Naveed Ahmad Mir
Kashmir is one of the most militarised places on earth. Violation of human rights is the everyday business of the state. People in this part of the world face humiliation, threats, intimidation, and violation of human dignity on daily basis at the hands of the state. The forms of violence may have changed over time but their aim has always been the same – the suppression of Kashmiri voices.
People have an unending list of complaints against the state and its agencies. Some of these complaints arise out of civic issues: facilities of food, shelter, protection, health care, and communication including internet, etc. But the most important concerns are political, such as being able to speak one’s mind. These are what we call human rights. Human rights are a legal concept that arises out of the theoretical idea that some rights are natural and universal to humans, and not the creation of the state. Every person on this planet possesses certain basic human rights by virtue of being human. The question of human rights being natural has been intensely debated by philosophers and legal scholars. One of the important scholars is H.L.A. Hart, who in his controversial article in 1955, ‘Are there any Natural Rights?’ argued that natural rights were an invention of the European Enlightenment. Hart followed in the footsteps of positivists like John Austin, who wrote the influential work Lectures on Jurisprudence. Hart and Austin argued that there was no concept of ‘right’ or ‘duty’ in the ancient European texts, which meant that these ideas didn’t exist before the European Enlightenment. In their argument, “rights” were invented by Locke, Hobbes, Rousseau, Hume and Kant.
The Enlightenment philosophers didn’t invent human rights, but one cannot deny their great contribution in the growth and development of the idea. The idea of human rights is found in all the Abrahamic religions and in philosophical texts dating back to Socrates, Plato and Aristotle. The argument by natural law theorists is that human rights are grounded in human nature and human dignity, and this argument is recognised in international human rights law.
After World War II, the Universal Declaration of Human Rights (UDHR) was adopted in 1948, followed by two separate Covenants (ICCPR & ICSER) in 1966, collectively known as the International Bill of Human Rights. These laws upheld the dignity and freedoms of humankind. The UDHR in its preamble says that all men are free and born equal. It is because of the principle of universality that International Law provides for intervention by UNSC (United Nations Security Council) to prevent or punish violations of International Law by any state. Were it not for this law, each nation would be free to treat its citizens as it liked. There would have been no basis for the international community to act against Apartheid, Holocaust, or Israel’s occupation of Palestine.
Kashmir, a decades-old conflict between India and Pakistan, is marked with everyday human rights violations both by state and non-state actors. On August 5, 2019, the Indian government unilaterally revoked the special status of Jammu and Kashmir. Even the absolutist Hobbes gives people the right to enter into contract before surrendering powers to a sovereign authority. But the Indian state chooses to be leviathan without a social contract. With brute force of majoritarianism, elected representatives are put under house arrest and thousands of citizens and civil society members, including lawyers and journalists are put in jails. Armed forces are deployed in huge numbers and curfew is imposed. All means of communication are snapped. The internet is summarily shut down. All these measures are meant to instil fear among people so that they do not dare to raise their voice against the State.
It is the efforts of human rights activists that have brought the forgotten Kashmir issue once again to global attention. Two UNSC closed-door meetings on Kashmir were held, for the first time in more than 60 years, although these meetings turned out to be the replica of “sealed cover jurisprudence” developed by the Indian Supreme Court. Two human rights reports from the OHCHR (Office of the High Commissioner for Human Rights) in 2018 and 2019 on Jammu and Kashmir are of great significance in upholding the universality of human rights. Kashmir should not be made an exception. People of Kashmir deserve attention, respect, dignity, freedom from fear, freedom of speaking their mind, and above all, the right to self-determination.
The writer studied Law at Central University of Kashmir. [email protected]