Limitations of the domestic apparatus: considering the vocabulary and practice of international human rights law in Kashmir

The people of the Kashmir valley, caught in a dispute between two State entities, have been casualties of violence since 1947. Denied the right to self-determination, Kashmiris have lived entire lifetimes in a high-risk region where any and all activity can be termed a risk to national security and used to justify the waiver of human and fundamental rights. MAHIMA BALAJI writes about the vindication of rights that the lens of international human rights law can provide to those who are failed by their domestic constitutional law framework.

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AGAINST the backdrop of gross human rights violations, there have been severe crackdowns on free speech in Kashmir. Be it the use of terrorism legislation to curb 'anti-national' content, the longest internet blackout imposed in a democracy, or even excessively intrusive regulations such as the Kashmir Media Policy 2020 (I have explored the contours of this in another blog post here).

In the context of this narrative, there is a need to consider the lack of potency surrounding India's constitutional apparatus – particularly its inappropriateness and consistent failure in protecting the rights of Kashmiris, considering the protracted state of conflict. Alternatively, over the course of this piece, I argue that there is a need to consider articulating claims using the discourse of international human rights law (IHRL) to protect and vindicate fundamental human rights in the region.

India's Constitutional framework and 'reasonable restrictions'

The power to restrict free speech under Article 19(1)(a) of the Indian Constitution, emanates from the grounds provided under Article 19(2). The issue, however, arises when these are tested in Kashmir, given that Article 19(2) provides for 'reasonable restrictions' on grounds such as 'public order'.

Analysing this in the political climate of Kashmir renders the right illusory. The widespread instances of violence in Kashmir, including the use of pellet guns for crowd control, extra-judicial killings, and protests are not novel occurrences.

In addition to addressing the state of conflict itself and the incompatibility in terms of applying the constitutional discourse in regions of protracted conflict due to the legitimising effect, the issue of 'unclean hands' also needs to be highlighted. This is primarily because the 'crisis' faced in the region of Kashmir is ironically often perpetuated by the Indian State (Lawyer and researcher Shrimoyee Nandini Ghosh excellently captures the state of permanent emergency here).

This violence is later justified by the Union before courts by using the 'public order' exception to further stifle the constitutional rights of the Kashmiri population.

Also read: Media Policy 2020: Mocking Freedom of Speech and Expression in Jammu and Kashmir

Added to this, regrettably, recent rulings of the Supreme Court highlight a reluctance to overstep while addressing intricate questions of law and politics (legal scholar Upendra Baxi, for instance, has highlighted this trend in his works). To elucidate, the outcome of the Ayodhya dispute before the Supreme Court allowed for the construction of a Ram Mandir, a temple for the religious majority in India, at the site of the demolition of the Babri mosque. Further, the apex court's 2018 ruling concerning the validity of the Aadhaar scheme, though recognising the right to privacy of Indians, allowed for the continuance of an intrusive framework of data collection of its population without adequate protections.

Most recently, however, this reluctance was evident in the ambiguity of the Supreme Court's response to the petition requesting access to 4G internet in Kashmir, during the pandemic. The Court clarified the need for fundamental rights to be balanced with national security concerns. More specifically, it noted the need to consider the "compelling circumstances of cross border terrorism" in Kashmir before such liberties could be granted.

Also read: Is the Blanket-Ban on Internet Restrictions an Inessential Order in Jammu & Kashmir

The promise of IHRL

In contrast to this domestic imagination of 'national security' or 'public order', the vocabulary and discourse of IHRL is significantly wider. It is one that considers questions of occupation and self-determination. More directly, the discourse would involve questioning India's obligations under Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights.

This expressly confers the right to impart information and ideas of all kinds, regardless of frontiers – a positive obligation. While one may argue that Article 19(3)(b) of the ICCPR contains an exception concerning national security or public order, this needs to be read narrowly. In General Comment 34, the United Nations Human Rights Committee warned that when a State imposes restrictions on free speech, it cannot put the right itself in jeopardy.

However, there is scope for remedy beyond the framework of human rights law, and that is with the operation of human rights practice.

Though there has been discourse around the human rights language being formalistic and its effect in demobilising social movements at the domestic level (see American academic and legal scholar David Kennedy's work, for instance), the IHRL discourse can nevertheless be used to effectively convey the demands of a particular social group by providing a space for advocates to engage in multilevel tactics using tools such as legal experimentalism.

This posits that international human rights advocacy is participatory, given the various stakeholders. African economic and social rights activists have successfully employed pragmatic approaches to human rights activism using this framework of legal experimentalism, to challenge institutional practices by creatively and systematically engaging with human rights advocacy.

Also read: The Kashmir Blackout

These include strategies for identifying public/private allies and targets, both, domestically, and internationally, who wield significant power to exert influence on policies and practices affecting certain communities. This would entail lobbying civil society groups and international media, along with other tactics that would mobilize the need to recognize compliance with certain human rights standards in Kashmir. Legal experimentalism essentially then engages with power and provides an opportunity to translate this power into concrete legal obligations, by convincing States that it is in their best interests to comply with a particular legal regime.

Another avenue, concerning IHRL and its process, is for actors to consider leveraging aspects of the transnational legal process as a method of accountability. American lawyer and scholar Harold Koh argues that "even rogue States cannot insulate themselves forever" as they need to engage with other States' economic and political processes in this increasingly interdependent world.

Despite India not being a party to some international human rights treaties, and further carrying several reservations in terms of their enforcement mechanisms, the transnational legal process may still effectuate better compliance than the domestic legal system.

Importantly, the percolation of international law into the domestic sphere ensures that the decisions of the Supreme Court are no longer infallible. In the context of Kashmir, this would mean that there is a greater chance to bring in remedy through a compliance mechanism that keeps the union government in check, due to its accountability to foreign States for trade and international relations.

Concluding thoughts

While the application of international law is certainly not without criticism, including the threat of re-colonization and galvanizing a western-centric discourse, it cannot be denied that in the recent past, its response in regions of conflict has proven successful in terms of both outcome and introducing a necessary lens of scrutiny.

For instance, the International Court of Justice's ruling in the Chagos case showcased the rationale that the UK's continued illegal occupation of the Chagos archipelago was at odds with the principle of self-determination, calling for the end of the UK's administration of the territory to complete the decolonisation of Mauritius.

The recognition of Britain's continued illegal occupation of the Chagos archipelago is as relevant for post-colonialism, as it was for Mauritius.

In the context of Indian administration of the territory of Kashmir, though distinguished from the Chagos dispute, insofar as it showcases a post-colonial state colonising a part of its own territory, it is necessary to realise that only by sometimes supporting, and other times critiquing the Third World State, can the interests of its people be advanced.

Also read: Déjà vu- Undeclared Emergency 2020

Consequently, it is crucial to acknowledge this 'external' standpoint and entry of international law to consider a vindication of rights for the Kashmiri population, as opposed to the calculated focus on domestic constitutional law.

International human rights law and its complex and diverse entry points ensures that the Supreme Court of India is not the final adjudicator, where, concerning Kashmir, it has consistently rendered judgments that fall within the 'exception' to fundamental rights, highlighting the failure of constitutional adjudication to effectively remedy the clampdown on free speech and other instances of disproportionate violence inflicted on the Kashmiri population. This silencing by the national legal frameworks only galvanizes the need to consider the IHRL discourse and its symbolism as an avenue for remedy to demand accountability.

(Mahima Balaji is a BCL Candidate at the University of Oxford, and is an alumnus of Jindal Global Law School, India. She is grateful to Prof. Sagnik Das for his inputs and comments on earlier versions of this piece. The views expressed are personal.)