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Enforced Disappearance is abduction or kidnapping, carried out by State agents, or organized groups and individuals who act with State support or tolerance, in which the victim "disappears". Authorities neither accept responsibility for the dead, nor account for the whereabouts of the victim. Legal recourse including petitions of habeas corpus, remain ineffective. Enforced Disappearance is a serious violation of fundamental human rights: the right to security and dignity of person; the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; the right to humane conditions of detention; the right to a legal personality; as well as rights related to fair trial and family life. Ultimately, it can violate the right to life, as victims of enforced disappearance are often killed. Increasingly the international community considers Enforced Involuntary Disappearance as a specific human rights violation and a crime against humanity. This culminated in the International Convention for the Protection of All Persons from Enforced Disappearance. On February 6, 2007 the Convention was opened for signatures and signed by 57 States. The convention clearly states: - No one shall be subjected to Enforced Disappearance. - No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for Enforced Disappearance.

The convention aims to put an end to this heinous crime from all countries. However the convention will come into force when it is signed and ratified by 20 countries. As a result of strong lobbying and hard work by human rights activists and individuals till March 2010, the convention has been signed by 82 countries and ratified by 18. Only two ratifications remain to bring the convention into force and make it binding on all countries.

India signed the International Convention for Protection of All Persons from Enforced Disappearances in February 2007, but has failed to ratify the convention. The crime of Enforced Involuntary Disappearances is not codified as a distinct offence in Indian penal laws.

Enforced disappearance entails torture not only of the disappeared person but of the families of the disappeared as well. The victim is deprived of all rights and means of protection and the family and relations are left in a state of uncertainty, tossed between hope and despair. They can neither mourn nor find peace or closure.

The objective of Enforced disappearances is to cripple and paralyze dissent and resistance. The unknown but terrible fate of the victim and the realization that anybody can be picked up and subjected to Enforced Disappearance creates terror and insecurity in the society as a whole.

In Jammu and Kashmir Enforced Disappearances started in 1989, when a group of young men took up arms against the Indian state under the banner of "Azaadi" that is freedom. The armed uprising was in support of the popular movement for self determination in Kashmir which began in 1947 after the creation of India and Pakistan. Since then in the name of national security and state interest the massive Indian security apparatus in the state has been operating in a climate of impunity shielded by emergency legal provisions like the Disturbed Area Act, and Armed Forces Special Powers Act, which grant immunity against being held accountable.

Kashmir is perhaps today the most militarized zone in the world. Armed personnel are deployed not only on the borders but in every street and town square, every village and hamlet. Gigantic army camps surrounded by sandbags and barbed wire sprawl across urban and rural landscapes, forest and mountain giving a visual reality to the frequent observation that Kashmir has been transformed into a prison or a city of bunkers. This massive military presence is backed by highly repressive laws like the Jammu and Kashmir Armed Forces Special Powers Act, Jammu and Kashmir Public Safety Act, National Security Act, which provide legal immunity to armed forces and the police against prosecution. This has spawned a culture of impunity for all security forces to commit widespread and systematic human rights violations The violations cover the entire range disappearances, murder, torture, arbitrary detention at secret interrogation centres, rape and sexual assault, burning or destruction of houses and crops, forced labour, use of civilians as human shields, targeting of human rights defenders, custodial and extra-judicial killings euphemistically referred to as encounter killings, indiscriminate firing on civilians or unarmed demonstrators, the recruitment and training of counter-insurgency death-squads known by a variety of euphemisms renegades, Ikhwanis, Special Task Force, Special Operations Groups .

These State sponsored atrocities, defined in international human rights law as crimes against humanity, cannot be wished away or forgotten. Certain human rights such as the prohibition against torture, arbitrary detention, and arbitrary deprivation of life, custodial or other extra-judicial executions, and disappearances are protected under the International Convention on Civil and Political Rights (ICCPR) which India has signed and ratified. These human rights are non-derogable, that is, they cannot be amended, limited or suspended for any reasons. The ICCPR expressly prohibits derogation from the right to life even during an emergency (Article 6) The ICCPR also prohibits torture and other forms of cruel, inhuman and degrading treatment. Articles 4 and 7 of the ICCPR explicitly ban torture, even in times of national emergency or when the security of the state is threatened.

The testimonies of the families and the documentation of cases of disappeared persons in Kashmir indicate that the practice of Enforced Disappearance is widespread and systematic. Due to lack of proper survey and documentation there are no authentic figures available, however, about 8000 to10, 000 people are thought to have disappeared. A large number of disappearance cases remain undocumented for various reasons, including fear of reprisal by the security forces. At times the families have to move court to even register a First Information Report (FIR) at the police station. Families go through coercion and intimidation to withdraw complaints. There is no reparation or recourse for disappearances. Ex gratia relief of Rs.100, 000/ is awarded only after the families obtain death certificate from district authorities indicating that the victim was not involved in militancy. Families are pressured to withdraw complaints in order to receive ex gratia relief.

Family members of the disappeared persons in Kashmir have spent vast sums of money, time, resources and energy chasing the mirage of justice in India. The legal system has systematically failed to provide any justice to the victims. The Armed Forces Special Powers Act makes prosecution of armed forces by civilian courts impossible. Special sanction is required to proceed with investigations against them- so far no sanction has been granted. Court martial held in secret provide no opportunity for families to render their testimonies.

A stunning judgment by the Indian Supreme Court clearly defines the limits of Indian justice in relation to Kashmir, and comes as a blow to the thousands of Kashmiris seeking justice within the Indian judicial system for their relatives who have been disappeared or killed in custody. The constitutionality of the Armed Forces Special Powers Act was challenged in 1997 in the case Naga People`s Movement of Human Rights v. Union of India. The Supreme Court of India while upholding the law had laid down a series of Do`s and Don`ts placing various checks on the exercise of power by the "armed forces" exercise of power there under. The Supreme Court however in its judgment of May 2007 in the case of Masooda Parveen vs. Union of India has seriously diluted its own previously outlined safeguard requiring the army to hand over the arrested person to the civil authorities. A two-member bench upheld the right of the armed forces to kill on suspicion under the Armed Forces Special Powers Act (AFSPA) (http://www.pucl.org/Topics/Law/2007/icj-submission.html). The Court has justified this departure on grounds of political exigency of prompt action and stressed that it was applicable only in the case of Kashmir