India has failed its Constitution: Amnesty on human rights violation in Kashmir

Calling the Armed Forces Special Powers Act as one of the “primary facilitators of impunity” by security forces, Amnesty International on Wednesday demanded its repeal and sought investigation into cases of human rights violations in Jammu and Kashmir by an “independent and impartial” authority.

The international human rights body has also sought removal of all “requirements of sanction or prior permission” to prosecute security force personnel and has held “lack of political will” as a long-standing problem in Jammu and Kashmir.

The demands have been made by Amnesty International in a report, titled ‘Denied: Failures in accountability for human rights violations by security force personnel in Jammu and Kashmir’, which was released on Wednesday.

“One of the primary facilitators of impunity is the existence of Section 7 of the AFSPA under which security forces are protected from prosecution for alleged human rights violations. This legal provision mandates prior executive permission from central or state authorities for prosecution of a member of the security forces,” the report reads.

“The lack of political will to account for past and present actions of the security forces, including the state police, is fortified by legislation and aggravated by other obstacles to justice, especially for those who lack financial resources or education,” it adds.

The 72-page report is an analysis of government and legal documents related to over 100 cases of human rights violations committed between 1990 and 2013. It also contains 58 case studies of alleged excesses by the armed forces in the state.

Amnesty has asked the government for an independent and impartial probe into all human rights violations in the state.

“Both the governments of India and Jammu and Kashmir must take immediate steps to ensure that all human rights violations and crimes under international law alleged to have been committed by Indian security forces, including police, are investigated by independent and impartial authorities,” the report recommends. 

Citing many instances where its RTI applications failed to get a response, Amnesty has also called for making the information about the cases pertaining to human rights violations in Jammu and Kashmir public.

“By not addressing human rights violations committed by security force personnel in the name of national security, India has not only failed to uphold its international obligations, but has also failed its own Constitution,” Minar Pimple, senior director of global operations at Amnesty International, said while releasing the report.

“The AFSPA should not be used to shield soldiers from prosecution any more. By bringing alleged perpetrators to justice, Indian government can send a clear signal that nobody is above the law and every person’s right to equality and justice will be respected and protected,” he added.

While the report acknowledges progress on a few cases like the Machil “fake” encounter, where five soldiers were sentenced to life imprisonment, the report concludes that most cases involving areas where AFSPA is used go un-investigated.

“The convictions in the Machil case were a welcome measure. But for justice to be consistently delivered, security force personnel accused of human rights violations should be prosecuted in civilian courts,” said Divya Iyer, research manager, Amnesty International.