. He informed his father as soon as he reached home. Later, the boy left for Srinagar along with his ailing mother, for her treatment. Soon, the man realized that the army may have found the phone and they would soon arrive to question his son. He went to his neighbors and asked him to accompany him to the police station to inform them that his son had dropped the phone. However, the neighbors were scared due to the daily crackdown by the army and not wanting to risk their safety, they refused to come. Ultimately, he went to the Nambardar, who told him that since it was late in the evening, he would accompany him next morning to the police station. Thus, he went home.

● At midnight, the STF and army arrived in the night at their home. They had the phone with them and asked him if it belonged to his son. He said yes it was his son’s and explained that he had dropped it while running because he was scared. They asked for his son. He told them he had gone to Srinagar with his mother and would return shortly. When he comes back; I will bring him to collect the phone. However, the army was not willing to listen and entered the house and started breaking things.

● They dragged him out of the house, hitting him along the way and dropped a tear gas before leaving the house and locked the door from outside. His mother, daughter and other women and children of the family were in the house. They started feeling unconscious because of tear gas. His daughter cried for help from the window. His mother even fainted a couple of times and had to be taken out from the window. It is only after the army left that some neighbors came and opened the door. The man showed us the burn marks where the tear gas was dropped in his house and the broken win- dows.

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● His grandson has had to be taken to the hospital 352 times since the incident. He on the other hand was dragged for ½ km before being put in the van and taken to the camp. He was tortured and kept there for the night and then taken to the local police station (Wanpu Police Station). He was kept in the lockup for 15 days and released only on the condition that he would produce his son within the next 3 days or else they would return on the 3rd day and destroy the house and wipe out his family.

● He was devastated and crying while talking to the team. He said he had to make a decision in the next 3 days. Meanwhile his son was scared and had not returned home after hearing of the incident, they had no clue of his whereabouts. He was under tremendous stress and apprehensive of what would happen when the army came. He said that his sister was a CRPF (Indian Central Reserve Police) constable; she has also been warned that if she is interested in saving her job, it’s better for her to stay out of this matter.

● He said in another house next door, both father and son have run away and don’t sleep at home at night. The mother and sister live alone at home under fear of the army. Most boys in the village had pellet injuries and pellets were used frequently by the army on locals. He said that he himself drives a Sumo and he has had to replace the windows of his car have been broken by the army at least 15 times, which he has had to replace the windows, even though he cannot afford it, it is daily torture and perversion.

● He mentioned that the stories of other people in the locality are even worse. He spoke of a boy who was in the lockup with him. He said, he was tortured so much by the army for one month at the camp that he lost his mental balance. He was thrown in the lockup where this man was lodged. Instead of helping him or letting him go, the DSP would call him Ghajini482. He tried to speak with him, however, this boy was unwilling to speak.

● Another man who had lost his eye in a pellet injury, had got bail but the police were not letting him go. The family had spent 7 lakhs on his case and his brother would come every day pleading to the police to let him out since he had got bail, but the police would say come tomorrow every day. One night, the police took him out of the cell at 12.30 a.m. and took him away. The next morning the brother came hoping for his release. Then, he was told he was taken to the interrogation centre, without providing him any details. He went from one place to another but was unable to find him. Everyone in his village, his family had been waiting for him and were left devastated and crying.

● Such is the mental torture. He lamented that the Indian government and army don’t consider Kashmiri’s as human beings. There are many other cases like his in the village, he is hopeless and does not know what to do when the army comes. He said they are only waiting for a permanent solution and freedom from this torture and inhuman treatment.

● Case 5: Reports of torture at the hands of the armed forces is not new to Kashmir and there is a plethora of evidence on the same, notwithstanding the outright denials of the same by the army and the Indian state. We met with two torture victims in just one village near Pulwama. They told us that there was stone pelting in their village one day, and in the night the army conducted a night raid.

● 5 – 8 men were picked up by the RR, South Order at 11.30 p.m. during the night raids, including these two persons. Their family runs a bakery, which was shut due to the hartal and threats from the army. The men informed that they were not even part of any protest or any incident of stone pelting and were yet targeted.

● They informed that the RR (Rashtriya Rifles) arbitrarily conducted night raids at their homes and dragged them out. The mother of the men said that the father was beaten when he tried to follow them out pleading them to stop and was told he would be killed if he came after them.

● She said the RR officials were drunk and ruthlessly beat her sons. When the wife of one of the men begged the officials to let him go, the officials threatened to shoot her. Both of them were illegally detained and tortured brutally in a van in the village itself until 3.30 a.m. in the morning. Their screams filled the village through the night. Clearly this was done to terrorise and instil fear in the entire village.

● The two men who spoke to the members of the team detailed the brutal torture techniques employed on them, including electric shocks on their body and private parts and beatings with rods and wire. One of the men informed that when any

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of them would become unconscious due to the torture they were given electric shocks to wake them up and the torture thus continued. When they asked for water, they were given drainage water and fed mud.

● They reported that the RR officials forced them to say “Jai Shri Ram” and also told them that they will now marry Kash- miri women. At 3.30 a.m. they were all thrown out of the van near the village Masjid and left on the road. In the early morning when people came to the Masjid, they found them and took them to the hospital / medical facility in the village.

● The doctor examining them has noted that the injuries were caused due to torture. Both were admitted to the hospital. They said that their whole bodies had turned black with torture and burning by electrocution. One of the men shared a picture of his back taken 8 days after the incident of torture, showing black marks of torture.

● d. Arrest and detention of juveniles

● Case 1: We went into a home primarily to discuss a reported case of illegal detention of a minor (17 years). We were met by members of the family and the boy himself. The boy worked as a mechanic in a local auto dealership. Both his parents are tea vendors.

● We were informed that a few incidents of stone pelting had taken place in the evening in their neighborhood. Also, win- dows of a few houses, near the entrance of the colony, were broken by the armed forces. Moreover, Eid prayers were not allowed by the government in a mosque located near the entrance of the colony.

● On August 18, 2019 a week after Eid, there had been some incident of stone pelting. When it stopped, the boy was sitting on a wall around 5 p.m., after a match of cricket. They saw 2-3 people coming towards them and heard someone shout “run”, so they ran. They ran into a house to hide. The women started to scream; the armed forces heard them and found the house they had entered.

● The armed forces came in and pulled out the 3 - 4 boys who were hiding. Each boy had about 4 - 5 officers holding and beating them up. They hit them on their back with a baton which was witnessed by the residents of the locality. The Duty Officer (DO) of Humama, Wilayat Hussain and other police were in civilian clothes. They took the boys to the lock up and they kept them there for about 7 - 8 days. They beat them on the first day and they constantly abused them with maa-behan ki gaali483122.

● They were given food, but it was uncooked and inedible. There were 5 boys in lock-up. Toilets were attached to the lock up but there was no door and it was not clean. They were not allowed to bathe for 7 - 8 days. It was dark in the lockup and they would have to light a candle around 3 pm. When the boys did not return home, the parents began to look for them. They looked till 11.30 p.m. and later found out that the boys had been taken to the police station.

● They were scared that their son had been killed. They went to Hyderpore/Humama but could not find him. As he had been picked up outside their locality, he had been taken to Humama. They came to know where the boy had been detained only the next day however the boy was informed that his parents were aware of his detention only two days later. The family was not allowed to meet him except the elder brother who was allowed to see him on the 3rd day for 2 minutes.

● They were not allowed to enter the gate of the police station and would be thrown out by the guard. They were not given the reasons or grounds of detention. There was no FIR, they were not given any reference. The parents were allowed in- side only when they were releasing the boy and they needed to sign the document. They had met a lawyer and prepared bail papers but as there was no case number, they could not file it.

● The police told them not to waste money on bail but to give them money instead and they would release the boy. The boy’s brother paid the police around Rs. 15,000 and also Rs 1000 for his food and then the boy was released. They were threatened that he would be sent to the Juvenile home which would be worse unless they gave them the money.

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● The boy detained had mild polio when he was 6 months old and had undergone surgery so has been physically weak ever since. He has been so traumatized by this that he is unable to share his experience in detail. When releasing the boy, the parents were asked to sign a community bond. They were not given a copy or allowed to read; they were informed that they have given guarantee that he won’t protest again and if he does, they will be responsible. As the locality was not originally from the locality, they did not have anyone older from the community to sign the community bond, so they had to request the man who called Azaan to sign. The police took the signature of the auto driver who had taken them there as a witness.

● Case 2: We met a 15-year-old boy and his family and learnt about the traumatic experience they had faced, which we are narrating below: The boy is studying in the 9th grade at the Government School. His father works as a driver. There was a minor incident of stone pelting in the neighborhood and they walked out around 4.00 p.m. to see what was happening.

● The DSP of Humhama police post, Budgam Police Station came walking along with other policemen and caught the boy by his neck. They dragged him for half a kilometer. They beat him with a drainage pipe and also with a butt of a gun on his back and neck. This was witnessed by several passersby. They then took him to Humhama Thana (Post –Budgam Police station, Airport Road) and beat him up again there.

● He suffered several injuries on the arms, back and the left leg. They kept him locked up. The Station House Officer (SHO) would repeatedly come and ask for names of boys who had pelted stones. The boy had never pelted stones and was not aware of boys who did so. There were about 9 boys in the Thana lock up along with him.

● They brought two other boys after him and he was one of the youngest among the boys in the lockup. One of the boys was beaten so badly that his legs were broken. There was another who was mentally challenged. The two families got to know of the incident later in the evening and went to the Humhama police post but were misinformed that the boy was at the Budgam Police Station. The families went there to search for the children, only to be informed that the boys weren’t there as well. Lastly, when they came back to the Humhama Police Post, the policemen acknowledged that both the boys had been arrested because they had abused the police.

● The families were informed that both would be released by evening but were not released. Thereafter, this became a routine exercise and the families were daily told that the boys would be released in the evening by 9.00 p.m. the fathers would be allowed to speak to them in the lock up. The police at one point of time even asked the men in the families not to come to the police station and send the women instead.

● One boy’s father fell at the feet of the DSP and begged for the release of his child but all in vain. Both the families had to walk to the police post and back due to the restrictions and non-availability of public transport. No FIR, or any other document filed or given to the parents. Hence, they couldn’t reach out to the court for the release of their sons. They were kept in the Thana for 6-day, food given to them was inedible.

● Both the boys were finally released together on 11th August, after being detailed for 6 days in the regular lock-up along with other adult detainees. They were only released after the elder brother of the 15-year-old gave a maafinama (letter of apology). He signed on a blank sheet and was not shown what was written in the document. The family was asked to pay Rs. 15,000/- for the release of the boy and Rs. 1000/- for his food in the lock up. The brother borrowed money and paid the police. We met several other people who confirmed that those who had been kept in the jail, either illegally or with documentation were made to pay for the half cooked and inedible food that was fed to them for the period they were in jail. The amount ranged between Rs. 1000 - Rs. 5000 for a range of 2 -7 days.

● The police did not take the 15-year-old boy to the doctor, but the family did. He was immediately taken to the Bone and Joint hospital for check-up. Two days after his release he ran away from home and tried to commit suicide. His father found him near the bypass. On 14 August he developed a heart problem (palpitations due to anxiety) and was examined and treated in JVC hospital and is now under medication. His parents also stated that he is undergoing extreme mental trauma and hardly speaks about the details of what happened in the lock up. The family sent him to his maternal uncle’s house for a few days to recuperate but he continues to be anxious and depressed.

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11. Continued restriction of internet services in the region: denial of medical services to the population

● Most hospitals host their databases on servers online. In absence of a stable internet, it has been onerous for doctors to mitigate risks of COVID-19 for Jammu and Kashmir.484 Shipping of drugs and instruments, ordering, making payments and subsequent tracking of shipment—all happen online.485 Pharmacists relying on online delivery systems, baby food supplies and a host of other services that relied on online systems are all affected. Slow internet has throttled doctors’ coronavirus response in Kashmir.486

● A petition filedin the Supreme Court of India refers to machines like MRI and CT scanners that require constant updates from servers, requiring internet connections and highlights the recklessness of the on-going internet blockade - “In- stead of effectively providing health and medical services and making sure that no one is allowed to cause hindrance in discharge of such services, the government is itself creating a situation, where access to health and medical care is disturbed and hindered by blocking access of hospitals and medical establishments to Information and Communication Technology. Such an action is clearly in violation of the fundamental right of health and medical care which has been recognized and included as a part of right to health as enshrined under Article 21 of the Indian Constitution.” Dr. Omar Saleem, a Kashmiri doctor was arrested for raising concerns about patients and access to medicine. 487

● Another case highlighted in this petition is that of a patient from Sopore, undergoing tests for cancer. He had undergone a biopsy test on 27th July 2019 from a collection centre in Sopore. He has been unable to receive the report due to lack of internet access in hospitals resulting in delay to a possible treatment. The petition urges that at the very least medical and other essential centres be allowed to resume communication lines.A petition filed before the Supreme Court of India, by oncologist Dr. Sameer Kaul highlights the case of Bilquees Majeed Naqash w/o Rafi Kirmani R/o Ellahibagh Srinagar- who was operated for astrocytoma tumour and now requires radiotherapy and chemotherapy treatment. She had not been able to get treatment from her oncologists, without internet access at the hospitals. Doctors who have highlighted the humanitarian catastrophe have been arrested as well.488

12. Deterioration of Mental Health

● As a result of prolonged militarized conflict in Kashmir, mental health of people has been in crisis for more than two decades.489 This situation has only been worsened by the complete lockdown and communication blockade imposed by the government of India in Kashmir since August 2019. ● Local medical professionals have reported an increasing rise in suicides and disturbingly high rates of domestic abuse.490There are fewer than 60 psychiatrists in Kashmir at present. It has been reported in April 2020 that doctors are seeing more than 500 patients a week.491 ● In 2016, a report by ActionAid estimated that in Kashmir, 11.3 percent of the population suffers with mental health issues as compared to a national estimate of 7 percent.492According to a 2016 report by Medecins Sans Frontieres, 41 percent people exhibit symptoms of probable depression, 26 percent show symptoms of probable anxiety and 19 percent show symptoms of probable PTSD.493

13. Border Violence between Pakistan China and India

● Cross-border shelling between India and Pakistan on the Line of Control (LOC) continues to cause loss of life and damage to infrastructure.494 After consulting the active militant groups in 2003, India and Pakistan signed a cease-fire agreement,495 however, both countries ignored this agreement as their other bilateral agreements.

● There are various civilian settlements in the border region and mass migration is not a favorable solution.496 People of this region have been surviving in a war like situation for decades. In addition to security situation, sexual harassment is a big issue for women in the area.497 Border skirmishes challenge India’s claim of the Kashmir Conflict being an internal issue.

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● India and Pakistan have made nuclear threats to each other and both have a long history of war. Recently tension has risen on the Ladakh side of the region where China is now laying claim over a significant portion of Indian-Admin- istered Kashmir known as Galwan Valley. In an initial unarmed confrontation, the Indian army has officially reported that 20 Indian soldiers were killed.498 The two countries share one of the world’s longest unsettled land borders and the India-China border is the world’s longest unmarked frontier, stretching about 2,500 miles. Given the nuclear capabilities of both powers, it is clear that a war between the two would be calamitous and would have far reaching implications, both regionally and globally.

14. Fact-Finding Missions

● Since August 2019, many fact-finding teams of journalists, activists and lawyers have visited Jammu & Kashmir and have reported that the situation is nearing a catastrophe with gross human rights violations, mass detentions and media blackout.499

● The information gathered in these fact-finding visits indicates that in the first two weeks since the clampdown began, Indian security forces have abducted young school-age children in night raids. During these night raids, girls in these homes have allegedly been molested and threatened with sexual abuse.500 The reports prepared by the fact-finding mis- sions are attached below in the annexation.

VI. India’s International obligations and the United Nations

Article 25 of the Universal Declaration of Human Rights states:

“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemploy- ment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” The reckless actions of the Government of India are in clear violation of the UDHR. In 1979, India ratified the International Covenant on Civil and Political Rights, which sets forth internationally recognized standards for the protection of freedom of expres- sion.501

● In the case of People’s Union for Civil Liberties v. Union of India502, the Supreme Court of India has held that Article 21 of the Constitution of India in relation to human rights has to be interpreted in conformity with international law.

● India is also a party to the International Covenant on Economic, Social and Cultural Rights. The rights of citizens in the online world have to be treated with yardstick as the rights in the offline world. The Internet shutdowns are a violation of the Constitutional Right to Freedom of Speech and Expression.

● In 2016, at the 32nd session of the United Nations General Assembly, a resolution was passed503 condemning these shutdowns and online access and/or dissemination of information. During the current blockade, UN representatives made statements reminding India that these communication blockades were violation of Article 19 of the Universal Declaration of Human Rights.504

● United Nations independent rights experts issued a statement505 calling for withdrawal of the restrictions. The experts highlighted again that the restrictions are “without justification from the Government”, and “are inconsistent with the fundamental norms of necessity and proportionality.”

● A similar statement was also issued by the United Nations experts in 2017.506 In 2016 the Human Rights Council, the central human rights body in the UN system, condemned such online disruptions and called upon States to avoid such shutdowns. However, none of these international condemnations seems to have made any difference.

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VII. Human Rights Documentation on Kashmir

A. Fact-finding mission reports post revocation of article 370

The following are key points in the reports of the fact-finding teams.

1. Kashmir Caged: A Fact-Finding Report

● Economist Jean Drèze, Kavita Krishnan of the All India Progressive Women’s Association [and a CPI (ML) member], MaimoonaMollah of the All India Democratic Women’s Association and Vimal Bhai of the National Alliance of Peo- ple’s Movement visited Kashmir from 9th -13th August 2019.Drèze and team were the first to visit Kashmir, four days after the abrogation of special status to the state. ● The team presented their observations in the form of a report in a news conference in Delhi, the team said. They heard of children being taken away by security forces after the lockdown started. “Boys as young as 10-11 years, or even younger, were picked up from their homes or roads in the middle of the night,” the team wrote in its report, in which it recorded a conversation with an 11-year-old boy in Pampore who was detained by forces and said that children older as well as younger than him had been detained. ● The team also found pellet shot victims in the Valley and described the case of Samir Ahmad who was shot in the face. “It is clear that the pellet guns are deliberately aimed at the face and the eyes, and unarmed peaceful civilians standing at their own front doors can be targets,” the team wrote. ● The team observed that barring a few ATMs, chemist shops and some hospitals, nothing else worked. All roads were closed, even on Id. ● In the report, the team said they heard “zulm (oppression)”, “zyadti (excess)” and “dhokha(betrayal)” over and over again from people about the government’s move.

Available : https://sikhsiyasat.net/2019/09/25/kashmir-caged-a-fact-finding-report-full-text/

2. Prabodh Jamwal’s observations

● Kashmir Times editor-in-chief Prabodh Jamwal visited Kashmir from 28th to31st August 2019. Jamwal filed hisfact-find - ing report as an affidavit in the Supreme Court [with an earlier petition by Kashmir Times executive editor Anuradha Bhasin. His visit was limited to Srinagar where he spoke to several journalists about media and press freedom. ● Journalists were stopped from entering downtown Srinagar, considered a tinderbox neighborhood, Jamwal said. “Jour- nalists had started using motorbikes mostly to travel because of public transport restrictions, but “their motorbikes are seized by security forces, and they are asked to prove that they are journalists”, Jamwal wrote. The lack of public trans- port also prevented printing press staff from commuting as they, unlike journalists, had no passes for movement. The government, however, said there were no restrictions on movement. ● After about 15 days of lockdown, the government set up a media center in a hotel called R.K. Sarovar Portico in Sri- nagar. For about 50 to 100 journalists on any given day, there were four computers, one mobile phone with no internet and a slow broadband internet service, the affidavit said. “Every journalist is expected to furnish information about the person being called on the phone and the information to be sent as a news item,” Jamwal wrote. He also mentioned about several instances when photographs and videos shot by journalists were deleted.

Available: https://www.telegraphindia.com/india/srinagar-media-centre-how-forces-watch-what-journalists-file-writes- kashmir-times-editor-in-affidavit/cid/1702779

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3. News Behind the Barbed Wire - Kashmir’s Information Blockade

● Journalists Laxmi Murthy and Geeta Seshu visited Kashmir from 30th August to 3rd September 2019 and spoke to over 70 journalists and editors of newspapers and websites in Srinagar and south Kashmir, as well as members of the local administration and citizens during their visit. Their report said the “government’s control of the narrative of normalcy is near total” in the absence of ground reporting.

● The report talked about surveillance, informal investigations and harassment of journalists. They also mentioned that there was a “clear ‘unofficial’ directive regarding what is permissible content”. The report said: “High ranking police officers reportedly came to media offices to tell media-persons to keep off some topics: protests, stone pelting, restric- tions.”

● Residents also mentioned unofficial curfew - no order for a curfew was given.

● The team found that landlines were working only in some areas but not in the press enclave, which housed most news- paper offices. This had led to a communication gap between reporters on the ground and the editors sitting in Delhi.

● The report mentioned the “absence of the editorial voice in major newspapers in Kashmir; instead, editorials on ‘soft’ subjects such as vitamin consumption”.

Available:https://freespeechcollectivedotin.files.wordpress.com/2019/09/news-behind-the-barbed-wire-nwmi-fsc-re- port-2.pdf

4. Women’s Voice: Fact Finding Report on Kashmir

● Annie Raja, Kawaljit Kaur and Pankhuri Zaheer from the National Federation of Indian Women; Poonam Kaushik from PragatisheelMahilaSangathan; and Syeda Hameed from the Muslim Women’s Forum recorded and shared their obser- vations of their visit from 17-21 September 2019

● The team visited Srinagar and villages in Shopian, Pulwama and Bandipora.From shops and hotels to schools and col- leges, they found everything shut in the Valley. The report noted that people told them they had been caged.

● The report wrote about mothers waiting for their detained children to return. “Boys as young as 14 or 15 are taken away, tortured, some for as long as 45 days,” the team wrote. They said that an estimate given to them was that around 13000 boys were lifted during the lockdown. The report did not explain how the team reached this figure.

● The report said that when fathers went to rescue their children, they were made to deposit money, anywhere between Rs 20,000 to Rs 60,000.

● They noted that women could not reach hospitals in time for deliveries. Some had even delivered premature babies because of the stress, while ambulances were being stopped at checkpoints. In medical emergencies, junior doctors couldn’t reach seniors on time because there wasn’t a way to communicate.

● The report concluded that “all those claiming that the situation is slowly returning to normalcy are making false claims”.

Available : https://www.freekashmir.org/wp-content/uploads/2019/10/Womens-Voice-Fact-Finding-Report-from-Kash- mir-2-1-1.pdf

● ghar mein qaid

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5. Zulm, Zakhm, Azadi: Voices of Kashmiri Women

● A four-member team of Kiran Shaheen, Nandini Rao, Pramodini Pradhan and Shivani Taneja from Women against Sexual Violence and State Repression; visited Kashmir from 23-28 September 2019

● The team spoke to women and children in Srinagar, Shopian, Kupwara and Baramulla. They visited villages and mo- hallas as well as schools, courts and hospitals. The report said , “Speaking out and sharing stories that cast doubt on the official narrative invites the wrath of the forces,”.

● They mentioned words and phrases that dominated conversations: zulm (oppression), apne (jailed in our own homes), zakhm jinka koi marham nahin (wounds that are beyond healing) and aazaadi (freedom).

● They quoted a woman in Kupwara in whose home the army had barged in. When she protested the intrusion she was threatened.“Do you know what happened in KunanPoshpora? We will do the same with you all,” she was told.

● The Indian Army has been accused of sending soldiers to the villages of Kunan and Poshpora in Kupwara where they allegedly raped several women on February 23, 1991. The Indian Army has denied the allegation of mass rapes.

● The team found that in Srinagar and in villages nearby, security forces have barged into homes at night. Women and girls lived in constant fear of molestation and abuse. “In localities of Srinagar, women and girls would be sent to sleep in ‘safer’ zones where police raids were not frequent. Due to fear and uncertainty related to the future, there is a severe impact on people’s mental and emotional health,” the report said.

Available: https://wssnet.org/2019/10/05/zulm-zakhm-azaadi-the-voices-of-kashmiri-women/

6. Ramakrishnan and Sundar’s observations

● Supreme Court advocate Nitya Ramakrishnan and sociologist Nandini Sundar visited Kashmir from 5th-9th October 2019.They spoke to about 75 people in Srinagar, Shopian and Sopore and mentioned in the report that almost every sin- gle person wanted aazaadi. They wrote that people in the Valley were following a behavior pattern akin to non-violent civil disobedience.

● Comparing it to the days after the killing of Burhan Wani in 2019, the report wrote: “First, now there is no leadership and people are acting on their own. Second, the resistance is across the Valley (earlier it was mostly south Kashmir), and third, even those who were earlier with the Indian government are now completely alienated.”

● They said that lawyers told them about 300 habeas corpus petitions that had become infructuous in the barely function- ing Jammu and Kashmir High Court.

● The report said that although there were officially no restrictions, shops opened for two hours every day, from 7 am to 9 am in a largely voluntary hartal. The two found Shopian and Sopore mandis closed. Apple traders spoke about huge losses.

Available : https://kashmirscholars.files.wordpress.com/2019/10/nitya-nandini-report-on-kashmir-public.pdf

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7. Kashmir Civil Disobedience: Trauma, Resistance, Resilience Two Months On

● Psychiatrist Anirudh Kala, academic Brinelle D’Souza, journalist Revati Laul and human rights activist Shabnam Hash- mi visited Kashmir from 25th-30th September and 6th-7th October 2019.The team visited five districts: Srinagar, Bara- mulla, Anantnag, Badgam and Jammu. “Kashmir is on the edge, humiliated, angry, disturbed and disrobed,” a local journalist told them.

● The report concluded that people in Kashmir were no longer interested in an interaction with the Indian state. “That space is now dead,” they wrote.

● The team had anecdotes of the army and paramilitary forcing people to open their establishments. They also wrote about the civil disobedience that Kashmiris had resorted to. “We are the only occupants in our hotel, which has 45 rooms, most are booked out at this time of the year,” they wrote.

● The report wrote about accounts of torture, arrests, even of young boys detained under the draconian Public Safety Act.

● The psychiatrist in the team, Kala, observed that people suffered from heightened anxiety and sleep disturbances. “PTSD or post-traumatic stress disorder occurs after stressful events which are outside the gamut of usual stresses of routine life and Kashmir at present fits that bill, and it will be highly surprising if a few months from now we do not find extraordinarily high rates of PTSD,” he said.

● They visited Jammu where there was no lockdown. Shops and restaurants were open, landlines and mobile networks worked, and broadband internet worked.

B. Human Rights reports before August 5, 2019

This section documents the multiple reports on Human Right abuses within Kashmir by independent organizations in a re- verse chronological order. These reports establish the long-standing pattern of abuses that have been practiced by the Indian state repetitively over a long duration with no justice for the survivors or victim’s families.

1. APDP [2019] 120 Days: 5th August to 5th December - A report by APDP, 5th December.

This report is a narrative of the situation that arose in Kashmir valley, after the events of August 5th, 2019. The report sheds light on the impact of the abrogation of Article 370 in the Indian Administered State of Jammu of Kashmir. The report highlights the political history of the state of Jammu and Kashmir and outlines its accession to the Union of India. Further, it looks into the history of Article 370 and its incorporation into the Indian Constitution. It also makes a detailed study into its constant erosion by the Indian State, from time to time.

Available:https://apdpkashmir.com/120-days-5th-august-to-5th-december-a-report-by-apdp/

2. APDP [2019] “My World is Dark” State Violence and Pellet-firing Shotgun Victims from the 2016 Uprising in Kash- mir, October.

This report records testimonies from 23 victims of pellet gun injuries. These testimonies reveal how the injuries have com- pletely transformed the victims’ lives and destroyed their futures, rendering people unemployed and impoverished, in a helpless state. Researchers from the Association of Parents of Disappeared Persons (APDP), a human rights organization based in Srinagar, Kashmir, have collected nearly 300 testimonies of pellet gun victims. This is only a fraction of the total number of victims. When placed within the context of stepped-up state repression following popular protests in 2016, they portray a state of total war against a civilian population.

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Available: https://apdpkashmir.com/my-world-is-dark-state-violence-and-pellet-firing-shotgun-victims-from-the-2016-up- rising-in-kashmir/

3. OCHR [2019] Update of the Situation of Human Rights in Indian-Administered Kashmir and Pakistan-Administered Kashmir from May 2018 to April 2019 [8 July]

This is the second report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) on the situation of human rights in Indian-Administered Kashmir and Pakistan-Administered Kashmir covers the period from May 2018 to April 2019. The report is based on information collected by OHCHR through monitoring the situation in the Indian state of Jammu and Kashmir (consisting of the Kashmir Valley, the Jammu and Ladakh regions) and Paki- stan-Administered Kashmir (Azad Jammu and Kashmir and Gilgit-Baltistan). It is issued pursuant to the mandate of the High Commissioner for Human Rights, as provided by United Nations General Assembly resolution 48/141.

Available:https://www.ohchr.org/Documents/Countries/PK/KashmirUpdateReport_8July2019.pdf

4. APDP & JKCCS [2019] Torture: Indian State’s Instrument of Control in Indian administered Jammu and Kashmir (2019)

It is the first ever comprehensive report on the phenomenon of torture in Jammu and Kashmir perpetrated by the Indian State from 1990 onwards. This report builds on the body of human rights documentation on torture in Kashmir through an examination of 432 case studies of torture, focussing on the trends and patterns, targets, perpetrators, contexts and impact of torture in Kashmir.

Available : http://jkccs.net/wp-content/uploads/2019/05/TORTURE-Indian-State%E2%80%99s-Instrument-of-Con- trol-in-Indian-administered-Jammu-and-Kashmir.pdf

5. OCHR [2018] Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilg- it-Baltistan [14 June].

This report covers both the Indian state of Jammu and Kashmir (consisting of the Kashmir Valley, the Jammu and Ladakh regions) and Pakistan-Administered Kashmir (Azad Jammu and Kashmir and Gilgit-Baltistan). The focus of the report is on the situation of human rights in the Indian state of Jammu and Kashmir from July 2016 to April 2018 over which period allegations of widespread and serious human rights violations were received, notably excessive use of force by Indian secu- rity forces that led to numerous civilian casualties.

Available:https://www.ohchr.org/Documents/Countries/IN/DevelopmentsInKashmirJune2016ToApril2018.pdf

6. JKCCS [2018] Impact of Violence on the Children of Jammu and Kashmir, March.

The report seeks to examine the situation of children in the ongoing armed conflict in Jammu and Kashmir. The report looks primarily at the situation of children in the conflict in Jammu and Kashmir during the last fifteen years – i.e. 2003 to 2017. The report seeks to demonstrate that serious crimes have been perpetrated against children in Jammu and Kashmir by perus- ing data of killings, arrests, sexual violence and impact of violence on the education of children.

Available: http://jkccs.net/wp-content/uploads/2018/03/2018-Impact-of-Violence-on-Children-of-JK-JKCCS.pdf

7. JKCCS [2017] Amarnath Yatra: A Militarized Pilgrimage, March.

There is a lot of writing on the detrimental environmental impacts of the Yatra through research on the status and health of

UN REPORT KASHMIR READING ROOM YEARLY REPORT 2019 - 20 239 glaciers and rivers in Kashmir and in newspaper reports. Yet, there has not been a detailed and comprehensive study with the aim of recommending the regulation of the Yatra. Therefore, in 2014 Jammu Kashmir Coalition of Civil Society (JKCCS) and EQUATIONS initiated a joint study on the environmental impacts of the Amarnath Yatra.

Available:https://jkccs.files.wordpress.com/2017/05/amarnath-report-2017.pdf

8. IPTK & JKCCS [2015] Structures of Violence: The Indian State in Jammu & Kashmir.

This report, while continuing the above efforts, and illustrating the patterns of violence through individual case studies, is directly concerned with identifying the structure, forms and tactics of violence of the Indian State in Jammu and Kashmir. How did/does the Indian State perpetrate this violence? What precisely is the structure, physical and institutional, through which weapons, ammunition, soldiers, ofcers, camps and battalions in ict violence on the people of Jammu and Kashmir? Where is the control? The driving motivation of this exercise is, as has always been: Responsibility. Who do we hold responsible for the individual and collected acts of violence?

Available: https://jkccs.files.wordpress.com/2017/05/structures-of-violence-e28093-main-report.pdf

9. APDP & JKCCS [2015] Facts Underground: First Report on Mass Graves in Kashmir.

This report is in the nature of a survey of the graveyards in the frontier areas of Uri in Baramulla District, where special permission is to be sought from the District Magistrate and from the army headquarters for visiting such areas. This survey is an attempt to share our findings. For obvious reasons it was not possible for us to exhume the bodies or undertake any other scientific method of investigation. Nor was it possible for us to move around as freely as we would have preferred because the Indian security forces maintain a ubiquitous presence over our lives and movement. Nevertheless, despite these our survey provides accounts of villagers and their testimonies, which make a strong case for an independent international scientific investigation.

Available: https://jkccs.files.wordpress.com/2017/05/facts-under-ground-first-report-on-mass-graves-in-kashmir.pdf

10. Amnesty international [2015] India: “denied”: failures in accountability for human rights violations by security force personnel in Jammu and Kashmir

This report documents 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 has failed to deliver justice for several victims and families. 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. Available:https://www.amnesty.org/en/documents/asa20/1874/2015/en/

11. JKCCS [2015] Occupational Hazard: The Jammu and Kashmir Floods of September 2014, April. This report places the floods of 2014 at the heart of Indian state policies of massive military deployment, ⁸² ‹development› and ‹reconstruction› oriented counter insurgency strategies, and its occupational policies of governing without legitimacy. Available: https://jkccs.files.wordpress.com/2017/05/occupation-hazard-jkccs.pdf

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12. JKCCS [2014] The Anatomy of a Massacre the Mass Killings at Sailan, August 3-4, 1998, August. This present account attempts to remember the dismembered and silenced history of the Sailan Massacre. It is based on ex- tensive conversations with family members and eyewitnesses, interviews with local residents and political activists, retired officials and lawyers involved in the case, and the perusal of police, court and TIR documents. Available: https://jkccs.files.wordpress.com/2017/05/sailan-report-web-version.pdf

13. APDP & JKCCS [2011] , half wife?

This report is the result of discussions with ‘half widows,’ widows, and married and unmarried women in Kashmir. It also draws upon conversations with Kashmiri men and women, including academics, students, homemakers, tailors, farmers, doctors, lawyers, and teachers. No consultations were made with any politicians in or outside Kashmir.

Available:https://jkccs.files.wordpress.com/2017/05/half-widow-half-wife-apdp-report.pdf

14. 15. [2009] Buried evidence: Unknown, unmarked and mass graves in Indian-Administered Kashmir, a preliminary report. This research into unknown, unmarked, and mass graves was conducted by the International People’s Tribunal on Human Rights and Justice in Indian-administered Kashmir (IPTK) between November 2006 and November 2009. The graveyards we investigated entomb bodies of those murdered in encounter and fake encounter killings between 1990-2009.

Available:http://www.kashmirprocess.org/reports/graves/BuriedEvidenceKashmir.pdf

16. Human Rights Watch [1993] Rape in Kashmir, A Crime of War.

This report is the second of a series which Asia Watch and PHR are publishing on human rights in Kashmir. In publishing this report, PHR and Asia Watch hope to focus international attention on the use of rape as a tactic of war in Kashmir and on government policies which have led the security forces to believe they can carry out these crimes with impunity.7 The cases included in this report are illustrative; there have been many more cases of rape than was possible to document here. Available:https://www.hrw.org/sites/default/files/reports/INDIA935.PDF

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(Footnotes)

1 Percentage has been calculated using numbers from the following reports stating that only one out of the 20 blocks auctioned was secured by local contractors - https://kashmirlife.net/sand-storm-issue-45-vol-11-223571/

2 In absence of detailed data for Baramulla district, percentages have been quoted from the following report stating that 26 out of 38 blocks auctioned went to non-locals - https://www.greaterkashmir.com/news/business/non-local-firms-bag-majority-of-mineral-ex- traction-contracts-in-kashmir/

3 In absence of detailed data for Pulwama, average bid amount has been calculated using the data quoted in the following report - https://kashmirlife.net/sand-storm-issue-45-vol-11-223571/

4 In absence of detailed data for Baramulla (see annexure 1), average successful bid amount per block has been calculated from the following report stating that 38 blocks in Baramulla fetched 20.15 crores - https://www.greaterkashmir.com/news/business/non- local-firms-bag-majority-of-mineral-extraction-contracts-in-kashmir/

5 In order to avoid publishing the names of human subjects, PIDs are used. PID is a unique code assigned to a person/entity irrespective of the district. As such, a bidder will have the same PID across different districts.

6 The residential status has been assigned on the basis of name and address of the successful bidders.

639. https://jkccs.files.wordpress.com/2017/05/occupation-hazard-jkccs.pdf; https://www.nytimes.com/2005/10/19/world/asia/pride-and-politics-in- dia-rejects-quake-aid.html 640. See Section VIII: Human Rights documentation on Kashmir 641. https://thewire.in/rights/kashmir-domicile-law

642. See Human Rights Documentation on Kashmir 643. On Kashmir: A Lockdown within a Lockdown A unique personal perspective from a Kashmiri which highlights the magnitude of issues related to the brutal military siege along with the restrictions because of the COVID19 pandemic. https://podcasts.google.com/feed/aHR0cHM6Ly9hbmNob3IuZm0vcy9kMWM3NGJjL3BvZGNhc3QvcnNz/episode/OGNkMTlmZjk- tZGNhMS00NzdhLTg2ODktOTRmNmNmYzkwYWEx?ep=14

644. https://theconversation.com/india-uses-coronavirus-pandemic-to-exploit-human-rights-in-kashmir-137682 645. https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx 646. https://scroll.in/article/961792/by-ordering-panel-to-review-demand-for-4g-internet-in-j-k-supreme-court-has-abdicated-its-duty 647. https://indianexpress.com/article/opinion/columns/abdication-not-deferral-jammu-kashmir-communication-lockdown-6218567/ 648. https://www.aljazeera.com/news/2019/09/shocks-beatings-kashmiris-allege-abuse-india-army-190910114145774.html

649. https://www.washingtonpost.com/world/asia_pacific/the-night-the-soldiers-came-allegations-of-abuse-surface-in-kash- mir/2019/09/28/90969472-d40d-11e9-8924-1db7dac797fb_story.html

650. https://www.youtube.com/watch?v=9nfAH4ALuPU 651. https://www.telegraphindia.com/india/forced-labour-cry-at-army-in-kashmir/cid/1713864 652. https://www.hrw.org/news/2019/09/16/india-free-kashmiris-arbitrarily-detained 653. https://www.thehindu.com/news/national/about-4000-people-arrested-in-kashmir-since-august-5-govt-sources-to-afp/article29126566.ece

654. https://thewire.in/rights/nazir-ahmed-ronga-lawyer-detained-kashmir-crackdown 655. https://cpj.org/2019/08/two-journalists-detained-jammu-kashmir-india/

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656. https://www.amnesty.org.uk/press-releases/india-arbitrary-detentions-and-beatings-jammu-and-kashmir-new-testimony 657. https://www.bbc.com/news/world-asia-india-49481180 658. https://www.newsclick.in/99%25-Habeas-Corpus-Filed-Jammu-Kashmir-HC-August-2019-Pending 659. https://theprint.in/judiciary/99-habeas-corpus-pleas-filed-in-jk-since-article-370-move-are-pending-hc-bar-tells-cji/450281/ 660. https://www.aljazeera.com/news/2019/11/friday-prayers-months-kashmir-largest-mosque-191129100152994.html 661. https://ifex.org/a-call-to-restore-freedom-of-expression-and-all-civil-political-and-economic-rights-of-kashmiris-by-organisations-world- wide/ 662. https://www.indexoncensorship.org/2019/08/free-speech-was-being-suppressed-in-kashmir-for-a-long-time-before-the-latest-crisis/ 663. https://www.huffingtonpost.in/entry/kashmir-shutdown-un-freedom-of-speech-expert_in_5d56b8d8e4b0d8840ff23acf?guccounter=1&- guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAANx_IpiMUrSCEV9lu68lsaafak9r1d02X-3kRvaII- UZXL5cCgKArnYu4vNYE7MGGiySw-_aPxrWTjFohX94HVJx_GDeSnXbNfGGvS13wRfRmXDK-EkEhnneF2H1t9ZrKL0iy9WG9rs- aoy9tyN2-XqXFxOp6_p1YNJYNY-9pPQQ2V 664. https://www.hrw.org/news/2019/10/07/restrictions-detentions-persist-kashmir 665. https://www.hrw.org/news/2019/08/12/india-needs-step-back-kashmir 666. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=A4E145A2A7A68875C12563CD- 0051B9AE 667. https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Pun- ishment%20of%20the%20Crime%20of%20Genocide.pdf 668. See Human Rights Documentation on Kashmir 669. Records of Children being illegally detained, https://www.outlookindia.com/newsscroll/unsg-concerned-by-child-casualties-in-kash- mir/1867357 https://kashmirobserver.net/2020/06/16/un-chief-guterres-expresses-concern-over-child-casualties-in-jk/ 670. https://thekashmirwalla.com/2020/06/hurriyat-m-appeals-for-release-of-kashmiri-prisoners/. 671. Records of torture, interrogation and intimidation of journalists:a.https://www.hindustantimes.com/india-news/senior-kashmir-doctor-al- leges-police-harassment-cop-says-he-was-pushed-first/story-DiZoztc4ieMUaUG26y5bkJ.html http://kashmirwatch.com/doctors-association-kashmir-confirms-harassment-abuse-of-2-senior-smhs-doctors-by-police/ https://www.hindustantimes.com/chandigarh/police-beat-up-on-call-cardiologist-in-srinagar-say-doctor-manhandled-policeman/story-EesL- V0oAugdRoa2SxYMQ2M.html 672. https://www.trtworld.com/magazine/when-a-kashmiri-journalist-went-to-former-torture-centre-for-an-exclusive-35974 673. https://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf 674. https://www.ohchr.org/Documents/Countries/IN/KashmirUpdateReport_8July2019.pdf 675. Section VIII: Human Rights Documentation on Kashmir 676. https://time.com/5844434/threats-press-freedom-june/ 677. https://theprint.in/india/jailed-kashmiri-journalist-who-won-us-media-award-was-arrested-after-burhan-wani-profile/281597/ 678. https://samsn.ifj.org/journalist-arrested-and-charged-with-militancy-in-kashmir-india/ 679. https://thekashmirwalla.com/2018/09/kwja-kja-demand-immediate-release-of-asif-sultan-from-illegal-detention/ 680. https://thekashmirwalla.com/2020/04/kashmiri-journalist-qazi-shibli-released-from-jail-after-nine-months/ 681. https://www.aljazeera.com/news/2020/04/kashmir-journalist-charged-anti-national-social-media-posts-200420100952020.html 682. https://www.washingtonpost.com/world/asia_pacific/indias-internet-shutdown-in-kashmir-is-now-the-longest-ever-in-a-democra- cy/2019/12/15/bb0693ea-1dfc-11ea-977a-15a6710ed6da_story.html 683. The Wire. 2019. ‘Collective Punishment’: UN Experts Slam Kashmir Communication Clampdown. [Online]. [Accessed 30th October 2019]. Available from: https://thewire.in/rights/collective-punishment-un-experts-slam-kashmir-communication-clampdown 684. See Appendix: APDP [2019] 120 Days: 5th August to 5th December - A report by APDP, 5th December 685. https://thekashmirwalla.com/2020/06/covid-19-doctor-hospitalised-after-thrashed-by-crpf-personnel-in-budgam/ 686. https://freepresskashmir.news/2020/06/03/was-hit-with-batons-dragged-on-the-road-kicked-in-my-chest-by-armed-forces-says-doctor/

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687. https://scroll.in/article/959297/in-srinagar-covid-19-red-zones-are-sealed-with-iron-barricades-drilled-into-the-ground 688. https://thekashmirpress.com/2018/06/24/nine-houses-gutted-in-fire-in-srinagars-nowhatta/ 689. https://www.thekashmirmonitor.net/fallout-of-barricading-fire-tenders-reach-late-to-douse-flames-at-natipora/ 690. https://mobile.twitter.com/AIIndia/status/1268075457817333763 691. https://thekashmirwalla.com/2020/06/i-hate-light-it-increases-pain-9-yr-old-pulwama-boy-hit-by-pellets-in-eye/ 692. https://apdpkashmir.com/my-world-is-dark-state-violence-and-pellet-firing-shotgun-victims-from-the-2016-uprising-in-kashmir/ 693. https://freespeechcollective.in/2019/09/04/news-behind-the-barbed-wire-kashmirs-information-blockade/ 694. Rifat Fareed, 2019. “‘We Risk Everything’: Reporting Kashmir Amid Lockdown, Harassment.” Al Jazeera, September 1, https://www.aljazeera. com/news/2019/08/risk-reporting-kashmir-lockdown-harassment190830075931481.html 695. https://www.newsclick.in/why-jks-demography-will-change-beyond-belief https://thewire.in/rights/kashmir-domicile-law 696. https://scroll.in/article/962295/in-kashmir-school-children-have-barely-gone-to-classes-for-nine-months 697. https://www.aljazeera.com/news/southasia/2019/03/clashes-kashmir-teacher-dies-police-custody-190319133729126.html 698. https://www.trtworld.com/opinion/a-teacher-is-killed-in-kashmir-where-is-the-justice-25152 699. https://www.ndtv.com/india-news/army-admits-teacher-killed-by-soldiers-says-unacceptable-unjustified-1446197 700. http://www.pakistankakhudahafiz.com/india-resumes-shelling-ajk-sialkot-villages/ 701. https://indianexpress.com/article/education/kashmir-unrest-education-sector-badly-affected-says-report/ 702. https://www.aljazeera.com/news/2017/04/kashmir-teen-shot-dead-54-students-wounded-clashes-170415190505282.html; May also see- https:// time.com/4743988/kashmir-jammu-india-pakistan-unrest/ 703. https://www.aljazeera.com/indepth/features/2016/11/burning-kashmir-schools-161102102009566.html; Also see- https://www.bbc.co.uk/news/ world-asia-india-37819842 704. https://www.aljazeera.com/news/2016/12/dead-indian-shelling-school-van-kashmir-161216132132004.html 705. https://www.outlookindia.com/website/story/pakistan-army-shelled-schools-it-is-not-something-we-would-do-says-indian-army/299788 706. https://reliefweb.int/report/pakistan/impact-explosive-violence-students-and-education-kashmir 707. https://www.firstpost.com/india/schools-in-kashmir-turn-into-armed-fortresses-as-students-watch-in-muted-horror-2980890.html 708. https://scroll.in/article/894739/breaking-peoples-will-in-kashmir-gunfights-leave-a-trail-of-destroyed-homes-and-rising-anger 709. https://www.trtworld.com/magazine/why-indian-forces-are-setting-houses-on-fire-in-disputed-kashmir-21776 710. https://www.aljazeera.com/indepth/features/kashmiri-homes-collateral-damage-gun-battles-180113101110063.html 711. https://www.trtworld.com/magazine/amid-covid-19-india-secretly-buries-kashmiri-rebels-35509 712. https://scroll.in/article/960369/kashmir-amid-lockdown-militants-bodies-are-buried-discreetly-not-handed-to-families 713. https://www.tribuneindia.com/news/j-k/teens-body-not-handed-over-to-kin-80998 714. https://www.independent.co.uk/news/world/asia/kashmir-india-death-certificates-jammu-protests-violence-modi-a9079371.html 715. https://www.independent.co.uk/news/world/asia/kashmir-india-death-certificates-jammu-protests-violence-modi-a9079371.html 716. https://www.aljazeera.com/news/2019/09/kashmiri-teenager-dies-pellet-tear-gas-shell-wounds-hospital-190904181621345.html 717. 108 Mathur, A. (2019) 9-year-olds among 144 minors detained in Kashmir since Article 370 abrogation. Retrieved from-https://www.indiatoday. in/india/story/children-among-minors-detained-kashmir-article-370-abrogation-reports1605322-2019-10-01 109 718. Section 107 allows preventive detention orders to be passed by an Executive Magistrate after conducting a show-cause inquiry, where a suspect refuses to furnish a personal bond/ security to prevent breach of peace. 719. Auqaf is a Muslim religious or charitable foundation created by an endowed trust fund. 720. If we pick up 5, we keep one… just a few hundred with us: J&K DGP. (2019). Retrieved from https://indianexpress.com/article/india/jammu-and- kashmir-dgp-arrests-lockdown-valley-5978211/ 51

721. Abuses 722. Sexist verbal abuses

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723. https://www.amnesty.org/en/latest/news/2020/03/mitigate-risks-of-covid-19-for-jammu-and-kashmir-by-immediately-restoring-full-access-to-in- ternet-services/ 724. https://rsf.org/en/news/india-kashmirs-blocked-internet-could-be-deadly-during-coronavirus-pandemic 725. https://www.thenewhumanitarian.org/news/2020/04/01/kashmir-internet-ban-coronavirus 726. https://thewire.in/health/kashmiri-doctor-medical-concerns-police

727. https://www.telegraph.co.uk/news/2019/08/27/kashmiri-doctor-arrested-warning-blackout-could-cause-deaths/

728. https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(19)31939-7/fulltext| 729. https://www.nytimes.com/2020/04/26/world/asia/kasmir-india-mental-health-coronavirus.html 730. https://www.nytimes.com/2020/04/26/world/asia/kasmir-india-mental-health-coronavirus.html 731. https://www.actionaidindia.org/publications/mental-health-illness-in-the-valley/ 732. https://www.msfindia.in/msf-scientific-survey-45-kashmiri-population-experiencing-mental-distress/ 733. https://www.aljazeera.com/news/2020/04/civilians-killed-india-pakistan-trade-fire-kashmir-200412153620705.html 734. https://www.nytimes.com/2003/11/26/world/indian-and-pakistani-forces-agree-to-cease-fire-in-kashmir.html 735. https://www.usip.org/sites/default/files/PW131-Ceasefire-Violations-in-Jammu-and-Kashmir-A-Line-on-Fire.pdf 736. https://www.nytimes.com/2020/05/15/world/asia/kashmir-pakistan-shelters-assault.html 737. https://thewire.in/security/indian-army-officers-killed-china-galwan-valley 738. Report by journalists-

https://freespeechcollective.in/2019/09/04/news-behind-the-barbed-wire-kashmirs-information-blockade/ ; report by activists-

https://www.nchro.org/index.php/2019/08/14/kashmir-caged-a-fact-finding-report-by-jean-dreze-kavita-krishnan-maimoona-mollah-and-vimal- bhai/

Reporters Without Borders (RSF), 2019

https://rsf.org/en/news/rsf-breaks-silence-forced-journalists-indian-administeredkashmir ; Rifat Fareed, 2019. “‘We Risk Everything’: Reporting Kashmir Amid Lockdown, Harassment.” Al Jazeera, September 1,

https://www.aljazeera.com/news/2019/08/risk-reporting-kashmir-lockdown-harassment190830075931481.html ; Scroll, 2019. “Help Us Find our Jailed Editor, Kashmir News Website Appeals,” August 28,https://scroll.in/latest/935374/help-us-find-our-jailed-editor-kashmir-news-website-ap- peals 739. https://indianculturalforum.in/2019/08/14/kashmir-caged-a-fact-finding-report/ 740. https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=79&Lang=EN 741. (1997) 1 SCC 301

742. United Nations, General Assembly, Human Rights Council, Promotion and protection of all human rights, civil,political, economic, social and cultural rights, including the right to development., Thirty-second session, Agenda item 3, 27th June 2016.

743. https://news.un.org/en/story/2019/08/1044741

744. https://ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24909&LangID=E

745. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21604&LangID=E

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