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Kashmir and the Administration of Justice-I

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“O you who have believed, be persistently standing firm in justice, witnesses for Allah, even if it be against yourselves or parents and relatives. Whether one is rich or poor, Allah is more worthy of both….” (Al-Quran 4:135).

“Beware! Whoever is cruel and hard on a non-Muslim minority, curtails their rights, burdens them with more than they can bear, or takes anything from them against their free will; I (Prophet Muhammad) will complain against the person on the Day of Judgment.”

‘There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.’-Charles-Louis de Secondat. French philosopher.

“The 2023 ‘World Day of Social Justice’ provides an opportunity to foster dialogue with Member States, youth-relevant UN institutions and other stakeholders on actions needed to achieve social justice by strengthening the social contract that has been fractured by rising inequalities, conflicts and weakened institutions,” excerpts from the concept paper of ‘World Day of Social Justice, February 13, 2023.’

The international community has recognized that national institutions such as the judiciary are important to ensure the promotion and protection of human rights. It often serves as an effective supplement and corrector of State and non-state actors when the organ will not police itself.

Although the United Nations has written declarations that affirm the rights of vulnerable populations, there must be a greater worldwide effort on the part of governments, NGOs, businesses and UN agencies to incorporate peace, justice and human dignity into internationalization and globalization. Peace, justice and human dignity cannot take a back seat as societies globalize their trade, supply chaining, and outsourcing. Freedom and justice must prevail above all political and economic aspects of international trade relations, and treaties even if it requires cancelling trade agreements with countries that blatantly allow gross human rights violations to continue. It is the responsibility of everyone operating in the international arena to ensure that peace, justice and human dignity are protected. Global ethics must be fully integrated into the process of globalization.

Adopted by the ‘Seventh United Nations Congress on the ‘Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985 articulated that the Charter of the United Nations the peoples of the world affirm, inter alia, their determination to establish conditions under which justice can be maintained to achieve international co-operation in promoting and encouraging respect for human rights and fundamental freedoms without any discrimination.

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The resolution further states that the following basic principles, formulated to assist Member States in their task of securing and promoting the independence of the judiciary should be taken into account and respected by Governments within the framework of their national legislation and practice and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general. The principles have been formulated principally with professional judges in mind, but they apply equally, as appropriate, to lay judges, where they exist.

In 1994 ‘Compilation of International Instruments’ about human rights, a substantial amount of the articles pertained to the rights of individuals in the administration of justice. Perhaps nowhere in human experience is there more room for the systematic abrogation of human rights than when done under the guise of authority from the State. Under the section adopted by Resolutions 663 C of 31 July 1957 and 2076 of 13 May 1977, we find standards for the protection of persons who have been detained by the authorities.

We also find further guidelines under the ‘Body of Principles’ adopted in Resolution 43/173 of 9 December 1988, Resolution 3452 of 9 December 1975, Resolution 39/46 of 10 December 1984 and Resolution 47/133 of 18 December 1992. The sheer quantity of these resolutions should be an indication to us of the seriousness of crimes they are intended to identify, and so it is hoped, to guide the United Nations human rights machinery where it must take action for their prevention. Article 3 adopted by the UN General Assembly Resolution 3452 of 1975 states that “Exceptional circumstances such as state of war or a threat of war, internal political instability or any other public emergency may not be invoked as a justification of torture.”

Article 4 of the International Covenant on Civil and Political Rights (ICCPR) adopted by the General Assembly vide resolution No. 2200 A (XXI) of December 16, 1966 mandates that even in case of officially proclaimed public emergency, the state’s parties to the said covenant cannot derogate from the fundamental human rights and safeguards including the inherent right to life and subjection to torture or cruel, inhuman or degrading treatment or punishment.

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The basic human rights provisions of the Geneva Convention including the ones protected under common article 3 of these conventions are also non-derogable in the sense that they must be respected even in times of international and non-international conflicts, internal disturbances and foreign occupation.

The Vienna Declaration and Programme of Action called upon the states to abrogate legislation leading to impunity for those responsible for grave violations of human rights and to prosecute those violators, thereby providing a firm basis for the rule of law.

Now, let us analyze the conditions of the administration of justice in Indian-occupied Kashmir where the justice system has failed the hapless population of the State. According to the Human Rights Watch / Asia Report entitled, ‘India’s Secret Army in Kashmir,’ “Under pressure from the authorities, the courts routinely grant government officials extended time to respond to petitions. Detainees who have been held for up to one year have not been granted access to legal counsel…Fearing reprisals, judges have been reluctant to challenge the actions of the security forces.”

Dr. Nazir Gilani, President, ‘Of Jammu and Kashmir Council for Human Rights’ an NGO, accredited with the United Nations has said that “the Indian justice system – both the courts themselves and the legal process for victims seeking to bring human rights claims – falls short of international standards. The Indian judiciary, despite its purported independence, has played an instrumental role in ensuring the Indian government’s ability to maintain its control over Indian Administered Jammu and Kashmir and combat the voice of dissent in the region.”

Dr. Gilani emphasizes that ‘the pattern of legal breakdown in Indian Administered Jammu and Kashmir violates basic tenets of international human rights law. Litigants routinely ask the Kashmiri court system to respond to claims against security forces for human rights violations that include allegations of assault, torture, rape, extrajudicial killing and arbitrary detention. In becoming a party to key international human rights treaties, India undertook to ensure that effective remedies were available to the victims of such human rights abuses. The government of India has to undertake measures that protect and enhance an independent and impartial judiciary, as well as an independent legal profession.”

(To be concluded………)

Dr. Ghulam Nabi Fai is the Chairman, ‘World Forum for Peace & Justice’.

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India

Kashmir and the Administration of Justice-III

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Professor Zafar Khan, Head of the Diplomatic Department of JKLF and a well-known leader of Kashmiri global diaspora has said, “Kashmiris are denied their collective and individual rights by India. The political, judicial and security establishment in India has orchestrated an environment of fear and impunity across Jammu Kashmir

With thousands of civilian deaths and politically motivated trials of Kashmiri leaders, India shows scant respect for domestic and international law. Yasin Malik’s trial to convert his deeply flawed life sentence to death is a glaring example of this impunity. It has to be said that recourse to justice for Kashmiris after annexation of disputed Jammu Kashmir, is no longer a basic right for them.”


Human Rights Watch in its World Report 2023 (India) writes, “Allegations of torture and extrajudicial killings persisted, with the National Human Rights Commission registering 147 deaths in police custody, 1,882 deaths in judicial custody, and 119 alleged extrajudicial killings in the first nine months in 2022.
Amnesty International says, “Torture and other ill-treatment of detainees in police custody remain widespread.” According to Amnesty International, these broadly defined powers facilitate the shooting of the suspects in custody. Amnesty International calls PSA as ‘Lawless Law.’

Many members of the United Nations Human Rights Council, Asian Federation Against Involuntary Disappearances, International Commission of Jurists, and other international NGOs have expressed concern that these provisions contravene the right to life provided in the International Covenant on Civil and Political Rights (ICCPR).

Dr. Farhan Mujahid Chak, a Canadian-Kashmiri scholar and widely respected expert on the subject of Kashmir has said, ‘The justice system in the disputed territory of Jammu and Kashmir is as artificial as its current governance structure. No bearing with the reality on the ground and as illegitimate as any settler-colonial power would be anywhere in the world.’ The laws weaponized in the disputed territory are not meant to protect the powerless against the powerful or establish justice.  They operate to perpetuate the illegal stranglehold India has over society.

The 43- page report on the ‘Situation in Kashmir’ by the Office of the UN High Commissioner for Human Rights (UNHCHR) issued on June 14, 2018, noted that, “Special laws in force in the state, such as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (AFSPA) and the Jammu and Kashmir Public Safety Act, 1978 (PSA) , have created structures that obstruct the normal course of law, impede accountability and jeopardize the right to remedy for victims of human rights violations.  AFSPA grants broad powers to the security forces operating in Jammu and Kashmir and effectively bestows immunity from prosecution in civilian courts for their conduct by requiring the central government to sanction all prospective prosecutions against such personnel before being launched.”

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An incarcerated but eminent and internationally known human rights activist, Khurram Parvez echoes those sentiments in 549-page report on, ’Torture: Indian State’s Instrument of Control in Indian Administered Jammu and Kashmir’ on page 104, “In the context of unprecedented militarization in the state of Jammu and Kashmir post 1989, the army is omnipresent in all the villages and towns of the Kashmir Valley. Following the Doctrine of Sub-Conventional warfare (breaking the will of the people), the armed forces have perpetrated inter alia massive torture in the state of Jammu and Kashmir, they are equipped with legal, political, and moral impunity. Despite possessing some powers, the judiciary is avoiding confronting the executive, resulting in an overall state of judicial impunity.”

United States, Department of State Country Report 2022 states that “The Public Safety Act (PSA), which applies only in Jammu and Kashmir, permits authorities to detain persons without charge or judicial review for up to two years without visitation from family members.  In April, the press reported that more than 500 persons remained in detention under the PSA in Jammu and Kashmir.”
The country report further adds, “There were reports that police beatings of prisoners resulted in custodial deaths (see section 1.a.).  There were reports of abuse in prisons by guards and inmates, as well as reports of rape of detainees by police. According to human rights NGOs, police used torture, other mistreatment, and arbitrary detention to obtain forced or false confessions.  In some cases, police reportedly held suspects without registering their arrests and denied detainees sufficient food and water.”

Advocate Jalil Andrabi has said that “the laws conferring unrestricted and arbitrary powers on the armed forces continue to remain in operation in Jammu & Kashmir, with full impunity to the perpetrators or crimes against the humanity and violations of fundamental human rights, threatening the very existence of the people of Kashmir. Indictments and appeals from the United Nations Rapporteurs on Torture; Extrajudicial, summary or arbitrary execution; freedom of opinion and expression; the situation of human rights defenders; Independence of judges and lawyers; Freedom of religion and belief; Violence against women; International Commission of Jurists; Amnesty International; Human Rights Watch have failed to make India withdraw these laws.”

The arbitrary powers conferred upon the armed forces with virtual impunity from any legal action are a part of deliberate Indian State policy wherein, arbitrary arrest, detention, torture, extra-judicial killing, and killings of civilians and unarmed and peaceful demonstrators have been used as a weapon of war. The motive behind these crimes against humanity is to force the Kashmiri people to abandon their struggle for fundamental human rights of self-determination.

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The problems associated with attempting to curtail human rights abuses in Kashmir are further complicated by India’s steadfast refusal to allow non-governmental organizations, the United Nations Thematic Special Rapporteurs, Amnesty International and other NGO’s to investigate allegations in Kashmir.

UNHCHR has recommended to the Government of India in its report on page # 48 that “In line with its standing invitation to the Special Procedures, accept the invitation requests of the almost 20 mandates that have made such requests; in particular, accept the request of the Working Group on Enforced or Involuntary Disappearances and facilitate its visit to India, including to Jammu and Kashmir.” It has also recommended to the UN Human rights Council to, “Consider the findings of this report, including the possible establishment of a commission of inquiry to conduct a comprehensive independent international investigation into allegations of human rights violations in Kashmir.”

In reality, as Advocate Jalil Andrabi has said the people of Kashmir are prisoners – prisoners of their conscience. They have been deprived of their non-derogable human rights including their right to life and liberty, and access to justice only because they are demanding to exercise their fundamental inalienable and non-derogable right to self-determination. To restore the basic human rights of the detainee, India must be compelled to concede the right of the people to exercise their self-determination and stop its crimes against humanity in Kashmir.

With these words I have shown the merest tip of the iceberg of the pandemic violations of human rights with which the people of Kashmir must live on a day-to-day basis. Such events are not rare and occasional, but most decidedly part of a systematic policy of repression, victimization, suppression, and colonization. By extension, one has to ask what extremely deleterious effects this activity must have on the psychological health of even the occupying forces, and the families and neighbours of all those affected by such violence.

By our shared humanity, we are obliged not to sit idly by, but to act swiftly and surely to repair the disastrous human chaos that daily threatens human life and the human dignity of the people of Kashmir. The question arises: what should be the point of departure for determining a just and lasting basis? The answer is (a) the Charter of the United Nations and (b) the international agreements between India and Pakistan

(……Concluded….)

Dr. Fai is the Chairman, ‘World Forum for Peace & Justice’.He can be reached at: [email protected] www.kashmirawareness.org

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Elections 2024

Indian General Elections 2024: Implications and Prospects

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As the Indian general elections of 2024 draw closer, the political landscape of the country is witnessing a flurry of activity, with political parties and leaders gearing up for the electoral battle that lies ahead. The elections are expected to be closely contested, with various speculations and conjectures doing the rounds about the possible outcomes. The implications of the election results are far-reaching and will have a significant impact on the country’s future, including its economic policies, international relations, social welfare schemes, and more. The 2024 elections are crucial for India’s growth and development, and the citizens of the country are eagerly awaiting the outcome with bated breath.

The Political Landscape

The Bharatiya Janata Party (BJP) has been in power since 2014, and the party’s popularity has only grown since then. The BJP’s Hindu nationalist agenda and Prime Minister Narendra Modi’s strongman leadership have appealed to the majority of the country’s Hindu population. The opposition Indian National Congress party, on the other hand, has been struggling to maintain its relevance and has been plagued by infighting and hierarchical issues. The recently formed coalition of all major opposition parties, which goes by the acronym INDIA, has yet to unite on crucial issues, though it has vowed to fight the BJP collectively.

The Prospects

The BJP’s victory in the 2024 general election seems almost inevitable at this stage, given the party’s popularity and the lack of a strong opposition. The BJP’s nationwide pre-election push, titled Viksit Bharat Sankalp Yatra, will see thousands of government officers deployed to towns and villages across the country over the next two months, tasked with speaking about the BJP’s successes over the past nine years. Concerns have been raised over what a third term for Narendra Modi would mean for the country amid rising Hindu-Muslim tension.

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The Implications

A win for the BJP and Modi would consolidate the party’s position at the center, but a fragmented mandate could lead to an era of coalition politics. The role of regional parties could be pivotal in such a scenario. The potential outcomes of the 2024 elections are difficult to predict given the volatility of the Indian political scenario. However, the BJP’s victory would likely result in the continuation of its Hindu nationalist agenda, which has been criticized for its persecution of Muslims and erosion of democratic institutions.

Conclusion

The Indian general elections of 2024 are poised to be a turning point in the country’s history. The BJP’s victory seems almost inevitable, but the implications of the election results are far-reaching and will have a significant impact on the country’s future. The BJP’s Hindu nationalist agenda and Modi’s strongman leadership have appealed to the majority of the country’s Hindu population, but concerns have been raised over the party’s persecution of Muslims and erosion of democratic institutions. The role of regional parties could be pivotal in shaping the outcome of the elections, and a fragmented mandate could lead to an era of coalition politics. Only time will tell what the future holds for India.

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India

Kashmir and the Administration of Justice-II

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Advocate Nasir Qadri, Executive Director, ‘Legal Forum for Kashmir’ (LFK) has documented and analyzed India’s institutionalized and systematic discrimination against Kashmiris within the framework of the definition of Genocide and ethnic cleansing under international law. It has further analyzed the laws, policies and practices which have been newly introduced as the transitional phase of settler colonialism to change the demography of Muslim-dominated regions. Furthermore, it has documented specific repressive measures against the selected individuals, serious human rights violations and crimes under international law, committed against the Civilian population with the intent to maintain this system of colonial domination.

Advocate Jalil Andrabi, Chairman, ‘The Kashmir Commission of Jurists’ who was arrested by Indian paramilitary forces (35th Rashtriya Rifles) on March 8, 1996, and three weeks later, his dead body was found floating in the river Jehlum, has said that “The judiciary is working under great strain in the state of Jammu and Kashmir. The judges who try to dispense justice impartially are either transferred to a far-flung state in India or forced to resign or denied promotion which otherwise is due to them.”

We know that in particular, the minimum standards for the respect of the most fundamental rights and dignity of detainees are absent in Kashmir. More shockingly, India has passed a series of laws that empower its 900,000 military and paramilitary forces to act against the people of Kashmir in violation of international standards. In this context, India has legalized arbitrary arrest, and wanton destruction of property and has given its soldiers the right to conduct searches without warrant. Ignoring the application of international humanitarian law. India claims that the Kashmiri defenders are separatist and ‘militants’ and has granted its armed personnel ‘shoot-to-kill’ powers against the people of Kashmir.

Some of these laws clearly violate international standards.

‘Jammu & Kashmir Public Safety Act’ (PSA) enables the Indian military and paramilitary forces in Kashmir to detain civilians for up to one year without trial or due process for a wide variety of reasons, including the exercise of free speech. For example, under this act, an individual whose child has been murdered by the Indian army and speaks out publicly against India’s campaign of terror can be detained for up to one year without trial for endangering ‘public safety.’ Also, under this act, an individual who produces pamphlets or newsletters that advocate the implementation of the United Nations resolutions calling for a plebiscite in Kashmir can also be arrested and detained without formal charge or due process.

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In disturbed areas, the army and paramilitary forces are granted sweeping powers of arrest and search without warrants under 54 (a) of the Armed Forces (J&K) Special Powers Act, (AFSPA) 1990. Section 4 (a) of this act grants the army and the paramilitary forces in ‘disturbed areas’ broadly defined powers to shoot to kill in the following terms: I quote: “If… it is necessary so to do the maintenance of public order…fire upon or otherwise use force, even to the causing of death against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or things capable of being used as weapons or of firearms, ammunition or explosive substances.”

For any of the above actions, article 7 of the act titled ‘protection of persons acting in good faith under this act’ holds that ‘no prosecutions, suit or other legal proceedings shall be instituted…against any person in respect of anything done or purported to be done in exercise of the powers conferred by this act. This means that any member of the armed forces who conducts the above-described human rights violations. – summary executions of unarmed civilians, burning down homes and villages, torture and arbitrary arrest – can do so with complete immunity from prosecution.

Masarat Aalam Bhat, Chairman, All Parties Hurriyat Conference has been-arrested under PSA. He is a political prisoner who has spent 26 years in Indian jails. He is in jail not because he is guilty of a crime but because he believes that the people of Kashmir should be free to decide their future in accordance with the pledge extended to them under the authority of the United Nations Security Council. The Indian government has kept Aalam in jail for decades on more than 30 charges but never convicted him of a single one.”

Shabir Ahmed Shah, President, the Jammu and Kashmir Democratic Freedom Party has spent 36 years in Indian jails. He is known as the ‘Mandela of Kashmir.’ Amnesty International has condemned the imprisonment of Shah via AI INDEX: ASA 20/WU 13/94 and demanded his release claiming that Shah was illegally imprisoned under the ‘Terrorist and Disruptive Activities Act (TADA).

‘Unlawful Activities Protection Act’ (UAPA) is a draconian law, mostly used by the Government of India to suppress dissent. Experts call UAPA, jail without bail. Under Section 43(D)(5) of UAPA, it is impossible to get bail once the chargesheet is filed against a person. One prime example is Khurram Parvez, an internationally known human rights defender who was arrested on November 22, 2021, under UAPA. He is the Chairperson of the Asian Federation Against Involuntary Disappearances (AFAD).  He received ‘Reebok Human Rights Award’ in 2006. He is included in ‘Time Magazine’s 100 Most Influential People in 2022. Mary Lawlor, the UN Special Rapporteur on Human Rights Defenders said, ‘Khurram Parvez is not a terrorist. He is a human rights defender.’ Yet BJP/RSS-led Modi government says he is a terrorist.

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Mohammad Yasin Mali, one of the most recognizable leaders of Kashmir was arrested under UAPA and was sentenced to life imprisonment. If Yasin Malik is a terrorist as India has charged him, then how to explain the eagerness of a person no less important the then the prime minister of India, Dr Manmohan Singh to urge Malik during an official meeting on February 17, 2006, to help initiate a peaceful negotiation for the resolution of Kashmir dispute. Dr Manmohan Singh sought the meeting with Malik because of the non-violent ideology that Yasin Malik has been pursuing since 1994. Ambassador Kuldip Nayyar, former Indian High Commissioner to the United Kingdom, wrote in Redfiff.com on August 7, 1999, “The first militant, Yasin Malik, who raised his gun at a public meeting in the heart of Srinagar, has turned nonviolent and vegetarian. Now he is a follower of Mahatma Gandhi.”

Asiya Andrabi, Chairperson, Dukhtaran-e-Millat was lodged under PSA more than 20 times. Then arrested under UAPA since 2018. Her husband, Dr. Muhammad Qasim Fakto, an educator and a scholar, is serving life imprisonment. He has already spent more than 30 years in Indian jails.

These laws violate articles 9 and 14 of the International Covenant on Civil and Political Rights (ICCPR). It also contravenes the principles of the United Nations which states that ‘a person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority.’ Under Principle 17, it is stated that ‘A detained person shall be entitled to have the assistance of a legal counsel,’ and under Principle 18 that ‘A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel.’

( To be concluded………….)

Dr. Fai is the Chairman, ‘World Forum for Peace & Justice’.He can be reached at: 1-202-607- 6435 or [email protected] www.kashmirawareness.org

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