Tales of repression and subjugation are ubiquitous in the military-ruled northernmost borderland of India, the state of Jammu and Kashmir. The Indian government appositely refers to it as “disturbed.” How else would anyone define a territory where the population’s collective memory wails of military and police excesses, where, invariably, every household has a painful story to share?— How else to describe a territory where the existence of its people and what becomes of their progeny is determined by the tragedies they associate with their land. In the discourse of violence in Kashmir, the word ‘justice’ becomes almost effaced, noticeably but uncontestedly. I asked a rape survivor in Kashmir if she wanted her rapist, an army major, punished. Silence followed. I asked again if she desired justice. She responded, “What justice? What is this thing called justice?” After a pause, she added, “And who will give it?”
Just over a year ago, on September 7, 2013, world-renown conductor Zubin Mehta’s dream came true. He finally fulfilled his desire to perform in "beautiful Kashmir." A grand stage was erected for Mehta and his orchestra in the Shalimar garden of Srinagar, surrounded by lighted water fountains and the stunning Zabarwan Mountain as a backdrop. The glittering event, with music floating through the air, enthralled elite audience members from Kashmir and other distinguished guests from different parts of India who had “braved” the strike and shutdown in the valley called by separatist leaders in protest of Mehta’s concert. Once inside the fantasyland, protected by rings of army, paramilitary forces and police, they really must have felt safe!
But the naked truth (borrowing the term from Sartre) was out there - outside of the walled garden. The reality of this paradise was being played out in a small town in the Kashmir valley, thirty miles away from Srinagar. While Zubin Mehta played Beethovan and the music of other great composers, a family in Shopian was mourning their eighteen-year-old son, Tauseef. A few hours ahead of the concert, as security forces in Srinagar were busy organizing the heavy security arrangement promised for Mehta’s concert and its select audience, Tauseef and his friend, Adil, were shot by Central Reserve Police Force (CRPF) soldiers. Adil survived but Tauseef bled to death. What CRPF claimed as a counterattack on “militants” was declared - ten months later, in July 2014 - as a “brutal attack in which innocent people got killed” by the one-man Commission of Inquiry (CoI) which looked into the matter, appointed by the Chief Minister Omar Abdullah.
A month later, after the judicial commission had submitted its report, I rang up the human rights activist and a lawyer, Habeel Iqbal, who had accompanied me to Tauseef’s house in April of this year. While discussing the findings of the commission, Habeel said, “this report only reinforces how brutal these security forces are. Like all other commission reports, this will also lead to nothing. It has been more than a month since the commission came out with the findings. The government, as expected, has not taken any action. They will invoke AFSPA and protect Tauseef’s killers. We can never get justice.”
The idea of justice is not alien in Kashmir; it is made to be abandoned here. To effectuate this, principles of rights, freedom and justice were strategically discarded by the Indian government when it converted the Kashmir valley into a militarised zone in 1989-90. The injustice of refusing to hold a plebiscite1, as promised under the UN Security Council’s resolution in 1949, and denying Kashmiris political agency to freely determine their own future had cultivated deep-rooted resentment amongst the local population. Years of suppressed fury over an absence of channels of dissent, a ban on free association and assembly and the harrying of political opponents culminated in 1989, when India was accused of backing a fraudulent election hoping to continue with the tradition of installing centrist governments at the state level. The corollary of this was a popularly backed secessionist movement and armed rebellion in 1989-90. To counter it, India unleashed an era of political repression, including a suspension of civil liberties and extraordinary levels of state violence.
Maintaining its disputed territorial hold over Kashmir led India to give its military untrammelled power to launch a merciless counter-offensive against the rebellion and to punish its popular base—the so-called “erring” Kashmiri civilians who had challenged the legitimacy and moral authority of India over their land and lives. Hard-line response was immediately put into action to crush the dissent, characterised by massacres, unlawful and arbitrary detentions, torture, extrajudicial killings, the burning of villages, forced migration, disappearances and wide-scale rape. In 1995, Amnesty International noted, “the brutality of torture in Jammu and Kashmir defies belief. It has left people mutilated and disabled for life ... [and] is the main reason for the appalling number of deaths in custody.”
Power without accountability is at the heart of successful military occupations. Indeed, legitimisation of repression becomes a matter of policy, attainable through enshrining extra-legal powers of the military within a legislative framework. In 1990, Kashmir was declared a “disturbed”2 area by virtue of which it became subject to the provisions of the Armed Forces Special Powers Act (AFSPA). This piece of law (in force in India’s Northeast since 1957), empowers the Indian military, including its non-commissioned officers, to arrest without warrant, to occupy or destroy any structure that may be hiding “suspected” militants without any verification whatsoever, to conduct search and seizure without warrant, and to shoot to kill. In the name of “national security” AFSPA was rolled out not just against militants but the entire civilian population of Kashmir, as well. A member of a civil liberties team that visited the valley during the height of the insurgency best described the application of AFSPA: “Indian security forces tied up and shot seven men and boys, all members of the same Kashmiri Muslim family in this remote village...in what seems to have been a calculated act of brutality to deter villagers from helping Kashmiri separatists.”3
Regarded as one of the most draconian laws promulgated by the Indian parliament in its legislative history, AFSPA fostered a climate of excessive force, and continues to do so, characterized by unlawful killings of “suspected” militants. Adil’s testimony describing the day when he, Tauseef and two others were shot at by the military, offers a telling account of this policy of “killing on suspicion.”’ In his testimony, Adil remembered that “suddenly they started firing. We ran for our lives, but the CRPF men were chasing us and firing randomly. A Bihar resident who was also running collapsed in the middle of the road. We saw the CRPF troopers fire a burst into his head, killing him instantly. We too collapsed, exhausted and bleeding.” Justice (retd) ML Koul, headed the judicial commission, observing in his report that “this is nothing but an unwarranted brutal attack in which innocent people got killed without any justification and authority.” Koul’s report further states that the paramilitary CRPF had resorted to “indiscriminate firing on the fleeing civilians as if they were engaged in a war.”
Ironically, India borrowed this “spirit of colonisation” from none other than her former colonizer, the British, who had framed a similar Ordinance in 1942 to suppress the escalating sentiments of Indian nationalism. The underlying principle of policies like AFSPA is the protection of soldiers from criminal prosecution by placing their actions above the public scrutiny and accountability and most distinctively, above the law. Impunity was legalised and became the foundation over which this rule of law for a militarised Kashmir was established. AFSPA states that no legal proceeding against the abuse of such arbitrary powers can be initiated without the permission of the central government, something that is never forthcoming. To date, not a single soldier or paramilitary officer has been prosecuted for destruction of property or murder or rape. The International Peoples Tribunal on Human Rights and Justice in Indian-Administered Kashmir (IPTK) published a report in 2012, Alleged Perpetrators, in which it states, “This institutional culture of moral, political and juridical impunity has resulted in, by some estimates [as of 2012], enforced and involuntary disappearances of at least 8000 persons, besides more than 70,000 deaths, and disclosures of more than 6000 unknown, unmarked and mass graves. The last twenty-two years have also seen large-scale massacres, in addition to extra-judicial killings.” The line that separates justice from impunity has ceased to exist in Kashmir.
There is a correlation between impunity and organised military violence. The impunity granted by AFSPA creates opportunities for the Indian military and para-military groups to operate with disregard for those values underpining human rights norms. Sexual violence during war and conflict, considered “crimes against humanity” by the International Criminal Court (ICC), was repeatedly used as a tool of repression and revenge in the last twenty-four years in Kashmir. Rapes, including mass rapes, gang rapes, and sexual humiliation, were inflicted on Kashmiri women, particularly against those who belonged to the families of militants or who were accused of being militant sympathizers. Testimony presented by Professor William Baker at the 52nd UN Commission on Human Rights makes clear that “Rape in Kashmir is not the result of a few undisciplined soldiers, but rather an active strategy of Indian forces to humiliate, intimidate and demoralise the Kashmiri people.” As per a research study, Kashmir has witnessed high incidences of sexual violence in comparison to other conflict zones in the world. More recently in 2013, the Chief Minister of Jammu and Kashmir, responding to a question raised in the legislative assembly, gave a statement that more than 5,000 cases of rape have been registered since 1989. In 2013 alone, seventy cases of sexual violence were registered against the security forces.
In asymmetrical battlefields, especially when unarmed civilians are regarded as frontline enemies, disposability of human lives is the norm. When, in 2000, five civilians were executed by the Indian Army in Pathribal and passed off as members of Lashkar-e-Toiba, the act was demonstrably free of any moral rectitude. Indicting the officers of the Indian Army's Rashtriya Rifles, the Central Bureau of Investigation (CBI) stated that, "The Army Unit of 7 RR… was under tremendous psychological pressure to show some results…The then Col Ajay Saxena, the then Major B P Singh, Maj Sourabh Sharma, Subedar Idrees Khan and other personnel… hatched a criminal conspiracy to pick up some innocent persons and stage-manage an encounter”. Notwithstanding CBI’s investigation and the charge-sheet filed against the officers involved, the Army court this year passed a not-guilty ruling absolving the accused officers of any crimes. AFSPA also came in handy in shielding and protecting those four Central Reserve Police Force officials who, along with three Jammu and Kashmir police personnel, were found responsible for killing eight civilians. In spite of the charges having established by police investigation, a Commission of Inquiry and two departmental inquiries in the last thirteen years, the central government denied sanction for prosecution of the officials. Perhaps such flagrant mockery and challenging the integrity of its own institutions stems from the deep fear; prosecuting crimes of these soldiers will only expose the illegitimacy of India’s counter-offensive in Kashmir.
After talking to Habeel, I recalled my visit to Tauseef’s house. In the living room where I sat with his father, younger sister, elder brother and his wife and their little daughter, there was a palpable sense of loss. The cups of tea and plates of biscuits were left untouched. Tauseef’s brother kept staring at the floor and was visibly choked up when his father was telling me about Tauseef. “There were only two kids in the house, his daughter”—pointing to Tauseef’s brother—“and Tauseef. He loved shopping and he used to spend a lot on his clothes and watches. People told us that we were spoiling him. After a pause he added, we didn’t know his life was so short. When I saw him in the hospital soaked in blood, I knew he wouldn’t live. He would only ask for water,” he said with tears brimming his eyes.
Later in the night, when I had finally got down to making notes of my conversation with Tauseef’s father, I wrote a line next to the date of Tauseef’s killing—the same day when the Beethoven’s music was shattered by the sound of the gunshots.
1 Territorial dispute over Kashmir between India and Pakistan, started in 1947 when the British India got its independence, was taken to the United Nations Security Council by India in January 1948. On January 1st 1949 a UN supervised ceasefire line (Line-of-Control or LOC) divided the territory between Indian-administered Kashmir (the Kashmir Valley, Jammu and Ladakh) and Pakistan (Azad Kashmir, Gilgit and Baltistan). On 5th Januray 1949, UN stated that the decision on Kashmir’s future political allegiance will be determined through a free and impartial plebiscite. The promised plebiscite never took place and the demands for it have consistently been ignored by both India and Pakistan.
2 ‘Disturbed areas’ is defined as any area (whole or any part of the state), which as per the Governor of that State or the administrator of that Union Territory or the Central Government, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary.
3 Victoria Schofield, Kashmir in the Crossfire (London: I.B. Taurus, 1996), 39.
Ayesha Pervez researches conflict, militarisation and gender-based violence. She has spent two years in Kashmir conducting a study on conflict-induced violence against women and the response of the justice system to human rights abuse claims of survivors of sexual violence. She has written for Economic and Political Weekly, Kafila, Women Under Siege and other publications. Follow her on Twitter: @pervez_ayesha.