By Neha Dabhade for Twocircles.net
(Secular Perspective September 1-15, 2016)
An FIR was recently registered against Amnesty International India (AII) on charges of sedition and other IPC sections. Amnesty International India had organised a panel discussion which included Kashmiri Pandits and others in Bangalore. This discussion was a part of the campaign supported by AII to promote justice for victims of human rights violation in Jammu and Kashmir.
The Kashmiri Pandits present at the discussion chanted slogans hailing the Indian Army, which was met with pro-freedom sloganeering by some of the youth in the audience. Though AII clarified that it doesn’t take any positions on self determination with regards to Kashmir, the government insisted that the event is ‘anti-national’, like the ABVP (Indian Express, 2016). In the midst of the chaos and din raised by the ABVP, the Report that Amnesty has published to uncover the plight of Kashmiris in Jammu and Kashmir got sidelined if not completely invisible.
Kashmir today is like a war zone where on one hand there is violence perpetrated by the militants and on the other hand, a strong presence of the Indian Army and internal security forces fighting against these militants. There have been rising concerns on the excesses committed by the Army and internal security forces against the citizens leading to worst forms of human rights violations. The Report, published in 2015, is called “Denied” Failures in Accountability in Jammu and Kashmir. It outlines the obstacles faced by the victims and their relatives in Kashmir when there are human rights violations and the role played by the security forces in this. The salient points of the Report are mentioned below.
The Amnesty Report begins with defining the scale of human rights violations in Kashmir that have been perpetrated by security forces personnel with glaring impunity. The Report states that from 1990 to 2011, the Jammu and Kashmir state government reportedly recorded a total of over 43,000 people killed. Of those killed, 21,323 were said to be ‘militants’, 13,226 ‘civilians’ (those not directly involved in the hostilities) killed by armed groups, 5,369 security force personnel killed by armed groups, and 3,642 “civilians” killed by security forces.
This impunity is greatly accorded to the security forces by laws like Armed Forces Special Powers Act, 1990 (AFSPA) which gives them sweeping powers that lead to extrajudicial executions and other human rights violations. Section 7 of the AFSPA makes it mandatory to seek the prior sanction of Central and State authorities in order to prosecute any security force personnel in civilian courts. Under the pretext of protecting national security, the excesses of the security forces go unchallenged. 96% of all complaints brought against the army in Jammu & Kashmir have been dismissed as “false and baseless” or “with other ulterior motives of maligning the image of Armed Forces”.
To elaborate the consequences of such a system, the Report narrates the story of 17 year old Javaid Ahmad Magray who disappeared on 30th April, 2003. His parents searched high and low for him after seeing bloodstains on the pavement and security personnel outside the gate. The authorities at the army camp gave evasive answers as to the whereabouts of Javaid stating that he was taken by them for questioning until finally admitting that he was declared dead at the Soura Medical Institute. The parents found out that Javaid was wounded in an encounter with the army who claimed that Javaid was a militant. When an inquiry was carried out by the District Magistrate, it was concluded that Javaid was not a militant and the army’s version of the killing was false. His parents wrote to the Ministry of Defence for sanction to prosecute the guilty officers under Section 7 of the Jammu and Kashmir Armed Forces Special Powers Act, 1990. After a long and painful wait, in 2012 they got a reply from the Ministry denying permission to prosecute stating, “…the individual killed was a militant from whom arms and ammunition were recovered. No reliable and tangible evidence has been referred to in the investigation Report.”
Unfortunately this is not a stand-alone case where sanction to prosecute was denied. The practice of the Ministry of Defence and the Ministry of Home Affairs, which sanctions prosecutions of the army and internal forces personnel respectively, has been to either deny sanction or remain silent on such applications without citing any reason. The family members are not required to be informed about the status of the sanction, whether it is granted or denied. They often assume that the sanction is denied. This frustrating wait compels the relatives to give up the pursuit of justice which closes all avenues of appeal. Most of the times, the families are not even aware of the procedures to apply for permission to prosecute.
AFSPA by nature seems colonial, where similar laws were used by the British to preempt any legal challenge to their violence in India. AFSPA is considered draconian in the light of opinions and recommendations against it as expressed by committees constituted by the State and also by UN rapporteurs on violence against women; and on extrajudicial, summary or arbitrary executions. They have repeatedly pointed out that AFSPA had bred a culture of violence, especially against women, and eroded the principle of transparency and accountability of the state. The recommendations range from review of the law to its repealment.
Another important issue highlighted by the Amnesty Report is that since all cases are tried in military courts, civilians have limited options to appeal against judgments of these courts. The Supreme Court’s extraordinary appellate jurisdiction, the Special Leave Petition, is barred from reviewing decisions made by military courts under the Constitution of India. This problematizes the jurisdiction to try cases of human rights violations that is vested with the military courts. Principle 29 of the Updated Set of principles for the protection and promotion of human rights through action to combat impunity also states: “The jurisdiction of military tribunals must be restricted solely to specifically military offences committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts…”
Similarly, with respect to investigations, an inquiry that is conducted by the same authority accused of the crime raises serious questions about the independence and impartiality of those proceedings. International law requires that crimes under international law be investigated by an independent authority, namely, an authority not involved in the alleged violations. The Indian Army’s Human Rights Cell Reported that as of 2011, it has dismissed over 96 percent of the allegations of human rights violations brought against its personnel since 1993. The army had received 1,532 allegations of human rights violations (995 from Jammu and Kashmir, 485 from North-Eastern states, and 52 complaints from other states) out of which 1,508 were investigated, and 24 investigations remained pending as of 2011. Out of a total of 995 complaints of human rights violations against the army in Jammu and Kashmir, 986 have been investigated by the army to date, while 9 investigations currently remain pending. The army says it found that 961 of these allegations were “false, baseless” through internal enquiries. In the 25 cases found to be “true,” it says 129 army personnel were punished.
The Report points out inherent defects within the military justice system in which there are four types of court martials: general court-martial (GCM); district court-martial (DCM); summary general court-martial (SGCM); and summary court martial (SCM). In each type, members of the court martial are a part of the executive chain of command, meaning that there is a notable lack of independence. Court-martial proceedings are subject to judicial review under Article 32 of the Constitution of India (before the Supreme Court) and Article 226 (before the High Court). Thus, it is theoretically possible to challenge the verdict of a court-martial by filing a writ petition under either Article 32 or 226. However, there are no known instances of persons not subject to military law in Jammu and Kashmir challenging court-martial decisions through writ petitions.
Furthermore, the members have no qualifications or legal training of courts, thereby jeopardizing the prospects of justice.
In order to understand the implications of lack of independence of military courts, the Report narrates the story of Mushtaq. Mushtaq Ahmad Hajam was returning home after his prayers at a local mosque in Nowhatta, Srinagar on the 17th of August 1990, where he was shot at by a CRPF constable, leaving him fatally wounded. An FIR was filed by the family members of Mushtaq. The CRPF Report, however, stated that the constable fired in “self-defence”, though the police investigation wanted to convict the constable under Section 7 of the Armed Forces (Jammu and Kashmir) Special Powers Act in 1996. The CRPF court of inquiry and the Central government have however been reiterating time and again that no criminal cases can be pressed on the accused, and also that the case cannot be tried in civilian courts. Mushtaq’s family still awaits justice.
According to the Report, the first obstacle is the reluctance of the police itself in filing of the complaints. Furthermore, the police does not take action until compelled to by the court and subsequently there are long drawn out cases. Sheila’s story elaborates this aspect. Sheila was allegedly subjected to torture and sexual violence at the hands of the Deputy Superintendent of Police who was investigating the death of her neighbor. However, she experienced a lot of resistance from the police when she went to register her complaint. Subsequently, the Inspector General of police visited her family and offered an amount of 200,000 rupees, and jobs for both of her brothers. She refused to accept these, fearing future harassment. The State Human Rights Commission whom she approached in 2004 passed a judgement in 2008 stating that compensation be provided to Sheila’s family and a police complaint be registered. Neither of these recommendations were implemented, however.
The next obstacle comes in the form of lack of cooperation of the army and security forces with investigations by the police. This ranges from not being present for questioning, to not responding to requests for the rosters of personnel involved in operations, records of weapons and ammunition used, etc. This has led to justice being denied to many. When Irfan Ganai and his cousin Reyaz stepped out of house to investigate a gunshot, fearing stolen cattle, a subsequently fired gunshot hit killed him. His family members guarded the body for more than 15 hours to ensure that the army doesn’t take his picture and label him a militant in front of the authorities. What followed was a gruesome denial of justice, as the army refused to cooperate with the Sub-Divisional Police Officer who had sent letters to the Commanding Officer of the 13 Rashtriya Rifles regarding the details of the army personnel involved in the operation on the 30th of June, 2013, repeatedly. This uncooperative demeanour extended in case of the army officers and personnel too, who, despite being summoned for testifying, remained absent from all scenarios of investigation, eventually leading to the police abandoning the investigation unfruitfully.
What is perhaps the most heart rending experience of the Kashmir conflict is the plight of the relatives and the families of those who disappear or become victims of extrajudicial executions. Their quest for justice becomes painful when no information is given to relatives about the investigations. The police station refuses to divulge information to relatives and most of the times officers don’t even meet them. Ghulam Mohammad’s son Abdul Hamid Dar was arrested on the 29th of December, 1995 by the army, and they later confirmed he was being held at the Sheeri camp in Baramulla. When he was allowed to meet Abdul at Boniyar camp on the 8th of January, they were allowed to see him from a distance, and his body seemed to be propped up on a bench, unmoving. Ghulam believes that his son was killed by the army and it disposed off his son’s body when the police station refused to accept it. Ghulam tried filing an FIR at Sheeri police station, but it was not filed until six months later. Subsequently, Ghulam filed a habeas corpus writ in the High Court, and the court ordered a judicial enquiry. Ghulam and his family never got to know the contents of the Report. Neither were they informed about the outcome of the judicial proceedings. They were offered compensation to settle, but they did not. The investigation was then taken up by the State Home Department, which seeked the Centre’s permission to execute two army personnel, which was denied in December 2011. All through this, Ghulam’s family was kept out of the loop, and they eventually decided to give up on the case.
After facing harassment and trauma during the investigations as seen above, the lack of adequate financial compensation to families adds insult to their injuries. Most of the times, the victims are the sole breadwinners in the families. In spite of this fact, procedures for access to compensation remain weak. For instance, families are often intimidated by the concerned authority to withdraw cases by offering them compensation. Many don’t take compensation viewing it as a tacit bargain to withdraw their cases. In addition, conditions are placed on eligibility for financial relief like, not being involved in militancy which in the first place is the allegation to be proved. Another condition is that the death certificate of the victim has to be furnished. This is impossible in cases of enforced disappearances since the victims are declared dead only after 7 years of the disappearance.
Recommendations:
· The provisions of prior sanction for prosecution from the State and Central authorities must be removed from AFSPA and criminal procedure code to ensure that trials are independent and fair in civilian courts. In the meanwhile, the families and applicants seeking sanction to prosecute must be informed about the status of their application.
· Make information regarding the proceedings and verdicts conducted in court martials public by making it more accessible through RTI/ online.
· Repeal AFSPA in order to ensure compliance with UN Principles for the Prevention of Extra-legal, Arbitrary and Summary Executions and other instruments India is signatory to.
· Definitions of torture and disappearance in Indian law should be consistent with the ones mentioned in UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and International Convention on the Protection of All Persons from Enforced Disappearance
· Become party to international instruments/ conventions against torture and enforced disappearances. More importantly, national laws should be framed accordingly and implemented effectively.
· Right to truth will be upheld by keeping families informed about the procedures and status of applications even when the inquiry is led by the National Human Rights Commission.
· Review the provisions of compensation ex gratia to the families of victims where there is no impossible conditionality and threats or intimidation from the authorities. Compensation should be adequate and ensured especially to survivors of sexual violence.
On a concluding note, one can only hope that the State will take notice of this Report and implement its recommendations in the light of the recent unrest and protest happening in Kashmir which reflects the disaffection of the people stemming from years of violations of their human rights.
The report was first published in Secular Perspective, a fortnightly publication of Centre for Study of Society and Secularism, in its September 1-15 edition