Home ministers of India and Pakistan indulged in a war of words at a recent South Asian regional meeting in Islamabad over the killing of a young Kashmiri militant and the subsequent violence unleashed in the valley.
Without naming the country, Indian Home Minister Rajnath Singh attacked Pakistan for sponsoring terror and engineering disturbances in Kashmir by making militant Burhan Wani, 22, killed by Indian security forces a martyr.
Pakistan Home Minister Chaudhry shot back accusing India of committing terrorism against the people of Kashmir.
With tempers running high, Rajnath could not hold a constructive dialogue with Chaudhry on the vexed Kashmir issue which would have been timely and advantageous for India.He then skipped the dinner hosted by his Pakistani counterpart and rushed back to India.
This may do more harm than good in preparing the ground for Indian Prime Minister Narendra Modi’s visit to Islamabad to participate in the SAARC (South Asian Association for Regional Cooperation) heads of states conference in November.
Instead of killing Wani, his detention could have been more advantageous for India. That would have also prevented the subsequent mass violence in Kashmir.
People in the valley were already disappointed with the local People’s Democratic Party (PDP) which, while fighting the 2014 state assembly elections, promised them it would not allow Modi’s pro-Hindu BJP to make inroads into Kashmir. Instead of keeping the promise, PDP, led by Mufti Mohammad Sayeed, formed a coalition government with BJP.
After Mufti’s death in January 2015, his daughter Mehbooba Mufti became Jammu and Kashmir’s first woman chief minister in April. This brought more disappointment to Kashmiri youth who had rallied behind PDP.
Mehbooba’s weakness as a leader and Rajnath’s hard line on militancy led to massive unrest which exploded in violence after the killing of Wani.
Had the federal government initially prevented the security forces in Jammu and Kashmir from taking law into their own hands to crush the violence, many innocent lives could have been saved.
Human Rights violations
In the weeks after the killing of Wani, security forces committed large scale human rights violations despite a belated call for restraint by Rajnath.
The colossal harm done by the indiscriminate use of pellet guns by the security forces is well documented. Until July 24, they killed 50 civilians and a policeman and injured 3,700 civilians, 143 of them seriously. Some 1,739 security personnel were also injured.
One hospital alone recorded complete loss of vision for 60 people, including a 3-year-old girl and 4-year-old boy, due to pellet eye injuries.
While the former director general of the Border Security Force EN Rammohan said the use of pellet guns was “reprehensible” and that it had not been used in conflict zones elsewhere in India, the DG of the Central Reserve Police Force said pellet gun is the ‘least lethal’ weapon available to his force in Kashmir.
Use of pellet guns causes extensive harm, arbitrary deaths and grievous wounds and it is not just callous, but criminal.
The indiscriminate use of “non-lethal” pellet guns by security forces to control stone-throwing pro-Wani protesters led to large number of civilian deaths in the valley.
Pellet guns fire hundreds of tiny shots from each cartridge. But they do not offer effective aim to target the crowd. Hence, many peaceful Kashmiri protestors or bystanders were injured by pellets.
Ideally, women and children should be dealt with by female officers and only water cannons and tear gas be used to disperse them. The number of young victims, particularly boys, affected by crowd control tactics in Kashmir and the use of pellet guns on women and children indicate absence of precautions.
Section 197 of the Indian Criminal Procedure Code (CrPC) provides that no court has jurisdiction over an alleged criminal offence committed by a government official “while acting or purporting to act within the discharge of his official duty”, without prior approval of the government.
On July 9, the day Wani was killed, the Supreme Court of India observed that the rule of law applied “even when dealing with the enemy” while hearing a case related to fake encounters in Manipur.
The court held that an unending state of unrest could not “be a fig leaf for prolonged, permanent or indefinite deployment of the armed forces as it would mock at our democratic process.”
The police and other security forces in Kashmir have ignored the wholesome principles enunciated in the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the UN Code of Conduct for Law Enforcement Officials.
The Basic Principles state that “Law enforcement officials must apply non-violent means before resorting to the use of force.”
Provision five of the Basic Principles states: “Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall: a) exercise restraint in such use and act in proportion to the seriousness of the offence; b) minimize damage and injury; c) ensure that assistance and medical aid are rendered to any injured or affected person at the earliest moment…”
Proportionality, necessity and calibration are the key principles in the use of force in national and international law.
Security forces involved in crowd control are expected to distinguish between violent protestors, peaceful protestors and bystanders.
The pellet gun cartridges in Kashmir fire a large number of small pellets over a wide range and they are not targeted. The inspector general of the Jammu and Kashmir police acknowledged that pellets do not have a predictable trajectory.
UN Basic Principles also require that, “in cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to competent authorities.”
Authorities should be reporting and investigating every instance of serious injury resulting from the use of pellet guns. However, instead of doing this, police personnel in Kashmir are attacking ambulances and searching hospitals to make arrests.
UN Code of Conduct for Law Enforcement Officials states that “law enforcement officials may use force only when strictly necessary.”
“In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others,” the code says.
Furthermore, “every law enforcement agency should be representative of and responsive and accountable to the community as a whole”.
However, the current state of conflict in Kashmir illustrates a clear divide along religious and cultural lines.
Since 2010, pellet guns have been used in Kashmir causing serious injury and severe harm to thousands of Kashmiris. Their use in Kashmir today to deal with protests is a clear violation of human rights and humanitarian law.
Such weapons have neither been used proportionally nor in compliance with international standards in crowd control.
- Nair Ravi, July 22, ‘Pellet Guns in Kashmir: Lethal Use of ‘non-lethal’ weapons’, thewire.in consulted on August 8 2016
- Noorani AG 2016, August 19 ‘Pellet Raj’ Frontline, page 17
- Subramanian, KS, 2011, ‘Are the Indian Police a Law unto Themselves: A Rights-based Assessment’ socialwatchindia.net Perspective Paper 3.
The writer is former Director of the Research and Policy Division of the Union Home Ministry in New Delhi and former Director General of police in Northeast India