After the abrogation of Article 370, an increasingly autocratic and repressive regime emerged in Kashmir. The erstwhile State was reduced to the status of a union territory, with New Delhi appointing a Lieutenant Governor (“LG”) to look into the day-to-day affairs of the territory. Now, the recent amendment to the J&K Reorganization Act 2019 has bestowed even more sweeping powers to the LG (a centrally appointed executive), leaving the people of Kashmir at the complete mercy of New Delhi. Importantly, the Parliament’s move on abrogation has encouraged widespread misuse of counter-terror laws to suppress any form of dissent. Of these counter-terror laws, the Unlawful Activities Prevention Act 1967 (“UAPA”) has been instrumental for New Delhi to keep the people of Kashmir grounded. The Indian Government’s own data provides evidence of rampant and abusive use of UAPA in Kashmir. In July 2024, the Indian Home Ministry released data showcasing the number of UAPA cases registered across India from 2020 to 2022. The report revealed that out of 2,615 cases, around 947 were registered in Kashmir. This makes the total share of UAPA cases from Kashmir a baffling 37%, a State which hardly contributes one per cent to the country’s overall population.

Being charged under UAPA comes with harsh repercussions, including the potential seizure of personal property [Section 33]. Moreover, getting bail under UAPA is challenging due to its onerous conditions, leading to extended periods of detention without trial [Section 43D]. In a recent landmark ruling, the Supreme Court affirmed that “bail is the rule, and jail is the exception,” even for laws as severe as UAPA. What remains to be seen is whether the subordinate courts parallel this approach set out by the Apex Court or continue to walk a tightrope. Adding to these concerns is the recent announcement of Kashmir’s DGP to invoke an even more stringent law, the Enemy Agents Ordinance 2005 (“Ordinance”), against suspects. The punishment available under the Ordinance is limited to ‘death sentence’ and ‘life imprisonment’ [Section 3]. It risks criminalizing legitimate expressions of dissent, creating an atmosphere of fear, and potentially undermining civil liberties. Moreover, any individual charged under the Ordinance cannot be represented by an advocate without prior court approval [Section 11]. Limiting access to legal representation undermines due process and could further intimidate those charged under the Ordinance, silencing voices of opposition.

These counter-terror laws have become instrumental in supressing dissent in Kashmir. An example of this can be demonstrated by the case of Asif Sultan, a Kashmiri journalist who was imprisoned for half a decade under UAPA. He was booked for writing a newspaper column describing reasons which resulted in the rise of Burhan Wani’s (a Kashmiri militant leader) popularity. The Government’s target now has transcended beyond ‘individuals’ bringing organisations within its ambit. After declaring the Tehreek-e-Hurriyat an ‘unlawful association’ under UAPA last year, another major political outfit, the Jamaat-e-Islami, was banned earlier this year. This has forced most of its members to fight the ongoing legislative assembly elections as ‘independent candidates’ without formal political support.

International bodies, including Amnesty International and the United Nations, have repeatedly voiced concerns over laws like UAPA, citing its failure to meet international human rights standards. Similarly, a recent Human Rights Watch (HRW) report underscored India’s repressive actions, which range from arbitrary detentions to extrajudicial killings. India bears an increased responses a signatory to key international instruments like the ICCPR, which enshrines freedom of speech and expression as a fundamental human right [Article 19]. It is, therefore, imperative for India to abandon its iron-fisted approach to silence dissent in Kashmir and bring its policies in line with the standards set by these international conventions. For a lasting solution to the Kashmir issue, it is important that all stakeholders are taken in confidence instead of silencing them with institutional brutality.

The government’s response to the reported incidents of custodial violence has been inadequate. No independent inquiry was undertaken, and the concerned officers are yet to face legal action under any court of law for the deaths. Instead, the response primarily involved investigating the matter without revealing many details to the public, transferring the officers, shutting off the internet temporarily in the area, and offering monetary compensation to the victims. This highlights the lacunae in the Indian justice system regarding custodial violence by the military and the urgent need to make substantial legal reforms.

The Existing Gaps in the Justice System

Currently, India does not have sufficient statutory protections against custodial violence. This is clear from the justice system’s persistent failure to hold the relevant authorities accountable and the shockingly low number of convictions despite rising custodial violence. The current statutory provisions largely focus on police or judicial custody and ignore the custodial violence committed in military custody. Section 4(a) of the Armed Forces Special Protection Act 1958, for example, offers immunity to army officers who perpetrate violence under the veil of discharging an official duty, such as shooting based on ‘suspicion’. In addition, investigations are often carried out by the same authority (i.e. the army) that has been accused of custodial violence, resulting in a biased and non-transparent process. For example, in the recent instance of custodial violence in Kashmir, the State has released very few details concerning the outcomes of the legal and medical reports and it is the army that has ordered an investigation.

Is Ratifying UNCAT an Answer to Military Custodial Violence? 

It is critical that India materialises its commitment to the prevention of torture by ratifying the United Nations Convention against Torture, and Other Cruel, Inhuman and Degrading Treatment (UNCAT). The ratification and adoption of this Convention into domestic law would be an important first step towards solving the existing problems. Firstly, under Article 1 of the Convention, the law applies to all ‘public officials’ or anyone carrying out an official duty. This would allow for equal scrutiny of the military’s actions. Secondly, under Article 2(2) of the Convention, the military or any state authority would be unable to invoke political or social disturbances as a justification for not respecting the rights of the accused. This would prevent the military from using violence against civilians taken into custody in conflict-prone areas such as Jammu and Kashmir and the Northeast. Furthermore, the adoption of the Convention would make even an ‘attempt of torture’ (under Article 4 of the Convention) unlawful and provide greater protection to civilians in the areas where the military exercises greater control.

When State authorities perpetuate violence and go unpunished, it further alienates the State from its people.  Especially after the abrogation of Article 370, which went against the demands of the people, the government has repeatedly overstepped its powers for ‘maintaining public order’. These incidents of custodial violence reveal how imperative it is for India to take affirmative steps to minimise the State-perpetrated terror and violence in Jammu and Kashmir. The ratification and adoption of UNCAT would certainly be a good place to start.