Laws of ‘Injustice’
During past 28 years of conflict in Kashmir the governments, both union as well as state, have allowed use of draconian laws like AFSPA & PSA which are volatile of basic human rights
At the time of partition of Indian sub-continent in 1947 there were 565 princely states. J&K being one among them saw itself in a web of conflict between two nations, India and Pakistan, right from the day one of the partition. The seeds of the conflict were sown by the Maharaja Hari Singh by delaying the decision regarding the future of Kashmir. The conflict got further stretched due to the tribal invasion of Kashmir from Pakistan. Finding no other way Maharaja approached India for military aid which it agreed to provide but in return Maharaja had to sign the instrument of accession with India, which stands controversial ever since. The conflict over Kashmir between the two nuclear powers is the longest running conflict of the world. Both the nations have fought war over the territory on three different occasions but on all the occasions the solution remained a distant dream. Apart from the part time solutions of 1 January 1949 and 1972 which resulted into the emergence of ceasefire line and line of control between the two nations in Kashmir, no permanent solution has emerged out for the problem till now.
Instead the territory has only saw the division of land among three nations India, Pakistan and china. The territory controlled by India about 81954 square kms is comprised of different communities, Muslims who constitute a majority in Kashmir had three types of voices, one who want independence, second who want to be with Pakistan and third who think India more sophisticated. Under all these versions and voices Kashmir is searching for the peace. Year by year the government of j&k claims the state to be peaceful but the truth is otherwise. Instead of justice and peace, Kashmir is packed with violence, human rights violation and injustice. Human rights abuses in J&K range from mass killings , forced disappearances, torture, rape, sexual abuse, political repression, heightened militarization, suppression of freedom of speech, surveillance, arbitrary detention to absence of justice as a whole. The Indian armed forces and various militant groups have been accused and held accountable for committing severe human rights abuses against Kashmiri people in general.
AFSPA & PSA: laws of social injustice
AFSPA is having the long history in India. It was introduced in its crude form by British government in India during First World War. During the 1942 quit India campaign British government applied the act with full vigor to suppress the movement. For British government the Act was a tool of barbarism and injustice. After the independence, in Indian context the Act took heavy toll on eastern states and J&K. AFSPA was applied over Kashmir in 1990 after it being declared as the disturbed area. The J&K Armed Forces Special Power’s Act (AFSPA) and the Public Safety Act (PSA) are the outcome of the privileging executive and military authority over legal and judicial process in Kashmir; their selective application in Kashmir highlights the gap in legal process between Kashmir and India. AFSPA violates Indian law on various levels. Arrest without warrant is violation of the right to be informed of the reason for arrest and to be produced before a magistrate within 24 hours after being arrested broadly violates Article 22 of Indian constitution. Allowing the use of lethal force –violates the constitutional right to life and is violation of Article 21. AFSPA classifies all assemblies as unlawful, thereby justifying the dispersal of legitimate, peaceful assemblies by coercive force. AFSPA also violates international human rights law including the right to life, the right to be free from arbitrary deprivation of liberty and from torture and cruel, inhumane or degrading punishment affirmed in the international convenient on civil and political rights (ICCPR) to which India is a signatory. AFSPA provides impunity to security forces which resulted into the enforced disappearances, extrajudicial killings, fake encounters and mass graves. It also violates the right to privacy. Without any warranty armed men can search any house or vehicle. The very parallel, in violating the legal laws to AFSPA is PSA. Since 1978 PSA is serving as a tool to the state administrative machinery to detain people without any trial. PSA openly violates democratic judicial system of country by not providing any appeal/trail process to detainee. Portal statistics shows that between 2016- 2017; over 726 persons were held under PSA. Detainees are mainly political activists, stone pelters and members of civil society. They are often put to unofficial interrogation and illegal torture during which they are given no access to lawyer or to any official. Both the acts contain such an ambiguity and vagueness regarding their operative provisions that often punitive action by armed forces and executive authorities against civilians are question marked which need to be. Is Kashmir still is a disturbed area? Does it still need an AFSPA? These question are often raised by people on social media platforms and are sometimes politicized.
Since 1947 Kashmir has remained under the shadow of arms and ammunition. Kashmiris who are familiar with the turbulence indulged into the armed struggle against Indian rule in 1989.This new phase of struggle however resulted into the episodes of social injustice through several precincts in the valley. Disappearances, fake encounters, rape and mass killings are few eye openers of foul played by the forces. The laws like AFSPA, PSA are the main stimulants to the social injustice in Kashmir .On one hand it is armed men and on the other hand, local militant ranks are equally responsible to social injustice in the form of forced marriages, ransom money and portrayal of a common Kashmiri as an informer (mukhbir). With valley searching for the peace, social injustice and prejudices are bound to happen. Kashmir is a live example where the rights of the people have suffered.
Enforced disappearances, fake encounters & gender violence
Enforced disappearances and extrajudicial killings in Kashmir resulted into the coining of a new term half-widows. The half-widows are the wives of disappeared, who don’t know whether their husband are dead or alive. These half widows illustrate the dark form of insecurity in Kashmir on one hand and grave political failure on the other. There are more than 1500 half widows in Kashmir, thousands of enforced disappearances and huge number of extrajudicial killings. For all such brutal deeds security forces are blamed which they always deny. A 2010 US state department report cited extrajudicial killings by security forces in areas of conflict such as Kashmir as a major human rights problem in India. Thousands of civilians across Kashmir have been reported to be extra judicially executed by Indian security forces which they always concealed and these termed to be fake encounters. Fake encounters are those killings in which security men kill someone in cold blood claiming that the casualty occurred in an encounter. There is a big list of fake encounters in Kashmir. Machil fake encounter, Chattisinghpora and Pathribal fake encounter are the recent examples. Another horrifying reality of military insurgency in Kashmir is the huge number of unidentified mass graves which has been found all over Kashmir. State Human rights commission inquiry confirmed that there are thousands of bullet-ridden bodies buried in unmarked graves in J&K. Kashmir has a total of about 6000 unmarked graves and not all these graves are of foreign militants. Out of 2730 bodies which were uncovered in 4 districts of Kashmir 574 bodies were of missing locals. During past 27 years Kashmir witnessed rape incidents at the hands of armed forces on mass level and on individual basis. It is a grim fact that in some cases militants were also involved but proportionally it is less than those committed by the security forces. Right from 1990’s security forces use it as a tool to suppress the people in valley. On 23 February, 1991 Indian army during CASO at Kunan Poshpora village in north Kashmir, gang raped almost whole village women during night till next morning. There were no considerations of age, marriage, pregnancy etc. Victims of this incident range in age from 13 to 80. In a stark contrast of the allegations of abuses, Indian investigations concluded the allegations themselves are grossly exaggerated or invented. In 2009 May bodies of two sisters–in-law, Neelofar Jan and Asiya Jan aged 22 and 17 years respectively were found in a highly militarized zone in Shopian. In the wake of mounting public outrage and protest doctors confirmed rape. In 1992 alone some 882 rape incidents occurred in Kashmir. The tragedy of sexual abuse in Kashmir demonstrates the systematic denial of justice for sexual crimes against women by state administrative authorities. The question which arises here is whether rape is really an instrument/strategy of war used in Kashmir? To judge it let we visit some important reports; William Baker at the 52nd UN commission on Human Rights stated that rape in Kashmir is an active strategy of the forces to humiliate and intimidate the Kashmiri population. Amnesty international also states the same thing in its report on violence against women in Kashmir in 1992. Rape has been considered by Human Rights Watch as a method of retaliation against Kashmiries during reprisal attacks after militant ambushes. Inger Skhjelsbaek and Shubh Mathur traces it an element of armed strategy in Kashmir to this Seema Kazi adds a new word “cultural weapon of war”. For Molen and Bal it was deliberate act of security forces to dishonor Kashmiri men for failing to save the honor of their women. Benazir Bhutto in her address to the fourth world conference on women at Beijing in 1995 called the use of rape as a weapon of war in J&K. Kanhaiya Kumar recently remained as a centre of controversy after speaking out on the rape of women in Kashmir by forces as a war strategy. Regarding the rape incidents the matter to worry according to Amit Ranjan is the Indian state always sided with military and not the victim. To Christine De Matos and Rowena ward officials always follow a pattern of labeling the victims as militant sympathizers. To a common analyst of Kashmir the root cause to all these atrocities is the AFSPA which provides impunity to the men in uniform.
Blurbs: Enforced disappearances and extrajudicial killings in Kashmir resulted into the coining of a new term half-widows. The half-widows are the wives of disappeared, who don’t know whether their husband are dead or alive
Since 1947 Kashmir has remained under the shadow of arms and ammunition. Kashmiris who are familiar with the turbulence indulged into the armed struggle against Indian rule in 1989.This new phase of struggle however resulted into the episodes of social injustice through several precincts in the valley. Disappearances, fake encounters, rape and mass killings are few eye openers of foul played by the forces
The J&K Armed Forces Special Power’s Act (AFSPA) and the Public Safety Act (PSA) are the outcome of the privileging executive and military authority over legal and judicial process in Kashmir; their selective application in Kashmir highlights the gap in legal process between Kashmir and India