By Azad Essa
The reported 8,000 to 10,000 enforced disappearances in Indian-administered Kashmir are just one part of a series of human rights violations attributed to the Indian government, including extra-judicial killings, torture and illegal detentions. But the Indian state has been able to side-step international human rights conventions through a series of laws that grant special rights to the armed forces in Kashmir.
Al Jazeera's Azad Essa speaks to Aaliya Anjum, lecturer in law at Vitasta Law School, University of Kashmir, about the legal framework that enables the armed forces to act with impunity in the valley.
What allows the Indian government to legally get away with using enforced disappearances as a tactic?
I suppose it is primarily because of its overwhelming military presence in Kashmir. The Indian government empowers its military through special security legislations like the Armed Forces Special Powers Act (AFSPA) and the Public Safety Act (PSA), granting them sweeping impunity for acts carried out under these laws, which in turn facilitate the bringing about of enforced disappearances and other human rights abuse.
AFSPA for instance grants the 'powers' to members of the armed forces in 'disturbed areas' like Kashmir to shoot to kill or arrest persons on the ground of 'mere' suspicion. That is not only in contravention to core human rights standards, which guarantee a fair trial, but also goes against the basic principle of Indian criminal law itself: 'One is presumed innocent unless proven otherwise'. Likewise, the PSA provides for holding the arrested person in custody without trial for up to two years, dumping fair and speedy trial guarantees.
Also, for an act done under the AFSPA, the army is immune from prosecution, in other words, trial before a court (as provided under the provisions of the AFSPA itself).Otherwise than that also, for initiating an action against a member of the armed forces, permission is needed from the central government, under Sec 45 of the Code of Criminal Procedure, which is of course never granted.
In Kashmir, many of those arrested under AFSPA or PSA never make it out of detention centers .They are held under 'incommunicado' detention (unacknowledged and secret detention) leading to enforced disappearance, tortured or subject to extra-judicial killings. Besides, slapping of PSA on even juveniles (children below the age of 18) continues to take place. There are reportedly 8,000 to 10,000 cases of disappearances so far.
What legal avenues can victims' families take to fight this scourge?
The remedy available to an aggrieved relative in such a case would be to file a Writ of habeas corpus (you have the body/ produce the body) in the state high court. But the judicial process is long-drawn, expensive and unproductive largely, with hundreds of these writs lying pending in the court.
In addition, there are many more contempt petitions waiting to be heard by the court, which seek to challenge disregard of favorable orders in such cases i.e even if the state high court quashes detentions in some cases, it is often followed by slapping of fresh PSA charges on the detainee.
What sort of opposition has there been to the AFSPA and the PSA from civil society and human rights advocacy groups?
Civil society in India as well as in Kashmir has been vehemently demanding the repeal of the AFSPA, mainly through out of court advocacy.
The opposition to AFSPA first began in context of the north-east of India, where the law was first introduced in 1958. It was extended to Kashmir in 1990, where the opposition towards the legislation became louder in street protest, media, and civil society campaigns (domestically and internationally), particularly after the discovery of the mass-graves, Amnesty International and Human Rights Watch reports on disappearances and impunity, and the killing and arrest of protestors in 2008 and 2010.
But Kashmir is a 'disturbed area', so surely India has a right to defend its borders against threats to its security?
For arguments sake, even if such a contention is to be considered, from a human rights perspective it lacks any substance. For so called maintenance of 'law and order' in a 'disturbed' area, common minimum human rights standards, as prescribed by core human rights treaties like the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and also under the UN Convention Against Enforced Disappearances (UNAED) cannot be contravened.
Not under any circumstances. India is a party to all core human rights treaties, together with UNAED and the four Geneva Conventions prescribing code of conduct in times of armed conflict.
It needs to respect the right to life, personal liberty and provide a fair and speedy trial guaranteed to all individuals it claims to govern and also 'protect' them from 'enforced disappearance'.
Do these laws fuel self-determination sentiment in Kashmir or are the laws a response to self-determination sentiment?
Human rights abuse and the denial of justice by way of these laws are seen as tools for curbing dissent and therefore suppressing the popular sentiment for freedom in Kashmir.
In that sense, they are not responsible for fuelling the sentiment for freedom to sustain it, nor has the sentiment been born out of acts resulting from these laws. As a matter of fact, these laws and the resultant abuse exist because of the sentiment for freedom.
