There is a national consensus on Kashmir that consists of three propositions: One, the insurgency is wholly a creation of Pakistan; two, there is no such thing as Kashmiri nationalism; three, the army can do no wrong. It is the third proposition that we will devote our attention to since it is the key to understanding the first two.
The army in J&K is immune to any moral interference from outside. There is no romance here. There is evidence of ‘encounters’ for which medals can be won and credit taken. All this is possible because of a legal grid that consists of the Jammu and Kashmir Disturbed Areas Act, the Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA) and the Jammu and Kashmir Public Safety Act. All these laws contain a common provision: “No prosecution, suit or other legal proceedings shall be instituted except with the previous sanction of the Central Government against any person in respect of anything done or purported to be done in exercise of powers conferred by this act.”
These laws violate the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, and the International Covenant on Civil and Political Rights. According to Amnesty International, the J&K government had made at least 200 requests for prosecution since the beginning of the insurgency. All were refused. The letter of refusal is of a standard format and contains the same phraseology for every case. Former J&K Chief Minister Ghulam Nabi Azad had said that 122 army personnel had been prosecuted and convicted. But no details were given of the misdemeanours for which conviction was secured. This leads to the suspicion that they might have involved things other than human rights violations.
Twelve districts have been declared disturbed under the J&K Disturbed Areas Act. Lethal force can be used “against any person indulging in any act which may result in serious breach of public order, acting in contravention of any law or order or the carrying of weapons”. AFSPA sanctions arrests without warrant, detention without trial for up to two years and also condones firing with impunity. At least 4500 ‘militants’ remain in jail without trial. Many have been waiting for 10 years or more. Under Section 19 of the Human Rights Protection Act, the National Human Rights Commission cannot independently investigate a case involving the army; it can only seek a report and make recommendations that are not binding.
Summary executions or ‘encounters’, custodial killings, torture, disappearances and arbitrary detentions are routine. There have been 8,000 ‘disappearances’ since the insurgency began, 3,744 in 2000-2002 alone. The impunity with which the Army operates in J&K is best illustrated by the fact that the massacre of peasants at Pathirabal in March 2000, following the massacre at Chittisinghpora, was followed by no action against the army. Nothing happened to the Army or the Central Reserve Police Force personnel involved in these incidents.
All this has only added fuel to the insurgent fire and, worse, turned the people of J&K against India. True, there has been a change since the Congress-PDP government came to power in 2002 and the message went down that human rights violations would not be tolerated, and these did come down. But the legal grid of army impunity remains in place, as was seen in the killing of two innocent civilians in Sopore in February 2009. As one army officer put it, “One can’t expect to get information out of these people over a cup of tea. It has to be shaken out of them.”
Everyone in Srinagar knew of the notorious Papa I detention centre, now the residence of Mufti Mohammed Sayeed. There are ‘crackdowns’ in which people of an entire neighbourhood are evacuated and herded together while troops ransack their homes in search of incriminating material. The Indian Army in Kashmir is an army of occupation. It is the instrument for enforcing India’s sovereignty over the state, a sovereignty that flows out of the barrel of a gun and not from the people as it normally should.
Even the mainstream media are complicit by their near total silence on these subjects. There’s little or no coverage of human rights violations. The media also romanticise the Army, overlooking many of its faults. Unless the Army’s role is radically modified in the state, there can be no durable peace in Kashmir.
Soumitro Das is a Kolkata-based writer.