Conflict, Human Rights and the Rule of Law in Kashmir

Presentation at a meeting organized by the Interfaith International on the sidelines of the ninth session of the United Nations (UN) Human Rights Council in Geneva.

There is no single Kashmir. The former princely state of Jammu and Kashmir, consisting of four major regions (Kashmir, Jammu, Gilgit and Ladakh) is divided into four entities. The largest entity, called the Jammu and Kashmir, is a part of India and administered by a locally elected government. The second largest entity, called Gilgit-Baltistan or “Northern Areas”, is a part of Pakistan and administered directly by Pakistan as a federal territory. The third largest entity is called the “Azad Jammu and Kashmir” and is part of Pakistan and administered mostly by locally elected officials; and the fourth part is in the north that was turned over unilaterally by Pakistan to China in a peace gesture in 1963. My focus is on the situation in the Indian administered Kashmir, though some of my observations apply to other regions as well.

I will address the three topics – conflict, human rights and the rule of law – in the order highlighted.

The conflict can be broadly addressed from many perspectives. In the historical context, there is a “traditional version” of political and military events that took place in 1947 and 1948 that established the basis of this 60 year-old conflict. It is not my intention to repeat what has been already described in numerous books and articles. In fact, Google estimates there are nearly 600,000 websites on Kashmir, and practically every website is based on the traditional historical perspective of the conflict.

The historical context however gets more interesting and complicated when viewed in light of the new information that became available following declassification of relevant records in the Great Britain. Many of the “political and secret department records” from 1947 that were part of the India Office Records in the custody of the Commonwealth Relations Office (CRO) – now called the Foreign and Commonwealth Office – were declassified a few years back and are now publicly accessible at the British Library Asia Collection in London.

What do some of the declassified papers show? For one, the role played by the British bureaucracy is abundantly clear in setting markers for the British policy in the subcontinent with Philip Noel-Baker, as then Secretary of State for Commonwealth Relations, leading the charge both in defining the approach related to Kashmir’s future and in protecting British strategic interests in the subcontinent. But it was left to the British High Commissioner in Pakistan, Sir Laurence Barton Grafftey-Smith, who had this to say about the Governor-General of India accepting the accession of Kashmir in a memorandum to Secretary Noel-Baker (reproduced from File L/P&S/1845 dated 29 October 1947):

“Indian government’s acceptance of accession of Kashmir is the heaviest blow yet sustained by Pakistan in her struggle for existence. Strategically, the frontier of Pakistan which must be considered as requiring defense is very greatly extended since India would gain direct access to the North-West Frontier and tribal areas where infinite mischief can be made with “Pathanistan” or other slogans. Afghanistan policy will almost certainly change for the worse; and disturbances and disorders in Gilgit and the North West Frontier zone generally may excite Russian interests and appetites.”

Indeed the British administration, while being generally supportive of the accession – but insisting on plebiscite – believed that Indian control of the western borderlands of the princely state (and especially the western region of Jammu) would pose a grave threat to Pakistan which could lead to Balkanization of West Pakistan, and would upset Britain’s own strategic interests since at that time the Whitehall and the Pakistani government were actively discussing a military alliance that would maintain British military presence in the north-west frontier region.

Once the Indian counter-attack began on October 27, 1947 (five days after the Pakistani army and its surrogates had launched the invasion into Kashmir), the British diplomatic and military directives mostly were focused on securing Srinagar and retaking portions of the Kashmir valley occupied by invaders, whereas the Indian army suddenly found it “difficult” to retake portions of Jammu region seized by the invading force from Pakistan. The British held all the cards: Mountbatten, not Nehru, was the head of India’s cabinet defense committee (a mistake by Nehru that is considered to be among his biggest blunders), and the military chiefs in India and Pakistan were British nationals reporting to a British supreme commander. Political directives from the Whitehall to British civil and military officers in the subcontinent were precise in stating that India should be denied full reoccupation of Maharaja’s princely state and a cease-fire should take place along a well delineated boundary that disconnected Indian Kashmir from Pakistan.

The declassified papers also clearly show how the British Prime Minister Atlee tricked Nehru in believing that Indian initiative to approach the United Nations (UN) on the Kashmir aggression would be followed up by vigorous effort on part of the British-led Indian Army to retake Poonch and Mirpur areas from Pakistani invaders, when in fact the British had no such plans. Indian inexperience in international diplomacy and British cunning are two of the main messages that come through in these 60-year old secret documents.

Another point which doesn’t get as much attention as it deserves is the one relating to how the West’s policy vis-a-vis Israel has also had an effect on Kashmir. Consider, for example, the British Foreign Office minute to Prime Minister Attlee of 6 January 1948, file FO 800/470, Public Record Office, London:

“With the situation as critical as it is in Palestine, Mr Bevin [the then Foreign Secretary] feels that we must be very careful to guard against the danger of aligning the whole of Islam against us, which might be the case were Pakistan to obtain a false impression of our attitude in the Security Council.”

So in the historical context, the conflict in Kashmir was complicated in its infancy by aggressive postures of the British diplomacy in order to secure the outcome that it desired. It is very difficult for the Indian government to admit it, but in reality Indian actions in 1947 vis-à-vis Kashmir were shaped by foreign interlopers and India lacked the authority, comprehension, and skills to shape the political future of Kashmir in spite of the signed Instrument of Accession. Ironically, the very instrument that British were undermining was their own creation as codified in the Indian Independence Act passed by the British Parliament in July 1947.

The historical context to the conflict has however become less relevant in defining the Kashmir conflict in contemporary terms since other, more important, actors have come into the play and shifted the paradigm.

After successfully defeating Soviet armies in Afghanistan by covert and overt use of the Central Intelligence Agency (CIA)-funded “faith based armed irregulars” otherwise known as Mujahideens and Jihadis, Pakistan’s Inter Services Intelligence (ISI) successfully orchestrated these misfits to launch a violent and brutal insurgency in Kashmir.

Since 1989, when terrorist violence began in Kashmir, the conflict in Kashmir has been shaped by three new dimensions. First, it has energized both pro-Pakistan and pro-independence lobbies in Kashmir. Their numbers over the years had diminished to the point of irrelevance, but sensing the success of Taliban in Afghanistan, it recruited new members in Kashmir and Pakistan, and new terrorist groups were born overnight with names like the United Jihad Council (UJC), Lashkar-e-Toiba (LeT) and Jaish-e-Mohammad (JeM). They have “civilian counterparts” in the All Party Hurriyat Conference (APHC), and a host of other “political outfits” – big and small – operating in Kashmir.

Second, the conflict has practically wiped out the multi-religious and pluralistic character of the Kashmiri society. The violent insurgency was hard on religious minorities, particularly Kashmiri Pandits, whose miniscule numbers were greatly affected by targeted assassinations in 1989-1990, resulting in others to flee the valley with practically nothing but their clothes. The changes in the Kashmiri society are obvious in the manner in which one religion has seeped into every aspect of public and private life. It is equally interesting to note that public discourse lately has become alarmingly sectarian and yet most intellectuals in the valley believe the resistance movement is non-denominational while ignoring the impact of growing hegemonic and chauvinistic religious fervor in the valley. Today, fewer than 5,000 Pandits are left in the valley, a number considerably below the “critical mass” necessary to ensure a sustaining cultural identity.

Third, the conflict has paid rich dividends to a growing class of people making the eventual resolution of the conflict very difficult, if not impossible. Simply put, Kashmir suffers from a convoluted public expenditure policy that puts nearly 80% of its budget (contributed predominantly by the Indian Treasury) in the hands of about 25% of its people with bare minimum trickle-down benefits to poorer sections of the society. Consequently, class and economic divisions in Kashmir are very steep. In the mostly agrarian state, the primary beneficiaries of the largess are politicians, powerful bureaucrats, well connected business men, and other professionals living in urban areas. The rest of the people in the country side, especially farmers, are not doing as well. The poverty is endemic in some rural areas, and yet based on economic statistics the average household in the State owns assets worth Rs.10.67 lakhs, the highest in India (Kerala comes next with Rs. 7.62 lakhs). It is no wonder that the latest report from the Transparency International (TI) ranks Kashmir among the most corrupt states in India. Some state subjects like to call the easy money the “dividend for accession”, but in reality there is a strong and vested lobby consisting of politicians (both pro- and anti-India), state employees, lawyers, journalists and businessmen who have done well financially during the tumultuous period but keep the pot stirring to ensure that normalcy does not return to the State.

Kashmir is simmering, but there is a method in the madness that ensures contrived demonstrations and carefully crafted protests that are switched on and off at the whim of many masters. Such “civil curfews” cause great dislocation to economy and inconvenience to general public, but financial losses from such abnormalities are mostly borne by Indian taxpayers, even as India is demonized in public during such protests.

Regarding human rights, there is again a Kashmir experience that falls into two periods divided by the outburst of militancy in 1989. Prior to 1989, in spite of nearly half a million Indian military and other security personnel in the valley, there was not a single case of human rights abuse. However, as the militancy became more violent and brutal, the armed forces responded in a manner that would be termed as excessive in some cases. There is no question that Kashmiri Muslims have borne the brunt of police and security personnel excesses, though it is debatable whether the provocation came from armed separatists causing security personnel to retaliate in self-defense, or the human rights abuse was arbitrarily caused by police and paramilitary actions without provocation. In any case, many civilians have suffered, much like Pandits who never took to the gun culture and yet were victimized for no fault of their own.

I feel a bit encouraged that there is now a growing awareness in the Indian administration and its security apparatus for a need to have greater accountability, training and emphasis on protecting human rights of unarmed civilians in Kashmir. The process is far from perfect, but the Indian military recently has charged some military personnel with human rights abuses and many convictions have taken place. The statistics for random killings and disappearances have been showing favorable trends but clearly more work needs to be done by the government in this area.

A particular aspect of the human rights problem in Kashmir is a lack of credibility among the non-governmental organizations (NGOs) purporting to exist for defense of human rights in the valley. Unfortunately, most of these organizations are a “front” for one political outfit or the other operating in Kashmir, and consequently, all such organizations actively participate in daily political diatribe, support civil curfews, and even hold public demonstrations unconnected with their alleged primary focus as a non-partisan human rights organization. Many such valley based organizations like to quote various Indian NGOs in support of their political cause, missing the obvious point that an adversarial relationship that exists in India between such organizations and extremist elements in the majority community lends credibility to those organizations. This irony has not escaped the attention of a few (very few) brave journalists operating in the valley who are beginning to question why there are no alternative opinions being expressed to challenge the Islamist resistance movement that is creating an endless cycle of mayhem without reaching a suitable closure for bringing peace and prosperity in Kashmir. Interestingly, most journalists in Kashmir, ignoring the obvious lack of credibility and objectivity in the local civil society, continuously harp on the theme that the world is ignoring their “suffering.”

The human rights issues pertaining to minorities, particularly valley based natives like Kashmiri Pandits, is completely ignored by so-called human rights NGOs based in the valley. Additionally, there is very little mention made in the media about the return of Pandits, other than the usual rhetoric about how all are welcome to return. No one in the valley is willing to mention, much less admit, that political and economic space must be created to allow Pandits to return. In fact, the situation among Pandits who never left the valley is very grim and yet their plight is hardly addressed by the civil society in Kashmir. Recently, the author distributed a short list of three demands from valley based Pandits to prominent journalists in the valley and requested each one to comment and publicize the list in their commentaries. So far, no one has reacted to the message.

There is a perceptive change in the rule of law. With decline in militancy and shrinking of minorities in the valley, the ideological influence of Islamist parties in the valley is increasing. The civil society debate on preserving secular identity, on furthering development projects, and on improving efficiency of the massive state bureaucracy has been usurped by religious zealots who mostly emphasize their religious doctrine and dwell on the loss of their sectarian identity in a secular non-Islamic state. The problem is compounded by growing alienation among the youth – particularly educated youth – who are unable to find jobs and find the rhetoric of Islamic separatists against the system appealing. Adding another dimension to this volatile mix is the erratic behavior of the central government in New Delhi which varies from total indifference at most times to overwhelming show of force in times of acute crisis, reminding one of the manner in which typical emperors behaved in old days of the “Delhi Durbar.” Minor festering issues left unresolved have a way of growing into major law and order disruptions in the valley, and yet political correctness, rather than ground realities, dictates the approach that is usually taken by authorities which is always too little and too late.

Perhaps nothing exemplifies the shift in the societal values in the valley more than the recent Amarnath Shrine controversy. For nearly 8 years – starting with the enactment of the Shri Amarnathji Shrine Board (SASB) bill in the Jammu and Kashmir Assembly in 2000 – through two explicit Jammu and Kashmir High Court decisions supportive of the SASB in 2005, and a subsequent thorough due diligence conducted by multiple departments of the Jammu and Kashmir Government (including ministries of Law, Forests and the General Administration) over three years, the affairs of the SASB have stayed within the purview of existing laws of the State in a transparent manner without public outcry. Indeed, Kashmiris, known for their tolerance and easy going accommodation of other faiths, would have it no other way. But Kashmir has changed in the last eight years, and for Islamic fundamentalists the unanimous decision by the Jammu and Kashmir state cabinet on May 20, 2008 in favor of the SASB became a convenient excuse for the show of force, which they did in large numbers. An unusual combination of Islamists and young idealists took to streets and in a matter of a week were able to force the state government to rescind a legal order pertaining to non-proprietary transfer of land to SASB to build comfort facilities for Hindu pilgrims along an access road to the Amarnath Shrine that stays open for two months a year.

The rule of law was overrun by the politics of expediency, and immediately triggered two reactions highlighting the communal divide that now exists to some degree in various regions of the state. Islamists in the valley took it as a victory demonstrating that mob politics works, and Hindus in Jammu took the news of rescission of a legal order as proof of their less-than-equal citizenship in their own state. In the end, saner voices have prevailed and both regions are trying to put the SASB controversy behind, but a lot of damage has been done, particularly to the rule of law in the state. This unfortunate incident, which resulted in needless deaths of many young people, reflected poorly on the manner in which both state and central governments discharged their duties and obligations in handling this issue.

It is interesting to note that recent calls by Islamists and other separatists in Kashmir for peaceful marches is a welcome change from tactics adopted in the past. With practically most vocal anti-separatist citizens languishing in refugee camps outside of the valley, it is no wonder that a lot can be accomplished without any forceful opposition to separatist views. Nevertheless, this change in attitude among separatists is a positive step that puts considerable pressure on the security and police personnel to behave in a just and responsible manner.

Finally, I am concerned that if the central government in New Delhi continues to avoid tackling the return of Kashmiri Pandits to the valley on a priority basis, if the state government maintains a status quo to exclude rehabilitation of Pandits from the state budget, and if the civil society in the valley ignores the need for creating political and economic space for Kashmiri Pandits, then things will continue to get worse in Kashmir. For Pandits, the reasons are obvious, but everyone will be affected. The security situation will continue to worsen even as militancy diminishes, the secular identity of the valley already bruised will be eroded even further, and the society as a whole will slowly inch towards radical fundamentalism. There will be some who may not find such a future disturbing, but knowing my roots, I feel most Kashmiris will find such a scenario bleak and unacceptable.

I have come among you to speak to the civil society and I hope the civil society in Kashmir will hear my clarion call.

To view the agenda of the meeting in Geneva, please click here.