Minority Rights Group International (MRG) Deputy Director, Claire Thomas, writes this opinion piece for the Thomson Reuters News Foundation.+ LEARN MORE
Kashmiris are the people living in the territory of Jammu and Kashmir, in the extreme north-west of India. Two-thirds of this territory is currently administered as the Indian state of Jammu and Kashmir and has an estimated population of 12.5 million (2011 Census). The remainder of the region is controlled and administered by Pakistan. The Kashmiri population – the population of the Kashmir valley and speakers of variants of the Kashmiri language outside the valley in Jammu region, who together comprise an ethnically distinct cultural Kashmiri-speaking group and who are largely Muslim (there is also a Kashmiri Hindu population, although most have left the valley and are settled either in Jammu region or other parts of India) – number around 6.8 million (2011 Census).
The constitutional position of Kashmir is made complex by the fact that both India and Pakistan challenge the legality of the other’s title to territory, with an effective partition of Kashmir along the cease-fire line as agreed in 1949, with some modification as a consequence of the India-Pakistan war of 1971. That part of the territory which lies within India also includes the region of Ladakh.
While the case for a political settlement needs to be pursued, there is also a pressing need for India to recognize and deal with the genuine grievances of the Kashmiri people, living in Jammu, Kashmir and Ladakh. This territory has some of the most diverse peoples from India, with a mix of religions, languages and cultures. The Muslim majority population lives in the Kashmir valley, while the plains of Jammu are dominated by Hindus, who make up the largest minority in the state of Jammu and Kashmir while being in a majority in Jammu. The third largest group are Buddhist Ladhakis, who live in the region of Ladakh.
The roots of the conflict in Jammu and Kashmir go back to the Partition of India in 1947. The main constitutional instrument for determining the future position of the princely states such as Kashmir was the Indian Independence Act of 1947, section 7(1)(b) of which provided that:
‘The suzerainty of His Majesty over the Indian states lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of the Indian states, all functions execrable by His Majesty at the date with respect to Indian states, all obligations of His Majesty at the date towards Indian states or the rulers thereof and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian states, by treaty, grant usage, sufferance or otherwise’.
Despite the presence of a number of complexities surrounding the issue of succession, the strict legal position appears to be that with the lapse of the treaties and agreements with the British government, sovereignty reverted to the princely states, which then had the option of accession, merger and integration with the dominions of India or Pakistan. In practice, however, the vast majority of states decided to accede to India or Pakistan before the Indian Independence Act came into force on 15 August 1947. In the case of the state of Jammu and Kashmir, the Hindu ruler of a Muslim majority state vacillated in making a decision as to whether to accede to India or Pakistan. His hesitation and indecisiveness provided the opportunity for an ‘invasion’ of the territory by the so-called ‘Azad Kashmir Army’ made up of members of ethnic communities of Pakistan. Under the pressure of this incursion the ruler of Jammu and Kashmir decided to appeal to India for help and acceded to India. Indian troops were rushed into the territory and stopped the advance of the army from Pakistan. The ‘line of control’ established as a result of this action became the border between India and Pakistan, and also the line dividing the territory of Jammu and Kashmir between the Indian and Pakistani jurisdictions.
Since the accession of Jammu and Kashmir to India, the position of the government of Pakistan is that the final destination of the territory remains conditional until the people of Jammu and Kashmir themselves have had an opportunity to determine their political destiny through a referendum. Jammu and Kashmir has subsequently become a focus of the proxy war between the states of India and Pakistan, with the Kashmiri people becoming the main victims of this conflict. A UN sponsored resolution to hold a referendum in the territory around the issue of self-determination has never been implemented, with both Indian and Pakistani governments blaming each other for lacking the necessary political will.
Meanwhile, political events overtook the UN resolution with the war of 1965 between India and Pakistan, then by another conflict in 1971, resulting in the creation of Bangladesh and the signing of the Shimla Agreement (1972). Under its terms, it was agreed that the two countries would attempt to resolve the issue of Kashmir bilaterally, with the line of control being converted into an international border. The agreement also enabled both countries to discuss economic, social and cultural forms of cooperation for the benefit of the territory and the people. However, this has not happened as a result of endless suspicion, hostility and recriminations between the two governments. Since the late 1980s the situation in the Indian-held portion of Jammu and Kashmir has deteriorated considerably, with massive abuses of human rights, and with India accusing the Pakistan government of funding and sponsoring armed groups, aimed at destabilizing the country. The breakdown of talks has been the most significant set-back in the search for a long-term solution to the dispute in Jammu and Kashmir.
The main problem, and the starting point for all the troubles in the territory, has been the real and perceived grievances of the Muslim population. From the time of independence Kashmir has remained a poor region of India, despite being well endowed by way of natural resources and picturesque scenery which provides a natural attraction for tourists. This lack of economic development has fuelled resentment against the Indian state and has led to a hardening of the view held within the Muslim majority population that they were being discriminated against. Specific grievances include the fact that Urdu has not been made a nationally recognized language of India, that investment in education is among the lowest for the whole country, and that industrial investment has been virtually non-existent. The prime source of possible revenues – tourism – has become a casualty of the persistent violence and the military presence in the state.
Politics in the state of Jammu and Kashmir has tended to be dominated by the central government in New Delhi, and this has added to popular resentment against the Indian state. Devolution proposals and moves towards greater autonomy have been few and far between, and have foundered on the intransigence of Indian politicians, who have always been suspicious of Pakistani involvement in the separatist movement in Jammu and Kashmir. Another factor that has complicated the situation has been the general inefficiency and corruption of the successive state governments, especially those formed with the backing of the federal government in New Delhi.
Ethnic diversity within the state is most notable with regard to the highlanders from Kashmir proper, the large majority of whom are Muslims, and the lowlanders from Jammu, more than half of whom are Hindus. Most of the state’s industry is concentrated in Jammu, but most of the development funds are spent in the Kashmir valley, where more than half of the population is engaged in horticulture, although tourism used to flourish around Srinagar’s Dal Lake. The two areas compete for economic resources, and an attempt has been made to keep a delicate balance between them, reflected in the state administration moving to Jammu in winter and Srinagar in summer.
There have also been tensions in the remote northern area of Ladakh between local Muslims (who are a minority in the area) and the majority Buddhists. Ladakh occupies about one third of the area of Kashmir but contains only around 274,000 people (2011 Census). Buddhist Ladakhis claim that they have not had adequate political representation in the Jammu and Kashmir state legislature, that there are very few Ladakhis in the administration, and that commerce is dominated by traders from the Kashmir valley. In addition, there have been religious tensions, fanned by Muslim separatist sentiments in Srinagar. There have been demands that Ladakh be separated from Jammu and Kashmir and be given the status of a union territory, ruled directly from New Delhi.
Sn armed insurgency movement emerged out of protest movements in Kashmir in the 1980’s and has continued unabated to this day. The movement was supported by a large number of foreign ‘mujahideen‘ who entered the Kashmir valley after the Soviet withdrawal of 1988-89 from Afghanistan. Most Kashmiri politicians including Hurriyat leaders and prominent figures like Yasin Malik of the Jammu and Kashmir Liberation Front (JKLF) have renounced violence and have taken a strong political stand for resolution by dialogue. While the Pakistani viewpoint is that the insurgents are indigenous freedom fighters and locals, the Indian government believes that most of the insurgents are foreign nationals aided, supported, trained and funded by Islamic hard–line groups in Pakistan and having the implicit support of the Pakistani authorities. The building of a fence along the line of control by India has been claimed by Pakistan to be a violation of the Shimla Agreement, while India believes that it would help control the extent of infiltration by foreign fighters into Kashmir and help normalize the situation in the valley.
Armed groups have not spared the symbols of Indian democracy. India claims that two Pakistani groups – Jaish-e-Mohammed and the Lashkar-e-Taiba – were instrumental in attacking the Jammu and Kashmir State Assembly in 2001. It is also believed that Jaish-e-Mohammed had carried out the hijacking of Indian Airlines flight IC 814 to Kandahar in 2001 which forced the government to release three militant leaders from Indian jails.
Kashmir has been heavily militarized for decades. Security forces have continued to pursue policies inter alia of extra-judicial killings, detentions and torture. The implication of such policies was particularly tragic for India’s Kashmiri Muslims. Arbitrary practices of arrests, detentions and torture have been deployed against the Muslims in Jammu and Kashmir. Courts in Jammu and Kashmir are reluctant to hear cases involving militant crimes and failed to act expeditiously on habeas corpus cases.
Though there has been a back-channel peace process going on between the two parties, a positive step was the reduction of armed forces of both countries on the line of control in 2002 and the beginning of negotiations. Both India and Pakistan agreed on maintaining a general ceasefire from November 2003 and which reduced tensions in the region. This agreement was the first between the sides in 15 years. The Pakistan government subsequently tried to exert pressure on Kashmiri militants to observe a ceasefire in the valley. In December 2006, Pakistan’s military ruler, General Pervez Musharraf proposed a four-point peace plan, whereby Pakistan would be willing to give up its long-standing claims of Kashmir independence. In return, India would provide a phased withdrawal of troops in the region and self-governance for Kashmiris. However, these proposals did not materialize.
Following the state government’s transfer in 2008 of 40 hectares of forest land to Hindu organizers of an annual pilgrimage to the Amarnath caves, tens of thousands of Muslim protestors took to the streets of Srinagar in June that year. Several people were killed and hundreds wounded in clashes with police. The divided Kashmiri separatist movement united over the issue, accusing the federal and state governments of conspiring to settle Indian Hindus on the land in a bid to shift Kashmir’s demographics. Despite counter–demonstrations organized by the Hindu nationalist Bharatiya Janata Party (BJP) in Jammu, the government reversed its decision on the land transfer, sparking outrage among Hindu nationalists who launched protests across many areas of India.
The conflict between Kashmiri separatists and the Indian armed forces has been brutal, resulting in more than 50,000 deaths during the past 30 years. The bloodshed was particularly intense during the two decades on either side of the beginning of the millennium – around 47,000 people were believed to have been killed during those years, although some human rights groups’ estimates are far higher. There is little sign of an end to the violence with a recent worsening of tensions: extra-judicial killings and mass arbitrary detentions by security forces have been matched by attacks conducted by Muslim separatist groups, apparently supported by foreign fighters.
The killing by security forces of the popular militant commander Burhan Wani in July 2016 proved a significant flashpoint in the conflict, triggering widespread protests throughout the Kashmir Valley and in Jammu. The response from Indian security forces, including firing pellets on unarmed protestors, resulted in numerous deaths and injuries. Official figures estimated 17 deaths from shotgun pellets between July 2016 and August 2017, with some 6,221 injured between July 2016 and March 2017. Civil society estimates are considerably higher, however, with as many as 145 civilians killed between July 2016 and March 2018. Activists reported that a significant number of those wounded may have been lost their eyesight as a result of their injuries. More than 1,000 people, including minors, were detained under the 1978 Public Safety Act (PSA), a draconian law, between March 2016 and August 2017. The PSA paves the way for administrative detention for up to two years without charge or trial.
In response to these developments, the first ever UN human rights report on Kashmir was released in June 2018, documenting numerous human rights abuses by security forces and the heavy toll this had exacted on the civilian population (a follow-up report was issued in July 2019). The report, which was angrily denounced by the Indian government, highlighted the continued impunity that perpetrators of these abuses enjoyed as a result of special legislation in place, such as the PSA. The Armed Forces (Jammu and Kashmir) Special Powers Act 1990 (AFSPA) prohibits prosecution of security forces unless the authorities expressly grant permission.
With such laws in place, there has been very little progress in investigations of past human rights abuses, including possible mass graves in the Kashmir Valley and Jammu region, as well as of sexual assaults. A key example is the notorious Kunan-Poshpora mass rape case three decades ago (and highlighted by the UN), when survivors witnessed Indian soldiers gang-raping 27 women; all attempts to seek justice remain blocked by the authorities. Thus, the Indian government has yet to effectively address the longstanding grievances of the Kashmiri population. Armed groups also remain a source of insecurity and violence, with between 16 to 20 civilians killed between January 2016 and April 2018, as well as other attacks against police and security personnel.
Jammu and Kashmir had been governed since 1954 on the basis of Article 370 of India’s Constitution, which granted it a limited autonomy. However, this legal arrangement was drastically overturned in August 2019, when the Indian government revoked the state’s special status. The state was formally taken under federal control and split into two federal territories – Jammu and Kashmir, and Ladakh. The state’s Constitution, flag and penal code were nullified; the region is now governed by the same federal laws as other Indian territories. The annexation was followed by a rapid deployment of thousands of Indian troops, an internet and communications shutdown, curfews and roadblocks, plus a security sweep which led to hundreds of Kashmiri politicians and activists being detained under the PSA. Separatists called for a work and school boycott, and militant groups killed several people who tried to reopen their businesses. The fraught atmosphere led to 1.5 million Kashmiri children missing out on school for weeks after the annexation.
Minorities and indigenous peoples in