Access to Justice in Jammu & Kashmir

THE ISSUE

Impunity for human rights abuses is a long-standing problem in Jammu and Kashmir. Abuses by security force personnel and armed groups, including unlawful killings, rape and disappearances, have often gone un-investigated and unpunished.

Along with inadequate political will to ensure accountability, abusive security laws and a lack of transparency block victims and survivors’ access to justice.

Authorities in Jammu and Kashmir also frequently violate other rights. Prolonged curfews restrict people’s movement, mobile and internet service shutdowns curb free expression, and protestors often face excessive force and the use of abusive weapons such as pellet-firing shotguns.

AMNESTY IN ACTION

End the use of “sanctions” to prosecute security force personnel:

Immunity provisions under legislation like the Armed Forces Special Powers Act, 1958 & 1990 and Code of Criminal Procedure, 1973, require permission from the executive branch of the central government to prosecute security force personnel in a civilian court.

All states have an obligation to prosecute and punish perpetrators of gross human rights violations and to combat impunity. This principle is accepted by the highest organs of the United Nations, the Security Council and the General Assembly.

Executive permissions serve as an impediment to due process and a fair trial. The requirement of permission from the executive branch of government to prosecute members of the armed forces and paramilitary forces is a severe breach of India’s obligations under international human rights law.

Ensure all cases of alleged human rights violations committed by security forces are tried in civilian courts:

Security forces in India (including the army and central reserve police forces) enjoy broad military jurisdiction when it comes to crimes, including human rights violations, committed during “active service” and during military operations. There are no constitutional or practical safeguards to ensure that human rights violations are excluded from military courts.

International human rights bodies restrict the jurisdiction of military tribunals to purely disciplinary types of military offences, rather than to offences of a criminal nature. The Declaration on the Protection of Disappeared Persons, Working Group on Enforced or Involuntary Disappearances, and Convention on Torture have specifically established that persons presumed responsible for such crimes as enforced disappearances should be tried “only by the competent ordinary courts in each State, and not by any other special tribunal, in particular military courts.”

The Human Rights Committee has made it clear that the restrictions on military jurisdiction extend to all human rights violations, and not just enforced disappearances.

Repeal the Armed Forces Special Powers Act, 1958 & 1990:

States worldwide face the challenge of promoting security without sacrificing human rights. We recognise the duty of the Indian government to protect people from rights abuses and crimes, including those committed by armed groups. However the Armed Forces Special Powers Act has been ineffective in meeting these goals, and has instead contributed to the creation of a ‘culture of impunity’ in areas where it is operational.

The Government of India must respect people’s rights to life, liberty, assembly and remedy, and send a clear message that no rights violation by its forces will be tolerated.