By Seema Kazi
The unexpectedly high voter turnout in the Valley during Kashmir’s recent assembly elections evoked considerable debate and analysis. A number of commentators both in Kashmir and elsewhere noted that the elections reflected citizens’ expectation and demand for good governance and development; they did not represent a mandate for maintenance of the political status quo in the Valley.[1] For the establishment, however, the installation of a duly elected government in Kashmir is perceived as an end in itself. The Prime Minister hailed the election as a victory for democracy.[2] Important and significant as the election is, Manmohan Singh’s statement symbolizes the deep and disturbing disconnect between New Delhi and the Kashmir Valley.
If the holding of assembly elections in Kashmir and the participation of Kashmiri Muslims in them are considered markers of the triumph of democracy’, then the establishment’s definition and understanding of democracy is exceedingly limited, if not dangerously flawed. The success of democracy is not to be assessed merely in terms of its formal dimensions, namely, the holding of regular and fair elections at the local, state and national level. Rather, it is the availability and protection of democracy’s substantive provisions that validate and authenticate its success. More specifically, the success of local-level democracy is based on the fundamental provisions of a democratic state, namely, the supremacy of civil authority, implementation of the rule of law, the existence of an independent judiciary, the protection of citizens’ right to speech, assembly and travel, and the freedom of citizens from violence, harassment and unlawful detention. It is precisely on these very counts that democracy in the Valley falls well short of those attributes that, in principle, affirm its legitimacy.
There is a great contradiction between state claims to democracy in Kashmir and the subversion of civil authority by the military exemplified by legislative measures such as the Armed Forces Special Powers Act and the Disturbed Areas Act. That a non-elected institution of the state meant for the protection of citizens is ˜legally’ empowered by India’s Parliament and courts to deprive Kashmir’s citizens of the inalienable right to life is disturbing testimony to the state of democracy in Kashmir, and indeed, in India. For citizens in the Kashmir Valley, this contradiction epitomizes the experience and memory of a bitter, two-decade-old policy of authoritarian, militarily-backed ˜democracy’ that has generated and exacerbated Kashmir’s great human rights tragedy. Indeed, this is precisely why the Valley’s Muslims aspire to, and dream of, a future sans New Delhi’s repressive hegemony and control. The latter’s attempt to use the elections in Kashmir as a means to advance its ˜democratic’ claims is, therefore, at best short-sighted and at worst, disingenuous. If India is a democracy, it cannot endorse a policy that violates three crucial foundations of a democratic state, namely, a] maintenance of the distinction between civil authority and the role of the military, and b] citizens’ right to liberty and c] the duty of the state to protect citizens. There can be no role for the military or for the coercive suppression of civil rights in a truly democratic Kashmir.
For over two decades, India’s extraordinary military presence in the Valley has been synonymous with flagrant violation of the rule of law. If the underlying principle of the rule of law is that no one is above the law, the impunity accorded to security forces in Kashmir is a grave violation of the legal basis of government and, by extension, the legality of the state. Since 1989, not a single member of the military has been prosecuted or convicted for a criminal offence in Kashmir.[3] In 2005, the Jammu and Kashmir government made almost three hundred requests for permission to prosecute public servants, including members of the military; none were granted.[4] The Disturbed Areas Act and the Armed Forces Special Powers Act (AFSPA) permit the military and paramilitary forces to operate their own network of detention and interrogation centres that are beyond judicial scrutiny. Persistent disregard by state authorities for the writ of habeas corpus an important legal provision meant to protect citizens from institutional abuse and one of the cornerstones of a democratic state and the concomitant paralysis of Kashmir’s judiciary underscore India’s shaky claims to ˜democracy’ in the Valley. In 2006, there were 60,000 habeas corpus petitions filed by individuals since 1990, and 8,000 cases of enforced disappearance.<5] In a press statement upon their return from the Valley, members of the Interchurch Peace Council and Lawyers without Borders, The Netherlands, quoted the Jammu and Kashmir High Court's observation regarding Kashmir's judicial crisis:
The administration appear[s] to have thrown to the winds the rule of law, there is a total breakdown of the law and order machinery Even this Court has been made helpless by the so-called law enforcing agencies. Nobody obeys the orders of this Court. Thousands of directions have been given to top administrative and law enforcing agencies who have not even responded Statements of judges insisting on respect for the rule of law are neglected, critical judges are intimidated or even maltreated and risk being transferred or even dismissed.[6]
Even by the congealed yardstick of the establishment line that Kashmir is an ˜integral’ part of India, the denial of citizenship rights to Kashmiri Muslims underscores the great paradox between rhetoric and reality. India’s Constitution guarantees judicially enforceable fundamental rights, including the right to freedom of speech, political affiliation and the right to be free from arbitrary arrest or detention. In the Valley however, the ban on public gatherings, free speech, the right to be free from unlawful detention and the right to a fair trial remain suspended; no judicial reviews of such suspensions are allowed. The Jammu and Kashmir Public Safety Act (1978), the Jammu and Kashmir Criminal Law Amendment Act (1983), the Terrorism and Disruptive Activities Act (1987) in force in Kashmir till 1995 together with the Armed Forces Special Powers Act (Jammu and Kashmir), contravene, respectively, the right to be free from arbitrary detention, the right to political affiliation and opinion, the right to freedom of speech, and the right to life.
Democracy in Kashmir is also ill-served by the fear and paranoia of successive regimes at potential independent scrutiny of India’s democratic and human rights record in Kashmir. The mandate of the International Committee of the Red Cross (ICRC) to detention centres in Kashmir is restricted,[7] while repeated requests by the United Nations Special Rapporteur on Torture and by Amnesty International to visit Kashmir have met with official refusal.[8] A number of human rights defenders in the Valley have been murdered by the military[9] and there are several cases of non-Indians whose interest in, or engagement with, Kashmir’s civil society and humanitarian tragedy prompted aggressive surveillance and/or the revocation of their visa to India.[10]
The establishment’s denial of festering Kashmiri grievance may buy time for New Delhi and postpone its inevitable reckoning with the truth in the Valley: That assembly election (held in the shadow of a coercive military presence, undeclared curfew and the arbitrary arrest of the Valley’s political leadership) cannot erase the anger and discontent of a people wronged. This election is not, and can never be, a substitute for a just resolution to the two-decade-old dispute between Kashmiri Muslims and the Indian state; nor can it erase India’s appalling record of governance in the Valley. Elections in Kashmir merely affirm India as a formal, rather than substantive democracy. That India is on the wrong side of history in the Valley was evident on 18 August 2008 when a million Kashmiri Muslims took part in an extraordinary peaceful demonstration against the status quo symbolizing the thousand-year-old language of fearlessness, a language with no reservations and omissions, about the world and about power.[11]
If India wishes to showcase democracy in Kashmir, it must extend to Kashmiri Muslims those rights and freedoms denied them for two long decades. Democracy in Kashmir would mean that its formal, participatory dimensions involving elections at the local and state level are complemented and augmented by its substantive dimensions. It would be synonymous with the restoration of full citizenship rights for Kashmiris, namely, freeing Kashmiri civilians from violence and harassment from the police and the military, the revocation of repressive legislation, the end of unlawful killings, arbitrary searches and detentions, the restoration of Kashmir’s judiciary, the protection of civil rights including the right to freedom of speech and assembly, freedom for Kashmir’s citizens to travel within and beyond state borders, and last, but certainly not the least, the initiation of a process of public accountability for Kashmir’s human rights tragedy.[12]
In the wake of the horrific carnage in Mumbai, India issued strenuous denials at any link between Mumbai and Kashmir. It remains the case nevertheless, that political grievance wherever it exists is bound to be exploited by constituencies who profit from it. Kashmir, as India well knows, is no exception. Indeed, it is the festering two-decade long grievance in the Valley since 1989-90 which India denies and Pakistan exploits that edges both countries close to war. Pakistan’s domestic chaos and its inability to intervene actively in Kashmir may provide momentary cheer to an Indian establishment sans imagination, the political will or the morality to halt the Valley’s tragedy. It does not, however, absolve the Indian state from its political responsibility to engage with, and redress, a grievance rooted in the subversion of democracy during the 1987 assembly elections in the Valley, and a two-decade long undemocratic and barren counter-offensive centred on the use of coercive force and the denial of citizens’ basic rights and freedoms. If India is a democracy, it must have the courage to face up to, and redress, its political failure in Kashmir. Democracy in Kashmir and indeed, in India, shall be best served by righting the grievous wrongs in the Valley.
References
[1] See for instance Wani, Arif Shafi (2008) It’s a verdict for grievances, not aspirations of Kashmiris Greater Kashmir, 29 December; Jha, Prem Shankar (2008) A new way has dawned The Hindustan Times, 31 December; Noorani, A.G. (2008) The Hurriyat must unite for Azadi in Kashmir Dawn, 6 December.
[2] Prime Minister Manmohan Singh, 28 December 2008, quoted in The Indian Express, Viewed on 29 January 2009(http://www.kashmirlive.com/).
[3] The Indian security forces continue to hide behind the shield of immunity provisions in Indian law and the lack of political will in New Delhi to address the critical human rights situation in Jammu and Kashmir. Everyone Lives in Fear: Human Rights Watch (2006), 63.
[4] ibid 29
[5] Everyone Lives in Fear, 107.
[6] Press Statement on return of Lawyers without Borders delegation to Kashmir, The Hague, The Netherlands, 7 June, 2004. See http://www.ikv.nl/ for more details.
[7] The ICRC has to seek and obtain government approval for visit to jails in Kashmir. A member of the ICRC expressed concern at the mental condition of detainees and declined to comment on instances of torture in detention centres. ˜Carrying the Cross’ Georgios Georgantas, member, ICRC team to India, interviewed by Humra Quraishi. The Times of India, 24 September 2002.
[8] Amnesty International Release ASA 20/016/1996 dated 28 March 1996.
[9] Dr. Farooq Ahmed Ashai killed by the CRPF (1993); Dr. Jalil Andrabi killed by the Rashtriya Rifles (1996); Hriday Nath Wanchoo shot dead by a militant released by state authorities to execute the killing (1992). For a fuller account see Gossman, P (2000): India’s Secret Armies in Campbell, B and A. D. Brenner (ed.) Death Squads in Global Perspective (London: Macmillan), 273.
[10] I personally know two individuals from Europe who were subject to constant surveillance and arbitrary searches upon arrival and departure from the Valley. One is banned from entering India; the other, a student, narrated to me his harrowing experience en route from the Kashmir Valley to Jammu: just before entering the Jawahar tunnel, security forces rifled through his personal belongings and confiscated some of his documents. An academic in New Delhi narrated to me the case of a foreign student’s article on human rights in Kashmir after which he was banned from entering India.
[11] Bakhtin, Mikhail (2000): Rabelais and His World in M. Bulgakov ˜The Master and Margarita’ (London: Penguin Classics 2000), xv.
[12] Seema Kazi (2009): Between Democracy and Nation: Gender and Militarisation in Kashmir (New Delhi: Women Unlimited/Kali for Women)
Seema Kazi is an independent researcher and writer on Muslim women and human rights with Women’s Learning Partnership (WLP), Washington D.C. and the Minority Rights Group (MRG) London. She has a PhD from the Gender Institute, London School of Economics.