Friday, September 16, 2011

(Un)available remedies for Kashmir half widows

(Part 2 of a 2-part series of guest posts by alumna Mallika Kaur; Part 1 is here)

Despite institutional odds, Kashmiri women have responded in various ways to gendered violence and struggles for justice detailed in yesterday's post.
As that post did, today's post draws on the recent Association of Parents of Disappeared Persons (APDP) report on Kashmir’s ‘Half Widows,’ wives of the disappeared. The first section of this post will identify the various ways in which Kashmiri women have responded, as active agents rather than passive recipients. The second section will elaborate how legal and administrative remedies fail to provide relief for half widows, even if they doggedly pursue the convoluted and draining possible avenues of ‘relief.’

Women’s Responses to the Kashmir Conflict
Throughout the unrest in Kashmir, Kashmiri women have resisted being seen as hapless victims. While often not in leadership positions, women have played pivotal roles in civil society. The APDP report notes:

'As service providers, women have run orphanages, self-help groups, and crisis hotlines. As rights activists, women call for state accountability, disarmament, and report as journalists. As volunteers in various capacities, women have worked on disease and trauma. As advocates of self-determination, women actively participate in political protests.'

Women’s spirited involvement in street protests, significantly seen during the recent 2010 unrest, goes back to the 1990s in Kashmir (somewhat unique in the South Asian context; see also here). The report explains:

'While women were not active combatants in Kashmir, many supported the popular movement in the 1990s their support for the armed struggle has waned drastically and given way to peaceful protests and organizing.'

Two example of organized responses are Kashmiri Women in Peace and Disarmament and APDP.
► Kashmiri Women in Peace and Disarmament, formed in Srinagar in 2000, undertook several initiatives: it published a monthly newsletter Voices Unheard to capture the gendered dynamics of the violence in Kashmir; it facilitated talks and conferences; and it organized women from across Kashmir for civil society action. The group became dormant after 2007, both due to a lack of funding and a leadership vacuum.
APDP (logo at right) itself sees significant organizing by mothers, sisters, and wives of the disappeared. Founded in 1994 (and subsequently split into two organizations in 2006), the membership of this group consists of 150 families. According to its report,

'Women constitute over 60% of the membership, have a 50% representation on the Executive Board (5 of the 10 rotating members are women), and at least 50% representation during monthly public protests.'

The further report notes:

'While not nearly all of the 1,500 estimated half widows in Kashmir are organized, represented, or heard, many half widows and their civil society supporters have actively worked for justice and survival through the years.'

The next section highlights why this justice remains elusive.

Elusive Remedies
Even when half widows persevere against all the socio-economic challenges described in yesterday's post to pursue available remedies, they most often fail to receive the due response and assistance.
The report discussed the two possible sources of remedies: legal and administrative; that is, non-legal. It also includes a flowchart, "Typical Sequence of Events When a Half Widow Perseveres to Pursue all Options," that highlights the complicated and daunting nature (and most often, futility) of the remedy process in Indian-administered Kashmir.
The main roadblock to both types of remedies is the fact that the phenomenon of disappearances in Kashmir is not acknowledged.
Government authorizes refer to disappeared men as ‘missing,’ insinuating that they left home of their own volition, to aid the militants. The report notes:

'[T]he great majority of half widows who have joined APDP and have pursued the disappearance cases are the wives of civilians (because wives of militants, even ‘suspected militants,’ often come to find closure in the belief that the disappearance/death of their husband was a natural by-product of their being involved in the violence).'

Possible administrative remedies for a conflict-related death in Kashmir are:
Ex gratia relief, which provides compensation without government acknowledgment of liability; and
Compassionate appointment, which employs a member of the family of a person killed in militancy-related incidents.
Both are unavailable to half widows since they require: first, that the death is certain and can be proven by a death certificate; and second, that the deceased not have been involved in any militancy-related activities. In the disappearance cases: first, deaths are not ascertainable; and second, the government typically assumes that the disappeared must have been linked to militant activities and the ‘half widow’ is unable to disprove this assumption.
The only chance for ex gratia relief for half widows lies in a special government order that allows application for relief -- only if it has been more than seven years since the disappearance -- to the District Magistrate. The case then goes before a “District Screening cum Coordination Committee,” which decides whether the disappeared person can be presumed dead and also cleared of any militant-related activity -- and thus whether ex gratia relief should be awarded. The Committee is constituted of representatives from the security forces and police, however. In many cases half widows do not have confidence in this procedure, since the very perpetrators of the disappearance may be on the Committee.
The only other possible source for non-legal relief lies in the State Human Rights Commission, which is an advisory body and is largely seen as a ‘paper tiger’ in Kashmir. Commission opinions often remain unimplemented, and half widows have to then resort to the courts to and file writs against inaction by the state.
Legal remedies are half widows’ least preferred option. Many never seek legal help, and their quest for justice for their husbands remains incomplete.
In fact, the half widow often finds that legal assistance is required even during the initial search for her disappeared husband. When a half widow seeks to file a First Information Report, the crime report the police are required to file, the police usually ignore her request, and at most file a ‘Missing Person’ Report. Without a First Information Report, investigation of the crime of disappearance never commences. Thus this most basic police task is most often not carried out absent intervention by a lawyer.
If a lawyer begins working on the case, here is what is likely to happen:
► She files a habeas corpus petition in the Jammu and Kashmir High Court, invoking Article 226 of the Indian Constitution and Section 103 of the Constitution of Jammu and Kashmir, in order to learn the whereabouts of the disappeared.
► Almost invariably, the state denies knowledge about the disappearance.
► The court takes either of two routes. On the one hand, it may order an judicial inquiry, wait to receive the results, and then decide to direct the police to file a First Information Report (if one has not been filed, which is the case in most instances) and to conduct an investigation. In rare cases, on receipt of the inquiry result the court may order the state to pay ex gratia relief to the petitioner. On the other hand, if a First Information Report has been filed but the alleged perpetrators are failing to cooperate, the court may simply order further investigation.
As if this were not enough, ‘special’ laws and procedures in Kashmir complicate matters even more.
For example, under the Armed Forces (Special Powers) Act, armed forces have immunity and cannot be tried in civilian court unless the central government formally authorizes a particular prosecution. In this 'sanction' process, as it is called, the case file goes before the Home Department in Jammu and Kashmir, which passes it on to the Home Department in New Delhi, which in turn sends it to the Defense Secretary or the Home Secretary, depending on which armed force the alleged perpetrators belongs to.
Lawyers in Kashmir note that delay and noncompliance at each stage of the legal process are the rule rather than the exception. Contempt petitions asking for compliance have to be repeatedly filed.
The APDP report finds:

'The process often results in the half widow’s tiredness and inability to closely pursue the case, which may also cause her lawyer’s laxity or even abandonment. More troubling, even in cases where the half widow remains vigilant, the process proves punishing.'

At page 22, the report highlights the case of Jana Begum. Jana's husband was picked up by the Army in January 2002. Nine years and several court battles later -- including a failed petition by the defense to the Indian Supreme Court -- Jana's case is still ongoing in the Jammu and Kashmir High Court.
The report estimates that it takes, on average, 10 to 12 years for a half widow’s case to make it through the courts. Even then, the result often is no remedy.
Other obstacles in pursuing remedies:
Perpetrator-defendants. The half widow risks her own security by pursuing remedies and is “often subjected to intimidation, coercion, and blackmail by those who do not want the disappearance be highlighted.”
Society at large. The report notes the bias against woman seeking ex gratia relief; it is equated to her ‘selling’ her disappeared husband. “Besides, half widows who pursue remedies have to necessarily meet with police and government officials, and are thus at times suspected by their community of having become informers for the government, military, and/or paramilitary. In cases where militants learn of such supposedly suspicious activities by half widows, they coerce and threaten the half widows against pursuing court cases. In a few instances, such coercion has taken deadly forms.”
The report concludes (photo credit):

'The punishing nature—including delays, costs, and harassment—of the process of availing such [government] remedies is deterrent enough for most and leads to further dejection. But even for the few half widows who persevere through the process, justice and closure remain elusive.'

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