Fundamental Rights, Kashmir IDPs and the State

By K.N. Pandita

Fundamental Rights are enshrined in the Constitution of India.  They guarantee that all citizens of India will lead their life in peace as long as they live in Indian democracy. In common language these rights are called civil liberties and they have precedence over all other laws of the land.

Unable to lead a life in peace despite prevalence of constitutional democracy is negation of the aforementioned guarantee promised by fundamental rights. Therefore, in the first place, the forcible exodus of a small religious minority from its original place of living shows that their fundamental right of leading a life of peace has been violated. In other words, it means that the state has failed to provide such pre-requisites as are necessary to promote an atmosphere conducive to lead a life of peace. In legal language a government that fails to provide and protect the fundaments rights is an illegitimate government.

This being the ground situation, it follows that before the government or its agencies and political activists decide to take back the exiled community to its original place of habitation, it is of utmost importance to find out what were the circumstances that vitiated an atmosphere of peace and  whether the causes of the same have been eradicated. By implication, it will also give rise the question why the government failed to provide protection to the affected people.

Civil liberties include individual rights common to most liberal democracies, such as equality before the law, freedom of speech and expression, freedom of association and peaceful assembly, freedom of religion, and the right to constitutional remedies for the protection of civil rights such as habeas corpus.

Failure of the state to protect a section of citizenry from threat to life and property arising from denial of freedom of religion means that their right to equality before law is transgressed. The situation is further aggravated when those responsible for unleashing violence against the innocent members of a particular community are not brought to book. Mere arresting and imprisoning them and not prosecuting them under law for the crimes of murder and torture is clearly violation of the civil liberties under which equality before law falls. The right to equality being one of the six fundamental rights that have been granted to us in the Indian Constitution has been described as this: The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. If the State has not brought the culprits to book for last nearly two decades, it means that the State is discriminating on the basis of religion because the victims in the case are adherents to a particular

The second and the most important fundamental right is the right to freedom which is described in the constitution as right:

  • To freedom of speech and expression;
  • To assemble peaceably and without arms;
  • To form associations or unions;
  • To move freely throughout the territory of India;
  • To reside and settle in any part of the territory of India;
  • To practise any profession, or to carry on any occupation, trade or business.

In regard to the freedom of speech, it may be mentioned that the terrorist organization namely JKLF, which owned the responsibility of the killing of provincial BJP leader, Pandit Tikalal Taploo in Srinagar on 14 September 1989 said in a public statement carried by the local vernacular print media that he was killed because he had expressed his party’s opposition to the use of violence as a political weapon. At that point of time, the government in the State was very much in place but it neither issued any statement condemning the ideology of violence nor took any step to apprehend the murderers. Thus the right to freedom of expression was blatantly transgressed and the government of Jammu and Kashmir was a tacit accomplice in the act.

Again Justice Nila Kanth Ganjoo was gunned down by the gunmen of the same terrorist group in Maharaj Bazar, Srinagar on 4 November 1989 while he was proceeding to his home.  Later on JKLF issued a statement saying that he was gunned down because he, in his capacity as session’s judge, had given death penalty to Maqbul Butt.  The State government took no steps to apprehend the culprits and bring them to book for the crime of murder. It let the local vernacular press legitimise the killing of the justice who had performed his duty as the protector of the constitution of the country and of the state. His verdict had come just because there was the freedom of expression and the law of the land spoke through his pen. The State of Jammu and Kashmir faltered not on one but on two counts. First it faltered by resorting to discrimination in the sense that Justice Ganjoo belonged to a religious minority community and the murderers were of another faith and community, and secondly it faltered to protect his right to freedom of expression. In both case the fundamental rights of Justice Ganjoo were grossly violated.

In this context we can mention a number of examples like the massacre of Kashmir Hindus in Wandahama carnage or the massacres in Reasi and Doda regions.

As regards the fundamental right to reside and settle in any part of the territory of India, this provision unravels obvious contradiction in the Constitution of India. On the one hand the Constitution recognizes settling in any part of the country a fundamental right and, on the other hand, it not only restrains but totally annuls this right by incorporating Article 370.  There is no provision in the Constitution that empowers any state institution to annul any of the six fundamental rights of an Indian citizen. One can imagine the sanctimony of fundamental rights. The Constitution offers by one hand and withdraws by another the right to freedom of settling in any part of the country. It is like creating a “no go area” under martial law administration. Apart from this blatant anomaly, the militant organizations even today impose on exiled Hindu aspirants the condition of supporting and joining the “separatist movement” in Kashmir if they (the Pandits) want to return to their native places. The government in the State or at the Centre has no strength to warn the separatists that they will not be allowed the liberty of trivializing the Indian Constitution and civil liberties of the society. And since the governments have not done so, the only inference one can draw is that either the government is disposed to let discrimination and inequality before the law stay put among the fundamentals of its desk book rule of governance or that it is an out-and-out accomplice in the transgression of fundamental rights of Indian citizens.

In regard to cultural and educational rights as one of the fundamental rights of Indian citizens, the Constitution states as this: “No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”

The manner in which internally displaced students of Kashmiri Pandit community were discriminated in admission in Jammu schools and higher institutions of learning is known to all. The source of discrimination lay in the State government and its hostile bureaucracy. The Education department of the government ordered that “migrant” students were not be admitted in the degree colleges of Jammu through normal admission process but would be segregated from Jammu student body and would remain affiliated to Kashmir University. Thus evening classes were arranged for them. This developed an endemic sense of inferiority complex among the “migrant” students. The spirit of the right to education was subverted; innumerable difficulties were created for these hapless students and in the beginning it would take a student nearly five to six years to complete his two-year graduation course.

Much can be written on how fundamental rights of the internally displaced persons from Kashmir have been violated. The onus does not come essentially to the doors of the militants only but also to the door of the government, either in the State or in the Centre which are the principal guarantors of fundamental rights of Indian citizens.
(The writer is the former Director of the Centre of Central Asian Studies, Kashmir University).

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