[Reader-list] Kashmir: Discontents of democracy

[Wali Arifi]

http://www.risingkashmir.com/?option=com_content&task=view&id=11036


Kashmir: Discontents of democracy



In Kashmir claims of democracy are different than the contents of democracy



Seema Kazi



The unexpectedly high voter turnout in the Valley during Kashmir’s assembly
elections has evoked considerable debate and analysis. A number of
commentators both in Kashmir and elsewhere noted, the elections reflect
citizens’ expectation and demand for good governance and development; they
are not a mandate for maintenance of the political status quo in the Valley.




For the establishment, however, the installation of a duly elected
government in Kashmir is perceived as an end in itself. The prime minister
hailed the election as a “victory for democracy”. Important and significant
as the election is, Manmohan Singh’s statement symbolises the deep and
disturbing disconnect between New Delhi and the Kashmir Valley.



If the holding of assembly elections in Kashmir and the participation of
Kashmiri Muslims in them are considered markers of the triumph of
‘democracy’, then the establishment’s definition and understanding of
democracy is exceedingly limited, if not dangerously flawed. The success of
democracy is not to be assessed merely in terms of its formal dimensions,
namely, the holding of regular and fair elections at the local, state and
national level. Rather, it is the availability and protection of democracy’s
substantive provisions that validate and authenticate its success. More
specifically, the success of local-level democracy is based on the
fundamental provisions of a democratic state, namely, the supremacy of civil
authority, implementation of the rule of law, the existence of an
independent judiciary, the protection of citizens’ right to speech, assembly
and travel, and the freedom of citizens from violence, harassment and
unlawful detention. It is precisely on these very counts that democracy in
the Valley falls well short of the attributes that, in principle, affirm its
legitimacy.



There is a great contradiction between state claims to democracy in Kashmir
and the subversion of civil authority by the military – exemplified by
legislative measures such as the Armed Forces Special Powers Act and the
Disturbed Areas Act. That a non-elected institution of the state meant for
the protection of citizens is ‘legally’ empowered by India’s Parliament and
courts to deprive Kashmir’s citizens of the inalienable right to life is
disturbing testimony to the state of democracy in Kashmir, and indeed, in
India. For citizens in the Kashmir Valley, this contradiction epitomises the
experience and memory of a bitter, two-decade-old policy of authoritarian,
militarily-backed ‘democracy’ that has generated and exacerbated Kashmir’s
great human rights tragedy. The Bomai killings and the state’s response
centred on stifling public protest by crude authoritarianism, curfew and
preventive detention destroy, on a daily basis, any shred of hope Kashmiris
may still have vis-à-vis ‘democracy’ in India. Indeed, this is precisely why
the Valley’s Muslims aspire to, and dream of, a future sans New Delhi’s
repressive hegemony and control. The latter’s attempt to use the elections
in Kashmir as a means to advance its ‘democratic’ claims is, therefore, at
best short-sighted and at worst, disingenuous. If India is a democracy, it
cannot endorse a policy that violates three crucial foundations of a
democratic state, namely, maintenance of the distinction between civil
authority and the role of the military, citizens’ right to liberty, the duty
of the state to protect citizens. There can be no role for the military or
for the coercive suppression of civil rights in a truly democratic Kashmir.



For over two decades, India’s extraordinary military presence in the Valley
has been synonymous with flagrant violation of the rule of law. If the
underlying principle of the rule of law is that no one is above the law, the
impunity accorded to security forces in Kashmir is a grave violation of the
legal basis of government and, by extension, the legality of the state.
Since 1989, not a single member of the military has been prosecuted or
convicted for a criminal offence in Kashmir. In 2005, the J&K government
made almost three hundred requests for permission to prosecute public
servants, including members of the military; none were granted. The
Disturbed Areas Act and the Armed Forces Special Powers Act (AFSPA) permit
the military and paramilitary forces to operate their own network of
detention and interrogation centres that are beyond judicial scrutiny.
Persistent disregard by state authorities for the writ of habeas corpus – an
important legal provision meant to protect citizens from institutional abuse
and one of the cornerstones of a democratic state – and the concomitant
paralysis of Kashmir’s judiciary underscore India’s shaky claims to
‘democracy’ in the Valley. In 2006, there were 60,000 habeas corpus
petitions filed by individuals since 1990, and 8,000 cases of enforced
disappearance.



Even by the congealed yardstick of the establishment line that Kashmir is an
‘integral’ part of India, the denial of citizenship rights to Kashmiri
Muslims underscores the great paradox between rhetoric and reality. India’s
Constitution guarantees judicially enforceable fundamental rights, including
the right to freedom of speech, political affiliation and the right to be
free from arbitrary arrest or detention. In the Valley however, the ban on
public gatherings, free speech, the right to be free from unlawful detention
and the right to a fair trial remain suspended; no judicial reviews of such
suspensions are allowed. The Jammu and Kashmir Public Safety Act (1978), the
Jammu and Kashmir Criminal Law Amendment Act (1983), the Terrorism and
Disruptive Activities Act (1987) – in force in Kashmir till 1995 – together
with the Armed Forces Special Powers Act (Jammu and Kashmir), contravene,
respectively, the right to be free from arbitrary detention, the right to
political affiliation and opinion, the right to freedom of speech, and the
right to life.



Democracy in Kashmir is also ill-served by the fear and paranoia of
successive regimes at potential independent scrutiny of India’s democratic
and human rights record in Kashmir. The mandate of the International
Committee of the Red Cross (ICRC) to detention centres in Kashmir is
restricted, while repeated requests by the United Nations Special Rapporteur
on Torture and by Amnesty International to visit Kashmir have met with
official refusal. A number of human rights defenders in the Valley have been
murdered by the military and there are several cases of non-Indians whose
interest in, or engagement with, Kashmir’s civil society and humanitarian
tragedy prompted aggressive surveillance by state authorities and/or the
revocation of their visa to India.



The establishment’s denial of festering Kashmiri grievance may buy time for
New Delhi and postpone its inevitable reckoning with the truth in the
Valley: that assembly elections (held in the shadow of a coercive military
presence, undeclared curfew and the arbitrary arrest of the Valley’s
political leadership) cannot erase the anger and discontent of a people
wronged. This election is not, and can never be, a substitute for a just
resolution to the two-decade-old festering dispute between Kashmiri Muslims
and the Indian state; nor can it erase India’s appalling record of
governance in the Valley. Elections in Kashmir merely affirm India as a
formal, rather than substantive democracy. That India is on the wrong side
of history in the Valley was evident on 18 August 2008 when a million
Kashmiri Muslims took part in an extraordinary peaceful demonstration
against the status quo, symbolising, in Mikhail Bakhtin’s memorable words,
“the thousand-year-old language of fearlessness, a language with no
reservations and omissions, about the world and about power”.



If India wishes to showcase democracy in Kashmir, it must extend to Kashmiri
Muslims those rights and freedoms denied them for two long decades.
Democracy in Kashmir would mean that its formal, participatory dimensions –
involving elections at the local and state level are complemented and
augmented by its substantive dimensions. It would be synonymous with the
restoration of full citizenship rights for Kashmiris, namely, freeing
Kashmiri civilians from violence and harassment from the police and the
military, the revocation of repressive legislation, the end of unlawful
killings, arbitrary searches and detentions, the restoration of Kashmir’s
judiciary, the protection of civil rights including the right to freedom of
speech and assembly, freedom for Kashmir’s citizens to travel within and
beyond state borders, and last, but certainly not the least, the initiation
of a process of public accountability for Kashmir’s human rights tragedy.



Writer is the author of ‘Between Democracy and Nation: Gender and
militarization In Kashmir’ and can be mailed at skazi at vsnl.comThis e-mail
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