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Dilemma of justice under Indian rule in Kashmir

Law
Kashmir
India
Human Rights
Kashmir view

The people of Kashmir struggle to find justice under the Indian administration. Irfan Ahmed under a Creative Commons Licence

On a cold November night in 2005, Muhammad Rafiq was abducted by Indian forces from his home in Kashmir and implicated in the New Delhi blasts of the previous month. Records reveal that Rafiq – a student at a Kashmir university – was present in the classroom on the day of blasts, but he continues to languish in India’s Tihar jail. In 2012, his mother and friends filed an online petition to the Indian prime minister seeking his release. But upon learning about the appeal to the Indian state, Rafiq was ‘disquieted’. ‘He broke down and expressed his dismay to his family,’ reveals his former fellow-inmate. The campaign was halted soon after.

India’s war on Kashmir is not only a military war, but also one of narratives and words: a war waged to control desires and choices. Living here doesn’t only mean being prepared for disappearances, rapes, torture, massacres, funerals and mourning; it also means living the wounds of various predicaments that the all-permeating occupation entails. One of these quandaries is the question of justice under Indian rule.

Thousands of cases against the Indian state take up time in its civil and military courts and the people of Kashmir are left to fight these prolonged and exhausting legal battles. But what does it mean to seek ‘justice’ from the perpetrators? Is the occupier capable of delivering justice? The people of Kashmir grapple with an acute dilemma over these questions; the existence of this complexity testifies to the presence of a coercive authority.                        

Creating situations which compel people to seek ‘justice’ from the very apparatus which institutionalizes or perpetrates injustice reveals the state’s desire to control an individual’s choice – creating a sense of powerlessness within the subjugated masses. In places like Kashmir, such choices are strategically made difficult.

‘When the occupier poses as the saviour, it reinforces the helplessness of the powerless,’ says Krishna Swamy Dara, a Delhi-based Political Science professor.

Be it the legal battle against the Indian military by the mass-rape survivors in Kunan and Poshpur villages, which has been going on for two decades, or accusing a dead teenager of ‘attempting to murder’ police officers, or numerous futile probes and false apologies to the masses, people here are aware of the pockmarked road of the Indian legal system.

Kashmiris living under Indian occupation are forced to rely on Indian judicial procedures. But there is no expectation of justice in an oppressed-oppressor relationship. People’s legal battles are not an exercise in hope or justice but a continuation of a long struggle to expose the rot. A system which is in place to annihilate an aspiration cannot be expected to deliver a justice based on that very aspiration.

The state’s intervention in the sphere of justice is ironic in Kashmir, where institutions such as the courts and the police are extensions of India’s militarist state, which enjoys a monopoly in devising the justice vocabulary, making the people its passive recipients. India’s ‘justice’ vocabulary is in itself problematic. One of the notions it relies heavily on is compensation.

Gopal Guru, a professor of social and political theory, notes that compensation has become a dominant mode of responding to the justice concern in India. The state’s anxiety, stemming from the possibility of people’s subversion, leads to such responses, he argues.

Compensation is a point of debate and dilemma for the Kunan-Poshpur mass-rape survivors, who were compelled to accept state compensation as a proof of its acknowledgment of the crime which it otherwise repeatedly denied.

After teenager Faisal’s killing, the army issued an apology and offered blood money, further victimizing the family. ‘The blood of my 14-year-old son is not so cheap that I could barter it… In return I will pay Rs 20 lakh [2 million rupees, or roughly $30,000] to the army if it hands over the killers to us,’ responded the slain youth’s father.

Major discourses in Kashmir over the question of justice are narrow, portraying it either as a law-and-order or a human rights problem. The human rights question is also narrowed down to exclude the right to self-determination or choosing to live freely. While India carries out gross human rights violations in Kashmir and the perpetrators enjoy impunity under its law, the question of justice, insaaf, and fight against oppression, zulm, extends beyond the human rights question or enforcement of ‘unjust laws’ such as the Armed Forces Special Powers Act (AFSPA) or the Public Safety Act (PSA). The bedrock of the Kashmir people’s idea of justice is Azaadi (Freedom) and bringing out truth, and they have articulated it through resistance against India’s rule.

In a place where histories and memories are assaulted and justice is a utopian legend, people often derive consolation from the idea of ‘divine justice’ and God as a witness.

Corn can’t expect justice from a court composed of chickens, an African proverb commonly used in Nigeria, wittily embodies the justice scenario in Indian-administered Kashmir. But the corn knows how to grow and stand against the wind.

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