House confinement in Kashmir
Advocate, Jammu Kashmir High Court
All caged birds are either captured or captive-bred. Life in captivity is often a death sentence for birds, who may suffer from malnutrition, an improper environment, loneliness and the stress of confinement. Birds are meant to fly and be with others of their own kind in a natural environment. Confinement causes birds to have temper tantrums and mood swings.it can also result in” frustration, abnormalities, repetitive behaviour, abnormal grooming in which the bird picks out all of its feathers and aggressive behaviour”.
After reading the above paragraphs all I can think is about my people who have been caged for many months now and whose wings are clipped and their breaks are taped shut.
People of Kashmir have been yearning for human worth, freedom and the desire of peace, people have lost their meaning of life as they have been confined to their house for a long and now they search for ways to occupy their time which gives them temporary relief from the sufferings, loneliness, stress, frustration, abnormalities and deaths that have taken place in search of the peace, solace, human worth and freedom.
After the abrogation of Article 370 from the constitution of India on 5th august 2019, the government of India has ordered strict curfew, where no one is allowed to step outside the house in other words there is house confinement for all Kashmiris. House confinement for me is like being in prison in your own house. I am very astonish and dazed to see the present situation of Kashmir, I am not going to debate whether abrogation of Article 370 is good law or bad law but the strategies currently being developed by the present government in which they can change the law of the state without anyone rising voice or we can also say that they could not imprison all Kashmiris which will automatically led to the critical overcrowding in the nation’s prisons so the intensive house confinement sanction is imposed in Kashmir with supervision strategies like no connectivity with the world outside, strict curfews, not allowed to step outside house but with the grace of Allah they have allowed us to travel for limited purposes with special curfew pass which are given to the special and chosen ones is a bad sanction.
I think we don’t have in Kashmir what is called “Essential travel” which includes travel for work, religious expression, vocational or educational training, self-improvement programming, public service, and scheduled appointments with authorities and many more but we only have “acceptable travel.” which include shopping for necessity, banking and medical needs.
Kashmiris are isolated and removed from the outside world. There is no connection with the world outside. It is a social stigma. It is a visible symbol of disapproval from the world of humanity. The most important point is there is no nexus between the house confinement and government policy which they want to impose. Some restrictions may not withstand challenge in court also. Further, unnecessarily intrusive infringements on liberty may breed resentment and frustration, encouraging the people to resort to deceptive tactics aimed at circumventing the terms of house confinement.
I sometimes wonder what are the benefits of house confinement in Kashmir for government and after breaking my head I came to conclusion that there is an indirect savings for the government. The detune has to self-support his family for survival and also be able to pay taxes ones the confinement is over. This whole process might have taken a toll on people but important thing is government gets all the taxes and payments. Also if government had ordered to prison Kashmiri’s in jail they had to construct new prisons, which would cost much more and in this process there is staff reductions also which incorporated into estimated future savings. Hence, the potential financial benefit of a house confinement program will result in a level of monetary savings, cost of establishing and maintaining a complex prison or jail overcrowding.
The waiver of constitutional rights as a justification for the imposition of restrictive conditions has been criticized by court decisions and commentators. This criticism derives from a number of logical notions that one cannot relinquish constitutional rights. Courts have held, too, that certain rights are not waivable. Even if waivable, such rights may not be alienable; that is, “the power not to exercise the right [may not] be transferrable to another party in exchange for the benefit. As with the act of grace theory, any use of the waiver of rights doctrine to justify the imposition of house confinement is misplaced but for others House confinement is a privilege for Kashmiris because their constitutional rights are waived, they are made victims of whim or caprice, there is never a fair treatment, there liberty is limited and in case they start complaining about the terms of the arrangement then they have to go to jail.
House confinement in Kashmir does not include access to worship places like Jamia Majid or Dargah or any place of similar nature, even on Eid people were not allowed to go these places to offer nimaz, the state have coerced and waived the right to freedom of worship guaranteed by the constitution of India. A failure to include permission to travel for religious purposes inevitably curtails the rights under the constitution of India because abridgment of religious freedoms has not been tolerated in the detention context; all instances of house confinement should be permit to travel for religious purposes without strict pre authorization. Courts should not deny a person freedom of religion, either in a house confinement program or in a less restrictive program. The state can advance no compelling reason to justify such restraint. The power of government to withhold benefits from its citizens is an arbitrary deprivation of constitutional rights. Prisoners have a right to observe their religious faiths; similarly, in the house confinement setting, the state must provide the Kashmiri’s with reasonable access to places of worship.
Restriction on Freedom of Association also includes rights to petition, speech, press, and assembly so restriction on these rights results in a deprivation of association with family members, political or civic groups, and religious organizations. Thus, house confinement may result in broad associational bans. The house confinement regime imposed on the people must be flexible enough to protect the right to political and cultural association. This flexibility is particularly important in house confinement programs because such programs isolate the confine from political or cultural activity that may have been integral to the individual’s sense of identity and autonomy. An inclusive ban on associational rights resulting from strict house confinement conditions would also not survive scrutiny under the impact analysis compelled by (the “Consuelo-Gonzalez standard”).
Even those who are sentenced to house confinement should enjoy the same range of constitutional protections as common person in India .It is the duty of government to adopted a broader standard that examine the relationship between the legislative purpose and the specific confinement condition, weighs the public interest in imposition of these condition against any impairment of constitutional rights, and consider less restrictive alternatives “narrowly drawn so as to correlate with the purposes contemplated by conferring the benefit. This test (the “Consuelo-Gonzalez standard”) utilizes a balancing process that weighs the practical needs of the probation system against the constitutionally protected guarantees of the Bill of Rights. If the infringement of liberty interests is “substantially greater” than necessary to achieve the purposes of sentencing, then the given regime of supervision is impermissible Because of the highly restrictive nature of house confinement, this has always resulted in the constitutional violations of human rights in Kashmir like imprisoning its population in their homes and cutting off their phone, internet connections, rendering them without news of the world or their loved ones. Thousands of Kashmiris have been arrested and thrown into prisons across India.
I want to conclude by saying Kashmiris have suffered a lot under the sanction of house confinement by the government. It is high time for the authorities and people around the world to consider the needs and rights of the people. To give them what they have been yearning for, human worth, freedom and the desire of peace. It is the time to set all the caged birds free. We all should work for lasting and just peace in Kashmir.
(The author is a practising advocate at J&K High Court, Srinagar and can be reached at email@example.com )