Kashmir and Justice

Dr. Ghulam Nabi Fai

17 January 2024

Published in: The Nation

“O you who have believed, be persistently standing firm in justice, witness­es for Allah, even if it be against yourselves or parents and relatives. Whether one is rich or poor, Allah is more worthy of both….” (Al-Quran 4:135).

“Beware! Whoever is cruel and hard on a non-Muslim minority, curtails their rights, burdens them with more than they can bear, or takes anything from them against their free will; I (Prophet Muham­mad) will complain against the person on the Day of Judgment.”

‘There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.’-Charles-Louis de Secondat. French phi­losopher. “The 2023 ‘World Day of Social Justice’ provides an op­portunity to foster dialogue with member States, youth and rel­evant UN institutions and oth­er stakeholders on actions need­ed to achieve social justice by strengthening the social contract that has been fractured by rising inequalities, conflicts and weak­ened institutions,” excerpts from the concept paper of ‘World Day of Social Justice, February 13, 2023.’ The international commu­nity has recognized that national institutions such as the judiciary is important to ensure the pro­motion and protection of human rights. It often serves as effective supplements and correctors of State and non-State actors when the organ will not police itself.

Although the United Nations has written declarations that affirm the right of vulnerable popula­tions, there must be greater world­wide effort on the part of govern­ments, NGO’s, businesses and UN agencies to incorporate peace, jus­tice and human dignity into inter­nationalization and globalization. Peace, justice and human digni­ty cannot take a back seat as so­cieties globalize their trade, sup­ply chaining, and outsourcing. Freedom and justice must prevail above all political and economic aspects of international trade re­lations, and treaties even if it re­quires canceling trade agreements with countries that blatantly allow gross human rights violations to continue. It is the responsibility of everyone operating in the interna­tional arena to ensure that peace, justice and human dignity are pro­tected. Global ethics must be fully integrated into the process of glo­balization. Adopted by the ‘Sev­enth United Nations Congress’ on the ‘Prevention of Crime and the Treatment of Offenders’ held at Milan from 26 August to 6 Septem­ber 1985 and endorsed by Gener­al Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985 articulated that the Charter of the United Na­tions the peoples of the world af­firm, inter alia , their determina­tion to establish conditions under which justice can be maintained to achieve international co-oper­ation in promoting and encourag­ing respect for human rights and fundamental freedoms without any discrimination.

The resolution further states that the following basic princi­ples, formulated to assist Member States in their task of securing and promoting the independence of the judiciary should be taken into account and respected by Gov­ernments within the framework of their national legislation and practice and be brought to the at­tention of judges, lawyers, mem­bers of the executive and the leg­islature and the public in general. The principles have been formu­lated principally with profession­al judges in mind, but they ap­ply equally, as appropriate, to lay judges, where they exist. The ba­sic human rights provisions of the Geneva Convention including the ones protected under common article 3 of these conventions are also non-derogable in the sense that they must be respected even in times of international and non-international conflicts, internal disturbances and foreign occupa­tion. The Vienna Declaration and Programme of Action called upon the states to abrogate legislation leading to impunity for those re­sponsible for grave violations of human rights and to prosecute those violators, thereby providing a firm basis for rule of law.

Now, let us analyze the condi­tions of administration of jus­tice in Indian occupied Kash­mir where the justice system has failed the hapless population of the State. According to the Hu­man Right Watch / Asia Report and entitled, ‘India’s Secret Army in Kashmir,’ “Under pressure from the authorities, the courts rou­tinely grant government official extended time to respond to pe­tition. Detainees who have been held for up to one year have not been granted access to legal coun­sel…Fearing reprisals, judges have been reluctant to challenge the ac­tions of the security forces.”

Dr. Nazir Gilani, President, ‘Jam­mu and Kashmir Council for Hu­man Rights’ an NGO, accredited with the United Nations has said that “the Indian justice system – both the courts themselves and the legal process for victims seek­ing to bring human rights claims – falls short of international stan­dards. The Indian judiciary, de­spite its purported independence, has played an instrumental role in ensuring the Indian government’s ability to maintain its control over Indian Administered Jammu and Kashmir and combat the voice of dissent in the region.”

Dr. Gilani emphasizes that ‘the pattern of legal breakdown in In­dian Administered Jammu and Kashmir violates basic tenets of international human rights law. Litigants routinely ask the Kash­miri court system to respond to claims against security forces for human rights violations that in­clude allegations of assault, tor­ture, rape, extrajudicial killing and arbitrary detention. In becoming a party to key international hu­man rights treaties, India under­took to ensure that effective rem­edies were available to the victims of such human rights abuses. The government of India has to under­take measures that protect and enhance an independent and im­partial judiciary, as well as an in­dependent legal profession.”