Draconian, undemocratic and a human-rights violation: David Kaye, UN rights-expert, on Kashmir

Over three weeks have passed since Jammu and Kashmir has been under a communications blackout, and an internet shutdown, with mobile phone networks suspended, and Kashmiri and cable television services cut off. On 5 August, the Narendra Modi government revoked the special status granted to Jammu and Kashmir under Article 370 of the Indian constitution. Since then, the Valley has been reeling under a security clamp down, with heavy deployment of security forces, severe restrictions on movement, and large-scale detentions across the region. On 22 August, a group of five United Nations human-rights experts issued a statement asking the Indian government to end the crackdown on freedom of expression, access to information and peaceful protests in Kashmir.

David Kaye, the United Nations special rapporteur on the promotion and protection of the right to freedom of opinion and expression, was one among the UN experts who urged India to end the communications shutdown. Kaye spoke to Nileena MS, a reporting fellow at The Caravan, about the situation in Kashmir, the obstacles he has faced from the central government as a special rapporteur, and how it reflects on Indian democracy. “A part of the consequence of shutting down communication and internet is to enable the government to have control over the narrative of what is happening in Kashmir,” Kaye said. “That is a real disservice to the people in Kashmir and the whole of India.”

Nileena MS: Earlier this month, in response to a speech by the prime minister, Narendra Modi, on India's recent steps in Jammu and Kashmir, you tweeted about a formal request you had made in July last year. You had sought permission for an official visit to India to evaluate the nature of freedom of expression here. Could you elaborate on the procedure followed in such an evaluation?
David Kaye: One of the regular responsibilities of any UN special rapporteur is to conduct visits to member countries of the UN. We then report on our visits back to the UN Human Rights Council. In order to conduct visits, we need to make a request to the government, the government needs to agree and we need to agree on dates for the visit. I make requests like these all the time. I typically conduct visits a couple of times every year.

My request to India is no different than any of our other requests to other countries. What I would do on a visit includes a number of things. I would examine the legal framework for promoting and protecting freedom of expression, both online and offline. I would also examine the implementation of those rules. That would include intensive conversations with the government, hopefully with senior officials of the government, and also with agencies and departments that are responsible for things like protection of journalists or broadcast or promotion of open and free internet. It could also involve discussion with law enforcement bodies who are concerned, for example, about the use of the internet and reporting that might lead to violence.

I would also have extensive discussions with the civil society, including non-governmental organisations, activists, academics, and journalists who actually experienced and participate in the politics and culture of the country, and who could help me understand the nature of freedom of expression in the country. It would be no different than what we do in any other country.

NMS: How has the government responded to your request?
DK: I have not had an official response from the government. I have had a good meeting with the government's mission in Geneva in June [this year]. But I had not got a formal response to the request.

NMS: If granted permission, what do you plan to do in the context of the recent developments in Kashmir?
DK: I want to emphasise, my request to visit India is not dependent on India’s agreement that I visit any particular part of the country. Of course, the situation in Kashmir is critical now, and I would want to visit Kashmir. I would want to have discussions about the situation of freedom of expression in Kashmir with the government. But my request goes beyond the situation in Kashmir. It would be an opportunity to discuss with the government and the civil society on the entire range of free expression issues in India, including in Kashmir but not limited to it.

NMS: How have other countries responded to such requests?
DK:. Some of the countries that I visited are firmly in the democratic space like Japan and Mexico. I had visited very problematic countries like Turkey and Tajikistan, where there is very deep repression of freedom of expression and journalism. My approach is to visit countries that are across the spectrum in terms of their compliance with human-rights law. When I make such requests to democratic countries, it has been rare for them to refuse. Generally, countries that have a strong and confident approach to implementing human-rights obligations have been willing to entertain visits, not just from me but from other UN rapporteurs as well.

NMS: Why has the UN rapporteur on freedom of expression never done such a visit to India?
DK: That is notwithstanding the fact that the very first special rapporteur on freedom of expression was from India. I find that disappointing. I think you have to ask the government authorities in India. I don’t know why that is.

I had made the request last year, and my reason for doing so was really because India is the self-proclaimed world’s largest democracy. It has a very strong constitutional law protecting freedom of expression, protecting online and offline rights to free speech. So, India is an obvious place for [a] visit and assessment. I think it is a real gap in our understanding of freedom of expression generally not to be in a position to conduct a visit to India.

NMS: How do you look at the recent developments in Kashmir? Especially considering that the government has taken severe steps to clamp down on dissent, including a communications blackout.
DK: I find them really deeply disturbing and a real grave concern. The government has repeatedly over the last several years shut down the internet in Kashmir, particularly around times of protests.

There is no question that the government has a responsibility to maintain public order and to protect the right to life and other human rights values in Kashmir. But the shutting down of internet and the current situation is really quite draconian. Shutting down all communication is a disproportionate interference with the freedom of expression of people in Kashmir. It is as also an interference with the people of India’s right to information about what the government is doing and what is happening in Kashmir. For a democratic country to do so is quite unusual and unprecedented.

NMS: The United Nations Office of the High Commissioner for Human Rights, or OHCHR, has released two reports on the situation in Kashmir, in which it has pointed out that the Indian government had repeatedly imposed restrictions on telecommunications networks, internet services and media freedom, apart from other human-rights violations. India has rejected both reports. As a special rapporteur, how do you respond to this?
DK: I was not involved in the drafting of these reports. I think they have accurately captured, certainly my concerns and those of many in the human-rights community, who see the clampdown on expression and the overall clampdown on public protests in the country as being deeply problematic. It is not only problematic under human-rights law, but also counterproductive. What this kind of repressive approach leads to, in many respects, is an alienation of Kashmiris from the government, creating a sense of being disempowered and lacking control over their own destiny. That is a counterproductive way to approach any kind of thinking around reconciliation and peace in Kashmir.

NMS: You mentioned that the current situation in Kashmir is unprecedented. Given the circumstances, what can a special rapporteur do?
DK: I am an independent expert on freedom of expression appointed by the UN. I can only identify concerns that I have and make calls for a change in policy—that means change by India in lifting the blackout on communications and so forth. It also means calling on other member states of the UN, and the UN as a whole, to take a strong position in favour of the [Kashmiris’] right to protest and the freedom of expression. Unfortunately, we haven’t seen the UN stepping up in this matter. I find that part strongly disappointing. I can only continue to urge action by the UN. I don't actually have control over the UN, certainly not the political bodies like the General Assembly, the Human Rights Council or the Security Council.

NMS: But how would you like to see them respond to the situation in Kashmir?
DK: I would like to see the political bodies, including the Security Council and General Assembly, recognise that assaults on communications amount not only to a violation of human rights, as they have in the past, but also potential threats to peace and security. Certainly, I would like to see these bodies echo the position taken by many experts and condemn the communications shutdown in Kashmir.

NMS: On 16 August, the UN Security Council held a closed-door meeting on the Kashmir developments. What do you think of the UNSC’s response to the situation?
DK: I think it is important for the Security Council to go beyond closed-door meetings. If they take their role as a central international body [with a mandate] to maintain international peace and security [seriously,] they should also recognise the attacks on the media, the people of Kashmir, on [the] freedom of expression in Kashmir. Those are inconsistent with a long-term future of peace and security in the region. I would hope that the UNSC take a stronger position. I am not confident that it will happen. But, given its position, it should take a stronger view.

NMS: In the context of the ongoing protests in Hong Kong, you have stated that disinformation is a form of censorship. In Kashmir, too, the government has projected the image that Kashmiris have happily accepted the centre’s decisions and the Valley is calm and peaceful, whereas the ground reports present a contrary picture.
DK: It is especially important for governments to not engage in disinformation. A part of the consequence of shutting down communication and internet is to enable the government to have control over the narrative of what is happening in Kashmir. That is a real disservice to the people in Kashmir and to the whole of India. It is true that information is getting out of Kashmir, but it is not happening in a way to enable the people in Kashmir to access the truth. In the absence of media, it enables government to say, “this is what is happening.” That is not the way we expect information to be shared in a democratic society.

NMS: How do international law and legal conventions, such as the International Covenant on Civil and Political Rights, address situations as the one in Kashmir? What can the UN and other international bodies do?
DK: This is a really important question. The human-rights law [referring to the Universal Declaration of Human Rights, adopted by the UN General Assembly in December 1948] is binding on India just like all [other] member states of the UN. It requires the government to protect everyone’s right to seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any media. That is the requirement on states to protect the freedom of expression.

The year since the Universal Declaration of Human Rights was adopted and the International Covenant on Civil and Political Rights was ratified by India, the international community—in the form of the General Assembly and the Human Rights Council—have repeatedly said that they condemn the shutdowns of internet and blackouts of communication. Those things are not consistent with the freedom of expression. International law is not fuzzy in this space. It is very clear that these kinds of blanket shutdowns are disproportionate and inconsistent with international human-rights law.

NMS: But India’s performance in these areas has not been very encouraging—it witnessed the maximum number of internet shutdowns in South Asia in 2017–18, according to a report prepared by the International Federation of Journalists, in association with UNESCO. India ranks 140 out of 180 countries in the World Press Freedom Index.
DK: These indexes are valuable tools for NGOs and the civil society to evaluate the compliance with the human-rights law. But I think if we look at the question of communication and internet shutdowns alone, it reflects very poorly on the government’s approach to enabling democratic rights and freedom of expression, particularly in Kashmir. But I want to emphasise that it is not only about Kashmir—it is certainly about denying the people of Kashmir the right to freedom of expression. It is also about the people of India and around the world—their ability to communicate with the people in Kashmir and to get information from Kashmir.

NMS: You took charge as the special rapporteur in August 2014. How do you look at the status of freedom of speech and expression in India in the last five years?
DK: I won’t be able to give a full overview, because I haven't visited the country, right? I could answer this question more effectively if I were to visit the country, talk to the government [and] civil society, and do it in a way that allows a full evaluation. At the moment I am not able to that.

But I would say that the increase in internet shutdowns in particular is a real concern and it shapes the way that I think about [freedom of expression in India]. In 2015, the Indian Supreme Court issued a ruling [in the case of Shreya Singhal vs Union of India] that is very strongly protective of the freedom of expression online. So the situation in India is not problematic across the board. There are efforts within the legal system in India to protect the freedom of expression.

NMS: What do you expect will happen in the UN General Assembly in late September when both the Indian and Pakistani prime ministers Narendra Modi and Imran Khan are expected to speak?
DK: This is something that I cannot predict. I would imagine, however, that the issue of Kashmir, including the communications blackout, will be on the agenda.

This interview has been edited and condensed.