2016 08 25 - Conflict and Fundamental Rights in Kashmir

Afghanistan
Public Policy Research Organization
State-Civil Society Relations:

Fundamental Rights in Kashmir (India)
August 2016

Research Report

Acknowledgements
The funding for this research was provided by the Royal Netherlands Embassy in Afghanistan as part of
the project, Afghanistan Rights Monitor, implemented by Afghanistan Public Policy Research
Organization (APPRO).

About the Researchers
This paper is based on field research conducted by APPRO with assistance from two field researchers in
Kashmir. The additional desk research and editing was carried out by APPRO in Kabul.

About Afghanistan Rights Monitor
Afghanistan Rights Monitor (ARM) was designed to meet the following objectives:
1. Regular monitoring of the current conditions of fundamental rights in Afghanistan using a set of
indicators based on internationally recognized standards for monitoring Civic, Social and
Economic rights.
2. Informed, pragmatic, and constructive advocacy messaging on fundamental rights needs, based
on empirical data, and delivered by civil society actors
3. Increased capacity and responsiveness of public institutions to fundamental rights needs of
Afghan citizens

The above objectives are expected to contribute to good governance practices through informed and
constructive engagement between civil society and government based on applied research, capacity
development, and advocacy aimed at national and international stakeholders. For more information on
ARM, see: www.nac-pp.net

About APPRO
Afghanistan Public Policy Research Organization (APPRO) is an independent social research organization
with a mandate to promote social and policy learning to benefit development and reconstruction efforts
in Afghanistan and other less developed countries through conducting social scientific research,
monitoring and evaluation, and training and mentoring. APPRO is registered with the Ministry of
Economy in Afghanistan as a non-profit non-government organization and headquartered in Kabul,
Afghanistan with offices in Mazar-e Sharif (north), Herat (west), Kandahar (south), Jalalabad (east), and
Bamyan (center). APPRO is the founding organization of APPRO-Europe, registered in Belgium.

For more information, see: www.appro.org.af and www.appro-europe.net
Contact: [email protected]

Cover Photo: Showkat Shafi

APPRO takes full responsibility for all omissions and errors.

2016 Afghanistan Public Policy Research Organization. Some rights reserved. This publication may be
reproduced, stored in a retrieval system or transmitted only for non-commercial purposes and with
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List of Abbreviations

ACLS
AFSPA
APDP
BLS
CSO
EID
ERTC
GoI
FCRA
ICDS
ICRC
INGO
J&K
LoC
MoU
NGO
NPA
PSA
PTSD
RT
RTE
RTI
SSA

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Advanced Cardiac Life Support

Armed Forces Special Powers Act
Association of Parents of Disappeared Persons
Basic Life Support
Civil Society Organization
Enforced or Involuntary Disappearances
Emergency Room Trauma Center Course
Government of India
Foreign Contribution Regulation Act
Integrated Child Development Services
International Committee of the Red Cross
International Non-Government Organization
Jammu and Kashmir
Line of Control
Memorandum of Understanding
Non-Government Organization
Non-Performing Assets
Public Safety Act
Post-Traumatic Stress Disorder
Rehbar-E- Taleem
Right to Education
Right to Information
Sarva Shiksha Abhiyan
Table of Contents
Introduction ........................................................................................................................... 5
Objectives and Methodology.................................................................................................. 6
Historical and Political Background......................................................................................... 6
Evolution of Civil Society in Kashmir ....................................................................................... 9
Conflict and Fundamental Rights in Kashmir ......................................................................... 11
Education ...................................................................................................................................... 13
Civilian Rule and Education................................................................................................................14
Health Services .............................................................................................................................. 15
Civilian Rule and Health Services .......................................................................................................15
Livelihoods .................................................................................................................................... 17
Civilian Rule and Livelihoods..............................................................................................................17
Food and Shelter............................................................................................................................ 18
Civilian Rule and Food and Shelter ....................................................................................................19
Women and Childrens Rights ........................................................................................................ 20
Civilian Rule and Women and Childrens Rights ................................................................................20
Human Rights ................................................................................................................................ 21
Civilian Rule and Human Rights .........................................................................................................22
Civil Society: Scope, Limitations, and Challenges............................................................................ 23
Conclusion and Key Findings................................................................................................. 24
Implications for Afghanistan................................................................................................. 25
Recommendations......................................................................................................................... 26
Appendix 1: Interviewee Codes ............................................................................................ 27

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Introduction
The area collectively known as Jammu and Kashmir (J&K) spreads over parts of Central Asia, South Asia,
and East Asia. Jurisdictionally J&K consists of the Indian-administered state of Jammu and Kashmir
(Jammu, Kashmir Valley, and Ladakh), the Pakistani-administered territories of Kashmir and Gilgit
Baltistan, and the Chinese-administered regions of Aksai Chin and the Trans-Karakoram Tract.1 J&K has
been in a political, and sometimes military, conflict involving India and Pakistan.

The relative absence of a vibrant civil society in Kashmir is attributed to the years of violent conflict, lack
of functional, transparent, and accountable state institutions, and the failure of the political leaders in
India and Pakistan to harness the energy of the citizens for lasting peace. Since the early 2000s, civil
society in Kashmir has started to emerge and to reorient its agenda to address a wide spectrum of
issues. However, it still faces limitations in operational space, which undermines the effectiveness of its
work.

Given the unique positioning of J&K within the Indian Constitution, the impact of various Indian laws on
good governance has remained limited in Kashmir. In addition, the various acts and laws on insurgency
in Kashmir since 1989 continue to act as deterrents to the delivery or fulfillment of basic rights in
Kashmir. This is especially evident since the declaration of the latest state of emergency in July 2016
with another flare up in the conflict. This latest flare up ended a comparatively quite period since the
summer of 2010. To date over 60 protestors have been killed and thousands have been injured - many
by pellet guns used by the security forces as a crude form of crowd control. Kashmirs hospitals are
overwhelmed with over 5,000 injured people and more than 100 people, mostly young people, are
threatened with blindness by the pellets lodged in their eyes.2

The trigger for the recent unrest was the killing of Burhan Wani, a charismatic 22-year-old separatist on
July 8 by the Indian security forces. Wani had built up a following on social media among disaffected
Kashmiri youth. The recent unrest appears to be a broad based protest against the heavy-handed
behavior of the Indian security apparatus in Kashmir and an explicit expression for independence. The
absence of a political mechanism for resolving the India-Pakistan dispute over Kashmir has resulted in
the civil unrest on the streets of Kashmir and the beginnings of militancy gaining legitimacy among
people who believe Delhi is ignoring political realities in Kashmir.3

This paper examines the situation of fundamental rights in Kashmir with a specific focus on the impact
of conflict on the institutionalization, or lack thereof, of these rights. It explores the interaction between
civil society organizations (NGOs) and the government from a good governance perspective for
Kashmir. The NGOs (local, national, and international organizations) and government institutions
engaged for this research include entities working on the delivery of basic services such as education,
health, food security, employment, and shelter. Human rights such as freedom of speech and assembly
are explored as a secondary set of basic rights.
See, for example, http://www.peacekashmir.org/jammu-kashmir/history.htm

The New York Times (July 21, 2016). Kashmir in Crisis. http://www.nytimes.com/2016/07/21/opinion/kashmir-incrisis.html?_r=1. Retrieved on August 08.
3
See, for example, https://www.theguardian.com/world/2016/jul/11/kashmir-death-toll-23-protests-shootingburhan-wani-independence-violence
2
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Objectives and Methodology

This paper examines the impact of conflict on state-civil society interactions on protection and
promotion of fundamental rights in Jammu and Kashmir (J&K) through the following objectives:

Provide an overview of relevant legislative provisions on fundamental rights including good practices
and challenges in implementation
Investigate the role of NGOs in protecting and upholding fundamental rights and identify existing
mechanisms for monitoring and sustaining fundamental rights
Articulate the practical implications of the findings from Kashmir for the Afghan context and generate
recommendations for the Government of Afghanistan, international donors, and Afghan civil society
organizations on the protection and promotion of fundamental rights in Afghanistan.

This research report is based on an analysis of data from:

A review of the existing literature, reports, and legislation on state-civil society interactions on
fundamental rights in J&K
Interviews with key informants drawn from government institutions including elected lawmakers and
NGOs working on service delivery in education, health, food security, employment, and shelter in
Kashmir.4

Given the volatile security situation in Kashmir, most of the NGOs agreed to be interviewed on the
condition of anonymity. There were numerous challenges in carrying out this research. During the
fieldwork, J&K was under Governors Rule due to the death of the Chief Minister of the State. As there
was no civil government in place, the lawmakers interviewed were former officials. Several international
organizations declined the interview requests, while some of the government officials were
apprehensive about the purpose of the research.
Historical and Political Background

The region of J&K in the northwestern part of the Indian subcontinent is home to one of the longest
running political dispute of modern times. Prior to the independence of India and Pakistan from British
rule in 1947, Kashmir was a princely state with a Hindu ruler, Maharaja Hari Singh, and a predominantly
Muslim population. During the partition Maharaja had an option of joining either India or Pakistan, or
remaining independent. Indecisive over what option to choose, and facing a Pakistani-backed rebellion
in October 1947, the Maharaja finally sought military assistance from India and signed an instrument of
The selected government institutions and ministries include:

Directorate of School Education
Department of Social Welfare
Department of Commerce and Industries
Department of Health
Relief and Rehabilitation Commissioner
Former Education Minister
Former Rural Development Minister
Former Law and Parliamentary Affairs Minister
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accession to join India on the condition that Kashmir be permitted to retain its own constitution.5
Kashmir was divided between Hindu-dominated India and predominantly Muslim Pakistan. India
retained control over the Kashmir valley with a predominantly Muslim population, the Hindu majority
region of Jammu, and Ladakh with a Buddhist majority. All three regions together constitute the Indian
state of J&K. Pakistan controls the mountainous western and northern areas of Kashmir (Azad Kashmir)
and Gilgit-Baltistan (part of which was subsequently ceded to China).6

Since 1947, both India and Pakistan have continued to lay claim to Kashmir and have fought three
inconclusive wars over it. While a 1948 UN resolution called for a ceasefire and a plebiscite on Kashmirs
status, the warring countries could never agree on preconditions for a vote and the plebiscite has never
been held.7 The 1949 ceasefire line monitored by the UN was eventually renamed the Line of Control
(LoC) after the wars between India and Pakistan in 1965 and 1971. India and Pakistan engaged in a
limited war in 1999 over the LoC in the Kargil region of Ladakh.

Pakistan continues to call for the implementation of UN resolutions in Kashmir urging a plebiscite, while
India argues that the dispute over Kashmir should be settled bilaterally in accordance with the 1972
Simla Agreement between India and Pakistan.8 The failure of the Indian state to hold a plebiscite
contributed to mounting discontent among Kashmiris in the Indian-controlled part of Kashmir. Though
limited, the first of a number of armed groups seeking independence for Kashmir emerged in the late
1960s. However, the 1987 elections in J&K fueled mass resentment by Kashmiris against Indian rule. The
alleged rigging of the 1987 elections is seen as a turning point in the growth of Kashmiri nationalism.9

In 1989, an armed conflict broke out in Kashmir. Local armed groups backed by Pakistan led a popular
movement and armed uprising for independence in Indian-ruled Kashmir. The state was racked with
violence and remained under Governors Rule (direct rule by the central government of India) between
1990 and 1996. The spillover from Afghanistan after the departure of the Soviet troops in the late 1980s
increased the involvement of foreign nationals in the Kashmir conflict with support from Pakistan.
Militant organizations such as Lashkar Taiba, Lashkar-e Jangvi and Harakat-ul Ansar were introduced as
Islamist proxies by Pakistan in Kashmir. These organizations deployed fighters from Afghanistan and
Pakistan to counter Kashmiri indigenous militant outfits that had started to demand independence from
both India and Pakistan. Hizbul Mujahideen, a pro Pakistani militant outfit, had close links with Afghan
Warlord Gulbuddin Hikmatyar during 1990s, and the groups fighters received training in his camps in
Afghanistan.10
Clause 7 of the Instrument of Accession meant that Kashmir retained autonomy in all areas except defense,
currency and foreign affairs. As a consequence of Kashmirs conditional accession, article 370 was incorporated
in 1949 into the Indian constitution which provided inter alia that other articles of the constitution "may be
extended to Kashmir ... only in consultation with the state government if it pertains to matters regarding
legislative power of Parliament, and with the concurrence of the state government if it pertains to other
matters."
6
Schofield Victoria (2002). Kashmir in Conflict.London: I.B.Tauris, pp. 40-59
7
Security Council Resolution 47 of 21 April 1948 called for a plebiscite that would provide Kashmiris the choice to
accede to either India or Pakistan. There was no option of independence.
8
On July 2, 1972, India and Pakistan signed the Simla Accord, under which both countries agreed to respect the
cease-fire line and to resolve differences over Kashmir "by peaceful means" through negotiation and meetings to
discuss "a final settlement."
9
Schofield, V. (2002). ibid, pp. 137- 140
10
bbc.com (August 1, 2012). Who are the Kashmiri Militants. http://www.bbc.com/news/world-asia-18738906.
Retrieved on March 01 2016.
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The armed insurgency and its suppression by Indian security forces brought Kashmir under various
restrictive laws. In 1990 the Armed Forces Special Powers (Jammu and Kashmir) Act (AFSPA) was
implemented in Kashmir to provide the armed forces with special powers to use force when operating in
disturbed areas in Kashmir.11 The Act provides the security forces with immunity from prosecution.
Similarly, the Public Safety Act (PSA) allows for detention without trial for up to two years, preventing an
individual from acting in any manner prejudicial to the security of the state or the maintenance of
public order.12

The armed conflict resulted in grave human rights abuses, with civilians becoming the casualty of actions
by the government forces and the militants. With almost total impunity the security forces are said to
have committed torture and caused custodial deaths, raped, enforced disappearances, and carried out
extra-judicial executions. During the same period, in early 1990s, the armed insurgents carried out a
number of attacks on the Hindu minority Kashmiri-Pandit community, leading to hundreds of thousands
of Hindus fleeing Kashmir Valley to live in displacement camps in Jammu and Delhi.13

Over the years, the strength of armed groups in Kashmir has been greatly reduced. According to the J&K
Polices estimates, as of January 2011, no more than 500 members of armed groups remained
operational in Kashmir.14 During the period from the mid 2000s to mid-2016, state and national
elections took place. Crucial among these were the state elections of 2002, 2008 and 2014, despite a
boycott from the separatist political groups. Also in this relatively quiet period, India and Pakistan, from
time to time, attempted to engage in formal dialogue about Kashmir.15

Despite the sharp drop in militancy for over a decade since the mid 2000s, mass protests against Indian
rule and security forces have been part of daily life in Kashmir for the last 27 years. In recent years,
protests against human rights violations, or those demanding independence and demilitarization, have
taken the form of marches which have often turned violent. In the summer of 2010, for example, over
100 protestors, mostly young boys and teenagers engaged in stone pelting, were killed in shootings by
security forces.16

The crisis that resurfaced in July 2016 ended over a decade of relative quiet and lessened violence.
Many believe that the sentiment of these latest protests is reminiscent of Kashmir in 1989, when the
last popular uprising began.17 For over a month since the killing of Burhan Wani, the separatist social

11
Section 7 of the Armed Forces Special Act (AFSPA), 1990 under which members of the security forces are
protected from prosecution for alleged human rights violations
12
PSA provides for detention for a maximum of two years in the case of persons acting in any manner prejudicial
to the security of the state.It further allows for administrative detention of up to one year where any person is
acting in any manner prejudicial to the maintenance of public order.
13
Human Rights Watch and Physicians for Human Rights (1993), Human Right Crisis in Kashmir,
https://www.hrw.org/sites/default/files/reports/INDIA937.PDF. Retrieved on February 09 2016.
14
Times of India (January 03, 2011). 500 Militants Active in J&K. http://timesofindia.indiatimes.com/india/500militants-active-in-JK-DGP/articleshow/7211699.cms. Retrieved on March 18 2016.
15
Amnesty International (2011), A Lawless Law.
http://www.amnestyusa.org/sites/default/files/asa200012011en_11.pdf, Retrieved on February 22 2016.
16
New York Times (August 12, 2010). Indian Forces Face Broader Revolt in Kashmir.
http://www.nytimes.com/2010/08/13/world/asia/13kashmir.html, Retrieved on February 24 2016.
17
See for example: http://www.aljazeera.com/indepth/opinion/2016/07/centuries-oppression-kashmir-protestsindia-pakistan-160719122312549.html
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media activist, on July 8 by the Indian security forces, Kashmiris have been living in a state of siege,
under a strict curfew with limited access to basic communication including cellular, landline and Internet
services. The authorities have also shut down printing presses and temporarily banned newspapers from
publishing in a sweeping information blackout after days of anti-India protests in Kashmir. Rail services
and school examinations have been suspended. There are serious shortages of food, medicines, and fuel
and hospitals are overwhelmed with thousands individuals having to be treated for serious injuries.18

Indian-ruled Kashmir has the largest concentration of military presence anywhere in the world, having a
direct adverse impact on the lives of ordinary Kashmiris because of the turmoil and violence.19 Sixtyseven years of contested identity and numerous armed conflicts have had a substantial impact on the
citizens fundamental rights.
Evolution of Civil Society in Kashmir

The concept of civil society is new to Kashmir. Traditionally, Kashmir has been a plural society, deeply
embedded in the concept of Kashmiriyat.20 The charitable provisions built in the Kashmiri tradition have
for long constituted an informal but strong system for addressing social and economic issues. The need
for non-government organizations (NGOs) in the social sphere was not felt, and very few social welfare
or voluntary organizations existed in Kashmir, before the armed insurgency in 1989.21

However, the impact of conflict has been widespread and continues to be deeply felt in Kashmir. In the
early years of armed conflict, the most vulnerable victims were children and women. In the wake of
growing numbers of orphans and widows, and lack of significant and systematic help from the
government, a number of charities emerged to fulfill the most immediate and, later, longer term needs
of the orphans and their families. There was a substantial increase in the number of orphanages in
Kashmir in the 1990s.22 While groups such as the Association of Parents of Disappeared Persons (APDP)
and Families of Enforced or Involuntary Disappearances (EID) have been very active, there are not many
NGOs, national or international, that work openly on human rights issues in Kashmir. For the Indian
state the issue of human rights in Kashmir is highly sensitive. Human rights NGOs are considered as
working against the states interests and are often harassed by state authorities. Quite recently,
Amnesty International India was charged with sedition for organizing an event on ongoing human rights
violations in Kashmir.23 In 2015 a foreign national working as a researcher for Amnesty International
India was allegedly deported for working on a report titled, Denied: Failures in accountability for human

18
See for example: http://www.aljazeera.com/indepth/opinion/2016/07/centuries-oppression-kashmir-protestsindia-pakistan-160719122312549.html

19
bbc.com (January 14,2011). India to cut Kashmir troops by a quarter. http://www.bbc.com/news/world-southasia-12190425. Retrieved on March 10. Estimated number is between 300,000 to half a million.
20
Kashmiriyat is a term used to represent an idea of separate identity for all Kashmiris irrespective of their religion,
based on language, culture and history.
21
Suri, Anirudh (2004). NGOs in Kashmir: Agents of Peace and Development? Institute of Peace and Conflict
Studies. pp.2. www.isn.ethz.ch/DigitalLibrary/Publications/Detail/?lang=en&id=29038. Retrieved on March 1
2016.
22
Dabla, B.A. (2011). Social Impact of Militancy in Kashmir. New Delhi: Gyan Publishing House. pp. 241
23
See for example: http://www.thehindu.com/news/cities/bangalore/sedition-case-filed-against-amnestyinternational/article8991258.ece
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rights violations by security force personnel in Jammu and Kashmir.24 In 2008, the cofounder of Jammu
and Kashmir Coalition of Civil Society, a local human rights organization, was attacked by the armed men
at his house. He alleged that the attack was the states response to his organizations work on unmarked
graves in Kashmir.25

International organizations working in Kashmir face a number of challenges, particularly in terms of
access. Reports by international human rights organizations such as Human Rights Watch and Amnesty
International on human rights violations by government agencies in Kashmir, especially during the peak
years of military conflict, were viewed as embarrassing and offensive by Indian state. In response the
Government of India subsequently restricted research on human rights in Kashmir.26

There are currently very few international organizations operating in Kashmir. Most of these
organizations have signed memoranda of understanding with the Government of India, which translates
into restricted access to sensitive areas, and limited ability to publish findings.27 For instance, UNICEF in
Kashmir has to work through government agencies.28 Similarly, in the early 1990s, the International
Committee of the Red Cross (ICRC) was not granted permission to provide its humanitarian services in
Kashmir. The ICRC had to sign an agreement on June 22, 1995 to gain permission to have access to all
persons arrested and detained during that conflict.29

Kashmirs nascent civil society emerged soon after the decline in violence in the early 2000s. Up until the
most recent flare up in the conflict starting in July 2016, civil society in Kashmir had been reorienting its
agenda to address a wide spectrum of issues, beyond relief and rehabilitation, with some NGOs focusing
on conflict resolution and mitigation and others on peace and reconciliation.30 Also, after the 2005
earthquake a few national NGOs became active in Kashmir, focusing on humanitarian and disaster relief.
By and large, however, national NGOs have stayed away from Kashmir mainly due to the Indian states
position on Kashmir, which sees the Kashmir question as a real estate dispute, coveting the land but
conveniently dispensing with its people.31

The presence of NGOs in Kashmir is further complicated due to the limited trust for NGOs among
Kashmiris. In part, this lack of trust may be attributable to the fact that the Indian Army has been
running various developmental projects, under Operation Sadbhavana, blurring the lines between
military and developmental interventions, a situation not dissimilar to Afghanistan where numerous
national and international NGOs work closely with military and governmental entities on developmental

24
http://blogs.wsj.com/indiarealtime/2015/07/08/why-india-deported-u-s-researcher-working-on-amnestyreport/
25
See for example: http://news.bbc.co.uk/2/hi/south_asia/7484736.stm
26
Dabla, B.A. (2011). ibid. pp. 6
27
ibid pp.6
28
ibid pp. 142
29
icrc.org (1995). J&K: the government of India grants the ICRC access to detainees.
https://www.icrc.org/eng/resources/documents/misc/57jm96.htm. Retrieved on March 10 2016
30
Dar, Fayaz Ahmed, Opening Spaces for Youth in J&K. Conciliation Resources and the United States Institute for
Peace pp. 5 http://www.cr.org/downloads/687%20CR%20Open%20spaces%20for%20youth%20%20web%20version%202_0.pdf. Retrieved on March 11 2016.
31
Sikand, Yogin (July 10, 2003). Kashmir: What you and I can do? www.milligazette.com/Archives/0104200
1/Art17.htm. Retrieved on March 11 2016.
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issues.32 Some Indian national civil society organizations with a focus on survivors of violence receive
funding from the government. These NGOs appear to have become the preferred medium for the Indian
state and politicians for becoming engaged in the local socio-economic and political landscapes, creating
suspicions among Kashmiris as to the NGOs true intentions and increasing the publics mistrust of the
NGO culture in Kashmir.33 At the same time, Kashmir-based civil society organizations are often branded
anti-national by the government and not allowed to work independently.

As elsewhere, another major challenge for NGOs in Kashmir is the scarcity of sustained, no constraints,
funding. Strict control and monitoring by the state makes it difficult for NGOs to secure funding and
function independently. For NGOs, obtaining foreign funding in Kashmir is practically impossible, as the
Indian state views this as foreign intervention in Kashmir. The passing of the Foreign Contribution
Regulation Act (FCRA) in 2010 has made securing foreign funding even more difficult.34
Conflict and Fundamental Rights in Kashmir

The armed conflict in Kashmir, which traces its history to the disputed accession of the J&K to India in
1947, erupted in December 1989. The onset of insurgency against Indian rule was followed by a brutal
crackdown by the Indian state on a rising number of armed militant groups in Kashmir valley. The
conflict led to a loss of thousands of lives and mass displacements. The conflict also affected the socioeconomic conditions of over seven million people living in Kashmir.35 In the earlier and most violent
years of the insurgency, public institutions and infrastructure suffered significantly with schools, bridges
and hospitals being burnt down.36 The excessive militarization of the region led to the occupation of
many public institutions, leaving the already suffering population in a desperate situation.37

Violent conflict placed Kashmir under Governors Rule from 1990 until 1996. The absence of a civilian
government and the total impunity of the Indian security forces operating in Kashmir resulted in
widespread violations of human rights.38

Because of the conflict, orderly or civil governance remains neglected39. Kashmirs civilian governments
have been characteristically weak, having been described as part of the problem rather than the
solution to Kashmirs many governance-related issues.40 After six years of Governors Rule to 1996, it
was difficult for the civilian administration to move beyond law and order problems.41 Furthermore, the

32
Bukhari, Parvez (October 07,2013). The Eerie NGO Phenomenon in Kashmir.

http://pulsemedia.org/2013/10/07/the-eerie-ngo-phenomenon-in-kashmir/. Retrieved on March 11 2016.
33
Bukhari, Parvez (October 07,2013). The Eerie NGO Phenomenon in Kashmir.
http://pulsemedia.org/2013/10/07/the-eerie-ngo-phenomenon-in-kashmir/. Retrieved on March 11 2016.
34
Sikand, Y. (2003). Ibid
35
KI-M-KAS-1
36
KI-M-KAS-11
37
KI-M-KAS-1
38
KI-M-KAS-9
39
KI-M-KAS-1, KI-M-KAS-4 and KI-M-KAS-11
40
KI-M-KAS-11
41
KI-M-KAS-12
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11
massive deployment of security forces put enormous pressures on financial resources of the state
government, leaving insufficient resources for attending to governance-related issues.42

Having regulations and mechanisms to control violence, especially from the state actors, has been a
challenge for the civil administrations.43 On issues such as human rights, water resources, and armys
activities, the laws are regimented, whether under Governors Rule or civilian administration. For
instance, the debate over the revocation or amendment of the Armed Forces Special Powers Act
(AFSPA) is a law making process and falls under the exclusive domain of the legislature. However, any
debate over the Act at the government level has been subjected to Unified Command (a conglomeration
of security agencies), even though it is camouflaged as a civilian system. In reference to acts such as the
AFSPA and the Public Safety Act (PSA), there is little difference between Governors Rule and civilian
rule.44 The 1996 government was successful in establishing a State Human Rights Commission to
monitor the human rights abuses from the both sides.45 However, with such laws as the AFSPA, the
Commission has a very limited mandate.46

The construction of public infrastructure and the institutions, and the restoration of digital or other
forms of connectivity are likely to take a very long time, in part due to the significant damage done in
various conflicts and weak governance.47 Also, vacating the security forces from public buildings such as
schools, hotels, abandoned factories, and in some cases from hospital buildings has taken years and the
process continues.48 Corruption is another major hindrance to the attainment of fundamental rights of
the citizens.49 The government has well-established departments, but there is a lack of accountability
and transparency. Lack of accountability, transparency, and monitoring mechanisms has contributed to
systemic corruption in Kashmir.50

The state government is currently introducing measures to curb corruption, with e-governance being
one possible way forward to minimize corruption and improve good governance in Kashmir.51 The Right
to Information Act has also helped to make government systems accountable.52 However, given the
conflict situation in Kashmir, the Act has limited implications for good governance in the state.53
Similarly, institutions such as the State Vigilance Commission and the State Accountability Commission,
recently established for monitoring and transparency purposes, are likely to face major hurdles in their
operations in Kashmir.54

The next five subsections focus on the conditions of Education, Health, Livelihoods, Food and Shelter,
Women and Childrens rights, and Human Rights in Kashmir to illustrate the nature and dynamics of
state-civil society interactions on fundamental rights in these five arenas.

42
KI-M-KAS-1, KI-M-KAS-4 and KI-M-KAS-9

KI-M-KAS-1 and KI-M-KAS-9
44
45
KI-M-KAS-12
46
47
48
49
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Education
Education in Kashmir has been one of the major casualties of the armed conflict. The insurgency started
with the burning down of the schools, not dissimilar to events in Afghanistan soon after reconstruction
efforts began in 2002.55 Many schools in Kashmir were occupied by the security forces as ready made
structures suitable for military operations.56 A major presence of military everywhere, especially around
schools, created fear among people about sending their children to school, especially girls. The
perception of threat was one of the causes of high school dropout rates in periods of open conflict.
Many children orphaned during the conflict dropped out of school in order to seek paid work.57 In 1989,
the number of school days was reduced to 60 from 210. In 1990, all schools were shut for three
months.58 The major causes were military crackdowns, gunfights, curfews and strikes, and the crumbling
of an entire system of governance.59 In the past 25 years, Kashmir has observed 1,900 days of strikes
and curfews affecting every aspect of life, including education.60

The mass migration of Kashmiri Pandits also created a void in the education system in Kashmir.
Traditionally, Kashmiri Pandits had been instrumental in providing secular education in Kashmir. The
majority of the teachers in Kashmir were Pandits, and the implications of their departure were felt
across the education system. The gap created by the departure of Pandits was filled quickly by the much
larger Muslim population, however. The out-migration of the Pandits had a short-term impact on the
staffing of the education system in Kashmir.61

Despite these challenges and upheavals, the mindset of Kashmiris toward education the value of
education is deeply embedded in Kashmiri culture and society helped to sustain the education system
in Kashmir. Being part of India provided academic and intellectual depth, and many people who left
Kashmir because of the violence found places to study in the rest of the country. Even as the turmoil
became bloodier, the majority of Kashmiri people understood the value of educating (at least) their
boys. There was a substantial migration of students (perhaps the largest migration in Kashmir) who
went to study in institutions outside the state, with some families selling their property and their land to
pay for the education of their children.62

The number of Kashmiri students excelling in competitive exams such as civil services exams and
medical university exams has increased in the post 2000 period.63 There has also been an explosion of
Kashmiri students performing very well outside of Kashmir, which is an indication of a reasonably
functional education system despite the armed conflict.64 The presence of private schools has been an
important factor in helping the education system to survive despite the conflict. Since 1990s, private
schools have been providing an alternative to state-run educational institutions, playing a crucial role in

55
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Hasan, A. ( 2012). Impact of the Conflict Situation On Education in Kashmir. SCS Journal. pp. 122
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balancing out the impact of conflict on public education in Kashmir. In 2016, private schools make up
around 50 percent of the education sector in Kashmir.65
Civilian Rule and Education

The main challenge for the civilian administration in 1996 was the restoration of the public school
systems functionality and infrastructure. During the peak years of militancy, many public schools were
closed because of the militarization of the school buildings. In addition, many schools reduced the
number of school days on the account of curfews and general insecurity.66 From 1990 to early 2000,
there was a significant decline in the public education system in Kashmir.67

Once there was a reprieve from the violence, the education sector started to recover. The Government
of Indias scheme for the universalization of education (Sarva Shiksha Abhiyan - SSA) was introduced in
2003, aimed at increasing literacy levels.68 J&K state government also introduced the Rehbar-e Taleem
(RT) scheme to increase accessibility of schools for the citizens.69 Looking at indicators such as the
numbers of public and private schools, number of enrollments, number of school days, number of
higher education institutions, percentage of passes among students in high school and higher secondary
levels, number of students qualifying for competitive exams, and changes in human resource
management in the education sector, Kashmirs education system has achieved significant successes.70
However, the focus for the last two decades has been mostly on the universalization of education.
Schools were opened indiscriminately within a distance of one kilometer under universalization of
education program. Most of these schools lack basic facilities and there has been an uneven distribution
of teachers in schools. All these factors compromised the quality of education. The government is now
shifting the focus from accessibility to quality and is in process of consolidating the schools.71

Another key challenge in these efforts has been the high rates of dropout at the post primary level.
While there are government schemes to reintegrate those who have dropped out back into mainstream
education, the results have been minimal. Also, vocational training for this group has achieved little
success.72 Another systemic challenge has been accountability and transparency in the manner in which
the state government has been implementing various schemes in Kashmir without the legislation. The
SSA scheme, for example, has been implemented in Kashmir since 2003 in isolation from the
prescriptions of the RTE Act. The funds for SSA are being budgeted and spent without correspondence
to legislation and thus paving the way for corruption and a lack of accountability. NGOs working on
education in Kashmir have been advocating for amendments in the Jammu and Kashmir School
Education Act 2002, to bring it up to par with the national RTE Act. There have been some discussions to
this end and the government has agreed to make changes to the Act in accordance with the national
RTE Act.73

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The Indian education sector is moving slowly toward automation through the creation of an online
database and an online transfer system for teachers.74 A likely benefit of using technological solutions is
the minimization of interactions between the public and corrupt officials and thus, over time, increased
trust by the citizens in their government.

Many NGOs work on childrens rights, including right to education in Kashmir. Most of these
organizations attempt to regularly coordinate their activities with state administration. The state
government has also been working to improve and simplify the processes of state-NGO collaboration on
service delivery-related issues. However, it is a constant struggle for the NGOs to deal with officials in
higher levels of government. In particular, it is difficult for NGOs to raise questions around issues such as
corruption, accountability, and transparency as these questions may be deemed as political by
government officials and threaten the existence of the NGOs.75
Health Services
As with education, the health sector was tremendously affected by the conflict. During the earlier years
of the violence, hospitals and health centers were burnt down, especially in the rural areas.76 The
migration of Pandit doctors contributed to an already significant shortage of professional medical staff.
The insecurity involved in traveling to hospitals because of violence and lack of personal safety, curfew
during the night, and the scarcity of medicine and equipment added to the miseries of locked-down
Kashmiris in the 1990s. The treatment of citizens by the checkpoint military personnel has been
described as ruthless.77 People injured in violence-related incidents would be referred to the state
hospitals, without being stabilized at the district level. In many of the cases, patients died on their way,
especially in cases of injuries due to mine blasts and protest-related violence.78

Mental health has emerged as a major health issue in wake of the conflict, including conditions such as
Post Traumatic Stress Disorder (PTSD), anxiety, and depression.79 A mental health survey conducted by
MSF revealed that nearly 1.8 million adults equaling 45 per cent of adult population in Kashmir suffer
from mental distress and a majority of people have experienced or witnessed conflict-related trauma.
People in rural areas, women and young people were particularly affected by violence-related trauma .80
Despite the magnitude of the issue, there are only two hospitals in Kashmir, providing mental health
services.81
Civilian Rule and Health Services

By the time of the most recent flare up in the conflict starting in mid-2016, the civilian government had
been struggling to address the many needs of the health sector.82 There has been little engagement with

74

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The Indian Express (May 20, 2016). One out of every two adults is mentally disturbed in Kashmir: MSF report.
http://indianexpress.com/article/india/india-news-india/one-out-of-every-two-adults-is-mentally-disturbed-inkashmir-msf-report-2811232/. Retrieved on August 11.
81
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the public around health. The state government does not have sufficient funds but has claimed Kashmir
has better public healthcare than the rest of India, the realities on the ground are different.83
To illustrate, until around 2014, the medical staff at primary and district levels were not trained in Basic
Life Support (BLS), or Advanced Cardiac Life Support (ACLS). Neither had they completed the Emergency
Room Trauma Center Course (ERTC). In district hospitals, there were no triage rooms or emergency
rooms. Also, the referrals from rural to state hospitals resulted in overcrowding and poor service
delivery.84 Given the geography of the region, many places are disconnected during the winter and stay
without basic healthcare facilities.85 Private healthcare services are mostly confined to cities and towns.
Furthermore, the cost of private care is not affordable for the majority of people.86

Mental health related issues have been on the rise in Kashmir, attributed for the most part to the
conflict. Seven hundred and seventy five people sought psychiatric care in 1985. By 2015 the number of
patients seeking psychiatric care at both the Psychiatric Hospital and the State Hospital had grown to
130,000.87 This excludes the number of patients who sought treatment at other hospitals, district
hospitals or through private medical care facilities. Quite recently, in 2016, the health sector began to
amass trained doctors, paramedics, volunteers, and teachers on mental health issues. In addition, each
district hospital has been assigned a psychologist. Nonetheless, there remains an acute shortage of
psychiatrists in the health sector.88 Also, a reported 65 percent of the patients seeking treatment are
women.89

More generally, there have been allegations of funds misappropriation and corruption in the health
sector. Lack of planning combined with failure to respect protocols has created a culture of corruption.
For example, there are cases of major healthcare buildings being built without accounting for the
availability and recruitment of professional medical staff.90

The health department has an active partnership with international NGOs such as ICRC, especially on
capacity building for medical staff around various violent conflict-related health issues.91 NGOs working
on mental health have active partnerships with the government in providing medical treatment. One of
the outcomes of the collaboration between NGOs and the government has been the deployment of
psychologists at district hospitals.92

Despite the productive state-civil society partnerships in the health sector, NGOs often have to endure
bureaucratic hurdles and lengthy government processes to fulfill their mandates. For instance, working
with schools on mental health presents a challenge for NGOs because there are no mechanisms in place
to build the capacity of teachers around health issues. It is also a challenge for NGOs to advocate for
access to government entitlements for marginalized people with mental health issues. 93

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86
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From 1985-2006, the figures are from the only Psychiatric hospital, Rainawari, Srinagar. The 2015 figures are
from two hospitals, Psychiatric hospital, Rainawari, Srinagar and State Hospital, Srinagar
88
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Livelihoods
The major sources of livelihoods in Kashmir have been agriculture, cottage industries, and the service
sector. Monetary gain from tourism is limited to a small percentage of the population. Armed conflict
since 1947 has had a devastating impact on the viability of traditional livelihoods. Until 1947 Kashmir
had been having a trade surplus, with an import-export ratio of 1:3, with exports being three times the
total value of imports.94 In 2015, this ratio was 7:1, with imports being seven times the total value of
exports.95 There has been virtually no growth in traditional industrial activity such as handicrafts,
horticultural produce, and tourism. Since 1947 the Kashmir has been economically isolated, largely
because of the closure of traditional trade routes to Central Asia.96 Another reason for the decline of the
economy is the military occupation of industrial buildings as an outcome of the 1989 armed conflict.
Currently, the government is attempting to vacate these buildings and find alternative places to
accommodate the security forces.97

Until 1947 the silk industry employed 50,000 people and produced silk fiber for around 40 factories
producing silk carpets or silk cloths.98 These factories, run by the Maharaja Government, ceased to
operate during the rule of the new Indian administration. In the early days of armed conflict, economic
activity was directly undermined by curfews and sieges. Agriculture suffered immensely due to security
threats and population displacements within Kashmir. Similarly, tourism suffered due to a significant
drop in the number of tourists going to Kashmir.99

In the private sector, conflict caused financial instability and chaos. Due to the turmoil, many small
industrial units closed down over time while others were declared as Non Performing Assets (NPAs) by
financial institutions during the governors rule in Kashmir from 1990 to 1996. During this period there
were no state mechanisms to assist businesses and many businesses defaulted on their loans. Despite
these conditions the banks continued charging interest on loans by businesses even when the banks
themselves were closed due to the violence. After 27 years, the financial institutions and banks are still
expecting and asking the bankrupted businesses to pay the loans and the accrued interest since 1990.100

Kashmiri handicrafts, known worldwide, have suffered major losses in productive capacity and market
share since 1989. Centuries-old handicraft trades died out during the early 1990s and the artisans were
forced to look for other forms of livelihood.101
Civilian Rule and Livelihoods

The government was the main employer in Kashmir in the 1990s. The employment rate declined from
44.3 percent in 1981 to 36.6 percent in 2001.102 During a relative lull in the conflict the state government

94
Hugol, C.B. (1984), Kashmir Under Maharaja Ranjit Singh. New Delhi: Atlantic Publishers and Distributors.pp.4
DailyO (2015). Kashmir Falls from Self Sufficiency to Dependency, available from:
http://www.dailyo.in/politics/jammu-and-kashmir-hurriyat-mirwaiz-umar-farooq-pakistan-sheikh-abdullahnarendra-modi/story/1/7531.html, accessed August 10, 2016.
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Hugol, C.B (1984), ibid.
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devised a rehabilitation policy for buildings and businesses classified as Non-Performing Assets. The
policy has been difficult to implement due to the occupation of some of the NPAs by the security forces
and the demand by financial institutions to receive loans and accumulated interest for all the years
when businesses and financial institutions ceased to operate. Another impediment to implementing the
rehabilitation policy has been the inability of the government to assess conflict-related business
losses.103

The loss of the traditional artisanal crafts sector has been difficult to reverse due to a loss of market,
out-migration of many artisans, and many artisans switching to more viable lines of work.104 Some
NGOs have been working with artisans such as carpet weavers on improving workplaces and developing
business capacity. But these efforts are limited in scope and scale and unsustainable without a
comprehensive government policy to rebuild the sector.105

The private sector in Kashmir continues to face challenges such as lack of security, insufficient and
unreliable electricity, poor connectivity to the markets in the rest of the India, and unavailability of
land.106 Tourism, which makes up 7 percent of Kashmirs GDP, has been the main focus of the civilian
state governments. The increase in number of tourists has been attributed by the government to peace
in Kashmir. However, some believe that tourism is being heavily promoted by the central government to
create the perception of peace in Kashmir, irrespective of the realities.107

Local civil society groups working on economic rights in Kashmir have faced strong opposition from the
civilian administrations in Kashmir even before 1989. Over the last 25 years, the situation has only
deteriorated though some local NGOs continue to find ways of operating despite the constraints.108
There is some coordination at the local level between local NGOs and local administrations.109 Also,
there is some interest by the state government to work with NGOs in supporting agribusiness projects
developed by the NGOs. However, there are no formal institutional mechanisms through which the
government and NGOs could coordinate activities and collaborate systematically. NGOs are often
viewed with suspicion in Kashmir and are not considered as key stakeholders in the development of the
state.110
Food and Shelter

The armed conflict resulted in various types of forced displacement in Kashmir. Pandit (Kashmiri Hindus)
migration in 1990 was a large-scale displacement. Over 300,000 Pandits fled from Kashmir and took
refuge outside of Kashmir, mostly in Jammu.111 In response to the migration, government established

102
Islam, Ajaz-ul (2014). Impact of Armed Conflict on Economy and Tourism: A Study of State of J&K. IOSR Journal
of Economics and Finance. pp. 57
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the Commissioner for Relief and Rehabilitation in Jammu in 1990 to address the needs of displaced
people.112

The biggest challenge for the government was to provide accommodation for the displaced people.
Some of the displaced were housed in government buildings while tents were set up for others. There
were a number of difficulties for the displaced including insufficient availability of food and basic
services such as drinking water and sanitation for 300,000 people. Those among the displaced who had
government jobs prior to becoming displaced continued to receive their salary and food assistance,
while others were provided with cash along with food assistance.113 The Pandits who had initially
remained in Kashmir but had later migrated in the mid- and late 1990s due to the continued violence
were denied registration as migrants by the government and thus received no assistance.114
Civilian Rule and Food and Shelter

The displaced Kashmiri Pandits stayed in camps for almost six years, before the government constructed
one-room accommodations for them. In 2008, after a visit by the then-Prime Minister of India to the
migrant camps, the central government announced a rehabilitation scheme. Under this scheme, 5,224
two-room flats were constructed for the families who were still living in the camps. Around 25,000
people live in these accommodations. The rest have moved out and settled in different places in Jammu
and other parts of India. Given the family size of the migrants, shelter remains a major issue. The state is
planning to settle the displaced back in Kashmir, and thus has stopped building more accommodation
units in the migrant camps. The migrants continue to receive financial assistance and food support.

The Jammu and Kashmir Immovable Properties Distress Sales Act of 1997 is designed to protect the
property left behind by migrants. According to the Act, the district magistrate is the custodian of the
migrant properties.115

Separate schools have been built for the Kashmiri Pandit migrants. The migrant children are not limited
to these schools and have access to all educational institutions. As part of the rehabilitation policy, seats
in different colleges and universities across India have also been reserved for Kashmiri Pandit migrant
students.116 The state government has also created 1,600 jobs and 700 transit accommodations for the
displaced. Many families are reluctant to return, however.117

The return policy has become highly politicized, in part due to its proposal to build separate townships
for Kashmiri Pandits in Kashmir, viewed by many people across the spectrum as unconstitutional and a
form of official segregation, likely to increase tensions between Kashmiri Pandits the majority Muslim
population.118

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Women and Childrens Rights

The conflict has profoundly affected the lives of women in Kashmir. Women have suffered socially,
politically, and economically. Because of conflict related deaths in Kashmir, the number of widows
increased.119 Widows have had to take charge of thousands of families as the main family providers.
Some widows who did not generate an income ran the risk of being thrown out by their husbands inlaws. Being a patriarchal society, women in Kashmir do not enjoy rights in many respects. Conflict
decreased the womens already limited rights and protection.120 Women who survived the atrocities and
injustices inflicted on them during the conflict had to continue to live with the vivid and terrifying
memories of rape, violence, or death of their loved ones. They were also faced with the daunting task of
keeping families together and providing for the basic needs of their children. These factors have led to
alarming levels of mental health issues among women in Kashmir, including depression, anxiety and
PTSD.121

The emergence of local civil society, which initially came in the form of community-initiated orphanages,
was a response to the increasing numbers of children who were orphaned in Kashmir.122 More than
200,000 children were orphaned in Kashmir due to the conflict.123 Mostly run by social, political, or
religious activists the orphanages provided an important service, as the government mechanisms to care
for orphans did not exist. NGOs working on childrens issues have gradually started to rehabilitate the
children within their extended families, providing basic facilities for their education and health, and
financial support for their new home.124

The government in J&K has some welfare schemes for widows and children in general. For instance, the
National Social Assistance Program and Integrated Social Security Scheme provide financial assistance to
the widows or women in distress.125 However, the implementation of these schemes requires
overcoming a number of bureaucratic hurdles.126 There is also very little information among people
about the existence of these schemes.
Civilian Rule and Women and Childrens Rights

In Kashmir, the Social Welfare Department implements a range of schemes for women and children
around food security, livelihoods, financial support, education and skills development.127 The conflict in
Kashmir resulted in the deaths of thousands of people, widowing thousands of women and creating an
even higher number of orphans.128 The state provides financial assistance to widows and women in
distress through the National Social Assistance Program and the state-run Integrated Social Security
Scheme. Similarly the government has scholarship schemes for economically marginalized children,
along with some specific welfare programs for girls. The state also runs 17 orphanage homes in Kashmir
providing free education, health and food services for the orphans.

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The social welfare department is responsible for implementing the UNICEF-funded Integrated Child
Development Services (ICDS) programs in Kashmir. More than 110,000 children are beneficiaries of this
program. The ICDS focuses on childrens needs in nutrition, health, and preschool. ICDS centers are
partners in implementing certain aspects of the Right to Food Act, especially for children and pregnant
and lactating women.

The state has been collaborating with some NGOs in the state in terms of livelihood generation
programs for women. These NGO collaborations are also used to disseminate information among
communities about available social welfare schemes.129 The outcome of these efforts is said to be
negligible, however. Corruption is a major issue while bureaucratic red tape and a never-ending
application processes add to the misery of the women in need. One of the major flaws with these
programs is that they are very generic, and are implemented in Kashmir much as they are in the rest of
India without regard for the specific conflict-affected context of Kashmir. The state programs are
implemented without mechanisms to monitor or evaluate them.130

NGOs work on a range of issues related to women and children in Kashmir, including mental health
issues, livelihoods for female victims of violence, child labor, domestic violence, and drug abuse.131
Besides providing counseling and livelihood trainings for the survivors of sexual violence, NGOs have
also been working on fast-tracking such children- and women-related cases in the court system.132 Work
by NGOs around juvenile justice resulted in amendments to the Jammu and Kashmir Juvenile Justice Act.
However, during mass protests in Kashmir in 2010, young children were detained by the police and
placed in jail. Many children were put under administrative detention through the Public Safety Act
NGOs have been making efforts toward establishing juvenile homes and counseling the interned
children, but the state appears to have little or no interest.133

The Social Welfare department encourages engagement with NGOs and sometimes provides support to
NGOs to carry forward certain parts of a social welfare scheme.134 However, state-NGO relations around
the rights of women and children are not without tension.135 While advocacy surrounding the
amendments in the Jammu and Kashmir Juvenile Justice Act 1997 could be treated as a success story of
state-NGO collaboration, the NGOs are still campaigning for the implementation of the amendments
which were passed in 2013.136 At the same time, pursuing justice for rape victims where the
perpetuators are from the security forces, widows, or detained children is extremely difficult.137
Human Rights
The military presence in Kashmir coupled with a culture of impunity has been the primary cause of
human and fundamental rights violations in Kashmir. The security forces have been responsible for

129
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innumerable violations including mass killings, extrajudicial executions, fake encounters,

disappearances, torture, and illegal detention.138

With the onset of insurgency in 1989, the AFSPA was promulgated to provide armed forces personnel
with special powers to use force when operating in notified disturbed areas in the state. The political
and legal impunity created by this Act has been highlighted by the lack of prosecutions against groups
that have either committed or enabled human rights abuses in J&K. Another law that has enabled
human rights violations in Kashmir is the PSA. While a number of laws applicable in J&K allow for
administrative detention, the most commonly used is the PSA, which provides for detention for a
maximum of two years without trial in the case of persons acting in any manner prejudicial to the
security of the state.139
Civilian Rule and Human Rights

Until July 2016 there was a steady decline in violence in Kashmir though human right abuses continued
to be a major issue. Security forces operating in Kashmir systematically violate international human
rights and humanitarian law by summarily executing detainees, killing civilians, undertaking extrajudicial
executions, effecting disappearances, and engaging in rape and widespread torture. Security forces have
also violated international human rights law by using lethal force against demonstrators. Since 2008
protests against human rights violations and demonstrations demanding independence and
demilitarization have been met with indiscriminate firing on protestors and use of lethal force against
them. For example, over 110 protestors, mostly young boys and teenagers, were killed in shootings by
security forces in the summer of 2010.140

The AFSPA, one of the primary facilitators of impunity for security forces, not only protects the security
forces from prosecution for alleged human rights violations, but also requires prior executive permission
from the central or state authorities for the prosecution of members of the security forces. These
provisions, called sanctions in India, have been used to provide virtual immunity for security forces
from prosecution for criminal offences. To date, not a single member of the security forces deployed in
Jammu and Kashmir over the past 25 years has been tried for alleged human rights violations in a civilian
court.141

In the presence of the AFSPA, other legal provisions such as the Right to Information Act are rendered
fully ineffective for probing into human rights violation cases involving security forces in Kashmir.142 Any
discussion by the state assembly on revoking or amending the AFSPA has been refused by the central
government.143

Very few NGOs work on human rights issues in Kashmir.144 The few international organizations present
in Kashmir have limited access because of the restrictive MoUs they have signed with the state

138
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government. Furthermore, the Indian state does not allow international inquiry commissions and UN
monitoring bodies access to Kashmir to investigate issues of disappearances and mass graves.145

Local NGOs working on human rights face a number of challenges in their attempts to engage Indian
national NGOs on Kashmir. However, there are some recent cases of national Indian NGOs raising
questions around the occupation, human rights violations, and systematic and institutional repression in
Kashmir.146 International NGOs and the international community have put little pressure on India to
adhere to human rights laws and humanitarian law in Kashmir. Indias claim to being the biggest
democracy in the world has never been challenged despite the human rights violations committed in
Kashmir by state authorities due, perhaps, to the international communitys economic interests in India.
Local NGOs and human rights activists have been targeted by the state from time to time, with some
individuals killed, detained or harassed. In some cases, international NGO staff members have been
deported because of their work in Kashmir being viewed unfavorably by state authorities.147
Civil Society: Scope, Limitations, and Challenges

The presence of NGOs in Kashmir is a very recent phenomenon. NGOs in Kashmir could be categorized
into local NGOs (including charity-based organizations), national NGOs, international NGOs (INGOs) and
state-sponsored NGOs.148 The charities that arose at the onset of the armed conflict in 1989 to help the
victims of violence gradually started to organize themselves as professional organizations. Most of the
national and international NGOs work through these organizations in Kashmir.

There are very few formal and professional local NGOs in Kashmir. The local NGOs work on issues
relating to health, education, and womens and childrens rights. Funding is a major issue except for
charities. Slowly, however, local NGOs are establishing themselves as important stakeholders. Many
national NGOs have also been working in Kashmir since 2005. They run various projects and work with
local NGOs.149 However, local NGOs are apprehensive about collaborating with national NGOs due to a
lack of trust since some of the national organizations work as proxies for different government agencies
in Kashmir. National organizations may also hold a more nationalist-oriented perspective than many of
their local counterparts in Kashmir.150

The work of the very few international NGOs present in Kashmir is limited to humanitarian aid during
natural calamities. Access for INGOs wanting to work in Kashmir has always been difficult. Some INGOs
work through local partners while others work in partnership with the government, which leaves them
with limited scope and access. The obligation for international human rights organizations operating in
Kashmir to sign MoUs with the government restricts their mandates.151 Kashmir has the lowest amount
of approved international funding in India. INGOs working in Kashmir are tied to specific projects and
once the projects end, the INGOs have to leave with little provision for ensuring the sustainability of
their work.152

145
146
KI-M-KAS-2 and KI-M-KAS- 9

KI-M-KAS-9
148
KI-M-KAS- 1, KI-M-KAS-2, KI-M-KAS- 6 and KI-M-KAS- 9
149
KI-M-KAS-2, KI-M-KAS- 6 and KI-M-KAS- 8
150
KI-M-KAS-2, KI-M-KAS- 6, and KI-M-KAS-9
151
KI-M-KAS- 6, and KI-M-KAS-9
152
KI-M-KAS- 2
147
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23

Indian agencies are seen by some as sponsoring NGOs in Kashmir to advance their own agendas and
interests and sometimes with the aim of neutralizing the impact of the work by other NGOs working on
fundamental rights in Kashmir.153 Operation Sadbhavana, initiated and run by the Indian Army in 1998,
provided a total of 2.76 billion Indian Rupees for schools, orphanages, constructing roads and bridges,
installing hand pumps for drawing water, and providing medical care.154 Many have questioned the
credibility, or advisability, of the army running this welfare program in the context of conflict since the
army is viewed as a main protagonist in the armed conflict. These programs, according to many, create
mistrust between NGOs and the public, with the public viewing the NGOs as government proxies.

Working in a conflict environment has a number of challenges beyond security issues. NGOs are
sometimes considered anti-national.155 Corruption within government bureaucracy and among state
officials restricts the space for the NGOs to operate and grow in Kashmir.156 Indirect interference, such
as surveillance, limits the scope of NGOs work while the lack of funding and restrictions on foreign
funding by the state create a constant constraint for NGOS.157 NGOs face interference and harassment
from the government and are subject to suspicions by the communities as acting on behalf of the
government.158
Conclusion and Key Findings

During the period that preceded the flare up in the conflict in July 2016, the re-establishment of law and
order had been the top priority for the government in Kashmir. Other basic issues of governance,
including service provision, were secondary to the state governments main priority on law and order.

Corruption has been a major obstacle to good governance under civilian rule. While the government has
well-established departments for various services to address the citizens most fundamental rights,
there is a general lack of accountability and transparency in the functioning of these departments, a key
outcome of which is systemic corruption. The state governments recent efforts in establishing egovernance is seen by many as an initiative to minimize corruption.

Given the unique constitutional status of J&K within the Indian federal system, the state of J&K has its
own acts and legislations. Many national acts aimed at working toward good governance do not
automatically apply to J&K.

The laws enacted in Kashmir in the wake of the armed insurgency in 1989 continue to violate the
fundamental rights of people in Kashmir. On sensitive issues such as human rights and the misuse of
water resources the central government and the military are the supreme authority, leaving limited
scope for the elected governments in Kashmir to deliberate on these issues. The central programs

153
KI-M-KAS- 1, KI-M-KAS-2, KI-M-KAS- 6, and KI-M-KAS-9

Anant, A. (April 16, 2010). Transformation of Conflict: A Study of Op. Sadbhavna in J&K.
http://www.idsa.in/event/TransformationofConflictAnAnalysisofOpSadbhavanainJammuandKashmir_aanant.
Retrieved on March 29
155
KI-M-KAS- 2, KI-M-KAS- 6, KI-M-KAS-8 and KI-M-KAS-9
156
KI-M-KAS- 2, KI-M-KAS- 6, and KI-M-KAS-8
157
KI-M-KAS- 6, and KI-M-KAS-9
158
KI-M-KAS-8 and KI-F-KAS- 7
154
www.appro.org.af
24
implemented in Kashmir around various fundamental rights are generic and designed for the whole of
India, without being adapted for the local conditions and the specific needs of Kashmir.

For the most part, state-NGO relations in Kashmir are difficult. NGOs are viewed with suspicion and are
not considered to be important stakeholders in the development and progress of the state. At the same
time, some NGOs have been labeled as anti-national by government authorities. There are no
institutional mechanisms through which the government and NGOs in Kashmir can effectively
coordinate and work together. Coordination with higher-level bureaucracy and state policy makers
rarely happens.

NGO engagement with the government around human rights, which involves security forces directly or
indirectly, remains sensitive and hostile. Local NGOs and human rights activists have been targets of
harassment, interference, and surveillance by state agencies. Very few international organizations are
allowed to work on human rights from within Kashmir, with those that do having limited access because
of the restrictive MoUs signed with the state.

There is mistrust among the public about NGOs in Kashmir in part due to the state sponsoring selected
NGOs to pursue its own political agenda.

Strict control and monitoring by the state makes it difficult for NGOs to secure funding and function
independently. Foreign funding is particularly restricted for NGOs in Kashmir.

Despite these challenges both the state and NGOs recognize the need to interact and collaborate. Some
government institutions have eased the bureaucratic processes for NGOs in the last few years and have
established working relations with some NGOs.
Implications for Afghanistan

Until July 2016 the security situation in Kashmir was relatively better than that of Afghanistan, with the
levels of violence in Kashmir having seen a sharp decline. However, the challenges in the processes of
reconstruction in the two cases until July 2016 bear some similarities.

In both contexts, there is a need for the reconstruction of infrastructure and institutions and the
rehabilitation of communities that have lived, and become traumatized, through decades of turmoil and
ongoing conflict. There are significant challenges in both cases for achieving reconciliation, peace, and
reconstruction.

One of the potential lessons from the Kashmiri context for Afghanistan is that Kashmiri attitudes toward
the importance of maintaining a secular education system has helped Kashmiris to sustain their
education system, despite the pressure from militants and Hindu and Muslim religious organizations in
the beginning of the armed conflict. To a large extent, the secular approach to education has limited the
impact of religion-based propaganda from Pakistani Kashmir to aggravate religious tensions in Indian
Kashmir and thus leaving much room for contentions about fundamental rights under military rule in
Indian Kashmir.

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25
The Kashmiri case also highlights the issue of conflict-induced mental trauma, similar in many respects
to conflict-related mass traumatization of Afghans. The state, civil society, and international
development organizations need to integrate mental health into mainstream health provision in
Afghanistan, as has been done to some extent in Kashmir.

The findings from this research also point to the need for functioning mechanisms of monitoring and
accountability to curb corruption. However, the full utilization and impact of these provisions is subject
to the input and active participation of civil society and its organizations, aspects that are currently
missing in both Kashmir and Afghanistan.
Recommendations
For the Government of Afghanistan
Strengthen legislative provisions and protections for civil societys involvement in policy processes.
Intensify efforts to create and maintain an uncorrupt and independent judiciary.
Protect and enhance public access to information legally and practically.
Make every effort to protect basic services such as education, health, and formal justice from political
meddling and interference.

For Afghan Civil Society Organizations
Increase efforts to create and maintain an uncorrupt and independent judiciary.
Intensify efforts to implement Afghanistans nascent Access to Information Law, focusing on the
protection of the citizens right to utilize the Law, as a means for closer cooperation between state
and civil society.
Make every effort to resist the annulment of key protective legal instruments such as the Access to
Information Law on the account of emergency measures taken by the government to manage
insurgency or intensified conflict.
Look to the region and similar countries, such as India, for precedents, support, and lessons or tools to
be used for effective state-civil society engagement.
Build sustained, evidence-based, and popular campaigns at grassroots levels, drawing on real and
immediate community needs and issues to inform state strategies and goals.

For International Donors
Provide support for multiple forms and strategies to support civil society engagement with the state
on advancing and protecting fundamental rights.
Encourage and support strategies for regional approaches to upholding or advancing fundamental
rights.
Intensify efforts to increase transparency and accountability of both state and civil society partners
through closer state-civil society engagement and documented checks and balances systems for state
and non-state partners.
Create opportunities and support for knowledge exchange and collaboration with civil society and
state actors in other countries.
Make allowances for the lasting impact of conflict-induced trauma as a key deterrent in efforts for
closer state-civil society relations.

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26
Appendix 1: Interviewee Codes

No
1
2
3
4
5
Code
KI-M-KAS-1
KI-M-KAS-2
KI-M-KAS-3
KI-M-KAS-4
KI-M-KAS-5
6
7
8
KI-M-KAS-6
KI-F-KAS-7
KI-M-KAS-8
9
10
11
12
KI-M-KAS-9
KI-M-KAS-10
KI-M-KAS-11
KI-M-KAS-12
13
14
15
16
16
16
KI-M-KAS-13
KI-M-KAS-14
KI-M-KAS-15
KI-M-KAS-16
KI-M-KAS-17
KI-M-KAS-18
Affiliation
CSO (Research-Human Rights and Basic Rights)
CSO (Children Rights, Education)
CSO (Health)
CSO (Livelihood, Natural Resources)
CSO (Livelihood, Conflict Mitigation, and Youth
Empowerment)
CSO (Shelter, Forced Migration, Reconciliation)
CSO (Women, Children, Education and Health)
CSO (Social Service entitlements, Rural Development)
(Human Rights, and Legal Rights)
Government (Former Education Minister)
Government (Former Rural Development Minister)
Government (Former Law and Parliamentary Affairs
Minister)
Government (Official, Education)
Government (Official Health)
Government (Official Commerce)
Government (Official Social Welfare)
Government (Migrant Commissioner)
Government (Orphanage)
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27

2016 08 25 - Conflict and Fundamental Rights in Kashmir

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Afghanistan

Public Policy Research Organization

State-Civil Society Relations:

About the Researchers

About Afghanistan Rights Monitor

Advanced Cardiac Life Support

See, for example, http://www.peacekashmir.org/jammu-kashmir/history.htm

Objectives and Methodology

Historical and Political Background

The selected government institutions and ministries include:

Evolution of Civil Society in Kashmir

See for example: http://www.aljazeera.com/indepth/opinion/2016/07/centuries-oppression-kashmir-protestsindia-pakistan-160719122312549.html

Conflict and Fundamental Rights in Kashmir

Bukhari, Parvez (October 07,2013). The Eerie NGO Phenomenon in Kashmir.

KI-M-KAS-1, KI-M-KAS-4 and KI-M-KAS-9

Civilian Rule and Education

KI-M-KAS-13 and KI-M-KAS-10

Civilian Rule and Health Services

KI-M-KAS-10 and KI-M-KAS-13

Civilian Rule and Livelihoods

Food and Shelter

Civilian Rule and Food and Shelter

Women and Childrens Rights

Civilian Rule and Women and Childrens Rights

KI-F-KAS-7 and KI-M-KAS-16

innumerable violations including mass killings, extrajudicial executions, fake encounters,

Civilian Rule and Human Rights

Civil Society: Scope, Limitations, and Challenges

KI-M-KAS-2 and KI-M-KAS- 9

Conclusion and Key Findings

KI-M-KAS- 1, KI-M-KAS-2, KI-M-KAS- 6, and KI-M-KAS-9

Implications for Afghanistan

Appendix 1: Interviewee Codes

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