ENFORCED DISAPPEARANCE CONTINUES IN KASHMIR

“The security agencies after arresting a person in full public gaze during crackdowns, search operations or picking up a person from highways, often promise the relatives of the detainee safe and early release of the arrestee. However, the release rarely happens.”

Since 1990, thousands of habeas corpus petitions were filed before the J&K High Court. Yet, justice here is also delayed and thus denied. The orders passed by the judges were seldom complied by the executive, compelling one of the judges to observe in October 1994, in petition No. 850/94: “There is a total breakdown of the law and order machinery. I shall not feel shy to say that this court has been made helpless by the so-called law enforcing agencies. Nobody bothers to obey the order of the Court.”

“India’s domestic law allows impunity for enforced disappearances in states such as Manipur, Jammu and Kashmir, and Punjab. Although victims have the right to justice and the right to know the truth, the de facto and de jure immunity minimizes victims’ access to the right to justice. The perpetrators are rarely held accountable for their acts.”

The International Day of the Disappeared, on August 30 of each year, is a day created to draw attention to the fate of individuals imprisoned at places and under poor conditions unknown to their relatives and friends. Enforced disappearance is one of the worst human rights violations. Enforced disappearances have scarred communities across our country, Kashmir, Punjab, Nagaland, Manipur, Assam, and other places. In Kashmir this heinous crime is still persistent. People are wrenched away from their families by police, army and other forces of the state, who then deny that the person is in their custody or refuse to say where they are. Families are plunged into a state of anguish, desperately trying to keep the flame of hope alive while fearing the worst.

Enforced disappearances of persons are a part of the larger policy of repression, including extra-judicial killings, custodial torture, rape and forced labour. Unofficial estimates put the number of disappeared persons in Kashmir, between 8000-10,000 during 1989 and 2006. A majority of those disappeared are young men, including minors, others include people of all ages, professions and backgrounds, many of whom have no connection with the armed opposition groups operating in Kashmir. While struggling to meet economic needs in the context of the disappearance of often the sole earning member, the relatives of disappeared persons have continued to suffer constant agony and uncertainty, trans-generational trauma and post-traumatic stress disorder.
Modus Operandi of Security forces
The security agencies after arresting a person in full public gaze during crackdowns, search operations or picking up a person from highways, often promise the relatives of the detainee safe and early release of the arrestee. However, the release rarely happens. On the contrary, the arresting agency, after a few days, denies the arrest and a shocked family is made to search for its missing member for years together without any results.
Habitually the arresting agency spreads concocted stories about the arrestee’s escape from custody. The police in Kashmir, as a rule, does not entertain missing reports with regard to these persons. Though in some cases, the courts order inquiries and identify the culprits, but the culprits were not brought to book as the government of India refuses to grant necessary sanction to prosecute under Article 6 of the Armed Forces (Special Powers) Act. To hide the truth, the government has directed the police in Jammu & Kashmir not to file First Information Reports (FIRs) against security forces or record accusations of misconduct by security forces in their daily logs.
The relatives of the arrestees have been made to move from pillar to post from moving applications to the civil authorities including Deputy Commissioner and Divisional Commissioner, some of them have approached the politicians of different political parties who seemed to have been equally helpless. Rare instances apart, the police officials invariably refuse to file the First Incident Report (FIR) against the security forces. In most of the cases, the relatives have spent thousands of rupees to know the whereabouts of their missing loved ones. They have travelled to know the whereabouts of the disappeared in different jails of India like Coimbatore, Jodhpur, etc. The relatives have also travelled to different interrogation centres in and outside the state.
No Justice
Since 1990, thousands of habeas corpus petitions were filed before the J&K High Court. Yet, justice here is also delayed and thus denied. The orders passed by the judges were seldom complied by the executive, compelling one of the judges to observe in October 1994, in petition No. 850/94: “There is a total breakdown of the law and order machinery. I shall not feel shy to say that this court has been made helpless by the so-called law enforcing agencies. Nobody bothers to obey the order of the Court.”
Ten years ago, the regional as well as national press had covered commemoration of the International Day of the Disappeared on 30 August 2000, by the members of Association of the Parents of the Disappeared (APDP) and relatives of the disappeared persons. Based on the press coverage, the National Human Rights Commission had issued notice to the state government and the APDP to furnish the details. The APDP sent those details to NHRC. It appears that there has been no progress and the matter has been shelved.
The relatives of disappeared persons are struggling on individual as well as collective levels to know the fate of their loved ones. The government is refusing to acknowledge the plight of the relatives and accepting the demands of the Association. All state governments do not want to take any action on the matter. This appears to be based on the assumption that taking action against those responsible for the disappearances would lead to demoralization of the security forces.
Mass Graves
The International People’s Tribunal on Human Rights and Justice in Kashmir had investigated the unmarked graves unearthed in and around the Kashmir Valley, after documenting the existence of 2,700 unknown, unmarked, and mass graves, containing 2,943 bodies, across 55 villages in Bandipora, Baramulla, and Kupwara districts of Kashmir. Security forces have been claiming that all bodies in the unmarked graves were those of unidentified militants killed in military encounters. However, the State Human Rights Commission of Jammu and Kashmir said that 574 bodies were already identified as those of local villagers, and DNA tests would expose many more. The Jammu and Kashmir State Human Rights Commission in October 2012 had asked the state government to complete investigating the 2,080 unmarked graves in Poonch and Rajouri districts within six months. The order was passed in response to a plea filed by the Association of Parents of Disappeared Persons. Most countries would have treated this as major news, but Indian media barely noticed. Several years have passed by, yet till date there is no official closure on a grave matter concerning the un-marked graves of the Kashmir Valley.
Women Doubly Victimised
Apart from the economic and psychological dimensions of disappearances there are fall outs which have emerged as issues of considerable concern for Kashmiri society. These disappearances have caused divisions in the families. As the disappearance of the earning member of the family threatened the very survival of the whole family, several spouses of disappeared persons, who are called “half widows,” have been thrown out of marital homes, along with their children, following the disappearance. They are forced to depend on their own often-impoverished parents. This economic dependence has affected the education and the future of their children.
Majority of Kashmiri Muslims belong to the Hanafi school of thought. According to the Hanafi school of thought, a woman has to wait for 90 years to remarry in case her husband disappeared. This led Muslim Ulema of the Hanafi school of thought borrow from the Malaiki school of thought in which the woman has to wait for four to seven years, and then she can remarry. At the behest of Maulvi Ashraf Ali Thanvi, the previous stand was modified and finally the Dissolution of Muslim Marriage Act was passed in India in the year 1939. It was adopted by the state of Jammu and Kashmir in the year 1942 and since then, this law prevails in J&K. According to this law, “A woman who is the wife of a person according to Muslim law shall be entitled to obtain a decree for the dissolution of marriage on any of one or more of the following grounds: that the whereabouts of the husband have not been known for a period of 4 years.”
For women whose husbands disappear, the option of re-marriage offers some source of both emotional and financial support for themselves and their children. However, re-marriage eludes the “half widow” as Kashmiri Muslim theologians have expressed their disagreement with the law. As a result, another law was enacted later stating that such a woman whose husband has disappeared will have to wait for seven years. But, the theologians disagree over whether if the first husband comes back the first or the second marriage will be dissolved, and whether the children the woman has borne from the first or the second marriage will be considered legitimate, the women caught in this situation live under this constant stress and uncertainty about their own and their children’s future.
International Convention for Protection of All Persons from Enforced Disappearances
Although India signed the International Convention for Protection of All Persons from Enforced Disappearances in 2007, it has failed to ratify the Convention. Article 1 of the International Convention for Protection of All Persons from Enforced Disappearances places a non-derogable prohibition against enforced disappearance and defines the offence as an “arrest, detention, abduction or any other form of deprivation of liberty by agents of the State….… followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”. Till date, despite several court orders, only a fraction of the cases on disappearances have been investigated. Even though the number of disappearances has reduced in the recent past, the struggle for justice in existing and remaining cases continues.
India’s domestic law allows impunity for enforced disappearances in states such as Manipur, Jammu and Kashmir, and Punjab. Although victims have the right to justice and the right to know the truth, the de facto and de jure immunity minimizes victims’ access to the right to justice. The perpetrators are rarely held accountable for their acts. In law and practice, India does not satisfy the right to non-recurrence, as those responsible for enforced disappearances are permitted to remain in their posts and the state has not put in place policies or processes aimed at reforming the institutions implicated in these violations. Furthermore, the state has made no provisions to grant victims of enforced disappearances access to reparations. On the whole, India’s legal framework in the area of the right to a remedy for victims of enforced disappearance is weak and requires reform in order for India to meet its obligations under international law.