Human Rights Watch Report: LADEN WITH INACCURACIES

Publishing of reports is one of the ways for promotion of enforcement of human rights. Under the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights, State Parties are required to report their performance towards implementation of these Covenants to the Human Rights Committee. In their official reports, States usually boast about their performance and seldom depict the real situation. The reports of non governmental organizations (NGO’s) and international non governmental organizations (INGO’s) help the members of the Human Rights Committee to scrutinize the official reports in a proper manner. The reports of Asia Watch, Human Rights Watch, Amnesty International and Local NGO’s have assumed extra importance on this account. The reports in order serve any purposes have to be authentic, unbiased and objective. The recent report of Human Rights Watch although helpful to the cause of Human Rights lacks credibility, objectivity as well as authenticity to some extent. The report has been prepared by Meenakshi Ganguly South Asian Researcher of the Human Rights Watch. Being an Indian, she has been unable to shed her bias while preparing the report. She has been selective about the sources and aggressive towards Non State actors in her language. The lack of authenticity of facts becomes obvious from the very first page of the report. It has been reported that three hundred thousand Kashmiri Pandits have migrated from the valley. The total population of Hindus in Kashmir Valley according to 1981 census was 130000. These included Rajputs of Uri, Khatris of Srinagar and Baramulla and Mins of Kulgam. Kashmiri Pandits were no more than 112000. Out of these more than 20000 didn’t migrate at all and continue to live in the valley. Assuming that decadal growth of Kashmiri Pandit population between 1981 to 1991 was at par with Indian National Average of 20%, the Pandit population of valley could never have been more than 135000 and that of migrants of not more than 100000. The figures cited in the report simply reflect the exaggerations often communicated by frontal groups of RSS like Panun Kashmir. The figures of Kashmiri Pandit migrants quoted in the present report also contradict Human Rights Watch previous report “India’s secret Army in Kashmir” which put the figure at 100000.
Tracing history of freedom struggle in Kashmir, the report attributes its inception to 1964 when JKLF was formed to fight for independence. This statement contradicts the historical facts. Freedom movement in Kashmir started soon after Maharajas accession of Kashmir to India. From 1948 to 1953, it was exclusively headed by the J&K Political Conferences lead by GH Mohiuddin Karra. After exit of Shekh Abdullah from power the freedom movement was lead by Jammu and Kashmir Plebiscite Front from 1955 to 1975. This organisation was the most popular political party of its times and worked under the patronage of Sheikh Mohd Abdullah. The Peoples League and Al Fattah don’t find the mention within the report despite their historical contribution. Apart from 1990-1993 JKLF remained a peripheral group. 
The report mentions the Indian point of view about accession getting endorsement of the State Constituent Assembly but is silent about rejection of any such endorsement by the UN Security Council Resolution of 1957. The freedom movement of Kashmir has been portrayed as a struggle ‘which has slowly and visibly mutated into an even more dangerous fight under the banner of religion, pitting Islam against Hinduism’’. This depiction ignores the fact that the greatest indigenous militant formation has even non Muslims within its cadres and some of its Hindu recruits have risen to the position of Divisional Commanders. The Hindu cadres of Hizb. according to newspaper reports still remains practicing Hindus. The researchers have ignored the fact that maximum killing and migration of non-muslims occurred during 1990-1993 when nationalist groups dominated the scene and Islamic groups had not yet surfaced. The report has overlooked the ethnic cleansing perpetrated in Jammu, Kathua and Udhampur Districts after 1947 which lead to migration of more than 700000 Muslims from these Districts to Pakistan and Pakistan Administered Kashmir. 
Inspite of the fact that Indian agencies are yet to ascertain the involvement of Kashmiris in Varanasi and Mumbai blasts. The report mentions that these blasts too are attributed to militants sympathetic to Kashmiri Struggle. It is pertinent to mention here that Indian Courts have penalized some locals of Maharastra for Mumbai Blasts of 1993. The report attributes attacks on tourists in 2006 to the militants on the basis of some newspaper reports but ignores news about attribution of these killings to business rivals of Kashmir Tourism in Shimla and other hill stations of North India. The report also doesn’t hesitate in passing a verdict on the level of popularity of militants and mention that militant groups have become increasingly unpopular (p. 4). The verdict however is contradicted by authors themselves by conceding that “there is a greater political sympathy for militants cause than for the government” (p.118). Those who have drafted the report are familiar with the fact that armed groups conducted a significant emergency relief operations in Pakistan Administered Kashmir but remain unfamiliar with an equally important fact that International agencies like ICRC were not allowed to go for relief operations on this side of Kashmir. The report gives a long list of Government Buildings, Educational Institutions and bridges consumed by the conflict in Kashmir however there is no mention of the school buildings, hostels occupied by the army and its auxiliaries. The report admits that there has been a considerable decrease in the presence of militants from across LOC. 67% of the militants killed during 2005 were locals.  
Some factual errors are either a deliberate attempt on the part of Indian researchers or mistakes that have crept into the report on account of selective use of sources. Throughout the report we find the references of Indian newspapers whereas only local newspaper quoted remains the Daily Excelsior, which is known for its anti Kashmiri Bias. Even the popular and credible newspapers like Kashmir Times and Greater Kashmir have altogether been ignored. So many events and incidents have been quoted from the reports and books prepared by either Indian agencies or Institutions sponsored by them.
The report has given a nice elaboration of the legal framework that empowers Indian Security agencies to operate with utmost impunity and suggests appointment of a special rapporteur by the Human Rights Council of United Nations for monitoring Human Rights situation in all parts of J&K State. This proposal although positive depicts selective approach of the Western Human Rights Groups. If the International Community could appoint war crime tribunals for Bosnia and Rwanda, why can’t Human Rights Watch demand and lobby for a similar tribunal for Jammu and Kashmir as well? 
Human Rights Watch has given a detailed account of killings, disappearances, torture on the part of security agencies and their adversaries. One fact that has been ignored in the report is that whatever is attributed to militants does not necessarily mean that they are responsible for it. In a situation of conflict so many personal and political feuds are settled through use of guns and blame is often imposed on the militants. Recent attack on National Conference rally in Kulgam was attributed to Peoples Democratic Party by National Conference Leaders. Killing of Ghulam Nabi Lone Former Minster of the State was perceived to be the result of rivalry between him and supporters of the Finance Minster of that time. This became big issue during election campaign between son of the slain minister and nephew of the Finance minister. Similar allegations were made when former Finance Minister was targeted in Uri few years back. These dimensions of the killings attributed to militants have not been depicted in the report. The condemnation of various blasts involving civilian casualties by militant groups does not find a place within the report.
The report is also mute about the role of private armed groups working for the state whom Human Rights Watch itself has designated as India’s Secret Army in its previous reports. Reports about involvement of such groups in blasts and killings attributed to militants have been ignored. The verbatim used so many photographic captions seems to be simply an effort to malign the image of the Kashmir insurgency. One wonders why a militant in Kashmir is depicted as Islamic Militant whereas similar verbatim is not used in case of Tamil militants in Sri Lanka, other rebellious groups in Northern Ireland and elsewhere. It is strange how this terminology and mistakes remained in the report inspite of assistance of Coalition of Civil Society and Jammu and Kashmir High Court Bar Association during its research. Despite these lacunae the report is a commendable attempt and a welcome step on the part of a reputed International NGO. In order to maintain credibility and authenticity of its reports, the Human Rights Watch is expected to come with better reports in future. Assign the job of preparation of reports to those who don’t compromise the standards of objectivity and authenticity. 

CHILDREN: VICTIMS OF TORTURE

On March 29, 1976 Americo Pena and three other police officials kidnapped Joelito 17 year’s old son of Paraguayan social worker Dr. Filartiga from his home. They took him to a police station. He was tortured in order to force him to disclose information about his father’s activities. His father was suspected to be supporter of Organization Politico Miltar (OPM) whose members after infiltrating into the country from Argentina were involved in confrontation with Paraguayan forces.

Pena and the three other policemen beat and whipped the youth severely. They also resorted to the use of high voltage electric shocks administered to Jaelito through his fingertips and through a wire inserted in his penis. The electric shocks were ultimately increased to such a frequency and intensity that Joelito died of cardiac arrest.

In order to cover unexpected death of Joelito, Pena took body of the victim to his own house. He placed the body into the bed of his seventeen year old daughter. Husband of the daughter was prepared to confess the killing of Joelito. The reason for killing that he was made to divulge was that the death was caused by him on getting provoked because the diseased was seen by him in the bed of his wife. Pena and other police men associated with custodial killing perceived that their son in law will also be saved as the reason (provocation) would constitute a valid defense for his act under criminal law. Failing to get redressal from Paraguayan courts and receiving threats from Penna, Filartiga along with his family migrated and sought asylum in United States of America.

In July 1978 Penna also came to US as a tourist. He was detained for over staying in US. Dr Filartiga filed a suit under Alien Tort Statute, against Pena. Pena pleaded that proper forum for such a hearing was Paraguayan court. This plea was accepted. Flartiga after failing to secure a stay against deportation of Pena from US decided to challenge decision of the lower court in the Second Circuit Court of Appeals.

Argument in Filartiga v Pena-Irala took place before Chief Justice Feinberg and Judges Kaufman and Kearse on 30th June 1980. The Judge’s unanimously held that officially sanctioned torture is a violation of international law. They therefore found that Alien Tort Statute of US provided basis for exercise of federal jurisdiction in a wrongful death action brought by Paragauyaon against the Paragauyaon defendant. In arriving to this decision the court relied on the ground that prohibition against torture has become part of customary international law, Which is reflected in the Universal Declaration of Human Rights (UNDHR). For the purpose of civil liability the court ruled that the person involved in torture has become enemy of mankind like a pirate and slave trader. In accordance with the findings of Court of Appeal the District Court proceeded with the case decided it on 12 Jan 1984. It announced the judgment against Pena and awarded damages worth one million US dollars to Filartiga. This was so inspite of the fact that US was not a party to The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.

I have narrated detailed account of this case because facts of the case resemble with the situation of hundreds and thousands of children of our state, Jammu and Kashmir. They face same type of detention, torture and custodial killing as were experienced by Joelito. Police and security agencies often subject children to detention in order to get information about their kith and kin involved or perceived to be involved in militancy. Paragauyaon police tried to cover up their act of custodial killing by cooking and concocting a story. Security agencies in Kashmir are not in need of any fabricated story because they are protected against any sort of legal action relating to such incidents by virtue of section 6 of Disturbed Areas Act of 1997 and Armed Forces Special Power Act. These legislations after authorizing personal belonging to police and other security agencies to kill a person or blast his premises on the basis of suspicion of their involvement in breach of public order and immunize them from any suit or legal proceeding unless permitted by the state . The state seldom gives permission for prosecution. According to a report published in ‘Mail Today’ “about three hundred cases against army and other central forces persons have been waiting the home ministries go ahead.” The center has not granted approval even in a single case even after instigations regarding these cases were completed by the police. The Armed Forces Special Powers Act makes it mandatory for the sate administration to seek the centers permission for prosecuting central forces person found responsible for committing crimes during counter insurgency operations .  

International law has been sensitive to the problems of children ever since Hague Conventions were adopted towards the end of 19th century and in the beginning of twentieth century. The protections granted to child during hostilities are now incorporated in Geneva Convention IV relating to Humanitarian Law. The Convention makes it obligatory for the parties to provide safety zones for children during hostilities . The Convention also makes it compulsory for them to provide maintenance for children . Occupying power is required to ensure safety and protection of children . Protocol I to the Geneva Convention expressly provides protection to children from any sort of assault during warfare. The Protocol entitles children to special care inspite of their involvement in hostilities . India is not a party to the Protocols. So far as the Geneva Conventions are concerned India has ratified these conventions but Indian Supreme Court perceives that these do not confer any rights upon a person despite Geneva Conventions Act of 1960 . 

Special rules relating to administration of Juvenile Justice were formulated in “UN Conference Relating to Juvenile Justice” in Beijing in 1985. Rule 17 (3) protects children from corporeal punishment. The Convention on Rights of Child (1989) provides protection to children from all forms of violence, injury, abuse, neglect or negligent treatment . Article 37 of the same Convention states that party shall ensure that no child shall be subjected to torture or any other form of cruel inhuman and degrading punishment. Besides these specific instruments relating to children general laws relating to human rights also protect Children along with other human beings from cruel inhuman and degrading treatment. Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading treatment or Punishment clearly states that no exceptional circumstances whatsoever whether a state of war or threat of war internal political instability or any other public emergency may be invoked as justification for torture . The Convention makes it clear that an order from a superior officer or a public authority may not be invoked as a justification for torture . International Covenant on Civil and Political Rights provides that no one shall be subjected to torture, cruel inhuman or degrading treatment or punishment . Article 4 of the same convention makes Article 7 a non derogable right even in case of public emergencies. The provisions of the Geneva Conventions which apply to non international armed conflicts also make torture, rape and hostage taking unlawful .

Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession. Punishing a person for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity also constitutes torture .

Indian Constitution does not have any specific provision which explicitly provides protection against torture. The Supreme Court of India however, has made it clear in so many cases that protection against torture is inherent in right to life and personal liberty. In DK Basu v State of West Bengal Supreme Court made it clear that any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution: whether it occurs during investigation, interrogation or otherwise. “If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilized nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic ‘No’ ”.In Neelabati Bahera v State of Orissa , the Supreme Court pointed out and emphasized that the prisoners and detainees are not denuded of their fundamental rights under Article 21.The court relied upon Article 9 (5) of The International Covenants on Civil and Political Rights 1996 and granted a compensation of rupees one laks fifty thousand to mother of a boy who had been killed as a result of torture in police custody. The judgment was delivered despite Indian reservation to the provision of compensation under The International Covenant on Civil and Political Rights 1996.44Th amendment of the Indian Constitution has laid down that presidential power to suspend the right to move the court for enforcement of fundamental rights during emergency can not be exercised in respect to the fundamental rights secured by Article 20 and 21. It is clear that operation of Article 20 and 21 can’t be suspended during operation of emergency under Article 359. Protection against torture being part and parcel of right to life and liberty (Article 21) is thus a right that can’t be taken away even during emergency on account of war, external aggression or armed rebellion.

It is obvious that adequate safeguards do exist for protection of children under law from any sort of degrading or inhuman treatment .Despite these laws children in Kashmir continue to be used as human shields during combat operations . This practice continues till date on January 22 a four year child Qasim Bin Asiq was used as a shield by troops during encounter with militants . They are also used in same manner during mine clearing activities. Children continue to be detained for indefinite periods simply because authorities anticipate that they are likely to get involved in insurgency. Teenagers are asked to report to camps of security agencies at regular intervals. Incase a boy is involved in militancy his family is often harassed. If he is absconding his family members become target of security agencies and get humiliated. During search operations it is mostly the boys below 18 years who have to face identification parades again and again. When they leave the conflict ridden state and move to other states they are often looked upon with suspicion and subjected to humiliating treatment. Examples of such a vulgar treatment were witnessed several times on TV channels.. It is children who mostly become targets of fake encounters. If parents of a child get killed at the hands of security agencies they are not entitled to any relief and rehabilitation package. In case their elders or family members get detained they have to maintain themselves, they have to pay the lawyers in order to secure release of their relatives and in this process most of the time they have to abandon their studies. Rape is used as a weapon of war in order to force an absconding militant to surrender. Recent sex scandal has made it obvious that teen aged girls are often used in scandalous operations to apprehend militants. Even high officials of security agencies get involved in molesting teen aged girls. One such officer former DIG of BSF terms such acts as part and parcel of counter insurgency operations to trap the militants . Children on account of restrained movements and fear often display abnormal psychological behaviour. Children of dead detained and missing family members also become vulnerable to exploitation. They also suffer from deprivation of properties and other avenues of development. So many children have lost their limbs because they get splinters of a shell or a mine. On many occasions they are deliberately targeted. Killing of four boys while playing cricket is an instance of such deliberate killing. On occasions children were shot dead during marriage ceremonies inspite of the fact that information relating to celebrations had been conveyed to the paramilitary forces within the area . School going children especially the girls are harassed while on their way to schools. One such incident occurred in Awanti-Pora and is under investigation by the state human rights commission. People do not have much hope from such investigations as the Commission according to its former chairman Justice AQ Parray is tooth less as well as tail less and those who approach to it for redressal either disappear mysteriously or get killed . Even so called relief and rehabilitation packages of Indian security apparatus have proved to be lethal for children of Kashmir. On such “goodwill” gesture led to drowning of twenty two school children and their teachers at the hands of security personnel . An enquiry commission established by the state has confirmed the negligence and mischief of the navy personnel in this incident. There are so many children in Kashmir who had to migrate because of harassment within their native places. While migrant children of a particular community were showered upon a lot of relief and rehabilitation packages children belonging to other communities were not perceived to be worthy of any attention other than harassment and humiliation. Once they move to cities and towns they become vulnerable to both physical as well as psychological trauma. Restrained movements impede their physical growth. New habitat exposes them to a cultural shock. Sometimes they are unable to adjust with their new surroundings and end up with addiction to drugs. This state of affairs is quite contrary to international law. Courts in Kashmir seem to be too much worried about environment rather than the future generation for which it is sought to be preserved. So many NGO’s which pretend to work for children do not deliver much besides providing avenues of employment and exploitation for those who manage and run them. The probes ordered by the government often fail to provide any sort of redressal to the victims. Children continue to suffer, the only way to rectify the situation is either to appoint a special rapporateur to monitor and look over the plight of children in Kashmir on the part of UN Sub Commission on Protection and Promotion of Human Rights or the newly created Human Rights Council. Any sort of indifference in this direction may pave way for appointment of war crime tribunal on the pattern of Bosnia and Rwanda to look into overall abuses of human rights and humanitarian law. The perception that the conflict in Kashmir is not an international or non-international armed conflict will not come in the way of appointment of such a tribunal as in case of Rwanda it was appointed despite the fact that the conflict was between two tribes and no state was involved as such.

Menace of Migrant Labour

Last year so many Bihari students were beaten in Assam. They were targeted because they had gone there to participate in state civil service examinations. Similar was the attitude of shiv-sainiks in Mumbai. One should not get surprised if a similar situation erupts in Kashmir especially after the incidents that was witnessed in Mahjoor Nagar where minor girl child was kidnapped and killed allegedly by some migrant laborers. Fortunately the allegation proved to be wrong and police suspected involvement of some locals in this crime. State subject law introduced in J&K state assembly was also aimed at protecting regional identity against the aggression from Gangetic plains. Because of hippocratic attitude of the rulers and the members of the state legislative assembly the bill couldn’t become law. 

Within past fifty years Indian states are proceeding in altogether different directions. While development has been the main thrust of peripheral states. Increase of population without any concern for development has been the main direction of main land. Indian leadership within Hindi speaking states too seems to be indifferent towards issues of development. Lalu Prasad Inspite of being leader of down trodden state celebrates marriage of his daughter in an aristocratic manner. Mayawati who pretends to be leader of schedule casts celebrates her birthday with “Nawabi aan baan”. The issues which dominate within Hindi belt are issues of Temple/Mosque, caste and Hindutva. The leadership seems to be least concerned with welfare of people. Reason for this indifference seems to be the perception that the population of these states does not need to be cared. In case people are unable to find means of livelihood, they will definitely go to other states and extract as much of their share as they can. Infact people from Bihar, UP and Orissa do the same. They get out of their own states proceed to the developed regions. They strain avenues of employment. They spoil the civic systems. They pollute the culture and environment of these states. They carry along with them germs of disease. They provide a cheap labor force for all sorts of vice dens. They erect their own slums and use these places for manufacturing of drugs. It is these migrant labourers who become cheap conduits for drug trafficking and smuggling of narcotics. State authorities seem to be indifferent towards this phenomenon because in their numbers they get an avenue for magnifying the flow of “tourists” to Kashmir. They return back without paying any thing for the civic services they avail. Kashmir for quite sometime has become a favorable destination of these migrant labors from Bihar and UP. Thanks to insurgency and His Highness chillaikalan, they are unable to stay here through out the year. Inspite of temporary stay they render two and half lakh locals jobless. No doubt they provide cheap labour but at the same time they become siphon for extracting huge capital out of the state thus making all announcements of aid packages an illusion.

It is high time that the state takes notice of this phenomenon because breeding India cannot be allowed to become permanent liability for growing peripheral states. One of the ways to deal with this menace is to go for system of ‘work permits’ for non-state subjects. This measure will simply regulate the flow of migrant labourers, by making them to report and register themselves within the police stations and make them to pay for the civic amenities they avail. They can be and should be made to pay an amount of 100 rupees per month for their stay and working in the state. Usually migrant workers stay for a period of 6 months. If they are made to pay for their stay and working it will become great source of revenue for the state. Those who come to spread vices, beg and pollute can be differentiated from genuine tourists, workers and restricted from coming. Lately because of indifference of the state the migrant laborers have also started to indulge in criminal activities of the type hitherto unknown within J&K. Those who avail and become a strain for civic amenities can thus be compelled to contribute towards development of the facilities they avail. On top of all this job avenues for locals can be made secure and non-state subjects allowed working in those sectors only for which local man power is not available. 

Let the ruling party and opposition come forward with a “Migrant Workers Registration Bill” before the assembly and prove there commitment towards distinct identity of the state and welfare of its people. Because of the Article 35(A) of the Indian constitution there is no legal impediment in this direction. Under this Article J&K state can make laws for the sake protection of interests of state subjects and the laws will remain valid irrespective of any contradiction with the fundamental rights of residents of other states. The bill will become an example for other states from Assam to Maharashtra. It can catalyze a rethinking within breeding states of India and sensitize its leadership towards developmental issues rather than issues of caste, religion etc. The income that gets generated out of this permit system should be allotted to local bodies within which this migrant population stays and works. Work permit system can also provide an avenue of generating revenue for these bodies so that they can plan and provide resources on the basis of the real population rather than the permanent population of the place.

Human Rights Day

Every year tenth December is celebrated as Human Rights Day through out the world. This day is celebrated in commemoration of adoption of Universal Declaration of Human Rights in 1948. Adoption of Universal Declaration of Human Rights was one of the most important landmarks towards emancipation of human beings from the despotism and tyranny to which they were subjected through out human history. The idea of absolute sovereignty of states was associated with the perception that relations between human being and the state are exclusive domain of those who rule a state. No one beyond the territories of a state had a Locus Standi to question a state about its behaviour towards its subjects. Humans had tried a lot of devices to impress upon the rulers that they have to rule their subjects in a humane way but most of these efforts failed to yield any substantial improvement within the state craft. 
December 10th is important because it was on this day International Community for the first time realized that the relation between individual and the state can’t be left within exclusive discretion of states. Individuals have to be ruled in accordance with certain norms prescribed by the international community. World was awakened for prescription of these norms through the reign of terror and tyranny that was perpetrated against innocent human beings during and prior to World War II. International Community felt that it was its indifference that led the dictatorships of those times to implement their fascist agenda. Laxity on the part of International Community emboldened the fascist regimes and they started to pursue this agenda against people of their neighboring countries thus triggering the World War II. Relation between Individual and State was thus perceived to be relevant to International Peace and Harmony. 
United Nations under took to promote human rights thus taking relation between individual and the state out of the exclusive dominion of states and making it concern of international community. The job undertaken by the United Nations needed elaboration and specific projection of the rights which it expected states to implement within their jurisdiction. Universal Declaration accomplished this job. It enumerated various rights which states were supposed to promote and made it clear that promotion of these rights has to be without any discrimination. Within the preamble of the declaration it was made clear that rights need to be promoted and observed in order to prevent people from resorting to rebellion. Using these words the Universal Declaration incorporated within its preamble the ideas of Locke and Rousseau. The ideas which envisaged that a state has come and are ought to come into existence through a contract between people and those who rule. Absence of contract makes rule illegitimate. The contract is for the sake of protection of inalienable rights of human being. These rights form the consideration for the people to enter into contract. 
Human rights day is a celebration for so many who have managed to secure their rights as a result of Universal Declaration of Human Rights. The declaration has lead to enumeration of rights provided within it in the constitutions of states. The laws in contradiction with the declaration have been modified. The courts have used the declaration for liberal interpretation of the existing laws and incorporated its provisions within domestic laws. Its provisions have been declared as rules of Customary International Law enforceable within domestic jurisdiction without consent or concurrence of states. Universal Declaration catalyzed creation of regional systems for redressal of human rights abuses and adoption of International Covenants. It was this declaration which triggered processes that made it possible for an individual to have recourse to International bodies for abuse of his human rights. The world changed in a big way. Scores of countries got freedom and made the rights provided within the declaration part and parcel of their laws. Universal Declaration did help in decolonization as it served a reference point for those who were oppressed and living alien and oppressive subjugation. In the words of Nelson Mandela Universal Declaration of Human Rights served as a ray of hope for the oppressed nations during darkest period of their history. Whole of this however, is one side of the story. For so many people Universal Declarations might have catalyzed an era of emancipation but there are so many nations who still aspire for it. Who still struggle for freedom and who still continue to languish within the darkness of subjugation and despotism? 
Kashmir’s are one of such unfortunate nations. When whole of the world was engaged in deliberations for adoption of Universal Declaration of Human Rights Kashmir was in process of moving from one type of subjugation into another. The despotism of the local ruler got replaced by colonization of the state in 1947. While human rights did find their way into Indian Constitution Kashmir remained an alien land for the notion of Human Rights. Whole of the sub continent got freedom in 1947 Kashmir lost its freedom. Alien rulers did enact a drama of creating a constitution for us. From the very beginning this process lacked legitimacy. Those who were involved in framing a Constitution for us were not the ones whom people had elected but the ones whose election was facilitated uncontested by the alien administration. People were promised plebiscite, the promise was never fulfilled. They were made party to a contract to which they never consented. 
In 1954 Part III of the Indian Constitution was extended to the state. Extension of this part to the state didn’t help people to enjoy the human rights. Human Rights provided within it were followed in breach rather than in observance. What was provided through one hand was taken away by another. Draconian laws in the form of Armed Forces Special Powers Act, Disturbed Areas Act, Public Safety Act, POTA, and TADA remained in force. Life of every person remains at the mercy of petty police and military officials who were empowered to kill any one as they wish and plunder whom of any one merely on suspicion that it is likely to be used for subversive activities. Thousands of innocents disappeared. State in order to evade its responsibility engaged private armed groups for implementation of its oppressive agenda of subjugation. Innocent girls continue to be raped and judicial remedies for the victims remain an illusion. Torture remains order of the day and world community is unable to do any thing besides providing artificial limb centers for the victims through its International Committee of Red Cross. Thousands remain in jails and interrogation centers merely on suspicious that they are likely to indulge in subversive activities. Once a Court quashes detention of a person he is rearrested soon after his release. Properties worth billions is devastated in counter insurgency operations and people remain desperate for rehabilitation. Perpetrators of human rights abuses within armed forces and Para military forces are immune from any litigation unless Indian home ministry gives clearance for their prosecution. Even the Human Rights Commission is unable to investigate human rights abuses committed by security forces directly. In Kashmir approaching Human Rights Commission is itself fraught with risk of loosing life in retaliation from security agencies. Former Chairman of State Human Rights Commission spoke out of his experience that people get killed or disappeared once they dared to approach the Commission for human rights violations. A Former Inspector General of BSF admits through involvement of girls in scandalous sexual activity he was perusing his counter insurgency operations. Present CM admits that seven percent of rapes in the state are committed by security forces. In this scenario people of Kashmir have nothing to celebrate on this day but to protest against abuses of human rights. World also needs to take stock of selective implementation of human rights and its criminal indifference towards dismal human rights scenario in Kashmir.

EMERGING POLITICAL SCENARIO

Kabootar Baazi is an old trait. Those living in Old Delhi and Lucknow, are experts in this trait. Professional Kabootar Baaz is one who manages to trap pigeons of others through use of his own ones. Modus operandi of this operation is to let his own pigeon fly with pigeons of others. Make it to take lead in flights and facilitate their landing on his own roof. The pigeons used in this operation are termed as decoys. 
From Old Delhi, New Delhi too seems to have learned this trait and is utilizing it to tame Kashmiris. Mufti Mohammad Saeed was asked to hijack slogans of separatists during his tenure. He continued to follow the same politics after his exit. Mufti proceeded to the extent of saying that “militants should now feel complacent and abdicate violence because their representatives have assumed reigns of power.” What militants experienced however was nothing other than a reign of annihilation of their cadres during the Peoples Democratic Party (PDP) rule. There was no let up in military operations against insurgents while peace, dialogue and healing touch remained the favorite discourse of Muftis. On political front PDP contributed to dissensions within Hurriyat which led to its bifurcation. A good number of its leaders assumed moderate postures. Line of difference between mainstream political parties and moderate Hurriyat got blurred. Once Mufti outlived his utility like every other Kashmiri chief minister, he was dethroned in a disgraceful manner. Ghulam Nabi Azad was installed in his position. Nowadays Farooq Abdullah is being groomed for a similar role. He has been deputed to join separatists and facilitate their participation in electoral politics. It is in pursuance of this role that Farooq Abdullah has offered Hurriyat to fight elections jointly with him. New Delhi isn’t worried if Farooq Abdullah uses some anti-India slogans during this operation. Abdullahs after all have been serving India while using similar language for generations. Strategists in New Delhi are sure that results of these National Conference somersaults are in no way going to be against Indian interests.
Whole of this gameplan is being persued in pursuance of a thought process of Dr Karan Singh. Dr Singh for a long time has been asking New Delhi to reorient its Kashmir policy. To him for past fifty years, Kashmir policy of New Delhi has been Kashmir centric. In his perception, Kashmir is a misnomer for the state of Jammu and Kashmir. For him, Jammu precedes Kashmir and infact Kashmir was made to join Jammu by Dogra rulers through their connivance with British imperialists. His paradigm envisages making Kashmir policy Jammu-centric and marginalizing Kashmir valley through a sustained process of administrative and electoral mechanizations.
On administrative level, the process is on. Kashmiris hold only one third positions at highest levels of administrations. Imported Indian Administrative Service officers continue to emasculate avenues of Kashmiri youth. With every succeeding list number of selected candidates for Kashmir Administrative Service and judiciary keeps on depleting. The number of successful Kashmiri candidates in recently declared KAS results was only 28 against 104 from Jammu. If same trend persists within next twenty years, Kashmiris will be exclusively marginalized from executive as well as judiciary. One wonders why those very Kashmiri boys and girls are unable to compete for administrative and judicial services who leave everyone behind in the competitive examinations for medicine, engineering and other professional courses. Reason is nothing but a sustained policy of marginalizing Kashmiris from both administrative as well as judicial services. Bureaucracy and judiciary are after all main instruments of controlling populations. Technocrats on the other hand simply serve as instruments in the hands of real decision makers.
On political front, the policy of marginalization of Kashmiris is sought to be executed through manipulation of electoral politics. In this persuit, New Delhi wants to have as many parties in Kashmir electoral politics as is possible for it to manage. It has tamed National Conference and is using it to tame Hurriyat (M). Mufti’s PDP is creation of New Delhi. Insignificant actors like Tarigami and others associated with him receive full fledged patronization from New Delhi. Sajad Lone and some other kids are being groomed to fight coming elections as a separate group. In case Hurriyat (M) gets trapped in this game plan and joins electoral fray, it will have disastrous consequences for Kashmir cause. Going for elections is expected of Hurriyat (M) on account of its abdication of right of self-determination in favour of self-rule despite its statement to the contrary. Ever since Hurriyat (M) has adopted compromising postures towards New Delhi, it has lost its credibility. Its soft postures didn’t yield any results and human rights situation continued to worsen. In this situation, bereft of credibility, if Hurriyat (M) goes for electoral politics, it will be nothing but success of Kabootar Baazi of New Delhi. Pigeons of adversaries will formally join the flock of pro India parties. Hurriyat is unlikely to get more than ten seats. Kashmir will be divided between NC, PDP, Hurriyat (M) and others. Jammu, Kuthwa and Udhampur will be swept by Congress. Topography and scattered nature of population makes it easy for New Delhi to facilitate ‘election’ of its choice in Doda, Poonch and Rajori. Congress can easily manipulate results of militarized constituencies like Uri, Tangdhar, Karnah, Gurez, Kargil, Zanskar, Leh and Nobra in its favor. This way it can secure at least six seats from Kashmir division. After securing majority, it will ask any of the velleyite parties to join it. If one party doesn’t get ready, others will be more than ready to support it. Even at present, National Conference is ready to support the Congress in case PDP withdraws its support. In post election situation, same politics will be re-enacted. If any of its allies from valley leaves the Congress, others like NC will be ready to join it. Internationally electoral results will be portrayed as a verdict against secession. Musharraf too may use these results as an ex post facto justification for his abdication of Kashmir cause. Internally whatever levers of power are retained by Kashmiris of valley will shift to Jammu. Marginalization of Kashmiris will be complete. Indifference and mute response of New Delhi towards any proposal regarding resolution of Kashmir dispute is guided by these calculations. New Delhi is persuading separatists to join electoral politics and using this as a tool to defeat the campaign for secession. Farooq is nothing but a decoy of New Delhi for accomplishment of this job.

THE POLITICS OF HALF BAKED SOLUTIONS

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ver since Farooq Kathwari came up with some sketches relating to resolution of Kashmir dispute it has become a fashion for every Tom, Dick and Harry to prepare a plan for Kashmir. Those who formulate these plans are mostly the ones who find an avenue of publicity in publication of these plans. There are others who try to be seen in line with the probable solutions that they perceive or are likely to be accepted by India and Pakistan. Some formulate the plans on behest of institutions associated with different establishments to ascertain the public mood and reactions. A group of politicians have dedicated themselves to the job of welcoming each and every proposal irrespective of their contradictions. Mirwiaz welcomes every road map whether it comes from Musharaff or Manmohan Singh. In this regard I am reminded of Prof. A. M. Khusroo who once while entertaining a delegation of teachers praised their views. After sometime expressed similar words for a rival delegation. On being asked by his wife as to why he praises conflicting ideas he responded “Begum App bee theekh kah rahe hain”.
The inception of 2007 has seen people of importance and not much importance divulging their plans probably feeling that they may be left out if they do not come up with a plan of their own. Some proceed with a four page plan whereas others managed to collect few hundred pages. As a university teacher at first instance one of the plans appeared to me dissertation of a postgraduate student in the discipline of dispute resolution. The researcher has managed to collect material from different sources, organized it but failed to co-relate it with his conclusions. The writer seems to be struggling a lot to project the work as an objective research but the inclinations get reflected at every juncture. The propounders appear to be the ones who do not belong to the state and are proposing a solution of reconciliation to warring factions of a dispute. Such an approach does not behoove any one who has an iota of attachment to Kashmir and its problems. The terminology of western institutions specializing in study and research of conflicts has been utilised frequently. 
The leadership is projected to be led by their sentiments instead of the realities surrounding them. They want them to forget the history probably because the history does not justify any U-turn. Respect for sacrifices is sought in the form of cosmetic measures & erection of monuments. At the same time a case is forwarded for betrayal of the object for which sacrifices were made. Conclusion mostly suffers from an error of generalization in context of aspiration of people of the Valley, Jammu and Ladakh regions. Sheikh Mohammad Abdullah is ridiculed for compromises but plea is made for a similar compromise on the part of present day leaders in the form of achievable nationhood. Arguments on this line are devoid of the context in which Sheikh Abdullah made a compromise. The context of Sheikh’s compromise was defeat of Pakistan in 1971 war and nuclearization of India in 1974. The context of present day parleys is altogether different i.e., inability of India to contain the secessionist movement in the State and acquisition of nuclear arms by Pakistan. Sermons for becoming realistic are associated with partial projection of the realities. The realities are projected the way they appear to be conducive to status-quo whereas the negative aspect of realities for Status-quo is altogether overlooked. Presuming that the “Kashmiri society is exhausted, tired, fatigued and unlikely to be capable of sustaining the movement” . It is also a reality that 181 Indian soldiers got killed in the previous year. More than 100 committed suicide and not less than fifty were targeted by their fellow colleagues. Keeping in view the fact that it is only one out of twenty casualties among regular armed forces which get killed and one among the 1000 depressed soldiers who commit suicide. The proportion of fatigue and exhaustion is in no way less on the other side. Relativity of so called realities too is overlooked. Few years back, Bush used to tell others to be with him or against him. Within five years the mightiest power of the world is in a quagmire both within Iraq as well as in Afghanistan. Reality of today is that he is unable to carry along his own Congress and people in his quest for a new crusade. 
It is conceded that leaders instead of leading have been led by masses and also accepted that the movement is going to continue even if leaders abandon it. Still there is a sermon for leaders to become realistic and go for modified version of Status- quo. The Status- quo is sought to be camouflaged in a web of relations between Kashmir and India , Kashmir and Pakistan and Kashmir & Azad Kashmir with out prejudice to the authority, interests and security of India. The decommissioning of weapons possessed by militants is proposed while envisaging a perpetual presence of Indian army in Kashmir. Demilitarization although used several times is basically targeted against non-state actors. Status-quo is perceived to be the fate accompli and leaders advised to compromise with it. This inspite of acknowledging the common perception that India has never kept its promises. One of the main worries of the roadmap drafters is the transformation of Kashmiri society from war phobic to war hardened community and wish for reversal of this trend. No sane person can be happy with conflict and strife but it is also a fact that meekness, submissiveness made Kashmiris conducive for subjugation. 
Right from Northern Ireland up to Hong Kong every model is used as a role model for resolution of Kashmir. Depiction of half truth about these models is a norm with roadmaps and same way the ones which do not suit continuation of Status-quo are never referred. Reference to Ireland is confined to Good Friday Agreement which simply relates to six counties of the type which resemble parts of Kuthua, Jammu, Udampur and Leh District of our State. The solution applied to twenty six counties of Ireland which became independent in 1922 is over looked. Hong Kong was given on lease hundred years back. Britishers made it a point to return it to Chinese inspite of hundred years’ retention and absence of an organised movement for secession. Emphasis on this aspect is altogether missing whereas presence of Hong Kong within China as autonomous region is highlighted because it suits perpetuation of Status-quo in Kashmir. Reference to East Timor, Montenegro, Qubec & Eriteria etc., does not exist simply because Right of Self Determination was the roadmap of resolution of these disputes. 
Kashmiris aspirations for becoming International player is sought to be fulfilled in becoming part of Indian delegations to international forums, a role that Abdullah’s, Muftis have been playing for over a half century. Kashmiris are proposed to be accommodated as complementaries to the delegations of Indian defense and foreign ministries. Inspite of recognition of the fact the de jure stand of Pakistan has been for aspiration of Kashmiris, the roadmaps attempt to equate it with India on account of some practical issues which haven’t been addressed by Pakistanis. The roadmaps act as a red herring to deflect the attention of the world community from the solution to which it is a party and was drafted by it on behest of India & Pakistan in light of rules of International Law relevant to dispute resolution. Problem is not of a roadmap but lack of will and wish to reach to a solution.
As mentioned and conceded the movement for emancipation of Kashmir is unlikely to die even if leadership betrays it. Every one has a right to deliberate on utility or futility of violent and non violent means and his own course of action. This discourse, however should not end up as a case for abandonment of an aspiration. People’s struggle in Kashmir preceded militancy and will proceed it. The militancy was not the beginning and end of their struggle. 1857 marked the end of one phase of Sub-Continents struggle for liberty. It also remained dawn of a long drawn freedom movement. This history can repeat itself in Kashmir. No one should remain under an illusion that somersaults and support of joint colonization of Jammu & Kashmir by India and Pakistan is going to be digested by Kashmiris. Aspiration of Kashmiris has outlived so many leaders of the Sub-Continent. It will outlive those who are trying to make Kashmir a casino for the elite of India and Pakistan. 
Jish Khak Kay Zameer Mein Ho Atash-i-Chinar
Mumkin Nahin Ke Sard Ho Woh Khakh-i-Arjmand

Lofty Ideals

Right from its inception, Pakistan movement suffered from an error of generalization regarding its approach towards Kashmir. Kashmir was perceived to be homogeneous. Qaid-e-Azam failed to understand difference between ethnic Kashmiris and those who couldn’t speak Kashmiri language and were racially different from inhabitants of the valley. It was on account of this error that he projected Chowdary Ghulam Abass as leader of Muslim conference in Kashmir. Being native of Jammu he could not speak Kashmiri language. On account of this ethnic and linguistic gap, it was impossible for him to overshadow Sheikh Abdullah and his manipulations. Inspite of being Muslim majority area Kashmir could not join Pakistan. The mistake committed by Muslim League in pre-partition days continues to prevail upon the policies of Pakistani government even after creation of Pakistan. In earlier years Kashmiri leaders of the valley origin could influence this policy to some extent. Domination of army in Pakistan with the ascendance of Ayub Khan to power marginalized Kashmiri speaking leaders. People of Azad Kashmir origin on account of sizeable presence in army became sole architects of Kashmir policy of Pakistan. Pakistani establishment being dominated by Punjabis who are racially and linguistically closer to residents of Punch and Jammu was also guided by these people in respect of their Kashmir policy. Pakistani ruling elite were unable to understand the difference between Kashmiris of the valley and Kashmiris of Azad Kashmir. Operation Gibraltar of 1965 could not be sustained because it was wholly managed and executed by people from Azad Kashmir. Once they came to Kashmir they were easily identified and could not do much. Even after 1965, instead of evaluating their own approach Pakistanis usually found fault with Kashmiris for failure of operation Gibraltar. Apithus and other Punjabi jokes about Kashmiris added an aroma to this campaign of maligning people of the valley. Marginalization of Kashmiris was further compounded by death of Mirwaiz Yousuf Shah
It was Mir Abdul Aziz who single handedly fought against this misunderstanding through out his journalistic and political career. Mir Abdul Aziz was born at Rambagh, Srinagar on 13th January 1923 graduated from Punjab University Lahore. He worked as a columnist in Hamdard and Edited Johar and Millat in pre-partition days. On account of his association with Muslim students Federation and pro-League views he was banished from the state after 1947 along with Mirwaiz Maulana Yousuf Shah and Mr. Prem Nath Bazaz. During his last days in valley Mir Abdul Aziz along with Abdul Salam Yatoo of Dialgam(Islamabad) started Kissan Mazdoor Conference. Those associated with this organization were influenced by ideology of MN Roy(radical humanist). All the radicals of those were supporters of Pakistan movement irrespective of their religion and creed. He started Awaz-e-Haq weekly in Rawalpindi and remained secretary general of Muslim Conference and Liberation League for some time. Through his paper and within these organizations he consistently fought against the erroneous approach of Pakistani government towards Kashmir. He made it clear that unless Kashmir policy of Pakistan is centered around the inhabitants of the valley it is unlikely to succeed. Mir Abdul Aziz managed to convince Shardar Ibrahim Khan and a sizeable section of Muslim Conference supporters. On account of this Choudry Ghulam Abass felt uneasy and scared about his position in Azad Kashmir. He mislead field Marshall Ayaub Khan against Mir Abdul Aziz. In 1958 his paper Awaz-e-Haq was banned and he was arrested under Defense of Pakistan Rules for nine months. On his release, he along with late Maqbool Bhat established Mahaze-Rai-Shumari in Azad Kashmir and Pakistan. Mir Abdul Aziz was its secretary General and Maqbool Bhat its president. He parted ways with Maqbool soon after he discovered that Maqbool was using his position to create JKLF without taking other colleagues into confidence.
 Mir Abdul Aziz favored an active militant movement for achieving the right to self determination as a last option when all other means have been exhausted. Nevertheless, he supported present insurgency once it erupted. When questioned about this views, he would often refer to an advice that Qaid-e-Azam had tendered to him and his fellow students in Muslim students Federation in a houseboat near Lal Mandi during Jinnah’s visit to Kashmir. Jinnah, told them to always sharpen the knives and never throw them. He adhered to this advice until his death. These views of Jinnah might have been relevant in context of British imperialism their validity in context of forces of oppression that Kashmiris are facing can be debated.
The debacle of 71 made Pakistani establishment more objective. They started to evaluate their failures and achievements in a more rational way. This made them receptive to the views of Mir Abdul Aziz. Once their were rid of their defeatist mentality through their success in Afghanistan they started to plan revival of Kashmir issue in a better way. This time the policy was valley centric and oriented towards involvement of ethnic Kashmiris. The paradigm shift paid its dividends. As compared to operation Gibraltar which fizzed out within day, present insurgency is continuing for more than one and a half decade. Sole reason for this success is the idea that any movement in Kashmir should involve people from the valley and not be centered around those who live beyond the valley and have influence over high echelons of power in Islamabad.

Mir Abdul Aziz was a staunch believer of two nation theory but at the same time conscious about his identity as a Kashmiri. He often said, the way Hindus and Muslims are two nations, same way kashmiri Muslims and Muslims of Indo Pak Subcontinent are two different entities. For achieving our objective we should not over look either of these facts. He favored an autonomous Kashmir within the federation of Pakistan. His own papers Insaf and Awaze-Haq only project a myopic view of his personality. In order to have full appreciation of his views one should go through his writings in The Pakistan Times, The Muslim, Frontier Post, Mag and other English papers and journals of Pakistan. It was on account of these English writings that he could often influence Pakistan ruling elite. Another important facet of his personality was his Kashmiri poetry most often related to political themes. If compiled right from his association with Hamdard to his last edited issue of Insaf it can provide a comprehensive poetic narration of contemporary Kashmir political history. He was well aware of his Kashmiri roots and remained attached to them until his death. He perceived Syed Ali Hamadani to be the fountain head of Kashmiri heritage and had a great reverence for him. As founder secretary of Shahi Hamdan foundation he paid several visits to the grave of Ameer-e-Kabir in Khtalan. On account of his untiring journalistic pursuits former information minister of Pakistan once described him as a man information brigade on Kashmir. Inspite of his ailing health he continued to write until he was overtaken by the disease and fell into coma for last three days of his life. During these days the darker side of his life over shadowed him. He whispered several times trying to communicate something to his children in Kashmiri but they could not understand it because he had never taught them his mother tongue.

Nagmai Noubahar Agar Mere Naseeb Mein Na Ho.
Is Dame Neem Soz Ko Tairi Nou Bahar Kar (Iqbal)
What Iqbal aspired in this verse for himself in the context of global ummatic renaissance, Mir Abdul Aziz had same aspirations in local context with regard to emancipation of Kashmiri Muslims. Although he was not destined to see the dawn of freedom of Kashmir, yet he wrote for it and lived for it until the last breath of his life.