Wednesday, January 20, 2016

Kashmir's half-widows: "Gender neutral" international, Indian, Islamic laws fail to address women's plight

By Our Representative
A recent interview-based policy paper says that, not just Indian laws, but even international laws, as also Islamic jurisdiction, fail to address the plight of an estimate 4,000 to 8,000 half-widows of Kashmir. They are called half-widows because their husbands have “disappeared” in strife-torn Kashmir Valley, never to return.
Their problem becomes even more vulnerable because, the policy paper says, India has not ratified the UN convention enforced disappearances (CED) or accepted its jurisdiction. It indicates lack of India’s willingness to prosecute the crime of enforced disappearances in Kashmir.”
Titled “The Plight of Kashmiri Half-Widows”, by Deya Bhattacharya, released by the Hindu Centre for Politics and Public Policy” (2016), the policy paper is based on interviews with what 55 “half-widows” in November 2014 and another 35 between May and August 2015 in Srinagar, Bandipore, Budgam and Kupwara district.
The paper regrets, appallingly, even the “international law makes it difficult to define the half-widow as an isolated victim, independent of the continuous crime of enforced disappearance that her husband was a direct victim of, thereby establishing the primary victim/secondary victim dichotomy.”
This is because, says the paper, “Except for the CEDAW (Convention on the Elimination of all Forms of Discrimination Against Women, an international treaty adopted in 1979 by the United Nations General Assembly), all the instruments adhere to a strict gender-neutral manner of defining harms.”
Suggesting that even the community to which majority of half-wives belong provides little help, the paper says, “Under Islamic jurisprudence, a widow with children gets one-eighth of her husband’s property. A widow without children gets one-fourth. A half-widow, till her husband is declared dead, gets nothing.”
It adds, “Islam encourages remarriage, and it would probably make sense for half-widows to get remarried so that their vulnerability is not exploited. However, not many widows prefer to remarry.”
As for India, the paper says, “Enforced disappearance is not a codified crime under any law either in Jammu & Kashmir or in India. Despite a number of international conventions and a customary international law that prohibit the crime of enforced disappearance, it will be practically impossible to make these applicable in India unless it ratifies the treaties and/or makes a legislation on the same.”
The paper underlines, “The state has not acknowledged the crimes by its agents, and has repeatedly maintained that the whole Kashmir affair has been something of a ‘proxy war’ with Pakistan”, adding, “It maintains that there is heavy terrorist activity in the area, and that laws like the AFSPA (Armed Forces Special Powers Act) are necessary in the interests of national security.”
Even the ex-gratia relief mechanism is faulty, as is not backed by law, but by a government official order, the paper says. The half-widow must apply to the district magistrate for ex-gratia. Application goes to the district screening-cum-coordinator committee”, which must “ascertaining whether the disappeared person can be presumed dead.”
Interestingly, the paper says, the “committee is in no way an impartial one — it is constituted of officials and representatives from the police, the security forces as well as governmental agencies. Many a times, the committee might comprise the same people who perpetrated the crimes.”
The result is that the interviewed women say that, while the security forces claim to share classified information about the whereabouts of their husbands/sons “a class of ‘messengers’ has sprung up and made a business out of this desperation, charging exorbitant amounts.”
And, many a time, women are subjected “sexual harassment, during their search for their husbands, remain silent about the ways in which the state or non-state actors have violated their private spaces…”
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Click HERE to download the paper

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