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Citizens Appeal on Kashmir (9 July, 2010)

9 July 2010

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9 July, 2010

New Delhi, India

To,
- National Human Rights Commission,
- National Commission for the Protection of Children,
- Office of the Chief Justice of India,
- Ministry of Home Affairs,
- Chief Minsiter of J & K,
- Planning Commission,

Dear Sir,

We, the undersigned, as a vigilant group of citizens submit our concerns regarding the prevailing situation in Jammu and Kashmir and urge your immediate assistance in ensuring that the Government of India and the state government takes immediate action to prevent further loss of life and property and initiate an impartial investigation into the recent killings in the region.

The political situation in Jammu and Kashmir has worsened over the last few weeks, which has in turn strengthened the existing culture of impunity in the region. The current crisis also has serious humanitarian consequences.

On June 29, 2010 at least three persons were killed in indiscriminate firing and excessive use of force by the police in Anantnag district of the Kashmir Valley. Four persons were killed in firing on 5-6 July, 2010. It is estimated that more than 15 civilians have been killed and several others injured in the unprecedented use of force by the J & K police and paramilitary, especially the Central Reserve Police Force (CRPF) in a span of two-three weeks. Several of those killed were children: Tufail Matoo (17), Javid Ahmad Malla (18), Shakeel Ahmad Ganai (14), Firdous Ahmed Kakroo (17), Asif Hasan Rather (9), Ishtiyaq Ahmad Khanday (15 from Anantnag), Imtiyaz Ahmad Itoo (17, from Anantnag), Muzaffar Ahmad Bhat (17), and Abrar Ahmad (17). Several protest marches organized across the Valley in response to the killings were met with indiscriminate firing by the security forces deployed in the region. We condemn the recent killings of children in Kashmir.

Over the past few days, the response by the security forces has been such that, on available accounts, even ambulances have not been spared. Media reports state that at three places, including at Safakadal and at Sangam on the Srinagar- Jammu highway, the CRPF fired on ambulances. Moreover, due to the imposition of curfew in the Valley, paramedics have been unable to reach hospitals as a result of which the existing hospital staff have been working over 36 hour shifts to tend to the injured. Even journalists with valid curfew passes have also been attacked. On June 28, 2010 a group of journalists belonging to local and national media organizations were attacked by the CRPF in the Qamarwari area of Srinagar.

Yet again, the recent events highlight the impunity with which the security forces in the region continue to operate. One of the emblematic cases that highlight the legal impunity is that of the enforced disappearance and murder of noted human rights activist, Jalil Andrabi by the Rashtriya Rifle, an army unit deployed in the Valley. In March 1996, Andrabi was illegally detained by security force personnel while returning from work. Three weeks later his mutilated body was found on the banks of the River Jhelum. International and national pressure culminated in the filing of a charge sheet by the police against the five accused in the Sessions Court, Budgam. However, the main accused in the Andrabi murder, Major Avatar Singh remains free to this day. The case of Jalil Andrabi is merely one example of the ongoing human rights violations. Many local and international human rights organizations, including Human Rights Watch, Amnesty International and Physicians for Human Rights have documented the systematic violations of human rights by state and non-state actors and the entrenched culture of impunity.

The promulgation of special laws in the state of Jammu and Kashmir provides legal immunity to the armed forces. Under the Armed Forces Special (Jammu and Kashmir) Special Powers Act, 1990, armed forces personnel of the rank of a commissioned officer, warrant officer, non commissioned officer or of an equivalent rank have been granted extraordinary powers such as the authority to shoot and kill suspected lawbreakers. Further, the Act in requiring prior sanction for prosecution acts as shield for impunity for the non-prosecution of security force personnel involved in egregious human rights violations, including enforced disappearances and torture. Thus far, sanction for prosecution has been granted only in a handful of cases, and perpetrators remain free. Therefore, in the least the procedure for granting sanction for prosecution should be at least be made more expeditious, effective, and equitable.

In this context it is even more necessary to seek accountability of the actions of the security forces in the region. Under applicable national and international law, the killing of children and attacks against hospital and medical infrastructure is strictly prohibited.

In fact, in its Eleventh Plan, the Planning Commission of India outlined special measures for women in from conflict zones within India, which would imply that there are conflict zones within India. The ongoing situation so far mentioned is in contravention of International law, humanitarian law as well as fundamental guarantees provided by the Indian Constitution, including the right to life (Article 21). As concerns the former, we seek to bring to you attention principles enshrined in Common Article 3 of the Geneva Conventions; the International Covenants for Civil and Political Rights, 1976, and the Additional Protocols thereto; the Convention of the Rights of the Child, 1990 and its Optional Protocol; and the UN Security Council Resolution 1882 (2009) on the protection of children.

Regarding constitutional and national laws and adjudicatory policies, we may here refer to the following:

  • The guidelines prescribed by the National Human Rights Commission (NHRC) on police action (of 12 May 2010) and in the police manual should be respected
  • The Supreme Court decisions in D.K. Basu v. State of West Bengal (AIR 1997 SC 610) and Rajesh Gulate v. Government of Delhi (SCC 7 2002 129)
  • The Supreme Court of India guidelines to check arbitrary police action and ensure punishment of perpetrators.
    Given the use of unprecedented force, we urge that the security forces exercise restraint and refrain from firing at unarmed protestors. The Central and state governments must ensure that arbitrary and disproportionate use of force against civilians ends immediately and an impartial investigation is initiated into the killing of civilians. We urge the Government of India and the Chief Minister of Jammu and Kashmir, Shri Omar Abdullah to take immediate steps to:
    • Put an immediate end to the violence perpetrated by the security forces
    • Prevent attacks against civilian infrastructure, including hospitals and ambulances
    • Ensure that the security forces respect the principle of proportionality while responding to civilian protests
    • Initiate an independent and impartial investigation into the killings of peaceful protestors, several of whom were children
    • Initiate an inquiry into instances of attacks on ambulance services
    • Ensure that inquiries are conducted in a time bound manner and the report is made public
    • Initiate legal and punitive action against persons who are found responsible for the killings of civilians
    • Establish an independent inquiry commission to investigate the allegations of serious human rights violations, including enforced disappearances, killings, torture, rape and sexual violence in the region
    • Invite and permit the relevant UN Rapporteurs, UN Special Representatives and members of the UN Working Group on Enforced Disappearance to investigate the allegations of human rights abuses in the region
    • Initiate a general debate involving members of the Kashmiri civil society and others on impunity and AFSPA, and possible mechanisms to respond to the prevailing impunity

Constitutionally Yours,

  1. Professor Upendra Baxi, Emeritus Professor of Law, University of Delhi
  2. Dr Mallika V. Sarabhhai
  3. Mrinalini V. Sarabhai
  4. Navsharan Singh
  5. Bhagat Oinam, Jawahar Lal Nehru University
  6. Alternative Law Forum
  7. The Patna Collective
  8. Uma Chakravarti, Historian
  9. Anuradha Bhasin, Kashmir Times
  10. Prabodh Jamwal, Kashmir Times
  11. Laxmi Murthy, Consulting Editor, Himal SouthAsia
  12. Sahba Hussain
  13. Shahrukh Alam
  14. Trideep Pais, Advocate
  15. Tenzing Choesang, Advocate
  16. Tahseen Alam
  17. Anouhita Majumdar, Senior Journalist
  18. Anant Nath, The Caravan
  19. Vasuman Khandelwal, Advocate
  20. Bipin Aspatwar, Advocate
  21. Shabnam Hashmi, Anhad
  22. Ashok Agrwaal, Advocate
  23. Prof. Sitaram Kakarala, CSCS
  24. Ved Bhasin, Chairman Kashmir Times group of publications
  25. Rajeev Dhavan
  26. Kanak Mani Dixit, Himal South Asia
  27. Professor Sushil Khanna, Indian Institute of Management, Kolkata
  28. Rajashri Dasgupta, Journalist
  29. Ram Puniyani, All India Secular Forum
  30. Jashodhara Dasgupta, SAHAYOG, Lucknow
  31. Warisha Farasat, Advocate
  32. Jyoti Punwani, Journalist, Mumbai
  33. K. Lalitha, Researcher, Hyderabad
  34. Nitya Vasudevan, Research Scholar
  35. Randhir Singh, Professor (retd.), Delhi University
  36. Priyaleen Singh
  37. Abid Mir
  38. Areet Kaur
  39. Anand Bala
  40. Shahla Raza
  41. Hafeez Khan
  42. Paray Hilal
  43. Dr. Pritam Singh
  44. Dr. Meena Dhandha, Philospher
  45. Dinesh Sharma, Bangalore
  46. Dr Atul Sood, Jawaharlal University
  47. Gursharan Singh, Convenor against Democratic Front Against Operation Green Hunt
  48. Chakraverti Mahajan, Doctoral Student, Punjab University
  49. Kavita Pai
  50. Sheba George, Sahrwaru
  51. Prof. Ranabir Samaddar, Director, Mahanirban Calcutta Research Group
  52. Rita Manchanda, Safhr
  53. Zakia Jowher, Action Aid
  54. Roop Rekha Verma
  55. Pushkar Raj, General Secretary PUCL
  56. Binu Mathews,Editor, Counter Currents
  57. Indian Social Action Forum (INSAF)
  58. Dr. Kaveri Rajaraman
  59. Partho Sarathi Ray, Sanhati
  60. Pyare Shivpuri
  61. Humra Quraishi, Freelance columnist
  62. Haley Duschinski, Assistant Professor of Anthropology, Department of Sociology and Anthropology, Ohio University
  63. Sahana Basavapatna, Advocate
  64. Sukla Sen, EKTA (Committee for Communal Amity), Mumbai
  65. Zainab Bawa, Ph.D. student and independent researcher
  66. Chetna Kaul, filmmaker
  67. Manish Kumar Tipu, music composer
  68. Javed Naqi, Senior Research Fellow, Jawaharlal Nehru University, New Delhi
  69. PUCL (Andhra Pradesh)
  70. Harsh Kapoor, South Asia Citizens Web
  71. Naga People’s Movement for Human Rights (NPMHR)
  72. Badri Raina
  73. Manasi Pingle, Filmmaker
  74. Pushpa Achanta (Independent writer, Bangalore)
  75. Navaid Hamid, Member National Integration Council
  76. Aamir Bashir, Actor and film-maker
  77. Dipti Gupta, Professor, Media Studies.
  78. Santanu Chakraborty (Student - Christ University)
  79. Madhuri, Jagrit Adivasi Dalit Sangathan, Madhya Pradesh
  80. Rosemary Dzuvichu, Nagaland University,Kohima
  81. Vidyarthi Yuvjan Sabha
  82. Uma V Chandru, Peace and Human Rights Activist, Bangalore
  83. Advocate Narjees, Human Rights Law Network, Kashmir unit
  84. AIPWA
  85. Shoma, CAVOW
  86. Geeta Charusivam, Social Activist Tamil Nadu
  87. Arati Chokshi, Member – PUCL (Bangalore- Karnataka)
  88. Dr Ritu Dewan, Professor, University of Mumbai
  89. Dr Lena Ganesh, Mumbai
  90. Pooja Sharma, cinematographer
  91. Sajid Iqbal Khandey
  92. Vrijendra
  93. Sundera Babu
  94. Aamer Trambu, Reporter, Press TV Iran
  95. Saamer Mansoor, Student, University of Texas, Dallas
  96. Nashwa Mansoor, Student of Medicine, Sangli
  97. Dr Ben Rogaly, University Lecturer, UK
  98. Meher Engineer, Teachers & Scientists Against Maldevelopment
  99. Asish Gupta, Journalist, New Delhi
  100. Ashok Choudhary, National Forum of Forest People and Forest Workers (NFFPFW)
  101. Madhu Bhaduri, Ambassador of India (Retd)
  102. Bipin Kumar, AHUTTI, Patna
  103. Women Against Militarization and State Violence
  104. The Other Media
  105. Subir Banerjee, Distinguished Professor Emeritus, University of Minnesota
  106. Ram Bhat, Maraa, Bangalore
  107. J. Devika, Associate Professor, CDS, Trivandrum, Kerala
  108. Priya Jain
  109. Jawed Naqvi, journalist