Indian Kashmir has been shaken by protests since the killing of Burhan Wani, a young separatist militant, on July 8. Security forces have responded with bullets, iron pellets and tear gas. Almost 50 protestors have died, and 5,000 have been injured.
Unfortunately, this kind of excessive, ironfisted response to protest is not new in Kashmir and India's northeastern states where groups seeking independence remain active. But the belligerence of police and soldiers generates more extremism than it quells.
An unprovoked beating by soldiers in 2010 reportedly radicalized Wani, the slain militant, prompting him to join an armed separatist group. His anger resonated with his large social media following because far too many people know what it feels like to be abused by security forces.
When the security forces abuse the law, it naturally stirs great anger. But what is equally galling is the disproportionate force that the law actually permits. The military, not just the civilian police, maintain law and order in Kashmir and the northeast. Soldiers operate under the Armed Forces (Special Powers) Act, which gives them lavish powers to use force.
Soldiers can, for example, shoot to kill unconstrained by the need to show reasonable suspicion and proportionality. After decades under the Special Powers regime, soldiers have become habituated to this harsh, hair-trigger standard. It has even influenced the civilian police, who have become alarmingly trigger-happy.
It is hardly surprising, then, that the Kashmiri authorities are tackling demonstrations with pellet guns that injure, maim and blind. Sprays of iron shrapnel have even hurt unfortunate bystanders. One 14-year old girl, Insha Mushtaq, looked out of her window and was shot at close range with pellets that have left her blind, likely for life.
Rather than taking care to shoot protestors below the knee, security forces have commonly inflicted injuries to the face. Pellet guns, with their unpredictable trajectories, are decried by Amnesty International. But within the Special Powers culture of law-enforcement, they constitute the kinder, gentler option, adopted by the authorities after conventional bullets in 2010 killed many demonstrators, including several teenagers.
Not only does the Special Powers Act normalize disproportionate force, it also insulates soldiers from punishment if they exceed their wide legal powers. Under the law, the national government, rather than the prosecutor on the ground, controls whether solders can be tried. They very rarely are.
With little fear of punishment, security forces have killed, assaulted and harassed civilians for years. Soldiers will accuse people of separatist affiliations on flimsy grounds, then kill suspects rather than bothering to investigate or arrest them.
In response to militant violence, troops have lashed out against entire villages, allegedly committing mass rape in Kunan Poshpora in Kashmir in 1991, for example, and executing eight men in Tabanglong, in the northeastern state of Manipur, in 2000. Despite complaints by the affected communities, reports by human rights groups and judicial findings confirming violence in some of these cases, the security forces deny wrongdoing. People have also been assaulted, as Wani and his brother allegedly were, simply for sport.
Charter for impunity
What could curb these excesses? As it happens, on the same day that Wani was shot, a ruling by India's Supreme Court offered some hope. In a different case from Manipur, the court insisted that the Special Powers Act should no longer serve as a charter for impunity.
The case concerned the deaths of 1,528 people at the hands of the security forces over the space of more than 20 years. The litigants argued that all 1,528 had been unlawfully killed and demanded a systemic response to what they said was a widespread practice.
In previous cases, the Supreme Court has treated such abuses as isolated incidents perpetrated by a few rogue elements. This time, however, the court finally acknowledged that these crimes are systematic, as is the Indian government's policy of protecting soldiers from prosecution. The judges ordered the government to investigate all 1,528 cases, stressing that excessive and retaliatory violence by security forces must be punished.
This ruling has a number of positive implications. It means that the Indian government has to stop withholding permission for the prosecution of soldiers who overstep legal limits. As a result, reports of abuse that it has long neglected might finally lead to trials.
And if complaining to the police is no longer pointless, previously unreported crimes are likely to come to light. In Kashmir alone, nongovernmental organizations estimate that 8,000 disappearances at the hands of soldiers have never been accounted for.
The exposure of these past crimes might also reduce future abuses. It will embarrass India's government and its security forces, which claim to uphold democratic ideals. It is one thing to adopt dirty-war tactics surreptitiously. It is quite another to have their scale and cruelty aired in legal proceedings.
While the security forces will not easily shed their habits of torture and execution, they might now show more caution, picking targets with greater care and victimizing fewer civilians. At a minimum, senior officials are less likely to tolerate impromptu cruelty by the rank and file.
Enforcing the limits of the Special Powers Act is crucial, but these powers remain far too wide. They permit a level of aggression that easily spills over into outright abuse. To move away from the vicious, harmful policing evident in Kashmir this month, legal reform is necessary.
India should repeal the Special Powers Act, or at least amend the law to incorporate due process, proportionality and punishment for abuse. Defeat in court provides the government with the political cover to make these changes. The Supreme Court's order is an opportunity, and India should seize it.
Surabhi Chopra is anassistant professor at the Chinese University of Hong Kong's Faculty of Law. She tweets @ProfChopra.