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India - Pakistan: Statements from leading human rights organisations following the decision of the Modi Govt to revoke Article 370 and alter the status of the erstwhile state of Jammu & Kashmir

7 August

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[Statements from leading human rights organisations in India and Pakistan following the decision of the Modi Govt in India to revoke Article 370 and alter the status of the erstwhile state of Jammu and Kashmir]

1. HRCP Statement - Escalating LOC tension harms citizens on both sides
2. PUDR Statement - The Long Dark Night in Kashmir
3. PUCL Statement - Kashmir: A Coup Against the Constitution and the Kashmiris
4. Press Release by Human Rights Watch, NY
5. Letter from human rights activists and organizations to India’s Prime Minister Modi on the situation in Jammu & Kashmir
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1. Text of Statement issued by The Human Rights Commission of Pakistan (HRCP)

Escalating LOC tension harms citizens on both sides

Lahore, 5 August. The Human Rights Commission of Pakistan (HRCP) is deeply alarmed at the decision by the Indian government to revoke the special constitutional status of Jammu and Kashmir. The increased deployment of troops and curfew-like restrictions on citizens are ominous signs of what may come. This could have grave repercussions for Kashmiri citizens on both sides of the Line of Control (LOC), should the escalation turn into armed conflict. The recent increase in exchange of fire along the LOC and the rise in casualties, especially with the use of cluster bombs, whose victims reportedly include children is a matter of grave concern.

With the gathering storm, the physical security and fundamental rights of Kashmiri citizens on both sides of the border are at stake. Their safety and rights must not be barefacedly trampled. Indeed, the need for regional peace and stability has never been greater. The international human rights community, too, must add its voice to those pleading for restraint and for saner voice to prevail.

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2. PEOPLE’S UNION FOR DEMOCRATIC RIGHTS

The Long Dark Night in Kashmir

5th August 2019

At the stroke of the midnight hour on 5 August 2019, Jammu and Kashmir was blanketed in a state of siege. 35,000 fresh troops in addition to the existing 6.5 lakhs were present with orders to shoot, curfew, internet and phone shut down, media black out, and all major elected leaders under house arrest. Already, there was escalated aggression over the past week, with reports of military takeover of state institutions and frenzied evacuation of tourists and Amarnath yatris. Schools, universities and hostels were also shut down, and movement across the state restricted. With a complete gag on democratic space, and unprecedented terror among people, Union Home Minister Amit Shah tabled the resolution in Rajya Sabha to revoke autonomy in Jammu and Kashmir.

At 11:15am on 5 August 2019, Amit Shah announced that the President had already passed orders effectively abrogating Article 370, by extending all the provisions of the Constitution to the state of Jammu and Kashmir. Through convoluted and illegal processes and amendments, Amit Shah then moved to introduce the J&K Reorganisation Bill in Parliament among heavy protest and disruption- a power that the Parliament would not have been allowed under the unamended Article 370. The Bill bifurcates the state into two Union Territories: one of Ladakh, and one of Jammu and Kashmir. The UT of Ladakh is under the direct control of the Union Government through the Lt. Governor, while the UT of Jammu and Kashmir has a Legislative Assembly of its own with extremely limited powers, and is overall under the Lt. Governor.

The BJP government did not circulate the Bills in the House beforehand, and the Speaker Venkaiah Naidu allowed MPs time only until 12:30 pm to propose amendments. It appears that preparations for the move had been underway for months, as the imposition of President’s Rule in December 2018 helped facilitate the government’s actions today. The people of Kashmir themselves are denied any voice through the unconstitutional capture of state institutions and elected representatives, and the force of sheer state terror.

As the day progressed, the Rajya Sabha has passed the Reorganization Bill, and it is now due to be tabled before the Lok Sabha tomorrow. 8000 fresh paramilitary troops and counting have been moved to Kashmir from the states of UP, Odisha, and Assam; and law and order forces of the entire country have been placed on high alert. By the evening, Mehbooba Mufti and Omar Abdullah have also been taken into preventive detention. The blackout in the Valley prevents any access to information about the conditions of the people on the ground at the moment, and we fear ominous consequences as the BJP government brings its plan for the people of Kashmir into action at gunpoint.

We strongly oppose the move of the BJP government to unilaterally attempt to revoke the autonomy of the state of Jammu and Kashmir, with no regard to the Constitution and the rights it enshrines.

Shahana Bhattacharya and Deppika Tandon

Secretaries

pudr[at]pudr.org

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3. PEOPLE’S UNION FOR CIVIL LIBERTIES
332, Patpar Ganj, Opposite Anand Lok Apartments, Mayur Vihar I, Delhi 110 091
Phone 2275 0014
PP FAX 4215 1459
Founder: Jayaprakash Narayan; Founding President: V M Tarkunde
President: Ravi Kiran Jain; General Secretary: Dr. V. Suresh
E.mail: puclnat[at]gmail.com& pucl.natgensec[at]gmail.com

05th August, 2019

PUCL Statement

Kashmir: A Coup Against the Constitution and the Kashmiris

The PUCL condemns the abrogation of key portions of Article 370 of the Indian Constitution and the bifurcation of the State of Jammu and Kashmir and taking away its statehood. While the deed by itself is deceitful, the manner in which it was done is even more so. All the constitutional provisions, procedures, safeguards and values have been disregarded. What pains us most is that this change of status of the erstwhile state of Jammu and Kashmir, was carried out with stealth, completely unilaterally, without even talking or consulting the people of Jammu and Kashmir, even as part of Government tokenism.

PUCL, in particular, strongly condemns the planned and sinister manner by which the Government of India has gone about arresting at midnight of Sunday, 4-5th August, 2019 important leaders of political parties in Jammu and Kashmir, including former Chief Ministers Omar Abdullah, Mehbooba Mufti and others, soon after airlifting over 35,000 troops and suddenly and abruptly asking all Amarnath Yatris and holiday visitors to leave the state creating acute sense of fear and panic. Simultaneously, the Government in a concerted manner, also shut down all communication and telecom services to and from the valley, effectively ghettoizing the entire state into a state of forced silence, while also imposing curfew in the state preventing movement of people, thereby creating chaos, distress and disruption of normal life. Students from other states were asked to leave Kashmir while Kashmiris outside the state continue to live in panic unable to communicate with their families in the Valley.

The ulterior plan behind such unprecedented action became apparent on Monday, 5th August, 2019, with the Government quickly pushing through legislations to abrogate major portion of Art. 370thereby discontinuing Special Status to J&K and bifurcating the State into two Union territories: Jammu & Kashmir and Ladakh.

It is pertinent to point out that Article 370 of the Constitution of India is a self contained Article. It determined how the Constitution of India would apply to J&K and also specifically provided for the procedure for the abrogation of Article 370 itself.. The President can pass an order under Article 370 (3), removing article 370 only if the Constituent Assembly of Jammu & Kashmir recommended the same.

Since the Constituent Assembly of J&K ceased functioning in 1957, the Supreme Court in its judgement in `SBI vs Santosh Gupta’, (2017)’, held that the Article 370 has become permanent unless another Constituent Assembly of J&K was constituted. In order to get over this constitutional roadblock, the present BJP Government adopted a rather devious and unconstitutional route.

Article 370 (1) (d) of the Constitution empowers the President, from time to time, to issue notifications modifying the manner in which the constitutional provisions can be made applicable to the State of Jammu and Kashmir. Article 367 of the Constitution of India explains how phrases in the Constitution are to be interpreted. The issue, in case of abrogation of Art. 370, was the need for recommendation of `Constituent Assembly of the State’.

What the BJP Government did was very insidious and cunning. On 5th August, 2019, they introduced a 3-stepAmendment process. In the first step a Presidential Notification under Article 370 (1)(d) was issued amending Article 367 by introducing a new Sub-clause (4) which stated that the expression “Constituent Assembly” in Article 370(3) shall be read as “Legislative Assembly of the State”. The effect was that after this change, Article 370 of the Constitution could be amended removing the necessity to obtain the recommendation of the ‘Constituent Assembly’.

Now, since J&K has been under President’s Rule since December, 2018, it means that the powers of the `State Legislature are being exercised by the President of India. This, in effect, results in a farcical situation in which the President of India has consented to permit himself (as Head of the State Government of J&K) to recommend abrogation of Art. 370 of the Constitution!

In other words, what could not be done directly was done indirectly and the constitutional provisions have been undermined. This is a clear subversion of the constitutional provisions by the BJP Government.

What is shocking is the utter contempt that the current dispensation has been exhibiting for constitutional procedures and democratic processes, which actually is a consistent pattern we have witnessed in the recent past with the passing of a slew of legislations which have serious ramifications, as a Money Bill.

The change in the status of the erstwhile state of Jammu and Kashmir from a State to a Union Territory is an unethical and undemocratic act. It robs the people of Kashmir the little democratic space they have and will only further alienate the people of Kashmir from the Indian State.

The argument that Article 370 is a clause which obstructed the complete integration of Kashmir with the rest of India and prevented development is a totally flawed logic. The unamended Article 370, was put in place to recognise in principle, the distinct identity and autonomy of the Kashmiri people. This was necessitated by the history and the context of accession of Kashmir with India. It is most troubling that political leaders of Kashmir who never disputed the accession of Kashmir with India and who participated in the Indian democratic process have been placed under preventive detention and were kept completely in the dark when decisions which impacts the state were taken. In this entire exercise the lives, rights, aspirations and hopes of the people of Kashmir are the biggest casualties.

PUCL apprehends that there is another insidious dimension in taking away the statehood of the Jammu and Kashmir. It is a ploy to take control of their natural resources, their water, mountains, the hills and fields and forests. It is yet another act to aggrandise and deprive the common Kashmiri and convert the valley into a real estate venture. In the three speeches in the Rajya Sabha made by the Home Minister, he continuously spoke of how the state was in the dark ages and needed to be brought into the main stream with hotels and other people of India having an opportunity to buy land, build houses and live there.

Lastly the actions of the BJP government not to have provided with at least two days notice to the MPs to study the `Reorganization of Jammu and Kashmir Bill or the President’s resolution to repeal Article 370, shows that the BJP not only does not want scrutiny and deliberation, which is the key to any democratic process but also just wants to convert the Parliament to a rubber stamp, which is what the first session of Parliament of the 17th Lok Sabha has become. The passage of 32 bills, in haste, without pre-legislative consultation with public or discussions with those to be impacted by the concerned bills or denying the right to send bills to the select committee, not only confirms this but also indicates what await us in the near future.

The PUCL would urge the people of India to see yesterday’s process in Parliament as one more effort to repress and subjugate the people of Kashmir and should oppose this decision of the Government peacefully. We would also like our sisters and brothers in Kashmir to know that we are with them and share their loss and grief against this latest attack by the GOI on them.

PUCL demands:

(1) That the clampdown on telecom services and communication and restrictions on movement be immediately lifted;

(2) All Political / Opposition leaders be released,

(3) Normalcy be restored in the Valley.

(4) All the troops be withdrawn.

(5) The three legislation introduced on 5th August, 2019, viz., the (i) The Constitution (Application to Jammu and Kashmir) Order, 2019 - Presidential order CO 272, (ii) Statutory Resolution introduced in the Rajya Sabha and (iii) The Jammu & Kashmir Reorganisation Bill be rolled back; and

(6) Undertake any action wrt to Kashmir only after consulting the Kashmiri people.

Mr. Ravi Kiran Jain, National President, PUCL

Dr. V. Suresh, National General Secretary, PUCL

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4. Statements from International Human Rights Groups:

Human Rights Watch

August 6, 2019

India: Basic Freedoms at Risk in Kashmir

Free Political Leaders, Restore Communications, Exercise Restraint

(New York) – Indian authorities have adopted measures in anticipation of unrest in Jammu and Kashmir state that raise serious human rights concerns, Human Rights Watch said today. The government announced on August 5, 2019 that it was altering the special constitutional status of the state.

Before making the announcement, the government detained several political leaders, imposed broad restrictions on freedom of movement, and banned public meetings. It also shut down the internet, phone services, and educational institutions. The Indian government should take all necessary steps to ensure that security forces act with restraint, Human Rights Watch said.

“The government has a responsibility to ensure security in Kashmir, but that means respecting the human rights of everyone, including protesters,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “The government got off to a bad start by detaining political leaders, banning public meetings, and shutting down the internet.”

The Bharatiya Janata Party-led national government has deployed tens of thousands of additional troops to the region since last week, citing security reasons. The authorities also ordered tourists and Hindu pilgrims to leave Jammu and Kashmir because of a “terror threat.” Orders issued to public officials, including hospital staff, caused panic in the predominantly Muslim Kashmir valley, with people stocking up on food and currency, anticipating that services would be shut down.

The government’s decision to revoke special status for the state provided under Article 370 of the Indian constitution prompted condemnation from political leaders in Kashmir and generated tensions in the state. On August 5, Home Minister Amit Shah told parliament that “not all the provisions of Article 370 will now be implemented in Jammu and Kashmir.” In effect, these measures eliminate the autonomous status provided to Jammu and Kashmir when it acceded to India seven decades ago and splits the province into two separate territories which will be federally governed, reducing the authority of elected state officials.

Kashmir has witnessed a spike in violent protests and militant attacks in recent years. Indian security forces have often used excessive force to respond to protests, including using pellet-firing shotguns as a crowd-control weapon, even though they have caused a large number of protester deaths and injuries. The Indian government should review its crowd-control techniques and rules of engagement, and publicly order the security forces to abide by the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

Indian troops have seldom been held accountable despite serious allegations of human rights violations including extrajudicial killings, torture, and enforced disappearances. The Armed Forces Special Powers Act (AFSPA) gives soldiers effective immunity from prosecution for serious human rights abuses. The government has failed to review or repeal the law, despite repeated recommendations from several government-appointed commissions, UN bodies, and experts, and national and international rights groups. Since the law came into force in Kashmir in 1990, the Indian government has not granted permission to prosecute any security force personnel in civilian courts.

While law enforcement officials have a duty to protect lives and property, they should use nonviolent means as far as possible, only use force when unavoidable and in a proportionate manner, and use lethal force only when absolutely necessary to save lives, Human Rights Watch said.

In July, a report by the Office of the UN High Commissioner for Human Rights raised serious concerns about abuses by security forces in Kashmir. Those included the use of excessive force to respond to protests and the detention of protesters, political dissidents, and other activists on vague grounds for long periods, ignoring regular criminal justice safeguards. The Indian government dismissed the report as a “false and motivated narrative” that ignored “the core issue of cross-border terrorism.”

The Indian government has also repeatedly imposed internet shutdowns in Kashmir, restricting mobile and broadband internet services. There have already been 53 instances of shutdowns in the state in 2019, the largest number in the country. In 2017, David Kaye, the UN special rapporteur on freedom of opinion and expression, and Michel Forst, the special rapporteur on human rights defenders, condemned the restrictions on the internet and social media services in Jammu and Kashmir, saying they had a “disproportionate impact on the fundamental rights of everyone in Kashmir,” and had the “character of collective punishment.”

“Kashmiris have endured decades of violence and human rights violations, and are yet to be assured of justice,” Ganguly said. “The government should ensure accountability for past abuses and address grievances instead of silencing opposition voices.”

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5. Joint statements / Letters:

Letter from human rights activists and organizations to India’s Prime Minister Modi on the situation in Jammu & Kashmir

12 August 2019

Dear Prime Minister Modi,

We, the undersigned civil society activists and organizations, human rights defenders, lawyers, journalists, and academics from around the globe, write to express our deep concern regarding the recent actions your government has taken over the past week in the State of Jammu & Kashmir.

The state’s unilateral repeal of the special status of Jammu & Kashmir, the reconfiguration of the State of Jammu & Kashmir, and the process through which these legislative changes were imposed in the midst of a complete lock-down of the region, are egregious. These actions violate the people of Jammu & Kashmir’s fundamental right to self-determination under international law and their right to participate in crucial decisions that affect their lives. Further, these actions have sent shock waves of fear and uncertainty among the people of Jammu & Kashmir and contravene both domestic and international law.

Beyond the questionable legality of your actions with regard to the Constitution, we are concerned over reports that over 500 people have been arbitrarily arrested or placed under house arrest in Jammu & Kashmir over the past days and such treatment appears to be continuing. We understand that some of these may include activists, academics, and opponents, who have been detained under the Jammu & Kashmir Public Safety Act (PSA) of 1978 or the Jammu & Kashmir Preventive Detention Act of 1964.

We recall that the PSA has been widely criticized for violating international human rights law, as it operates outside normal judicial safeguards and oversight and thus denies due process to individuals arrested under it. Concerns regarding abuse of the PSA, as well as the Armed Forces (Jammu & Kashmir) Special Powers Act of 1990 and the Disturbed Areas Act, have been raised repeatedly over the years by local and international civil society organizations, as well as the United Nations. Regrettably, your government has continued to abuse these laws and has taken no action to align the above laws with India’s international human rights obligations.

We are extremely worried about the ongoing curfews and curfew-like conditions and the shut-down of communications inside Jammu & Kashmir. The violations of rights to freedom of expression and freedom of movement that these restrictions entail create conditions of psychosocial trauma. These curbs constitute severe violations of the International Covenant on Civil and Political Rights (ICCPR), which India ratified in 1979, and under no circumstances can be justified in the guise of public order.

We strongly believe that for India to be able to continue to define itself as a democracy it must allow public discourse and debate on these issues. This includes ensuring that the people of Jammu & Kashmir are able to exercise their right to take part as primary stakeholders in the critical decisions regarding their future. This certainly cannot be achieved by blocking communications, detaining political leaders and civil society activists, and restricting movements within Jammu & Kashmir.

In line with these concerns, we respectfully request that your government take the following measures with the utmost urgency:

• Immediately revoke the curfew and its attendant conditions and reinstate communications in and out of Jammu & Kashmir;
• Immediately and unconditionally release from detention all those who have been arbitrarily detained or arrested under the PSA or other legislation over the past several days;
• Immediately and unconditionally restore the status of Jammu & Kashmir under Article 370 of the Constitution of India; and
• Implement in full the recommendations made in 2018 and again in 2019 by the UN High Commissioner for Human Rights with regards to Jammu & Kashmir, including respecting the right to self-determination, and guaranteeing fundamental freedoms.

We hope that you will heed these recommendations.

Please note that this letter will be made public.

Yours sincerely,

Bondita Acharya
Human Rights Activist, Assam, India

Advocacy Forum - Nepal

Emmanuel Amistad
Executive Director, Task Force Detainees of the Philippines

Asian Forum for Human Rights and Development (FORUM-ASIA)

Asian Network for Free Elections (ANFREL)

Professor Paola Bacchetta
Gender and Women’s Studies, University of California, Berkeley

Vineeta Bal
Pune, India

Daniel Bastard
Asia-Pacific Director, Reporters Without Borders

Anjuman Ara Begum
Human Rights Activist, Guwahati, Assam, India

Bytes For All, Pakistan

Sr. Celia
National Alliance for People’s Movement, Karanataka

Uma Chakravarti

Professor Indrani Chatterjee
University of Texas at Austin

Professor Partha Chatterjee
Columbia University

Professor Angana P. Chatterji
Co-chair, Political Conflict, Gender and People’s Rights, Center for Race and Gender, University of California, Berkeley

Dimitris Christopoulos
President, International Federation for Human Rights (FIDH)

CIVICUS: World Alliance for Citizen Participation

Committee for Free and Fair Elections in Cambodia (COMFREL)

Karuna D. W.
Academic, Chennai

Sejal Dand

Defense of Human Rights and Dignity Movement (iDEFEND)

A Devaneyan
Social Activist

Arundhati Dhuru
NAPM

DITSHWANELO - The Botswana Centre for Human Rights

Jose Marie Faustino
Secretary General, Families of Victims of Involuntary Disappearance (FIND)

Brito Fenando
Families of the Disappeared

Ruki Fernando
INFORM Human Rights Documentation Centre, Colombo

Focus on the Global South

Bryan Ezra Gonzales
President, National Society of Parliamentarians (Philippines)

Roshmi Goswami
Feminist, Social Activist

Christian Gultia
President, Youth for Human Rights and Democracy (Philippines)

Hinna Hamid

Ifat Hamid

Human Rights Commission of Pakistan (HRCP)

International Commission of Jurists (ICJ)

Guissou Jahangiri
Executive Director, Armanshahr/OPEN ASIA

Amina Masood Janjua
Defence for Human Rights Pakistan

Professor Abdul R JanMohamed
University of California, Berkeley

Dr. M.H. Jawahirullah
President, Manithaneya Makkal Katchi

Hina Jilani
Advocate, Supreme Court of Pakistan & Human Rights Activist

SiddharthK J
Independent Researcher, Bengaluru

Mamatha Karollil
New Delhi

Dr. Sylvia Karpagam
Public Health Doctor and Researcher

Poonam Kaushik
General Secretary, Pragatisheel Mahila Sangathan Delhi

Adilur Rahman Khan
Advocate, Supreme Court of Bangladesh; Secretary, Odhikar

Komite Independen Pemantau Pemilu (KIPP - Indonesia)

Neutral and Impartial Committee for Free and Fair Elections (NICFEC - Cambodia)

Michael Non
National Co-Convenor, Koalisyon ng Kabataan Para sa Karapatang Pantao (Youth Coalition for Human Rights - Philippines)

Nonviolence International Canada

Odhikar (Bangladesh)

People’s Action for Free & Fair Elections (PAFFREL - Sri Lanka)

People’s Alliance for Credible Elections (PACE)

Judge Dr. Navanethem Pillay
Former UN High Commissioner for Human Rights (2008-2014)

Manjula Pradeep
Chairperson, WAYVE Foundation

Professor Jyoti Puri
Simmons University

Dr Sagari R Ramdas
Food Sovereignty Alliance, India

Arundhati Roy
Writer

K.P. Sasi
Filmmaker, Write & Cartoonist

Swathi Seshadri

Geeta Seshu
Journalist & Co-Founder, Free Speech Collective, Mumbai, India

Nilda L. Sevilla
Secretary General, Asian Federation Against Involuntary Disappearances (AFAD)

Gopal Krishna Siwakoti
President, INHURED International

Debbie Stothard
Coordinator, ALTSEAN-Burma

Aijaz Zaka Syed
Journalist & Columnist

Ambika Tandon
Researcher, New Delhi

The Commission for The Disappeared and Victims of Violence (KontraS)

Henri Tiphagne
Executive Director, People’s Watch

Professor A K M Wahiduzzaman

World Organisation Against Torture (OMCT)

[New Signatures as of 13 August 2019]

Dr. Haley Duschinski
Ohio University

Professor Ruchira Gupta
New York University & Founder President, Apne Aap Women Worldwide

Kerry Kennedy
President, Robert F. Kennedy Human Rights

Harsh Mander
Activist and Public Intellectual

Dr. Goldie Osuri
University of Warwick

Professor Nandini Sundar
Delhi University

Anna George

Radwan Ziadeh
Director, Damascus Center for Human Rights Studies

Sisters’ Arab Forum for Human Rights (SAF)

Shawan Jabarin
General Director, Al-Haq

[New Signatures as of 14 August 2019]

Dr. Tanika Sarkar
Retired Professor, Modern History, Jawaharlal Nehru University, Delhi

Mirza Waheed
Kashmiri Novelist, London

Iver Ørstavik
Senior Advisor, Rafto Foundation for Human Rights

Rafto Foundation for Human Rights

Global Campaign for Equal Nationality Rights

Mohammad Ashrafuzzaman
Human Rights Activist, Hong Kong