Shubhangi Gehlot, [Law student at Maharaja Sayajirao University of Baroda, Gujarat]
Introduction
Shehzada Bano, a resident of Kashmir shared her deep concerns with VICE INDIA about living in today’s Kashmir where her husband is jailed, employment is rugged and raising children alone is tough. In addition, to visit her husband in jail, she is subjected to strip searches. She also revealed the extremity of these checkpoints where even her months' old daughter is subjected to such examination, despite having numerous security check facilities and machines.
With the adamant governance and politically suffocated state of Kashmir, along with the abrogation of Article 370 of the Indian Constitution, the mental health of Kashmiri women has been gravely affected. According to a survey undertaken by Médecins Sans Frontières, one out of every two adults in Kashmir Valley is mentally disturbed due to the decade-long ongoing battle in the Jammu and Kashmir region. The report also revealed that one in every five adults in Kashmir is struggling with Post Traumatic Stress Disorder (PTSD). Moreover, a significant number of individuals are dealing with mental distress, melancholia and depression due to their past conflict-related trauma. Most importantly, the report unveiled the fact that the presence of such mental illnesses was notably higher among Kashmiri women than men.
One of the prominent reasons behind such a high number of women suffering from mental illness is because men of their families have been subjected to enforced disappearances. This problem has infamously named such women “half-widows”. The issue is not limited to just Kashmir but extends to several parts of northeast India as well.
While the government does provide ex gratia relief to these women, this is only accessible in limited circumstances where the death of the individual can be substantiated, provided that the deceased was not involved in militancy. However, the woman can be considered eligible for the ex gratia payment, if she ditches the efforts to find her husband and accepts her fate of being a half widow. As a result, by accepting such payments with such conditions, several half widows are subjected to social stereotypes, inner guilt and mental health problems.
How is the problem of Enforced Disappearance incidentally affecting women?
Working Group on Enforced or Involuntary Disappearances, predominantly noted that family members’ right to know the truth about the “fate and whereabouts” of the disappeared person is considered an “absolute right, not subject to any limitation or derogation.” In such cases, with the constant wave of internalised patriarchy and intersectional discrimination, women always suffer consequential ill-effects generated by the enforced disappearances of men.
According to the United Nations, thousands of people have gone missing in at least 80 nations around the world as a result of ‘conflict or repression’. These ‘enforced disappearances’ are generally propagated to eliminate political opponents with no witness testimonies, survivors, or legitimate evidence. Herein, the 2006 International Convention for the Protection of All Persons from Enforced Disappearance has identified women of these families becoming victims whose ‘right to life’ is threatened for eternity. With the loss and disappearance of a male family member, there are social, economic, and psychological consequences, especially where the families have men as their sole income producers.
Moreover, the uncertain legal status of the disappeared individual frequently prevents their wives from accessing bank accounts, social assistance, or retaining possession of assets. These impediments are not limited to just wives of the disappeared, but gravely affect the daughters of Kashmir. There are numerous such instances where after the loss of fathers in missing cases, the daughters are subjected to legal battles with no optimistic outcomes. On one hand, where Sharia law prevents daughters from acquiring any property from their father, in a similar way, the judiciary constantly fails to provide any aid and justice due to the de jure principle where a person cannot be acknowledged as “dead” until and unless their body is found. In another report, it is revealed that the State has subjected around 8,000 to 10,000 Kashmiris to the pernicious cycle of enforced disappearances, along with 7,000 unidentified graves.
Often foreign states offered reparation programs to the victims of enforced disappearance by providing them economical aid, mental healthcare, education for children, proper housing and employment for women of such families. However, this is unlike Kashmir’s harsh reality where there are no such reparation programs initiated by the State.
The cases of enforced disappearances are not limited to Jammu and Kashmir, but also include Manipur with other North-Eastern states. In Manipur, according to one such victimised woman, whose husband was subject to enforced disappearance by the State, the insurgent group compelled her to carry out illegal activities with numerous kinds of inhumane threats. Though she refused, neither State nor her community provided her with any aid. However, both Kashmir and Manipur have community networks for such single women which provides small sector employment, legal training, education for their child etc.
Drawing parallels from similar instances beyond the borders of India
Justice will be achieved . . . when the state comes and inquires about the needs of the families, mothers, wives of the disappeared and helps them, and gives them all of the support they need, like social security for those who don’t have it.
– Woman who was victimised due to the disappearance of her husband in the State of Lebanon, whose testimony was recorded by the International Center for Transitional Justice (ICTJ).
With the sufferings of people of insurgent parts of Kashmir and North-East India, young girls who have generally been considered a liability to their families, are subjected to forced marriage. They lack employment opportunities in both formal and informal sectors, where there are neither well-known schemes by the State nor any safety to work on farms even in the daylight due to constant military and police harassment.
Moreover, when a family's financial means are restricted, young boys are frequently given preference for educational opportunities, thereby marginalising young girls and obliging them to quit school to commit to domestic chores. Likewise, in Uganda, where the issue of enforced disappearance is also prevalent, families generally prefer to marry off their young girls as a means of ‘economic survival’.
Chile is also acknowledged as a mass human rights violation during the political insurgency and the State’s transgression against the protestors, especially targeting women who were regardless of their involvement were subjected to rape, torture and enforced disappearances. Unlike India, estimated numbers of missing women were also reported in the State of Chile such as the infamous case of Maria Olga Flores Barraza, who abruptly disappeared after being apprehended along with Bernardo Araya, who was her husband and a communist leader.
Some governments have taken measures to provide educational benefits to a large number of children of the missing individuals. For instance, children in Chile have access to educational advantages until they reach the age of 35. Similarly in Argentina, such children are provided access to pensions until they reach the age of 25 or receive a university degree, whichever is the earliest. However, while acknowledging such hardships for women in disputed areas, no major benefits and reparations are granted by these States, which can be implemented by the Indian government.
Voices against the Discrimination
One of the well-known protestors against such enforced disappearances is Parveena Ahangar, who is the head of the Association of Parents of Disappeared Persons (APDP) and is herself a victim where she lost her son. She holds monthly protests in a park which according to her is an important and strategic location to convey their collective message to the State and the rest of the world. She said, “We come out to be seen and not to hide.” This place has turned into a congregation for media coverage and public attention.
However, in the context of the Indian government, Ather Zia correctly draws symbolism from Kafka’s work, Before the Law (1915) where the door to the law is open for everyone but justice is not accessible. Thus, despite the freedom to protest, such women are still neglected in the arenas of justice.
Similarly, The Manipur Women Gun Survivors Network, Northeast India Women Initiative for Peace and the Control Arms Foundation of India are built and run by women who believe in nonviolent protests and constantly seek justice for themselves, their families including the one who is long dead and the ones who are missing. In addition, the historical movement known as Meira Paibis captured global attention on the unceasing rape and torture by military officials, victimising Manipuri women for decades. However, once again their struggle to seek justice seems inevitable due to the lack of State aid and judicial interventions. If we refer to the case of Extra-Judicial Execution Victim Families Association (EEVFAM) vs. Union of India (2017), the Court mentioned that “access to justice is a fundamental right for victims”. Here, neither “Justice” is limited to reparations or ex-gratia relief nor “victim” is limited to the disappeared individual. Thus, regardless of the nature of violence which can directly or indirectly affect the women, justice is always denied to them.
Moreover, Manipuri women are willing to participate in the area of political decision-making to ensure the protection of Manipuri women from intersectional discrimination in every field including employment opportunities in business and formal sectors. However, the ratio of women representation especially the ones who belong to the oppressed community is hardly perceptible in mainstream politics of the State.
Conclusion
This is unambiguous that the wives, daughters and mothers of such missing persons suffer their entire lives with the societal and financial burden. With this, they suffer from the impacts of internalised patriarchy. In such scenarios, gender-sensitive approaches should be opted for by justice systems and the government. In addition, legislators should develop a legal category called “absence through enforced disappearance” that allows relatives of the missing to get benefits without having to wait for that missing individual to be declared deceased. This shall lead to ease in inheriting the disappeared person's wealth and assets or allowing spouses to dissolve marriages. This is analogous to the steps taken by Peru, Argentina, and Bosnia and Herzegovina. Similarly, Gabriella Citroni, in one of her works stated that a certificate of “declaration of absence because of enforced disappearance” should be issued to such disappeared persons (with the family's consent) after a reasonable amount of time, so that the relatives of the disappeared can exercise their basic rights such as the right to their family’s property. However, the State is still responsible to investigate such cases to determine the true status of the disappeared.
Moreover, it is the duty of the State to fill the gaps such as the lack of the State psychological and medical help for such women by making psychological centres accessible and affordable in more areas of the affected regions. Lastly, the gendered impact of enforced disappearance and structural difficulties encountered by many girl child victims as well as their mothers must be addressed by reparation programmes. This shall include scholarship programmes for victims who are girls or young women to make them financially stable and independent in their lives.
However, the question remains, how can we ever overcome this problem if every recommendation revolves around the responsibility of the government, it is evident that the government does not want to take responsibility for the identification of disappeared persons and this is gravely affecting women.