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Co-Written by Advocate Syed Mujtaba and Inamul Haq

In the global world, the terminology of war on terror has triggered intense debates about the role of security and liberty. The word security is enclosed with either as a governmental or exceptional practice. While is the case of liberty has been shrouded in salience. These two terms are closely looked by theorist like Carl Schmitt and Giorgio Agamben as exceptions in which the detention, rendition and disappearance are particular practices or in other words “global Matrix of war”. Enforced disappearance is a complex and cumulative violation. Because this kind of violation not only violates the right to life but it disrupts a variety of rights. Enforced disappearances deprives the liberty of an individual and this process takes the form of arbitrary detention and it involves the denial of state responsibility.

The tool of enforced disappearance was born as a practice during Second World War. In Germany, Jews and communists became the victims of Nazi regime. 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. Enforced disappearance is the most offensive form of human rights violation. It inflicts intolerable pain on the victim’s body, mind as well 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.

In India, enforced disappearances have occurred most often in regions facing insurgency or armed conflict. For example, according to a report released by the International Peoples Tribunal on Human Rights and Justice in Indian-Administered Kashmir and the Association of Parents of Disappeared Persons in 2012, there had been around 8000 enforced disappearances in Kashmir during the period of 1989 to 2012. The report provided details in 65 cases of such enforced disappearances (International Commission of Jurists, report August 2017). There is no accurate number of half- widows as per Pervez Imroz, a Human rights Activist and Lawyer of Srinagar High Court who argues that their number ranges between 1000- 1500. Disappearance of beloved ones is more gruesome than death. In case of death, the woman accepts the widowhood by knowing the fact that her husband is no more. However, the irony of the half widow is lingering on the hope that one day they may return home. These women are also called ‘waiting women’, because they are placed on the threshold between waiting and living, knowing and not knowing, visible and invisible. They are living in dilemma whether they remarry or remain widow.  They are occupying a Liminal Space that denies them both the status of wife as well as the dignity of a widow. In liminal situation, the victim often lives outside their normal environment, because they are nameless, temporally dislocated, separated and socially unstructured (D’Souza, 2016).

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”.31 In some instances, families have approached High Courts or the Supreme Court, and used the writ of habeas 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, and in certain circumstances, to use lethal force even where not strictly necessary to protect life. 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”,5 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. However, the present regime acts with impunity and justifies the violence on the name of “war against terror”. The disappearance of thousands of youths laid the negative consequences in terms of trauma and depression and paved a way for gun culture. The need of hour is that state as well as centre government erode the inhuman laws.

Writers  are Human Rights activist and are studying the changing socio-political contexts of jammu and Kashmir. And can be reached at jaan.aalam@gmail.com

2 Comments

  1. AIJAZ AHMAD TURREY says:

    Well written piece. May Almighty spread peace everywhere.

  2. K SHESHU BABU says:

    In the ‘ war against terror ‘ the state is ‘ terrorising ‘ common people. It is not very difficult to find out who the real ‘ terrorist ‘ is ……!