AFSPA provides impunity for rape

The protests against the brutal gangrape of a young 23 year-old girl in Delhi have been unprecedented. Finally, it appears that the impunity with which crimes against women in our country are committed is causing outrage, and both men and women are demanding justice. What is encouraging is that although the protests were triggered by the recent incident of rape in Delhi, it has also forced us to reflect on the larger issue of impunity for rape and other crimes against women, particularly when it happens against women belonging to the marginalized communities. Moreover, it is also politicizing an entire generation of young people that are realizing that their voice can create ripples in the political establishment in Delhi.

Shuddhabrata Sen in his earlier piece has lucidly articulated about how our response to sexual violence should not be selective, and our protests should recognise the brutality of crimes against women in the conflict areas of Kashmir, Manipur and Chhattisgarh. In Kashmir, accusations of rape have been repeatedly made against the security force personnel. It has been alleged that rape and assaults have occurred during crackdowns, cordon and search operations. During these operations the men were held for identification outside their houses, near mosques or in a common ground while the security forces searched their homes. During these search operations, safeguards such as inclusion of a women officer in the search teams were never followed.In addition to the direct physical violations suffered by the women, they have been subjected to moral policing and limited social opportunity. The long drawn conflict in Kashmir, which has been aggravated by the presence of large numbers of security personnel, has resulted in restricted mobility of the women, especially after sunset. Similarly, the killings and misuse of the AFSPA in Manipur prompted Irom Sharmila to go on a fast against the draconian provisions of the AFSPA. Ten years later, Irom Sharmila has courageously continued her protest but the AFSPA remains intact in Manipur, Kashmir, and other parts of the Northeast.

In this regard, it becomes even more urgent to challenge the laws and structures that promote impunity, especially the Armed Forces Special Powers Act. One of the serious cases of sexual assault and rape that surfaced in 2004 was against an army Major in Badar Payeen, Handwara in Kashmir. The perpetrator belonging to the Rashtriya Rifle invoked the legal immunity clause under the AFSPA and was not tried in a regular court of law. Instead, in a court martial proceeding, he was let off on all charges of rape, despite the fact that one of the victims was a 12 year old minor girl. Clearly, the AFSPA shield protected him from being held accountable for a very serious crime. Military Tribunals flout the basic principle of natural justice, which states that any individual or institution cannot sit in judgment against its own actions.

For a long time now, the repeal of the AFSPA has been an overwhelming demand of the national and international rights and citizen groups. Under this Act, the security forces personnel have extraordinary powers including the authority to shoot suspected lawbreakers and those disturbing the peace, as well as the ability to destroy structures suspected of harboring militants or arms. This power is bestowed on any person of the rank of a soldier and above. This Act further provides for compulsory sanction by the Central government before prosecuting any personnel of the armed forces. The Joint Secretary, Ministry of Defence, filed an affidavit (in SWP No. 1842/2003) in the Jammu and Kashmir High Court stating that out of the 35 cases received for sanction to prosecute, in none of the cases was permission granted. Moreover, in many cases, the authorities do not refuse sanction but keep the cases pending for many years.

This delay in the procedure for grant of sanction often results in the loss of crucial evidence required for prosecution. For all crimes, including sexual violence and rape, the evidence needs to be gathered soon after the commission of the crime. As time lapses, it not only becomes more difficult but also expensive to collect evidence to build a case, which requires more intensive human and financial resources. The 2009 Shopian rape case in Kashmir is an example at hand. Since the medical evidence was not gathered professionally and in a timely manner, it became difficult to ascertain the identity of the perpetrators. Obviously, circumstantial evidence can always be used to initiate prosecutions but medical evidence assumes importance in those cases where rape or sexual violence is followed by the murder of the victim. Furthermore, the identification of perpetrators becomes quite difficult with the passage of time. This is especially relevant for conflict zones where the army and paramilitary forces routinely get transferred, and it becomes near impossible to ascertain which security personnel were involved in the incident.

Finally, survivors of sexual violence are reluctant to come forward because they do not think that they will receive justice. Given the prevailing state of impunity, which is strengthened by laws such as AFSPA and the Disturbed Areas Act, the survivors are uncertain if their testimonies would result in the conviction of the perpetrators, and often do not come out openly and talk about the sexual violence that they have faced.

While the protests at India Gate have created an immense opportunity to assess the societal and legal structures that allow for this heinous crime against women, we must not loose sight of the fact that all forms of sexual violence and structures that promote impunity should be challenged. A law like the AFSPA, impedes accountability for rape and sexual violence in conflict areas at every level, and, therefore has no place in our statute books. Unless we protest against the AFSPA, and other similar laws, the entrenched impunity against rape and sexual violence will remain.

(Warisha Farasat, a lawyer, is currently working with the Centre of Equity Studies on issues of justice and reparations for victims of communal violence in India.)

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