The Moral Fabric of the Indian Judiciary compromised Over Controversial Decision

The international community has recognized that national institutions such as the judiciary are important to ensure the promotion and protection of human rights. 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, 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 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,” this was stated by Dr. Ghulam Nabi Fai, Chairman, of World Forum for Peace & Justice.

Dr. Fai was speaking on the subject of, ‘Determination of the Principles and Procedures of the Organization for Justice in India: A Case of Kashmir’ during ‘The Seventh International ASSAM Islamic Union Model Congress,’ held on December 23, 2023, in Istanbul, Turkey.

75 academics, scholars, intellectuals, diplomats, journalists, and experts from 30 countries made their interventions during the Congress.

Dr. Fai added that the conditions of administration of justice in Indian-occupied Kashmir are appalling and frightening where the justice system has failed the hapless population of the State. 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, these arrogations of internationally recognized norms have been codified in laws passed by the Government of India which apply only to Jammu & Kashmir, specifically, ‘The Jammu and Kashmir Public Safety Act’(PSA) and ‘Armed Forces Special Powers Act’ (AFSPA).

PSA has been in force in Jammu & Kashmir since 1978, and permits people to be detained for up to two years on vaguely defined grounds to prevent them “from acting in any manner prejudicial to the security of the State or the maintenance of public order.” The broad definition given in this act to these expressions permits people to be detained without trial for questioning whether Jammu and Kashmir should remain part of India.

The provisions of PSA & AFSPA are incompatible with the requirements of Article 9(2) of ICCPR, which obliges India to ensure that anyone who is arrested is informed at the time of his / her arrest of the reasons for the arrest and informed promptly of any charges against him or her. Such provisions contravene Article 9(4) of ICCPR which requires all people arrested or detained to be brought before a court to decide without delay the lawfulness of detention.

All the aforesaid laws which are in force in Jammu & Kashmir make the armed forces immune from prosecution for acts committed while exercising powers under these laws. Thus, these armed forces are encouraged to act with impunity. Section 7 of the ‘AFSPA’ provides that unless previous permission has been obtained from the Central government, “No prosecution suit or other legal proceeding 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.”

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 of crimes against humanity and violations of fundamental human rights, threatening the very existence of the people of Kashmir. Indictments and appeals from more than a dozen United Nations Thematic Special Rapporteurs; Amnesty International, Human Rights Watch and others have failed to make India to 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.

United States, Department of State, Country Report 2022 on India cites, “A lack of accountability for official misconduct persisted at all levels of government, contributing to widespread impunity.” Country report exposes India’s falsification in these words, “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.”

Dr. Fai emphasized that the judiciary is working under great strain in 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. According to the Human Rights Watch / Asia Report entitled, ‘India’s Secret Army in Kashmir,’ “Fearing reprisals, judges have been reluctant to challenge the actions of the security forces.”

There are thousands of cases of individuals in Kashmir, taken into custody by the armed forces and they are not heard from – they simply disappear. According to the United States, Department of State, Country Report, there are 8,000 to 10,000 persons who have disappeared in Kashmir.

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, like Amnesty International or United Nations Special Rapporteurs to investigate allegations in Kashmir.

Last week, the Supreme Court of India upheld the decision of the Modi Government to strip the occupied Jammu & Kashmir of special status. Arundhati Roy, one of India’s highly accomplished human rights defenders wrote on December 13, 2023, ‘The latest blow to federalism (in India) is the recent Supreme Court judgment upholding the striking down of Section 370 which gave the State of Jammu and Kashmir semi-autonomous status.’ We also believe that with this final destructive blow, the moral fabric of the Indian judiciary lies in tatters.

In reality, the people of Kashmir are prisoners – prisoners of their conscience. They have been deprived of their inalienable human rights including their right to life and liberty, and access to justice only because they are demanding to exercise their fundamental right to self-determination. To restore the basic human rights of the detainee, India must be compelled to concede the right of the people of Jammu and Kashmir to exercise their right to 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. 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.

“Under 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 human dignity of the people of Kashmir,” Dr. Fai concluded.

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Dr. Fai is the Chairman, World Forum for Peace & Justice.