Flawed Judicial Appointments and the Erosion of Fair Trial in Kashmir: Applying the Special Rapporteur’s Principles

Flawed Judicial Appointments and the Erosion of Fair Trial in Kashmir: Applying the Special Rapporteur’s Principles


In a submission to the UN Human Rights Council, the World Muslim Congress has utilized the Special Rapporteur’s report on the Independence of Judges and Lawyers report (A/HRC/62/43) to highlight systemic deficiencies in India’s judicial appointment processes. Drawing on the International Covenant on Civil and Political Rights (ICCPR) and the Basic Principles on the Independence of the Judiciary, the submission argues that India’s opaque appointment system, combined with draconian security laws in Indian occupied Jammu and Kashmir, has created a justice apparatus where institutional capture and the denial of due process have become routine.


Altaf Hussain Wani



The Special Rapporteur emphasizes that judicial selection must be based on merit, objective criteria, transparency, and insulation from political interference. This requires clear legal frameworks, pre-appointment integrity assessments, reasoned decision-making, and a judiciary that reflects societal diversity.


India’s “collegium system”—where judges select their own successors—was intended to prevent executive dominance. However, the World Muslim Congress notes that it operates with limited transparency and no published competency matrices. Without an independent judicial council or civil-society participation, the system contradicts the guidelines of the Venice Commission and the Special Rapporteur. This opacity fosters the perception that selections may be influenced by political alignment or elite connections, undermining the judiciary’s perceived impartiality.


These deficiencies are most acute in Indian-occupied Jammu and Kashmir, where exceptional laws operate alongside this flawed architecture. The Armed Forces (Special Powers) Act (AFSPA) grants sweeping immunities; the Public Safety Act (PSA) allows indefinite administrative detention; and the Unlawful Activities (Prevention) Act (UAPA) broadens the definition of terrorism to encompass dissent, making bail nearly impossible.


When judges handling these cases are appointed via a system lacking transparency, fair trial rights collapse. The Special Rapporteur warns that provisional or temporary appointments create pathways for undue influence. In Kashmir, short-term postings for judges in politically charged cases are common, leaving officers vulnerable to pressures regarding their renewal or termination. This structural vulnerability directly undermines the impartiality guaranteed by ICCPR Article 14.


The consequences are evident in several high-profile convictions. In 2022, Yasin Malik was sentenced to life imprisonment by a special NIA court in Delhi under the UAPA. Human rights groups argue the court failed to rigorously examine the voluntariness of Malik’s plea, given his history of incommunicado custody and alleged coercion. Similarly, veteran separatist Shabbir Ahmad Shah was convicted based on evidence gathered during years of detention and statements allegedly extracted under duress.

 

Equally troubling is the case of Asiya Andrabi and her colleagues, sentenced to three consecutive life terms. The prosecution relied heavily on testimonies obtained during prolonged incommunicado detention. The presiding judge dismissed claims of procedural irregularity without providing a sufficiently reasoned order, contravening the Special Rapporteur’s emphasis on effective challenge mechanisms.


Beyond these cases, the everyday administration of justice in Kashmir reveals a pattern of obstructed oversight. Bail hearings often become ritualistic, with courts citing the UAPA’s broad language to deny relief despite a lack of evidence linking the accused to violence. Trials are frequently moved to distant jurisdictions, such as Delhi or Uttar Pradesh, severing defendants from their families and local counsel. When judges endorse these shortcuts, they confirm the report’s warning that flawed appointment systems enable strategic selections that degrade equal justice.


Furthermore, the apex court’s review of UAPA cases has rarely provided meaningful remedy, often deferring to special courts despite weak evidence. This deferential posture, coupled with a lack of diversity on the bench—specifically a lack of representation from marginalized regions like Kashmir—entrenches a cycle of mistrust.


Consequently, reform is an imperative under international law. The Special Rapporteur advocates for an independent, transparent judicial appointments commission consisting of a majority of judges elected by peers, with civil-society participation and published merit criteria. India’s collegium system meets none of these prerequisites.


The World Muslim Congress has urged the Special Rapporteur to engage the Indian government to establish such a commission and conduct a time-bound judicial review of convictions under the UAPA and PSA—including those of Malik, Shah, and Andrabi. A genuine review would require full compliance with due-process guarantees and the reversal of convictions tainted by coerced confessions or denied legal representation.


Additionally, the principles necessitate the repeal or amendment of laws permitting indefinite detention and stripping away fair-trial rights. The PSA, UAPA, and AFSPA must be brought into compliance with India’s ICCPR obligations. The normative framework is clear: judicial appointments must be governed by merit and integrity, insulated from politics. In Kashmir, the erosion of this guarantee is not hypothetical; it is reflected in the harsh sentences of those whose dissent has been criminalized by a constrained judiciary. The Special Rapporteur’s report provides the diagnostic tool; the remaining requirement is the political will to implement structural remedies.


Writer is chairman Kashmir Institute of International Relations (KIIR) and permanent Representative World Muslim Congress (WMC) to United Nations Geneva  and can be reached at X ; @sultan1913 

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