Challenges faced by APDP
Briefly, the challenges faced by APDP may be broadly categorized as follows:
1) In Kashmir national security concerns trumps the human rights and the basic right to justice.
2) No statutory recognition for the crime of enforced disappearance under Indian criminal law.
3)Laws grant immunity to armed forces and public servants obstructing the administration of justice.
4) Widespread culture of impunity in which there can be no effective protection or implementation of human rights.
5) Difficulties in accessing information on disappeared persons
6) Lack of effective legal remedy
7) No protection for victims and witnesses from threats, intimidation and other forms of coercion or adverse discrimination
8) Unreasonable restrictions on the freedom of association, freedom of assembly and freedom of speech and expression.
10) Economic duress and lack of legal aid further cripple the victims.
11) Security forces overawe the institutions of justice and disregard judicial orders.
Hurdles that are both written into the law or created in practice beset the process of accessing justice in Kashmir.
i) Difficulty in accessing information on disappeared persons.
At the first instance, information on disappeared persons is extremely difficult or nearly impossible to come by. There have been numerous cases where citizens, not associated with militant organizations, are picked up by the security forces while pursuing legitimate activities. The armed forces are able to do so under broad powers of arrest granted by emergency laws that deviate from established standards and safeguards available under general criminal procedural law.
In many instances the armed forces use ikhwans to inveigle them with promises of employment after which such persons are disappeared only to surface later as victims of “encounter killings”. “Encounter killings” in India being a euphemism for extra-judicial killings. Another reason for army officers to engage in encounter killings is also the promise of handsome cash awards and other employment benefits for eliminating militants.
Once detained or disappeared, it is nearly impossible to obtain information on the whereabouts of such persons and their fate. Inadequacy and absence of information on the location of the disappeared person, and who the detaining authorities are, frustrate attempts to identify appropriate forums and initiate legal action.
Failure to register complaints and investigations into cases of disappearances.
In many reported cases, the police refuse to register complaints against armed forces for arresting or apprehending civilians. This results in delays in activating the criminal justice machinery and initiating investigations into the disappearances. It frequently requires the orders of a Superior Court, involving several years of litigation to even secure this basic first step towards investigation of an alleged disappearance. Investigation is further obstructed by the armed forces’ unwillingness to co-operate with police, and compounded by police reluctance to seriously investigate crimes involving military personnel. Even where investigation results in the identification of an alleged perpetrator or responsible officer, statutory impediments to prosecute armed personnel make it virtually impossible to initiate a criminal trial.
Immunity provided under special laws and provisions
under general criminal law .
Several laws of both special and general application allow immunity from arrest and prosecution for state functionaries, or require special sanction from executive authorities to proceed with investigations into alleged crimes committed by such functionaries. The provisions for ‘sanction’ from the central government have proved to be an insurmountable obstacle for families seeking redress for disappearances. In most cases, particularly with regard to prosecution of authorities of the central armed forces, such sanction has been denied. Existence of such provisions lead to the entrenchment of a culture of immunity. Hence the state has failed in its duty to protect, promote and implement human rights in Kashmir by its failure to bring to justice those accused of human rights abuses.
Access to legal and support services.
Although disappeared persons in Kashmir hail from all economic strata, there is a preponderance of young men from economically weaker classes, who are either primary or potential breadwinners for the family, being picked up by security forces. Therefore, parents and relatives of disappeared persons lack economic resources and basic support, as well as knowledge of legal rights and the workings of the criminal justice system to take on protracted legal battles. Even though the Supreme Court has recognized the right to legal aid in matters of criminal law as a fundamental human right, members of APDP have not been able to access any such aid and instead, have had to rely on the services of a few committed public-spirited lawyers to pursue litigation on their behalf.
Other than the lack of legal assistance, families attempting to locate their missing and disappeared relatives are severely hampered by issues of access, distance, delay and language. However, there has been no effort by the state to put in place support services to enable family members or their representatives in accessing justice.
Inadequacy of legal remedies.
Filing complaints or petitions in the court may not result in justice delivery. Cases, even those invoking the writ jurisdiction of the High Court, are subjected to inordinate delays due to various reasons including non-compliance with procedural norms, lack of cooperation of state authorities into judicial enquiries, transference of cases to subordinate courts for monitoring, etc. and may take several years to complete. Court orders, obtained after such fraught processes, are often callously disregarded and violated with impunity by the state authorities. On the other hand, in cases where the armed forces are implicated, court martial proceedings are instituted, which are shrouded in secrecy and provide no opportunity to the families to present their version of the facts.
Compensation payments (ex gratia)
Victims’ families are not entitled to any reparation/ compensation for the death or disappearance of loved ones under Indian law, even where the identities of perpetrators are established. The government of Jammu and Kashmir has issued two government orders whereby people killed in ‘militancy related’ incidents, but not themselves ‘involved in militant activities’ are entitled to an ex gratia payment of Rupees One Lakh (Approx. USD 1800) and an entitlement to a government job by the next of kin on compassionate grounds. The entitlement is entirely dependant on a certificate that has to be obtained from district authorities (through local police stations) regarding the non-involvement of the deceased/ victim in militancy. Families and their representatives attempting to obtain such certificates face severe harassment from the police who are most reluctant to issue them.
Relatives also face other forms of harassment while accessing ex gratia payments. For instance, authorities, including the State Human Rights Commission, use the promise of ex gratia payment to pressurize families to drop legal proceedings, or withdraw complaints. Hence even these limited state provided reliefs are difficult to obtain.