The Indian troops deployed in Indian Occupied Kashmir operate under a host of draconian laws, specific to Kashmir, which have made these forces take on the role of an occupying army. They have been given a free hand to play havoc with the life, honour and property of the hapless Kashmiris.
DRACONIAN LAWS Enforced in Indian Occupied Kashmir
JAMMU & KASHMIR PUBLIC SAFETY ACT, 1978
The Act promulgated in 1978 (amended in 1987 and 1990) empowers the State government to detain a person without trial for two years under the pretext of maintenance of public order. The Act fell short of the recognized norms of justice, such as equality before law, the right of the accused of appearance before a Magistrate within 24 hours of arrest, fair trial in public, access to counsel, cross examination of the witnesses, appeal against conviction, protection from being tried under retrospective application of law, etc. Even the provisions of the Act, though already unsatisfactory, have been consistently violated. The detainees are not informed of the reasons of their arrest and they are kept in custody for a much longer period of time than stipulated in the Act. They are not allowed to meet their relatives and counsels. The amendment of 1990 extended its operation beyond the State, enabling the State machinery to keep the detainees in the jails of India, outside the State. Under Section 22 of the Act, any legal proceeding against officials for acts “done in good faith” are also disallowed.
The law has been widely used against the innocent Kashmiris as well as political opponents. Thousands of people have over the years been detained under the Act.
JAMMU & KASHMIR DISTURBED AREAS ACT, 1990
Under the Act, the whole or part of the State can be declared disturbed area by the Central Government or the Governor. The whole valley of Kashmir and two Districts of Jammu have since been declared disturbed areas. An official of the level of Head Constable is allowed to use force or shoot (and kill) under the pretext of maintaining the public order. The Act gives the police extraordinary powers of arrest and detention. It provided a cover to the state machinery for indiscriminate and unprovoked firing at peaceful and unarmed demonstrations, extra judicial killings and destroying the property of Kashmiris on suspicion. Moreover, Section 6 gives legal immunity to persons acting under this Act; no suit or prosecution can be instituted, except with the previous sanction of the government against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act.
TERRORIST AND DISRUPTIVE ACTIVITIES ACT (TADA) 1990
The Act enforced in 1985 (amended in 1987) gives security forces and armed forces special powers for use of force, especially the amendment of 1987 made it tougher. It was widely used for unauthorized administrative detention without formal charges or trial for upto one year. Under the Act, involvement in, or preparation for, disruptive activities attracts sever punishment upto life imprisonment. Arrests can be made even on suspicion of committing “disruptive activities”, broadly defined as “any action taken, whether by act by speech or through any other media ….. which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India, or which is intended to bring about or support any claim…… for the cession of any part of India from the Union……”
Since the law gives special powers to the security forces in the use of force, arrest and detention, it was extensively used in the occupied Kashmir. Even after lapse of the Act in 1995, the cases are filed under this Act, which provides that it may be applied to preceding trials in various courts and to persons, who may be tried in connection with the offences alleged to have been committed prior to 1995. The regime of the occupied Kashmir acknowledged that it held 772 persons under the TADA. Still many more are in Indian jails, outside the State.
This law also fails to meet the international standard of fundamental principles of justice, which requires that the detainees should have a fair and prompt trial and they should be informed of the reasons of arrest. The defence counsel is not permitted to see witnesses for the prosecution, who are kept behind screen while testifying in court. Besides, confessions extracted under duress are permitted as evidence.
THE ARMED FORCES (JAMMU & KASHMIR) SPECIAL POWERS ACT, 1990
The Armed Forces (Jammu & Kashmir) Special Powers Ordinance, introduced in July, 1990, was later enacted by the Parliament of India and enforced on 10th September, 1990. When certain areas are declared to be “disturbed”, the army and paramilitary forces are granted sweeping powers under Section 4 (C) of this Act.
The armed forces can be used in aid of civil authorities and even a non commissioned officer can search any place, stop/seize any vehicle, fire at any person (and kill), or arrest him even on the basis of suspicion with no obligation to inform him of the grounds thereof. It gives the Indian security forces sweeping powers that facilitate arbitrary arrests and detention and extra judicial executions as well as destruction of property.
The provisions of the black law are further violated in the occupied Kashmir by the security forces. Under the law, an arrested person is to be handed over to the nearest police station. But it is seldom done. Besides, the armed forces personnel are supposed to act as and when requested by the civilian authorities. In other words, the former should work under the direction of the latter. However, factually the security forces are inflicting atrocities on the Kashmiris without informing the civil administration. The State government has proved ineffective in controlling the Indian security forces, who have unleashed a reign of terror in occupied territory. The Act legitimizes barbarism in the State, as under Section 7, the security forces are given an immunity from prosecution for any act committed by them.
PREVENTION OF TERRORISM ACT (POTA), 2002
The Prevention of Terrorism Ordinance (POTA), promulgated on 25th October, 2001 was initially rejected by the Upper House, when presented for enactment. However, it was passed at the joint session of the Indian Parliament on March 26, 2002. Though the law was for the whole country, its main focus was occupied Kashmir.
POTA equipped the Indian forces with extra ordinary powers. Under the law, any act committed with a lethal weapon was termed terrorist act. The offences included even inviting support for an alleged “terrorist organisation”, addressing a gathering of sympathizers (of a terrorist organisation) and arranging, helping or assisting to arrange a meeting in which support for any “terrorist organisation” or its activities is expressed. The properties of the alleged terrorists, terrorist organisations and their sympathies would be seized. The suspects could be detained for 3 months without framing charges against them and for another 3 months, if allowed by a special Judge.
The Government officials admitted that excesses had regularly been committed. A long list of illegal arrests and unlawful killings has been documented by the human rights organisations. This black law was used mainly in occupied Kashmir. Ninety Nine point nine percent arrested under this Act were Muslims. Owing to strong protests and denunciation from the world leaders and organisations, the Act has now been withdrawn.
UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT ORDINANCE 2004
The Ordinance was passed by the Indian President in 2004 and was implemented forthwith. It has since been promulgated as Act. It again provides extraordinary powers to armed forces and other law enforcement agencies, similar to those previously provided by the POTA.
In addition to the above-mentioned measures, the laws and ordinances regarding other disturbed parts of India can also be applied in occupied Kashmir.
THE NATIONAL SECURITY ACT (NSA)
> Under the NSA, a person can be detained without charge or trial for upto one year to prevent him from acting in a manner prejudicial to state security, the maintenance of public order or relations with a foreign power.
OFFICIAL SECRETS ACT (OSA)
Under the Official Secrets Act (OSA), the Government may restrict publication of sensitive stories. But the Government interprets this broadly to suppress criticism of its policies.
NEWSPAPERS INCITEMENTS TO OFFENCES ACT
The Newspapers Incitements to Offences Act, 1971 remains in effect in Jammu and Kashmir. Under the Act, a District Magistrate may prohibit the publishing of material resulting in “incitement to murder” or “any act of violence”.
CRIMINAL PROCEDURE CODE
The Criminal Procedure Code provides for an open trial in most cases, but it allows exceptions in proceedings involving official secret trials in which statements prejudicial to the safety of the State might be made, or under provisions of special security legislation. The authorities enjoy special powers to search and arrest without a warrant. If required, the public assemblies can be banned and a curfew can also be imposed.
INDIAN TELEGRAPH ACT
The Indian Telegraph Act authorizes the surveillance of communications, including monitoring telephone conversations and intercepting personal mail, in case of public emergency or “in the interest of the public safety or tranquility”.
Besides the afore mentioned draconian laws, the following are also in force:-
Enemy Agent Ordinance 1948
The Egress and Internal Movement (Control) Ordinance, 1948
Prevention of Unlawful Activities, 1963
Prevention of Subversion and Sabotage Act, 1965
WORLD OPINION
The TADA gives a license to kill. (Amnesty International)
The powers of the TADA and the Armed Forces Special Power Act are incompatible with the state obligation to uphold and protect human rights, in particular the right to life. (UN Human Rights Committee)
Wide powers of arrest granted under TADA, combined with the absence of fundamental legal safeguards for detainees, create a climate, which encourages abuse of power and facilitates illegal and secret detention. (Amnesty International)
The TADA has come to represent a blatant and wide spread violation of civil rights. (Daily The Indian Express)
This organisation has not come to know of a single case of disappearance in Indian Held Kashmir in which the perpetrators have been brought to justice. (Amnesty International)
Thousand of allegations of torture and deaths in custody have been reported in Jammu & Kashmir since early 1990. (Amnesty International Report, 1995)
“Access to redress for victims of human rights violations, a right guaranteed under international law, is being denied to victims in Jammu & Kashmir”. (Amnesty International – May, 1997)
Thousands of political persons were detained without charge or trial under special legislations such as TADA, the Armed Forces (Special Powers) Act and the Disturbed Areas Act, which lacked vital legal safeguards. (Amnesty International Report, 1997)
Many provisions of TADA contravene important international human rights standards, especially the right to liberty and security, to a fair trial, freedom of expression and the right not to be tortured. (Amnesty International)
India should release all detained Kashmiri leaders and political workers. The draconian law, the Public Safety Act should be annulled, if it cannot be so amended as to conform to the standard of protection of human rights. (Amnesty International – May, 2001)
The Armed Forces (Special Powers) Act violates provisions of International human rights law, including the right to life, the right to remedy and the rights to be free from arbitrary deprivation of liberty and from torture and cruel inhuman or degrading treatment or punishment. (Amnesty International)
The continuance of a system characterized by extra ordinary law created to fight the insurgency, like the Armed Forces Special Powers Act, the Public Safety Act and the POTA, has “produced an environment of impunity and lawlessness”. A systematic pattern of abuse emerges – the Armed forces do not disclose, indeed they conceal their identity, no record is maintained of who is conducting the arrest. The Armed forces do not respond to summon from the courts even in habeas corpus petitions. The High Court of Jammu & Kashmir has been forced to close hundreds of cases without even finding what happened to disappeared persons for non cooperation of the Armed forces. (Tapan Bose – The Committee of Initiative on Kashmir)
The Prevention of Terrorism Act (POTA) continued to be used to detain political opponents and members of minority populations. The lapsed Terrorist and Disruptive Activities Act continued to be used to arrest people in Jammu and Kashmir by linking them to cases filed before 1995. Preventive arrest and detention provisions contained in other security laws as well as in the Code of Criminal Procedure were also misused against political and human rights activists. (Amnesty International Report, 2004)
The Indian government’s failure to account for these abuses and take rigorous action against those members of its forces responsible for murder, rape and torture amounts to a policy of condoning human rights violations by the security forces.
Among the worst of these violations have been the summary executions of hundreds of detainees in the custody of the security forces in occupied Kashmir. Such killings are carried out as a matter of policy.
…… operating as secret illegal army, have been the state – sponsored paramilitary groups. Many of these groups have been responsible for grave human rights abuses, including summary executions, torture and illegal detention as well as election – related intimidation of voters. (Human Rights Watch Asia, Report, 2005)
Indian troops continue to use extra judicial killings as a method to suppress insurgency in Kashmir. The National Human Rights Commission (NHRC) reported 136 deaths in police custody and 1357 deaths in judicial custody during the period of January to March, 2004. Besides, the Indian authorities generally did not report encounter deaths in Jammu & Kashmir to the NAHRC. (State Department Report, 2005)
The condition of detainees (Kashmiris), languishing in different jails of the State (occupied Kashmir) and outside (India) was worse than that of those in Abu Gharib prison in Iraq. The methods and manners in which detainees are being treated in interrogation centres are horrible. You will forget Abu Gharib after listening to the horrific tales of Kashmiri detainees in these jails. (Kashmir Bar Association, Srinagar - April, 2006)
According to the Association of Parents of Disappeared Persons, eight to ten thousand Kashmiris disappeared mysteriously in Indian Held Kashmir between 1989-2003, while the Asian Centre for Human Rights put the figure at six thousand. (US State Department Report, 2006)
Politically motivated violence slightly decreased but torture, deaths in custody and “disappearances” continued to be reported. At least 38 people were reported to have died in custody…….. Several people had been held under the PSA for over 10 years under successive PSA detention orders. (Amnesty International Report-2006)
Most regional sources indicate that more than 93,000 Kashmiris have already sacrificed their lives in pursuit of freedom from Indian rule. Over 102,000 houses and shops have been either burnt or looted. More than 100,000 children have been orphaned and roughly 10,350 women have so far been molested. It is indeed difficult to calculate that how many Kashmiris are missing or hiding but rough estimates put the figure to over 100,000. These figures by themselves paint a horrible picture in Kashmir.
