Rizwan Asad Pandit, a 28-year-old school principal, was last year detained under Public Safety Act (PSA) -detention without trial- for having affiliation with socio-religious-organization Jama’at-e-Islami (JeI) in Jammu and Kashmir, claims family.¹ His detention was rendered illegal by the state High Court and directed his immediate release.
Instead of releasing him, Zulkarnain, his brother said that the state authorities booked him under FIR No 146/2018 at police station Awantipora of district Pulwama in southern Kashmir under alleged offences 7/27 Arms Act, 18,20,38 Unlawful Act.²
Rizwan’s family subsequently approached the court and obtained bail order from the local trial court but despite the order, he illegally was kept under police custody for the next 20 days. Barely, after two and a half months, Rizwan was again picked up by police on March 17, 2019, from his residence for questioning.
Zulkarnain narrates that the local police in Awantipora handed him over to India’s federal investigating agency -NIA- (which operates from Kashmir police’s counter-insurgent Cargo police station Srinagar) where he died during the intervening night of Monday and Tuesday.
Police although have seemingly ordered for magisterial inquiry under section 176 of criminal procedure code, the same is feared to meet the fate of 7,081 custodial killings of Kashmir in which no police or army officer was prosecuted.
The preliminary autopsy report in the death has revealed that “Rizwan died on Monday evening, a day after he was picked up on March 17, and the family was informed on Tuesday morning about the death.” The report prima facie shows “excessive bleeding caused by deep wounds on his body” as “excessive bleeding can lead to fatal shock.” As per the autopsy report submitted by Government Medical College, Srinagar, the “external wounds have been suspected to be caused by some sharp object.
In the past 30 years of conflict, Kashmir has witnessed a plethora of custodial deaths due to torture.³ It was confirmed through WikiLeaks⁴ that torture is rampant in the state of Jammu Kashmir in India and is commonly used against civilians. The various forms of torture enumerated in the WikiLeaks include rollers, electric shocks, sexual abuse, beating, suspension from the ceiling, crushing of muscles and other forms of physical assaults.
The US embassy cables leaked are based on information gathered by the International Committee of Red Cross through interviews of 1296 detainees. Of these 65% reported ill-treatment, 52.54% complained about being subjected to torture, 38.42% had been suspended from the ceiling, 23.3% subjected to sexual assault and 22.68% has suffered from crushing of muscles during torture. All these interviews were conducted in different jails. However, detention centres other than jails did not remain open to the delegations of Red Cross.
There are hundreds of other methods and forms of torture in Kashmir which have been and are consistently used. There are many instances of Rhabdomyolysis (a disease caused by torture) in Kashmir. Occurrences of this disease in Kashmir even surpass the numbers that were infested by it during the Second World War.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Article 5 UDHR & Article 7 ICCPR). Moreover, there is a Convention against Torture (CAT) which prohibits any form of physical or mental suffering to a person under custody.
India has stayed away from being a party to such convention because of the high rate of torture cases in Kashmir and some parts of North India. The International Commission of Jurists and Project 39 A from the National Law University, Delhi, conducted the conference. The Senior Supreme Court advocate and human rights activist, Colin Gonsalves while addressing two days conference on strengthening Legal Protection against Torture in India on October 26 and 27, 2018, took a very strong note of excesses by police and paramilitary forces across the country –especially in vulnerable areas like Kashmir and Chhattisgarh. Torture in Kashmir is rampantly used by the state as a weapon against dissent.
American Anthropologist who visited Kashmir in 2016 said, “torture is practised as a means of extracting information or confession or for punishing the person who is believed to be a supporter of the pro-freedom movement. Methods used are brutal which physically and psychologically impair the victim’s health. The concept of modern policing is still a hallucination in Kashmir, where police are expected to function as a tool for social control rather serve society. The increasing incident of torture and death in custody has assumed such alarming proposition that it undermines the rule of law and the administration of the criminal justice system.”
In 2011, for example, the State Human Rights Commission (SHRC) of Jammu Kashmir found 2730 bodies dumped in unmarked graves in 38 sites in North Kashmir. Among them, 574 bodies were identified as those of native Kashmiris.
Besides militants, the civilians suspected of having information about militants, are routinely detained, tortured and killed in custody. In 1995 Amnesty International documented 706 of custodial killings during the period of 1990-1994, nearly all after gruesome torture. In its response to Amnesty International, the Government of India said that 519 out of 706 cases were evasive, dismissing half of them as “Encounter killings” without supporting evidence despite eye-witness reports to the contrary. The Government indicated that there was prima facie evidence of human rights violation in 85 other cases which were said to be under investigation, however, no one has been brought to justice till date.
On 26 April 1993, the Kashmir Times Newspaper carried a report of police records listing 132 persons to have been killed in custody in the preceding 33 days alone. The International Commission of Jurists, a non-governmental organization (NGO) defending human rights and the rule of law worldwide criticized India’s failure to tackle issues of torture and unaccountability of armed forces. It asked India to adopt the reforms suggested by the convention.¹¹ Out of 80 countries which participated in the second periodical review of the human rights record, 22 states urged India to immediately ratify the torture convention.¹²
According to the Report of the Working Group on Human Rights in India, torture and ill-treatment are widespread in India and the group has called for immediate intervention by the government against torture.
Only nine countries including India are yet to ratify the United Nations’ Convention against Torture (CAT).¹³ Supreme Court of India took a strong note in May 2017 when it asked the Union of India: “What stops them making a good faith commitment about bringing domestic legislation in the matter?” “We do understand that the legislative process can take time, but tell us why Centre can’t make a ‘good faith commitment’ on “the law before us,” a bench headed by Chief Justice J S Khehar said.¹⁴ The bench comprising Justices D Y Chandrachud and S K Kaul, said, “This is an extremely important issue in the national interest and moreover, there is no conflict,” These observational remarks were made when Indian National Congress leader and India’s ex-law Minister Ashwani Kumar figured out that India was among the only nine nations left in the world which have not yet ratified the treaty despite signing it.
India Continues to Resist Ratifying CAT and other IHL Treaties
India cannot afford to be part of any such treaty which will make it accountable for “war crimes” in Kashmir. It is engaged in every kind of war crimes denounced by international humanitarian law. Its forces employ inhumane tactics on an everyday basis. The narrative of “violation of human rights” in Kashmir disguises what are essentially war crimes in an asymmetric war between 700,000 Indian forces, and 10 million unarmed people, among whom a few hundred have taken up arms.
The Geneva Convention, commonly known as war laws, provides a framework of conduct for international states during the war. India remains a signatory to the above laws, yet its forces have committed mass rape, killed civilians and destroyed the bodies of armed fighters in Kashmir. Geneva Conventions which proscribe specific rules for the treatment of detainee during armed conflicts, establish the primary legal duties by India towards battlefield detainees.
The point of the debate revolves around the fact is that if India accedes to these treaties, it would be under obligation to extend their protections to those who are involved in armed conflict with the Indian state and that would, in turn, give these insurgents political legitimacy. Another major concern could be additional protocol’s categorization of self-determination movements since India was never in favour of accepting the category of non-international armed conflict itself. But ironically the position no longer remains valid as India has become a party to other international treaties which govern non-international armed conflict situations. An example of this is the Convention on Certain Conventional Weapons of 1980.
Torture is evidently regarded as an affront and insult to human dignity and thus proscribed by the international human rights law. Reflecting the seriousness of the matter, the system of checks and in situational visits undertaken by the international and regional rights bodies monitor various detention units. There are indications that the prohibition of torture, (whether it is committed on the widespread or systematic basis) constitute a norm of Jus Cogens (a fundamental principle of international law considered to be accepted by all states). The major distinguishing feature of the rule of jus Cogens is its indelibility. It is a norm of customary law which cannot be set aside by the treaty or acquiescence but only by the formation of subsequent rule or another norm of jus Cogens of contrary effect. Since India has not ratified the CAT but it too cannot usher the principle of Jus Cogens. Furthermore, India is a party to two major conventions, i.e. UDHR and ICCPR which categorically prohibits torture.