The state of Jammu and Kashmir has been the centre of national attention for several decades now and for all the erroneous reasons. This began in 1989, with the rigged elections which formed the basis for major political movement for self-determination and independence, in the valley, in conjunction with conflicts between the Separatist groups and the State and where both sides are accountable for committing crimes against the above suspicion civilians. Such ‘disturbances’ lead to the implementation of Armed Forces Special Powers Act, 1958 (“AFSPA”) in J&K and entered into force on 5th July 1990. With this, massive killings, disappearances, torture, sexual abuses, rapes, political repressions and also violation of right to speech and expression became an integral part of the Kashmiris daily life.
AFSPA declares that if an area is declared to be ‘disturbed’, an officer of the armed forces has power to:[1]
- After giving due warnings fire upon or use other kind of forces maybe used that can lead to death, against a person who is acting against the law and order in the disturbed area for maintenance of public order.
- To arrest without warrant anyone who has committed cognizable offences or is reasonable suspects of having done so and may we use force if needed for the arrest.
AFSPA along with Public Safety Act (“PSA”) has endowed the armed forces with enormous powers resulting in their supremacy over the judicial proceedings in Kashmir. Therefore, in the name of “public security”, army personnel can arrest without warrant and also fire upon unarmed civilians. AFSPA has been popularly termed as a “draconian law” because this Act is kept outside the scope of judicial review, thus restricting the possibility of either the victim or the family from seeking legal redress. Consequently, no one has the power to file a First Information Report (“FIR”) against the use of such violence. Reportedly, even the police authorities have been given stringent orders to not allow such reports to be filed. However, there have been instances where an FIR has been made. In such situations, the armed forces have transferred the case from the civilian tribunal to a military one. This is because military proceedings provide more leniencies and the proceedings are also not held in public and therefore, lack accountability.
AFSPA in its entirety is a gross violation of the Constitution of India. Some of the tenants of AFSPA are as follows:
- AFSPA empowers the armed force personnel to arrest without warrant, which is a clear violation of right to be informed twenty four hours prior to be arrested.
- In certain situation, AFSPA grants the use of lethal forces, like, firing upon unarmed citizens, which is in violation of our Fundamental Right to Life.
- AFSPA is also outside the scrutiny of judicial review, therefore, violating the right to move the Supreme Court of India to enforce the constitutional law.
By placing AFSPA outside the scope of judicial review, there is an imbalance of power between the armed forces and citizenry of Jammu and Kashmir and resulting in the violations of their fundamental rights and also human rights abuses.[2] Various international human rights organisation and other civil society groups have made attempts to repeal the draconian law but each time they faced with feeble responses from the Establishment.
In 2010, the armed forces opened fire upon hundred demonstrators who were stone pelting at the security forces, killing six unarmed protesters. In November 2014, five soldiers who killed the six demonstrators were awarded life imprisonment for trying to brand the demonstrators as militants for cash rewards.[3] Amnesty International has protested against the excessive use of police firing in response to the killing of three civilians in June 2015. Demonstrators had gathered in Baramulla district to mark two years of the secret hanging of Mohammed Afzal Guru. As usual the protestors threw stones at the security forces which led police force to fire ammunition resulting in the death of three youths.[4]
International Committee of Red Cross in their visit to this volatile state has found the use of torture, sexual humiliation and also the electrocution to extract information from the detainees. Such measures are explicitly against the International Bill of Human Rights to which India is a signatory. Over the years, rape has developed as a weapon of war to bring about intimidation, coercion and humiliation amongst women. The case of Kashmir is not contrary to the above statement.
The armed forces in their misuse of their power have not even spared the children. A year seventeen-year-old girl was shot on the head for participating in a protest. A seven-year-old child was killed by the Central Police Reserve Force.[5]
The Indian armed forces have been involved in over hundreds of disappearance cases and the forces have repeatedly denied having any information or custody of them. Every year, scores of Kashmiris goes missing. The wives of disappeared men are referred to as ‘half-widow’. As a result, Association of Parents of Disappeared Person was established. Over the years, their numbers have grown exponentially. On the 10th day of every month, these parents gather and protest against the disappearances of their children. [6]
5th July, 2015 marked twenty years of its operations in Jammu and Kashmir and till date not even one armed force personnel has been prosecuted for human rights abuses in civilian courts.
Political condition in Kashmir is so volatile and always in upheaval, thus leading to such gross violation of human rights. Trust among the victim families towards the state apparatus is so low that they now refuse to file reports and bring about justice. Immediate course of action would be to punish all those security personnel who are involved in such violations. Such incidents should be brought into national media focus to generate public opinion and educate the Indian masses on the political situation of Kashmir. However, one-sided stories should not be pursued. AFSPA should be bought under the purview of judicial review and also should be repealed, as it infringes every fabric of our cherished democracy.
[1] Institute of Defense Studies and Analysis. “Armed Forces Special Powers Act the Debate.” Monograph series. No.7, November 2012.
[2] Kazi, Seema. “Law and Governance in Indian administered Kashmir.” November 2012.
[3] Amnesty International. “Denied: Failure in accountability for human rights violations by security force personnel in Jammu and Kashmir. “ 2015.
[4] Amnesty International. “India: Security forces must not use excessive force against protesters in Jammu and Kashmir.” 2015
[5] Wilson, Amrit. “When will the Kashmir nightmare end?” The Guardian. July 3 2014.
[6] Ibid.
About the Author:
Dishari Rakshit
Dishari is currently pursuing Masters in International Relations at Jadavpur University, Kolkata. She finds the arena of International Relations exciting with the myriad challenging issues related to Strategic Studies, War, Foreign Policies of Major Powers. Her area of interest is Peace and Conflict Resolution.
