Under AFSPA’s Protection, Sexual Violence Goes Unpunished In Kashmir

Posted by Joysheel Shrivastava in Kashmir
March 30, 2017

The conflict in Jammu and Kashmir finds its roots in India’s Partition; the masses desperately strived for azadi (freedom). Pursuant to a rise in militant outfits, the Government imposed the Armed Forces (Special Powers) Act, 1990, to curtail any violence that could arise in the region.

It’s been more than two decades that this much-contested Act has been in force. With approximately one army personnel per 18 civilians, J&K is the most militarized region of the world. The military has committed innumerable acts of human rights violations, such as torture, sexual violence, and extortion by hiding behind the garb of this Act.

The article will look at the sexual violence as a systemic and institutionalized weapon, prevalent in Kashmir; and the impunity that follows, stemming implicitly from the Armed Forces (Special Powers) Act, 1990.

Impunity That Implicitly Stems From The Act

The Act is extremely concise, consisting of merely eight sections. It exempts the officers from any suit, or prosecution for an act carried out, or purported to be carried out in exercise of the powers as conferred.

If an area is declared to be a conflicted region, army officers have the statutory power to carry out whatever action and force they think necessary, to maintain law and public order. There is a stress on what the officers think is necessary. This discretion coupled with the impunity they enjoy is a dangerous combination.

They have been granted an absolute power, shielding them from arrows that the survivors might throw at them, in order to protect themselves. The survivors are left with no room for recourse; as per the current procedure, incase an army officer has to be prosecuted for a particular crime, special permission and clearance has to be taken from the Ministry of Home Affairs.

This is nothing but a long drawn process that aids in pulling of strings and calling ‘favours’, in order to help the accused find a way out of the prosecution.

Sexual Violence as a Systemic and Institutionalized Weapon

When it comes to Jammu and Kashmir, women face threat to their bodies, and mental health, not only from State actors, but also from the non-state actors. Sexual violence that occurs in such situations is not a question of sexual gratification, neither is it incidental. It is actually a systemic and institutionalized weapon, as was noted by the Justice Verma Committee. It is used as a mode of repression, which is a part of a much larger framework that uses rape as a form of punishment against the civilians.

International Committee of the Red Cross visited and interviewed 1,296 detainees in J&K between 2002 and 2004, of which 302 had been subjected to sexual violence amongst other forms of torture.

These detainees were rarely found to be militants, and more often than not, were civilians who might have had some information relating to a militant outfit. The abuse took place by the security personnel in the detention centres as a ‘legitimate’ form of punishment/mode of interrogation. From the above given data, we observe that 23% of the detainees had been subjected to sexual violence.

Survivors of the alleged gang-rapes in the Kunan Poshpora incident, demonstrate for justice in Srinagar.

One of the most infamous incidents in the history of Kashmir is the Kunan-Poshpora incident – the mass rape of two Kashmir villages, where army personnel entered the villages, in the middle of a cold winter night in the February of 1993, as part of an anti-insurgency operation and mass raped about 23-40 women. A survivor, on recounting the incidents of the night, said, “three army men caught hold of me and 8-10 army men raped me in turns. They had huge battery torches with them and they used them to see my naked body, while making lewd remarks.”

Army personnel have used rape, as a systemic weapon to be used against ‘militant sympathisers’, or wives of who they “think” might be militants. After the crackdown against Kashmiri insurgents began, army personnel started using rape as a weapon, and raped over 882 women in that year alone. As per a study conducted by Medecins Sans Frontiers in 2005, 11.6% of the interviewees had been survivors of sexual violence, and one in every seven had witnessed rape.

Sexual violence finds its presence as an institutionalized weapon that is systematically unleashed against detainees and civilians. It’s done out in the open, but yet it’s hushed news, making it common knowledge but yet, difficult to prosecute those in the wrong.

I think sexual violence is the ultimate domination over a person’s body, while defaming the men associated with the women. This serves a two-fold purpose – the woman is repressed, and second, the men associated with her are repressed as well.

It turns into a game of power play, where those who are ‘in power’ can keep the ‘powerless’ in check.

There is no legal or moral justification for this, yet, the violations continue, and in big numbers. It is common knowledge that this takes places, but somehow, nothing can be done to stop it. The moment a person tries, he is attacked. Evidence is brushed under the carpet, and the one who tries to report the truth, for example activists or journalists, are killed.

These are just few incidents and reports for which I have been able to provide evidence. Over the years, there have been many more incidents that have been, either not accounted for, or lost in the sea of an ever-increasing number of crimes committed by the security personnel.

The Norm Of Impunity

Impunity is the foundation of the invincible military occupation of Kashmir. AFSPA allows overriding of due processes and rights, thereby, nurturing a climate of impunity; a culture of both fear and resistance by citizens.

Civilians have often been targeted in the Kashmir valley. AFSPA, implemented in the Valley to maintain peace and order, is now responsible for human rights violations.

As said by Colin Gonsalves, the founder of Human Rights Law Network, “crimes committed by men in uniform which are not connected with their duties should not come under the immunity clauses of laws such as the AFSPA. The situation today is that even for the rape and killing of a person in custody, which does not involve public duty at all, the offenders go scot free.”

The norm of impunity that governs those territories is of great concern, as survivors and their families are prevented from exercising their right to know the truth about violations. They have no access to effective remedies and are not given guarantees of non-recurrence. This has resulted in erosion of fundamental rights, dignity and bodily integrity of the women in J&K.

Sexual violence occurs on two levels. First, a person is subjected to the violence. Secondly, they face further victimization, as their pleas for justice are never even heard. Various methods of intimidation and threats, by the government, police and military are used in order to ensure that the cases never reach the trial stage. It is common practice for the police to simply not take down a report of sexual violence, despite their legal duty to do so.

As Pervez Imroz, the renowned human rights lawyer, says, “it is owing to the lack of accountability that people feel discouraged from reporting cases of rape.” An intrusive and repressive military presence, immunity from prosecution for soldiers guilty of rape and sexual abuse, the weakening of local civilian and judicial authority, an uncritical and compliant national media, fears of retributive violence by perpetrators, social ostracism of rape survivors and cultural notions of female ‘honour’ prevent rape survivors from talking about their trauma or pressing charges against the guilty.

Despite the fact that rape is one of the most prevalent crimes in the region, it has drawn the least response in terms of investigation and prosecution.

The underlying fact that is the cause of utmost horror, is that more often than not, the perpetrators of violence are the ones who were placed there to protect them in the first place. And when people have made attempts to document incidents of rape, and try to find some redressal, they have been silence by the Indian Security Forces, by way of threats, if not by actual use of force.

Despite all the threats, there are still a few cases of the many instances of sexual violence that have actually reach the courts. In the year 2013, 70 cases of sexual violence committed by the security forces alone had been registered with the police. But this is actually just a part of an even larger number.

Women have been subjected to gross sexual violation in the Kashmir valley at the hands of the army personnels.

Investigations are either weak, or not conducted properly. Cases like the Shopian Double murder case (2009) and the Kunan-Poshpara case, have been continuously interfered with, and attempts have been made by the Army to hamper investigation and trial proceedings.

For example, during the investigations of the Kunan-Poshpora incident, the Government deleted important parts of the investigation report prepared by the then Divisional Commission of Kashmir.

Even when investigations are ordered, they never result in prosecutions, for example, a magisterial inquiry was ordered in the case of five women reportedly raped near Anantnag on December 5, 1991, but the magistrate’s report, till date, has not been submitted. Therefore, the judiciary’s hands are tied, either due to procedural concerns (weak investigations) or due to political motivations.

Kashmir Valley has recorded the highest instances of sexual violence perpetrated by uniformed men, compared to other conflict zones of the world. Despite this, out of all the cases that have been reported, not a single one has ever led to the prosecution of the accused.

In seven courts-martial held between April 1990 and July 1991 involving incidents of rape, deaths in custody, illegal detention and indiscriminate firing on civilians by army soldiers, only one officer has been dismissed. The most severe punishment for the remaining officers was either a suspended promotion, or marks of “severe displeasure” in their files.

Statements made by Army personnel reflect the shared sentiment of the existing blatant disregard when it comes to instances of sexual violence. For example, during the hearings of the Kunan-Poshpora rape case, which has often been called the “single largest case of mass sexual violence in independent India”, the Army counsel said that the statements of the survivors were “like recorded rotten stereo sounds that play rape all over again.”

In response to allegations of rapes, the Indian State has replied saying that “the allegations were a massive hoax orchestrated by militants and their international allies.” As noted by Seema Kazi, “Kashmir’s ledger of rape by Indian security forces symbolizes the Indian State’s disregard for human life and human dignity, its contempt for the humanity and dignity of the Kashmiri people.”

The Army personnel seem to take a unified front where they disregard the allegations made against them, reflecting the mentality of the security personnel, when it comes to sexual violence.

Gendered Notion Of Sexual Violence

The notion that war is gendered, i.e., affects men and women differently; along with the definitions of ‘masculinity’ and ‘feminity’ as given by society, gives us a skewed perspective of how the two genders are affected during times of conflict. This difference permeates even in the discourse relating to sexual violence. Sexual violence is not seen as a gender-neutral phenomenon.

It is presumed that men are always the perpetrators of the violence over women.

However, this is not true, as men, too face sexual violence. This makes it even more of an aggressive act, as compared to the violence perpetrated on women, as it is possibly more shameful for the community, whose men have been sexually violated. The aggression behind the act is aggravated by the fact that the survivor, owing to the construction of ‘masculinity’ cannot talk about it, and is forced to be a silent survivor.

There is also a consequential possibility of higher level of stigma that is attached to a man as a survivor of sexual violence, as opposed to a woman. It is due to this deficiency in social construct that leads to no evidence of incidents where men may have been subjected to sexual violence.

Means Of Justice?

As pointed out by Catherine Mckinnon in context of contemporary conflict, which applies to Kashmir; there exists a paradox – when the State and its representatives itself are the ones perpetrating violence against the civilians, how can one hope for justice from the very same state?

Kashmir is one of the highly militarised conflict zones in the world. The Act has led to gross human rights violations with no actions taken against the perpetrators, who are incidentally protected by the Act and the State.

Rape in Kashmir, is a systemic crime that can hardly be tried by the State that commits it in the very first place. Militants spread terror, and so do the armed forces, while the justice system, tangled in a web of political games, and bureaucratic back slapping is unable to deliver. In such a situation, who do the civilians turn to?

Every case of sexual violence is either never heard of, or hushed and brushed under the carpet due to political reasons. Even if a case makes it to the court, it never reaches a stage of prosecution, as the investigation, which is the foundation for any case, is extremely weak. This too, happens for political reasons. This neglect for sexual violence is further aided by beliefs of a patriarchal society that do not give much importance to such cases.

Owing to the permanent state of conflict that J&K seems to be in, there is a complete breakdown of the system of law and order. There is an absolute lack of accountability, due to which there is lack of evidence. This is why one can never get an accurate picture of J&K.

Evidence to this statement can be found in the fact that every report has different statistics to give for a particular study. Either the incidents take place in remote areas, or because they are hushed, no record of the same is ever maintained. The lack of accurate information is nothing, but a direct consequence of the will of those who are in power. Therefore, they provide passive support to flagrant human rights violations, and impunity becomes the norm.