There can be no doubt that India was denied consular access to Kulbhushan Jadhav which is a violation of his rights while Farooq Ahmed Dar, an artisan and weaver of shawls, was trussed up in the front of a jeep and paraded through Budgam district which is also a violation of his human rights. But international law is concerned with disputes between states and not with violation of individual rights who have a remedy.
The staying of Kulbhushan Jadhav’s execution on May 18 by the International Court of Justice (ICJ) at the Hague and the brouhaha which erupted over Major Leetul Gogoi of 23, Rashtriya Rifles, tying shawl-weaver Farooq Ahmed Dar to the bonnet of a jeep on April 9, 2017 and driving him around Budgam district of Kashmir bring into sharp focus the pitfalls of international law. We forget that international law is not binding on states which do not sign treaties or conventions not in consonance with their policies.
Nor is international law concerned with the rights of individuals but conflicts between member states because democracies like India have a remedy under the Protection of Human Rights Act, 1993, which was amended in 2006 and unlike other laws, applies to Jammu and Kashmir as well for matters listed in the union list and concurrent lists of the seventh schedule. These include defense of India and the military which have to respect human rights. Dar has already complained to the state human rights commission against Gogoi which proves he has accepted the efficacy of Indian laws in Kashmir.
India is sovereign within its territory and is bound to ensure that no part of it secedes by resorting to a minimum level of force necessary to keep Kashmir within the union. In the process, the human rights of individuals like Dar may be violated which is a price we have to pay for sovereignty and security of the state.
When the international court of justice stayed the execution of Kulbushan Sudhir Jadhav, a former Indian naval officer, who was abducted in Iran, tried, sentenced to death, all in secrecy by the Pakistani Army, the fact that there was a violation of the Vienna Convention on Consular Relations (VCCR) under which Pakistan was mandated to allow India consular access to Jadhav could not be doubted.
On the other hand, Pakistan claimed that it arrested Jadhav in its Balochistan province which, like Kashmir, seeks independence. Evidence shows that the Pakistanis abducted Jadhav from Iran, which has allegedly had ties with Islamic terrorists. After which he was tried in secrecy and sentenced to death on the basis of a confessional video.
Denying India consular access to Jadhav and holding a trial in secret is a violation of basic human rights because Jadhav could have confessed to crimes which he never committed under torture. At The Hague, India also invoked the International Covenant on Civil and Political Rights (ICCPR) which states that nobody can be arbitrarily deprived of his life which finds expression in Article 21 of the Indian Constitution.
Now on April 9, 2017, just one day prior to Jadhav’s arrest, Farooq Ahmed Dar, an artisan and weaver of shawls, was tied to a jeep in the Budgam area of Jammu and Kashmir and allegedly driven through 20 villages of the district with a loudspeaker warning stone throwers that they would meet the same fate if they threw stones at security forces.
Major Leetul Gogoi of the 23 Rashtriya Rifles was later given a commendation for his quick-thinking in saving the lives of others who were caught up due to the stone-throwing. Gogoi is adamant that Dar was inciting a mob of stone-throwers. Several army soldiers have been maimed or injured due to stone-throwing in Kashmir. Those who defend Dar state he was one of 88,951 people – 7% of the electorate – to have voted in the by-election for the Srinagar parliamentary seat, when he was allegedly caught by Gogoi, trussed and paraded.
Dar has complained to the State Human Rights Commission asking why the army awarded Major Gogoi, while an inquiry into the incident was still underway. He sought action against three TV news channels asking they be banned from referring to him as a stone-thrower. Human rights of individuals often violate state security and sovereignty which means a country is justified in using force necessary to quell a rebellion to keep its territory intact.
Freedom of speech cannot be used to incite a mob to riot or secede from the Indian union which is a ground for curbing press freedom and free speech. Advocating secession with use of force amounts to sedition and can attract life imprisonment. Now the point here is whether the rights of Jadhav and Dar were violated.
There can be no doubt that India was denied consular access to Jadhav which is a violation of his rights while Dar was trussed up in the front of a jeep and paraded through Budgam district which is also a violation of his human rights. But international law is concerned with disputes between states and not with violation of individual rights who have a remedy.
Hence, when India sought consular access to Jadhav, and was denied access to him, this resulted in a violation of the VCCR whereas trussing up Dar was a violation of his individual human rights under the Geneva Convention. He has already approached the state human rights commission under the Protection of Human Rights Act, 1993, which was amended in 2006. An F.I.R. lodged against Gogoi has not been quashed so that the truth has yet to emerge.
Human rights violations in insurgency areas like Chhattisgarh, Manipur and Jammu and Kashmir continue unabated but those whose rights are violated are generally those who seek to dismember India. If India is fragmented, the human rights of its citizens cease to exist.
The author holds a PhD in Media Law. He is a journalist-cum-lawyer of the Bombay High Court.
