Human Rights Violation On Kashmir Pandits

By M.K. Teng

An undeserved and deep sense of self-righteousness prevails among the people in India in regard to their identification of the imperatives of their government and society with human rights. Indeed the entire Indian national commitment to human rights is pervaded by a false sense of infallibility about the various forms of its domestic jurisdical; its structural basis and functional attributes in respect of human rights. The insistance of the rootless English speaking intellectual class of India on liberal reformism of the British colonial tradition as the basis of the nation building processes of this country, has reduced human rights to digital symbols, Human rights are an inseparable part of the nation building process in the universal sense of the term.

The Indian state has a primitive perspective of human rights. Its national commitment to the human rights is fictitious.

The second World War led to the recognition of the necessity of a new structure of security to save the world from the scourge of another ideological war and accepted the responsibility to re-structure the instruments of national power as well as international organisations on the principle of the individual responsibility of man, to ensure all people, irrespective of nationality, racial ethnic origin, sex and religion rights considered to be basic to all human life.

human rights transcend the boundaries of civil jurisprudence. They have a sanction which goes beyond the law of the nation and reflects the fundamental moral commitments of the human civilisation to equality of man, inviolability of life, protection against fear and arbitrary exercise of authority, exploitation, discrimination on grounds of nationality, religion, ethnicity, sex and colour. Human rights have the quality of imperatives which are recognised by mankind as the guarantees for its survival. In a world dominated by balances of power, based upon absolute strike capability, ideological regimentation for nation, religious and ethnic precedence, will inevitably lead to crusade for more disastrous than Second World War.

The Universal Declaration of Human Rights, which forms the groundwork of the international jurisdiction of the rights of man, underlines two fundamental principles.

(a) The Declaration enjoins upon the States to uphold human rights and protect them, but it imposes a direct obligation on the individual and all the organs of the society to honour the rights envisaged by the Declaration and to desist from acts which violate them. The obligation to honour human rights is not limited to the authority of the State: it extends to all people and all organs of the society, as well as all inter-state regimes, and international organisations. The obligation on the individual is patent and supersedes the immunities arising out of the authority of the state.

The Declaration does not underline guarantees against civil jurisdiction alone. The protection envisaged by the Declaration imposes a limitation on the exercise of authority by all regimes, including instruments of social control, private citizens, foreign states and international organisations.

(b) The universal Declaration of Human Rights signifies the recognition of a jurisdical organisation of the world community, in which the equality and dignity of man are acknowledged and as a consequences, it is accepted that man has a fundamental right to free movement in search of truth and the attainment of moral good and justice besides the right to a dignified life. The Declaration is not a partial guarantee and it does not envisage, protection for any specific sections of the people of the world. The safeguards envisaged by the human rights are universal and are available to all people of the world irrespective of their nationality, the regime by which they are governed and religion, race and sex to which they belong.

The Universal Declaration of Human Rights is a guarantee against all ideological aggrandisement, regimentation and communal majoritarianism. The rights envisaged by the Declaration are irreconcilable to all political, social and economic regimes which are based upon discrimination on the basis of ideological precedence. Fundamental rights, including human rights, conflict with restricted citizenship and all forms of religious protectorates.

The Universal Declaration of Human Rights spells out in thirty sections, the rights of man which the declaration proclaims are inalienable. The rights envisaged by the Declaration are not subject to any limitation of authority, whatever its source. "The Universal Declaration describes itself as "a common standard of achievement for all people and all nations." The Declaration describes for the first time in the history of international organisation, a jurisdical sanction, which is not derived from the authority of the nation state.

The basic human rights, ensured by the Universal Declaration include the right to equality of man; due process of law: freedom of thought expression assembly and association : freedom of faith, right to equal participation in government and right to equal share in social progress. The United Nations Convenants on Human Rights describe the process, to ensure people the right to equal share in social progress.

The War Crimes Tribunals of Neuremburg and the War Crimes Tribunal of Tokyo, which were constituted after the war, to try war crimes accepted the recreation of a jurisdiction, which underlined the responsibility of the individual as a basis for the enforcement of rights and which are inherent in man. Both the Neuremburg Tribunal and the Tokyo Tribunal laid down the principles and precedents which recognised the responsibility of the individuals and all regimes of individuals within the power-structure of the states or outside the power-structure of the States.

The Human Rights violations in respect of Kashmiri Pandits has a longer history than is known. The whole process of the violation of their human rights has spread over the last five decades of the Indian freedom.  The first phase of the human rights violations began with the creation of a separate jurisdiction in Jammu and Kashmir, which confined them to the servitude of a Muslim state. Article 370 envisaged the exclusion of the Jammu and Kashmir state from the constitutional organisation of India and its reorganisation into a Muslim state on the basis of the Muslim majority character of its population. The political organisation of Jammu and Kashmir did not admit of right to equality, right to liberty and freedom, right to property, right to freedom of faith and religion and right to due process of law. The State government was vested with  arbitrary and absolute authority. Even after the partial application of the Constitution of India to the State in 1954, the State government enforced without any limitations the precedence of the Muslim majority in the State. The Kashmiri Pandits mainly, were deprived of their basic right to equality and protection against discrimination on the basis of faith and religion their right to property, their right to employment education and livelihood by devising quota systems fixed in proportion to the ratio of their population.

The Indian State violated the very spirit of the Universal Declaration of Human Rights by segregating Jammu and Kashmir from the constitutional organisation which it had adopted and which was based upon a basic structure of rights including.

1) the right to equality and equality of opportunity.

2) right to protection against discrimination on the basis of religion;

3) right to freedom of religion and the integration of the people of India on the basis of the secular equality of the  people of India on the basis of the secular equality of the Indian people;

4) right to property;

5) right to liberty and freedom.

For forty three years of the Indian freedom the Kashmiri Pandits were deprived by the state of India of the rights envisaged by the Universal Declaration of Human Rights.

The Kashmiri Pandits were left to claim only one right, The right to life.

In January 1990, the Muslim Jehad proclaimed the seizure of the only right, they had; their right to life.

Ladies and Gentlemen; this brings me to the second phase of the human rights violations of Kashmiri Pandits.

There is a fateful continuity in the human rights violations the Kashmiri Pandits have suffered. A subsidiary civil jurisdiction created by the Indian State in the Jammu and Kashmir denied them the rights envisaged by the Universal Declaration of Human Rights and the Covenants of Human Rights. The Muslim Jehad which commenced in 1990 and which involved the high technology of international terrorism, denied them the right to life, the most fundamental and universal human right.

(a) Ideological character of international terrorism is of crucial significance to the whole jurisdiction structure of Human Rights. Belief-systems, legitimised by community concerns or even national consensus do not validate international terrorism. Terror is not accepted as a valid and legitimate instrument for the enforcement of change and wherever belief-systems are sought to be invoked to rationalise terror, human rights are directly invaded.

International terrorism involves, military operations against non-combatant civil population of a state besides its combatant forces. These military operations tentamount to the violations of the laws of war which prohibit military reprisals against civil populations. The terrorist violence also amounts to a crime against peace as all wars of subversion, in persuance of political objectives violate the charter of the United Nations. Lastly all terrorist violence is a crime against humanity. Mass assassination of civil population, sectarian violence, ethnic cleansing of groups, communities and minorities, forced migration torture hostage taking and abduction, molestation of women, communal violence etc. are crimes against humanity.

The claim to any immunity available under the human rights jurisdiction for acts of terrorism, whatever their ideological motivation of or objective is untenable because terrorism involves a military campaign against a civil society, which has no means to retaliate in combat except through the instrumentalities of the State. Terrorism cannot be justified on the grounds of its political and ideological motivations. International conventions and treaties, including the Human Rights Covenants and other agreements do not recognise terrorism as legitimate political action on any ideological or value basis.

Terrorism is a negation of life. All value-based violence, which contravenes generally accepted norms of social order human behaviour and right to life and equality of all men violates the rights of man. Judgements based upon preferences which violate, life, equality and freedom of the mankind do not have any revolutionary content. Terrorist regime have no claim to any immunity available under civil law or the Universal Declaration of Human Rights. All political terrorism is organised crime. There is no freedom which transcends freedom; there is no liberty which infringes liberty; there are no rights which violate rights.

Terrorism in Kashmir motivated by ideological commitment to a Muslim Jehad, is a graver violation of human rights. All crusades are a negation of human rights as all crusades underline ideological absolutism. The Universal Declaration of Human Rights was adopted by the world community to save mankind from the scourage of the crusades. The second world war was also a war of the crusades. The Muslim jehad which seeks a termination of the religious and ethnic minorities in Jammu and Kashmir and establishment of the primacy of Islam in the government and the society of the state contravenes the principle of equality and due process of law which is the basis of the Universal Declaration of Human Rights, Terrorism whatever its ideology and objective, is a crime against international law a crime against humanity a crime  against the laws of war and a crime against the Declaration of Human Rights.

The terrorism violence in Jammu and Kashmir raging for the last fourteen years has led to severe consequences which are inextricably interlinked with the violations of human rights. The  patterns of warfare in which terrorism has manifested itself in the State has several dimensions some of which are characteristically original to the violence unleashed by the terrorist regimes.

First terrorism in Jammu and Kashmir is a religious war which is politically committed to disengage Jammu and Kashmir from India.

Second the Muslim Jehad in Kashmir has transnational dimensions. The militarization of the pan-Islamic fundamentalism in South Asia including Afghanistan with its epicenter in Pakistan is aimed to force a second partition on India and open the way for the eastward expansion of the Muslim power into the northern India. The broad contours of the whole plan of the religious war envisaged by the Muslim Jehad has been exposed after 11 September attack on the United States.

Third the terrorist operations are committed to the Islamisation of the Jammu and Kashmir State.

The Kashmiri Pandits do not accept the Islamisation of the State and have opposed its solidly. They have refused to accept the legitimacy of the Muslim movement for the establishment of a social and political order which derives its sanction from the law and precept of Islam. The Hindus have opposed the secession of the State from India and its unification with Pakistan. They have undeviably formed the most stable support-base for India in Kashmir.

The terrorist regimes unleashed an organised campaign to exterminate the Kashmiri Pandits and eliminate the last resistance to the Muslim jehad in Kashmir. The organised Jehadi campaign to bring about the ethnic extermination of the Kashmiri Pandits was the gravest violation of their human rights.

The protection of right of life is related to another set of international sanctions against the violations of right to life. The sanctions are embodied in the convention in prevention and punishment on genocide. Genocide is a crime against international law.

The convention defines genocide as :

(i) killing members of a community or a group because of their affiliations;

(ii) causing bodily or mental harm to the members of a community or a group;

(iii) deliberately inflicting conditions on the community or the group to bring about its physical destruction;

(iv) imposing measures to prevent births in the community or the group;

(v) forcibly transferring children from one group to another.

The extermination of the Kashmiri Pandits therefore amounts to genocide. It is generally accepted by the international community and recognised by the cannons of International Law that genocide is the destruction in whole or in part of a national ethnic religious group.

The genocide of Kashmiri Pandits was carried out by:

(1) mass massacres of the members of the community;

(2) brutal torture to achieve the submission of the Kashmiri Pandits to the terrorist regimes;

(3) deportation by force, fear of death conversion and criminal assault on women;

(4) destruction of places of worship to demolish their social identity;

(5) destruction and attachment of their property and means of livelihood;

(6) forcing exodus on them to bring about their ethnic cleansing from Kashmir; and

(7) declaration of a Jehad or religious war against them.

The mass attack on Kashmiri Pandits commenced in January 1990 and by the fall of the year more than eight hundred of them had been murdered in cold blood. Most of the victims were innocent people who lived in poverty and persecution of the Muslim political organisation of the State. Among the people killed were men as well as women from all sections of the Kashmiri Pandit society like lawyers, political activists, mediamen, intellectuals, shopkeepers, errand boys and men of ordinary means.

The terrorist killings were accompanied by torture unheard of in the annals of human history. The torture killings tantamount to grave crimes against all laws and crimes against humanity. In sheer disregard of the norms of political behaviour generally recognised by the international community and embodied in several International covenants including the Universal Declaration for Human Rights and resolutions of the United Nations General assembly; the terrorists inflicted grievous hurt injury and torture on hundreds of Kashmiri Pandits.

While the massacre of Kashmiri Pandits was in progress; the militant regimes mounted pressure to flush them out of Kashmir. A widespread and a vicious campaign was unleashed against them in press and public exhorting them to quit Kashmir. The terrorist regimes accused the Kashmiri Pandits of having betrayed the cause of the freedom of Kashmir of carrying an epionage for the Indian security forces and causing harm to the interest of Islam in Kashmir. They were warned to leave Kashmir or face the fate of the traitors and heretics.

The widespread killing of the Kashmiri Pandits, assault on their women and the fear of conversion were the main reasons for the exodus of the Kashmiri Pandits from Kashmir. The total breakdown of the law and order machinery which had already been undermined by pro-Pakistan agents and secessionist elements spread a sense of insecurity among them. The insecurity was so severe that most of the fugitive escaped from their homes in the dark hours of the night.

The terrorist violence continues to ravage Jammu and Kashmir. Kashmiri Pandits are still smouldering in exile. The national response to the terrorist violence as well as violations of the human rights of the Kashmiri Pandits have been pathetically indolent. The Indian State consigned the Kashmiri Pandits to the servitude of a Muslim state in 1947. That servitude has not ended. The Indian state allowed the genocide of Kashmiri Pandits. The genocide still in progress.

The Indian state has an obligation under the Universal Declaration of Human Rights, the United Nations Covenants of Human Rights and the resolutions of the United Nations General assembly and the Security Council to take effective and stringent measures against international terrorism. The measures specifically listed in the resolution of the general assembly and the Security Council, include measures to bring about drastic changes and amendments in Municipal Law and the security structure to crush terrorism. These measures include :

(1) harmonisation of domestic legislation with existing international conventions on terrorism;

(2) prevention of the preparation and organisation in their territories of acts directed against the state;

(3) prevention of acts aimed to obstruct the application of appropriate law enforcement measures to persons who commit acts of international terrorism;

(4) modification of penal procedures and institution of fresh political instruments to combat terrorism;

(5) withdrawal of amnesty in respect of terrorism.

The Indian State has undertaken none of the measures listed above. Prevention of Terrorist Activities Act or POTA; is a freak legislation which does not underline any harmonisation of Municipal law with the Principles of International Law. The Indian State is not able to wage war against the Muslim Jehad. Infact, the Indian state is waging a war against its own civilisation. Since the Kashmiri Pandits are a part of the Indian civilisation the Indian State is at war with them as well.

Source: Kashmir Sentinel