Guest Post by AYESHA PERVEZ
The events preceding the recent death sentence awarded to the rapists of December 16th Delhi gang rape case from 2012 have certainly broadened the canvas of discourse on sexualized violence in India. Not only was the institutional sexism that pervades India’s criminal justice system been challenged, but also patriarchal values and norms that sanction and reinforce gender biases were openly questioned. It was remarkable to watch the unprecedented outpouring from the Indian citizenry from all across which resulted in the decision of the government to constitute a committee which had the mandate for recommending amendments to the Criminal Law. Recommendations by the Justice Verma Committee in early 2013, undoubtedly paved a way for much needed reform of laws and criminal justice practices relating to crimes of sexual violence. However, this was not true for all the survivors of sexual violence, particularly from the “disturbed” peripheral states of India. For the victims and survivors of sexualized violence from the conflict zones of India – Jammu and Kashmir and Northeast, the discourse ended uneventfully with a reserved/muted submission of the Committee’s report to the government.
Opportunity missed or political denial?
The Criminal Law (Amendment) Ordinance 2013 and the law that followed could not bring itself to be inclusive in its entirety and as a result fell short to take a stand on questions which the women from these peripheral states were struggling with for decades- systemic sexual violence perpetrated by the Indian army and para-miliatry forces, and the impunity enjoyed by them under the extraordinary law called the “Armed Forces Special Powers Act 1958” and the “Armed Forces (Jammu and Kashmir) Special Powers Act 1990”, both called AFSPA. What followed the Verma Committee’s report can be construed as ‘selective approach’ on curbing sexual violence and more so, a ‘never to change’ exclusionist policy of the government towards the sexualized violence perpetrated in Jammu and Kashmir and Northeast. What else would explain an unusual camaraderie at display from the representatives of India’s political system across party lines and the sudden invigorated criminal justice and legal system at work to punish the culprits from the 16th December gang rape. In contrast, there has been complete silence from the same institutions on the demands and initiatives taking place in these states to secure justice for the survivors of sexual violence who have faced brutal sexual assaults at the hands of security forces.
“At the outset, we notice that impunity for systematic or isolated sexual violence in the process of Internal Security duties is being legitimized by the Armed Forces Special Powers Act, which is in force in large parts of our country. It must be recognized that women in conflict areas are entitled to all the security and dignity that is afforded to citizens in any other part of our country.” These were the exact words used in the report by the central government constituted Justice Verma Committee in 2013. The Committee suggested, in context to militarised zones of Kashmir and Northeast in India, that members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law if accused of sexual violence. Admirably, this report in addressing the core problem, also recommended for need to review the continuance of Armed Forces Special Powers Act (AFSPA) and AFSPA-like legal protocols.
This was not the first time a government body had highlighted the gendered nature of violence in the conflict zones of India. Referring to ‘Women in Disturbed’ areas, the Planning Commission in its 12th Five-year Plan, stated “Women in disturbed areas face special issues including continuous army presence, suspended civil rights and lack of normal access to facilities/services due to continuous violence. They are most vulnerable to atrocities and need special attention in areas like health care measures, schools, free legal aid and so on.” It further committed to initiate a gendered review of the AFSPA and documenting the gendered dimension of violations and needs assessment of women in disturbed areas under AFSPA. The Indian judiciary too has taken a cognizance of the sexual violence by the security forces. The apex body of law, the Supreme Court of India, declared in 2012 that the Army cannot claim blanket impunity in cases of murder and rape. In relation to these two offences, the apex court questioned the validity of the most damning section of AFSPA, section 6 in case of Northeast and section 7 in case of Jammu and Kashmir, which states that no criminal prosecution will lie against any person who has taken action under this Act without the permission of the central government. In a strong condemnation, the bench of Justices B S Chauhan and Swatanter Kumar, while hearing a case of a fake encounter that happened in Kashmir in March 2000 stated, “You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted, and that is our stand”.
Rejection of the recommendations of Verma panel and silence on the Planning Commission’s observations and Supreme Court’s stand raises a few critical questions on how much validity its own mandated commissions and the apex body of law have in the eyes of the government. This only substantiates the age-old political denial from the government that sexual violence is systematic and its security forces accused of this crime has been enjoying impunity. It also suggests that this negation is nothing but for an uninterrupted continuation of military authority in these regions that has long been replaced the civilian authority. Any criticism, charges, prosecution will disturb an order, which has been protecting the “national integrity” in these peripheral states. As a result, without much explanation and space for negotiation, the government turned an unapologetic blind eye just as it has done with the numerous reports and statistics put forth by credible national and international human rights groups, including those from the United Nations, on the systemic and widespread use of rape and other forms of sexual assault by the country’s military and para-military as a tool to suppress the armed rebellion in Kashmir and Northeast.
Human rights groups from Northeast and Kashmir and international human rights bodies have reported numerous incidents of rape. The United Nations claims that in 1992 alone, 882 women were reportedly gang raped by Indian security forces in Jammu and Kashmir. Human Rights Watch in 1994, stated that there were high incidence of rapes in Kashmir and that the security forces have used rape and other forms of violence to target women who may be “militant sympathizers.” A study by Medecins Sans Frontieres (MSF) in 2005 , found that the number of victims of rape was close to 10,000 in Kashmir and 11.6 percent of interviewees were victims of sexual violence since 1989. Recent cases of rape and murder of Asiya and Nilofar from 2009 and gang rape of Ruqaiya from 2011 clearly show that nothing much has changed in Kashmir.
The AFSPA-ruled state of Manipur in the Northeast shocked the Indian society and media in 2004, when 12 naked women stormed the local Army headquarters, holding a large banner that read “Indian Army, Rape Us!” This extreme step taken by the women in Manipur was in the wake of the rape and brutal murder of Thangjam Manorama, a 32-year-old Manipuri woman. She had been taken into custody from her home by soldiers of the Assam Rifles, under suspicion of having links with rebels, and her bullet-ridden body was later found a few kilometres away from her home, bearing signs of torture. Manorama’s murder is far from being an exceptional case in Northeast where rape, abuse and murder were everyday realities during the peak of militancy. The first reported rape case in Manipur by the military is that of Rose in 1974. An officer of the Border Security Force repeatedly raped her. Rose committed suicide out of shame while the perpetrator went scot-free, due to lack of sufficient evidence. The Ahanjaobi case of 1996, where two Army personnel raped a married woman in front of her disabled 12-year-old son, was a turning point in public attitude towards the crime and its victimization. The public outrage and the intensity of the movement practically forced the Army Authority to initiate Court Martial proceedings, wherein two Army personnel were found guilty and punished for the crime in 1997. It remained the only case in the whole of AFSPA zones in Northeast where the alleged accused was prosecuted. A fact-finding group in 2003, which recorded the testimonies of the survivors of sexual violence in four states of Northeast (Assam, Manipur, Tripura and Nagaland) claim that the AFSPA has been instrumental in impeding the women’s access to justice mechanisms in cases of sexual violence .
Rape survivors from Northeast and Jammu and Kashmir waiting to be treated at par
What makes a rape survivor in Kashmir and Northeast “less deserving” of justice? And what makes the security forces personnel more sacrosanct and “incapable of sexual violence”? These were the questions, which citizens from Kashmir and Northeast had in their minds when the government rejected the recommendation by the Verma Committee. These questions were put forward more vehemently when the death penalty was awarded on the 13th September 2013 to the Delhi gangrape accued. The silent response from the government validated the ‘culture of selective justice’, where the family of Rose who was raped in 1974 by personnel of Border Security Forces in Manipur and Thanjgam Manorama who was tortured, raped and fired at in her private parts by the soldiers of Assam Rifle in 2004 are awaiting a similar institutional response. 32 survivors from Kunan Poshpora in Kashmir who were raped by personnel of 5th Rajputana rifles in 1991 and the family of Asiya and Nilofar who were raped and murdered in 2009 are too waiting to be treated at par.
What is evidently coming out from the silence is that, protecting the women from Kashmir and Northeast from the assault on their bodily integrity and giving them ‘right to effective prosecution’ in non-military courts, at par with the women from other parts of the country, is to be compromised in the pursuit of keeping the army free of “unwanted disturbances” and threats to their authority. The government has refused to address the unabated sexual violence by its security forces, to bring the cases within the purview of criminal court and exhibited a lack of political will in checking on the impunity that has been enjoyed by the perpetrators under the garb of AFSPA. Union Finance Minister P. Chidambaram himself admitted “inability” on the part of the government to pursue an agenda with the army for a review or amendments in AFSPA. He states- “you should ask the question to the armed forces and ask why are they so opposed to implement even some amendment to AFSPA which will make it more humanitarian. We have the Jeevan Reddy Committee report but yet if the Army takes a very strong stand against any dilution or any amendment to AFSPA, it is difficult for a civil government to move forward.” It is indeed disturbing to see that being a democracy, the Indian state has to play subservient to the military authority.
Need for an accountability from International human rights conventions and bodies?
What is the recourse for the survivors of rape from Kashmir and Northeast then? In such a scenario, when the state turns a blind eye to the constitutional safeguards which women from these regions are entitled to; refusal to deliver its own democratic commitments and fares miserably in prevention, protection and prosecution of sexual violence in the name of “national security”, the issue does not, any more, remains a domestic one. It, in all its probabilities, becomes an international human rights crisis. India has failed to meet its international obligation, in adjudicating the claim of survivors of sexual violence from Kashmir and Northeast.
At the international level, India has been repeatedly flagged on the issue of AFSPA in the Human Rights bodies of the UN, including the Universal Periodic Review of the Council and in almost all other major human rights treaty bodies and Special Procedures. They have time and again questioned the constitutionality of the AFSPA under Indian law. Human Rights Watch has termed it as a “tool of state abuse, oppression and discrimination”. On 23 March 2009, UN Commissioner for Human Rights, Ms Navanethem Pillay asked India to repeal the AFSPA. She termed the law as “dated and colonial-era law that breaches contemporary international human rights standards.”
In becoming a party to key international human rights treaties, India is obligated to ensure that effective remedies are available to all the victims of sexual violence, not just for a selective few. India acceded to the International Covenant on Civil and Political Rights (ICCPR) in 1979, which recognizes a number of fundamental human rights, including the right to life (Article 6), the right not to be tortured or ill-treated (Article 7), the right to liberty and security (Article 9), the right to legal remedy (Article 2) and the right to equal protection of the law (Article 26). Allowing members of security forces accused of sexual violence to evade punishment by electing to be tried before military courts, is in violation of several articles of ICCPR, especially the ones that requires access to an effective remedy for victims of human rights abuses.
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which India ratified in 1993, has asked all state parties to ensure that laws against family violence and abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity. Responding to India’s second and third periodic reports in 2007, CEDAW noted the gender aspect of the abuses created or tolerated by the continued application of the AFSPA in the disturbed areas of India and urged the Indian authorities to ensure that investigation and prosecution of sexual violence against women by the military in disturbed areas is not impeded in any way. In failure to deliver any justice to the survivors of sexual violence in Kashmir and Northeast, which is also validated by the fact that, only in negligible number of cases paramilitary officer or soldier has ever been prosecuted for rape (none in Kashmir), the Indian state violates its obligation to the CEDAW provisions and its recommendations.
India’s response to sexualized violence in Kashmir and Northeast India has evidently been incompatible with India’s international obligations, including the ones, India has not ratified yet but is a signatory to, like Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which recognizes rape and other forms of sexual violence are committed by state actors, such as the police or armed forces, or in custodial settings, as torture. The Indian government is being careless to the fact that being silent on the institutionalized violence in its conflict zones can amount to sanctioning the same. The government also needs to reflect that in denying a fair and effective legal recourse to the survivors of sexual violence is in absolute violation of both domestic and international human obligation.
A historic UN declaration was signed last week on the 2nd of October, “The Declaration of Commitment to End Sexual Violence in Conflict”, where 113 countries pledged to stop rape in conflicts. The UN Secretary-General’s Special Representative on Sexual Violence in Conflict, Zainab Bangura said, “When the history books are written, they will say that this is the date, time, and place when countries came together to stop this crime.”. It was an opportunity for India too, being a respected member state of the UN . Sadly, India was conspicuous by its absence.. Therefore, the concern is no more limited to demanding justice from the government but perhaps invoking accountability of international human rights instruments and mechanisms which made human rights universal and have the mandate of holding state parties accountable. Now is the time that these international conventions and bodies should go beyond mere statements and suggestions and persuade the Indian government to respect and fulfill its international obligation as accepted and ratified by the country itself. Else, the concept of human rights will no more remain universal.
3. “Kashmir: Violence and Health”. http://www.artsenzondergrenzen.nl/pdf/KASHMIRFINALVERSION221106.pdf
5. Accused Indian Army: Women Testimonies from Northeast (2003). Published by Committee Against Violence on Women.
7. “United Nations asks Indian govt to repeal AFSPA”. IRNA. March 23, 2009,
Ayesha Pervez is an independent researcher and consultant on sexual and gender-based violence. She has been working on gender issues for the past 8 years with NGOs, international aid agencies and research organisations. She has spent the last one year in Kashmir, conducting research studies on conflict-induced violence against women. Her earlier publications have focused on looking at state’s response to exclusion and violence against the minorities and women, the most recent being on sexualized violence against the women in Kashmir on an international media advocacy platform, ‘Women Under Siege’ (http://www.womenundersiegeproject.org/blog/entry/the-long-struggle-against-systematic-rape-in-conflict-ridden-kashmir).