This report examines the adequacy of legal process afforded to victims bringing human rights claims against the government; it seeks to assess whether the Kashmiri judicial system operates in accordance with international human rights standards. The report examines two types of human rights claims—affirmative claims against the military and habeas corpus petitions—by describing the legal process required to bringing such claims and identifying where the legal system falls short of international human rights norms in adjudicating these claims. The failures of the judicial system are both structural, such as jurisdiction requirements and misallocation of resources, and operational, such as the failure of courts to enforce their orders. Yet the failure of the judicial system is also the responsibility of actors beyond the courts. At various points during the legal process, military and executive agencies act to undermine its efficiency and equity.13 Legal proceedings brought against security forces rarely reach a trial; nearly all claims end, usually against the wishes of the plaintiff, long before the parties enter a courtroom. This report attempts to identify the nature of these failures and how the judiciary could act to remedy them.

This report seeks to complement existing human rights reporting on Kashmir in three ways. First, instead of focusing on de jure impunity—or how existing draconian laws enable security forces to commit human rights abuses with impunity—this report focuses on de facto impunity by highlighting the ways in which the legal process, in practice, fails to adequately respond to human rights claims once they have been brought. Second, in contrast to the victim-centered nature of previous reports that focus on documenting abuses, it offers a process-centered approach that tracks how human rights claims travel through the legal system. Third, it proposes incremental recommendations targeted at Kashmiri actors that supplement those in previous reports, which have primarily been directed to the governments of India and Pakistan.

The pattern of legal breakdowns in Kashmir violates basic tenets of international human rights law. Litigants routinely ask the Kashmiri court system to respond to claims against security forces for human rights violations that include allegations of assault, torture, rape, extrajudicial killing, and arbitrary detention. In becoming a party to key international human rights treaties, India undertook to ensure that effective remedies were available to the victims of such human rights abuses.20 As part of a remedy for gross human rights violations, India may be required to effectively prosecute perpetrators. Research for this report indicates that India fails to meet its international obligations in Kashmir. Government actors systematically fail to investigate claims, refuse to participate in investigations and prosecutions, and ignore the contempt orders of courts attempting to force their participation in proceedings concerning human rights claims. The Kashmiri court system is riddled with delays and backlogs that deny victims effective remedies. It also applies procedural double standards for claimants and the military that are favorable to the latter. By failing to ensure effective remedies to the victims of human rights abuses in Kashmir, India violates its international treaty obligations.

The rights of detained persons are systematically ignored in Kashmir. The government disregards its own standards governing detention, refuses to honor court orders quashing detention, and exploits procedural impediments to avoid presenting detainees in court.26 The court system is slow to process detainees’ claims, and judges routinely fail to question the government’s authority to detain. They also fail to issue contempt citations to government actors who ignore orders to release detainees. India violates its treaty obligations and basic principles of human rights law by detaining people for lengthy periods without allowing them an opportunity to effectively challenge their detention in court.

Although the Kashmiri judiciary attempts to review independently the actions of other branches of government, the judiciary exists within a highly sensitive conflict situation, where executive and military prerogatives are regarded as sacrosanct. Many lawyers of the Jammu and Kashmir Bar Association reiterated that the judiciary functioned as if it were a branch of the Indian executive, whose longstanding official position is that Kashmir is an atoot ang, or integral part, of India. As such, the Kashmiri judiciary, despite its purported independence, has played an instrumental role in ensuring the Indian government’s ability to maintain its control over Kashmir and combat militant separatist groups operating in the region. A prominent Kashmiri human rights lawyer went as far as to suggest that after the security forces, judges were the second most culpable group for the human rights situation in the state.