Almost total impunity for "enforced" disappearances in J&K: Practice was first used in World War-II

By Syed Mujtaba Hussain*
Enforced disappearance is the most offensive form of human rights violation. It inflicts intolerable pain on the victim’s body, mind as well as spirit. Besides that, it creates separation among parents, relatives and children’s because they do not know whether their loved ones are alive or dead. They feel fear for their safety, economic deprivation, legal injustice and social isolation.
The tool of enforced disappearance was born as a practice during Second World War. However, this practice has now turned into a worldwide exercise. Over a few decades millions of people have disappeared in Cambodia, Latin America, Iraq, Rwanda, Sri Lanka, Indonesia, Philippines, Baluchistan and Jammu and Kashmir (J&K).
India has not made enforced disappearances a specific criminal offence in its penal code. As a result, families of the “disappeared” file complaints under more general provisions of the Code of Criminal Procedure and Penal Code. For example, families often lodge “missing persons” complaints with the police regarding family members who might have been subjected to enforced disappearance.
Other commonly used provisions include “abduction”, “kidnapping” or “wrongful confinement”. In some instances, families have approached High Courts or the Supreme Court, and used the writ of hibeas corpus to find the whereabouts of “disappeared” persons.
A large number of enforced disappearances are reported from areas considered “disturbed” under the Armed Forces Special Powers Act (AFSPA), such as Kashmir and Manipur. Once an area is declared “disturbed” under AFSPA, armed forces are given a range of “special powers”, which include the power to arrest without warrant, to enter and search any premises.
Furthermore, under AFSPA, governmental permission, or sanction, is required before any member of the armed forces can be prosecuted for crimes in a civilian court, thus effectively shielding armed forces from accountability for human rights violations (International Commission of Jurists, “India: repeal Armed Forces Special Powers Act immediately”, November 2015).
AFSPA allows the state to over-ride the basic rights of an individual and there is no place for this law in democracy.

In India, enforced disappearances have occurred most often in regions facing insurgency or armed conflict. According to a report released by the International Peoples Tribunal on Human Rights and Justice and the Association of Parents of Disappeared Persons in 2012, there had been around 8,000 enforced disappearances in Kashmir during the period of 1989 to 2012. Disappearance of beloved ones is more gruesome than death.

The police investigation wing of the State Human Rights Commission (SHRC) in 2011, had confirmed that 2,156 unidentified bodies lay in unmarked graves at 38 locations in north Kashmir. The SHRC had ordered the investigation after taking cognisance of a December 2009 report on mass graves titled “Buried Evidence” by the International People's Tribunal on Human Rights and Justice in Kashmir (IPTK).
In its 17-page report, the SHRC's 11-member team has revealed that 2,730 bodies had been buried in north Kashmir's Baramulla, Bandipore and Kupwara districts. It is beyond doubt that unmarked graves containing dead bodies do exist in various places in north Kashmir,” the SHRC report says. “The maximum bodies have bullet injuries,” it has concluded.
This has been the hallmark of the government approach if one looks at official pronouncements since 2002. Interestingly, the official figures have been going down – from 3,931 in June 2001 to 3,429 in August 2009 – though complaints of disappearances have only increased.

Syed Mujtaba Hussain

The disappearance of thousands of youths laid the negative consequences and paved a way for gun culture. Recent Office of the United Nations High Commissioner for Human Rights (OHCHR) Report on Kashmir being the first ever report of UN on gross violation of human rights, is an ample evidence of atrocities. The report is needed to be widely discussed, and debated.
The need of hour is that the state and the centre governments should repeal the inhuman laws and the government should stop the enforced disappearances in J&K and punish the perpetrators responsible for enforced disappearances. Furthermore there should be an appointment of a commission which will probe into all enforced disappearances (as has been done in other countries), so that justice may be done to the relatives of the disappeared persons according to international standards.

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*Human rights activist studying the changing socio-political context of Jammu and Kashmir. Contact: jaan.aalam@gmail.com

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