India has been able to side-step human rights conventions through a series of special laws for their armed forces.Activists argue that the AFSPA protects Indian forces from being prosecuted for crimes in Indian-administered Kashmir.
Srinagar 18 April:
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, a 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 because of its overwhelming military presence in Kashmir. Like all other forms of human rights abuse, the Indian government through its military, can easily side-step what is required of them under international human rights standards, which they are bound to adhere to.
Legally speaking, the sweeping impunity accorded to them under special security legislations like the Armed Forces Special Powers Act (AFSPA) and the Public Safety Act (PSA) facilitates the carrying out of enforced disappearances, like other violations of human rights guarantees.
The law provides the ‘power’ to members of the armed forces in ‘disturbed areas’ like Kashmir to shoot at people on the grounds of mere suspicion, or to arrest them without a warrant on the basis of suspicion.
The PSA provides for holding the arrested person in custody without trial for up to two years. Many of these guys never make it out of the prisons. They are either tortured and killed in custody and their whereabouts never revealed to their relatives, or subjected to extrajudicial killings.
What legal avenues can victims’ families take to fight this scourge?
There have been at least 8,000 cases of enforced disappearance in Kashmir [Showkat Shafi]
The remedy available to an aggrieved relative in such a case would be to file a writ of habeas corpus (produce the body) in the state high court. But the judicial process is lengthy with hundreds of these writs lying pending in the court.
Then, even if the court passes an order [to] release a person, the orders are either disregarded by the army or the person whose detention is quashed is rearrested by slapping fresh PSA charges on him.
Also, if the arrest has been made under AFSPA, the army is immune from prosecution, in other words, trial before a court (as provided under the AFSPA itself).
Remember, 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.
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 toward the law first began in the context of the north-east of India, as it was first introduced in that region.
In Kashmir, opposition to the legislation became louder 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?
From a human rights perspective, making people disappear goes against 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 most importantly the UN Convention Against Enforced Disappearances. India is a party to all three and needs to respect the right to life, personal liberty and a fair and speedy trial guaranteed to all individuals governed by it 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?
Disappearances continue to happen, and [the] 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.
The denial of justice in this case like all other human rights abuse is seen as a tool for suppressing the popular sentiment for freedom in Kashmir.
In that sense, it does not fuel the sentiment for freedom to keep it running, or does not cause that sentiment to exist in the society; in fact disappearance or human rights abuse exists because of the sentiment for freedom.
Publish Date: 19-04-11 10:58 AM