PaRCha - JNU - AISA material - 2012 ID-32236
.
INTRODUCTION .
Prepared over two years, this report documents state impunity in Jammu and Kashmir. It seeks a process of accountability for institutional crime, where the identities of the individual perpetrators are known. Cases of human rights violations committed by individuals from various State forces are analyzed in the report, within the context of an occupation, an armed conflict and a state of structural impunity. Structures and the culture of impunity in the highly militarized space of Jammu and Kashmir have evolved within, and traverse through State institutions, the armed forces, the application and interpretations of special laws, and finally the judicial system itself. .
The judicial attitude to the widespread practice of extrajudicial killings by staging 'fake encounters', as exemplified by a recent Supreme Court judgment serves to illustrate the hypocritical culture of structural impunity. Fake encounters [extrajudicial executions under the garb of legitimate encounters], along with various other human rights violations, have been a stark reality for the people of Jammu and Kashmir over the last 22 years. In 2008 the media reported the oral observations made in court by Supreme Court Justice Aftab Alam and Justice G.S. Singhvi, where the Justices made reference to the practice of fake encounters for rewards in Jammu and Kashmir1. In the backdrop of these observations, activists, lawyers, and most importantly, families of the victims keenly awaited the Supreme Court judgment in the Pathribal fake encounter case, where personnel of the 7 Rashtriya Rifles [RR] were found by the Central Bureau of Investigation [CBI] to have killed five persons in a fake encounter on 25 March 2000. .
On 1 May 2012, the Supreme Court of India issued its final judgment in the Pathribal fake encounter case [General Officer Commanding v. Central Bureau of Investigation (CBI) & Anr]. The judgment unfortunately failed to address the legal issues within the reality of the ongoing conflict in Jammu and Kashmir, and has only strengthened the impunity that exists for human rights violations, particularly for the armed forces. The Supreme Court found that as per Section 7 of the Armed Forces Jammu and Kashmir [Special Powers] Act, 1990 [AFSPA] [Annexure 1], while a chargesheet may be presented before a court, no cognizance may be taken. This means that even where clear evidence exists indicting members of the armed forces of crimes, the court cannot recognize the prima facie validity of this evidence as crimes and begin trial, as it would in the normal course, without prior sanction of the government .
While the Supreme Court initially states in its judgment that .the question as to whether the sanction is required or not under a statute has to be considered at the time of taking cognizance of the offence
., it concludes by stating that cognizance may not be taken by a court without prior sanction. The effect of this conclusion might well be a complete negation of the qualifying portion of Section 7 of AFSPA which limits the need .
for seeking sanction only .in respect of anything done or purported to be done in exercise of the powers conferred by this Act.. This .
qualification is redundant unless a competent court is empowered to take cognizance of a case i.e. apply its judicial mind independently to the chargesheet and decide whether the qualification applies. .
The Supreme Court states that .facts of this case require sanction of the Central Government to proceed with the criminal prosecution/trial. .
[emphasis added]. Therefore, it appears that on one hand the Supreme Court has effectively barred courts from taking cognizance of a case, but through this judgment, it has appreciated the facts of the Pathribal fake encounter case and found that sanction would be required to be sought2. .
The thrust of the Supreme Court judgment is that there is a presumption of good faith when considering the need for sanction, and this presumption can only be dislodged by cogent and clinching material. Therefore, the Supreme Court when considering the application of Section 7 AFSPA places the onus on the investigating agency to sufficiently prove that an act was outside the official discharge of duty and was not in good faith. This finding of the Supreme Court would appear completely ignorant of the realities of rights violations in Jammu and Kashmir. For example, an allegation of rape would on the very face of the facts be clearly outside the official discharge of duty and there could be no question of the rape being committed in good faith. .
The implications of the judgment in the Pathribal fake encounter case for human rights violations in Jammu and Kashmir remain relevant even in 2012. On 2 January 2012, Altaf Ahmad Sood was killed and two others injured at Boniyar village3. On the late evening of 10 February 2012, Ashiq Hussain Rather stepped out of his house and was shot dead by soldiers of the 32 Rashtriya Rifles of the Indian Army4. On 22 March 2012, Sajad Ahmad Dar, resident of Sopore, died in a hospital, having been in police custody, detained under the Public Safety Act, 1978 [PSA]5. The family of the victim stated to members of IPTK that the Special Operations Group [SOG] of the Jammu and Kashmir Police had tortured him. .
Altaf Ahmad Soods death allegedly took place when people from the village were protesting power shortage in the area near a local power station. Personnel of the Central Industrial Security Force [CISF], guarding the power station, allegedly fired at the protesting crowd. The media reported that on 30 September 2011, a circular was issued by the CISF Deputy Inspector General [DIG] that .We may not wait for the arrival of the police or the presence of a magistrate for taking any steps against any activities which threatens the security of the installation.6. The CISF also initiated an independent parallel enquiry. The CISF probe report was submitted to the Ministry of Home Affairs and reportedly concluded that the CISF personnel had followed the standard operating procedure during the incident7. Police investigations resulted in a chargesheet against five CISF personnel, but not for the crime of murder8. A magisterial enquiry ordered by the Government of Jammu and Kashmir .
1 The Hindu, www.hindu.com/2008/04/30/stories/2008043060391300.htm, 30 April 2008. .
2 This seeming contradiction between the conclusions of the Supreme Court would require further clarification in the future, and perhaps is a pointer to the need to .
allow competent courts the opportunity to fully appreciate the specifics of a case before a request for sanction is necessitated. .
3 Economic Times, articles.economictimes.indiatimes.com/2012-01-03/news/305..., 3 .
January 2012. .
4 Al Jazeera, www.aljazeera.com/NEWS/ASIA/2012/02/2012211192417545776.html, 11 February 2012; Greater Kashmir, .
www.greaterkashmir.com/news/2012/Feb/12/youth-s-killing-t..., 12 February 2012. .
5Daily Excelsior, www.dailyexcelsior.com/web1/12mar25/news2.htm, 25 March 2012. .
6 Mail Today, indiatoday.intoday.in/story/kashmir-cisf-men-had-orders-t..., 4 January 2012. .
7Greater Kashmir, www.greaterkashmir.com/news/2012/Jan/9/inquiry-officer-to..., 9 January 2012. .
8Greater Kashmir, www.greaterkashmir.com/news/2012/Mar/4/cisf-men-charged-f..., 3 March 2012. .
.
alleged Perpetrators 9 IPTK/APDP .
.
.
PaRCha - JNU - AISA material - 2012 ID-32236
.
INTRODUCTION .
Prepared over two years, this report documents state impunity in Jammu and Kashmir. It seeks a process of accountability for institutional crime, where the identities of the individual perpetrators are known. Cases of human rights violations committed by individuals from various State forces are analyzed in the report, within the context of an occupation, an armed conflict and a state of structural impunity. Structures and the culture of impunity in the highly militarized space of Jammu and Kashmir have evolved within, and traverse through State institutions, the armed forces, the application and interpretations of special laws, and finally the judicial system itself. .
The judicial attitude to the widespread practice of extrajudicial killings by staging 'fake encounters', as exemplified by a recent Supreme Court judgment serves to illustrate the hypocritical culture of structural impunity. Fake encounters [extrajudicial executions under the garb of legitimate encounters], along with various other human rights violations, have been a stark reality for the people of Jammu and Kashmir over the last 22 years. In 2008 the media reported the oral observations made in court by Supreme Court Justice Aftab Alam and Justice G.S. Singhvi, where the Justices made reference to the practice of fake encounters for rewards in Jammu and Kashmir1. In the backdrop of these observations, activists, lawyers, and most importantly, families of the victims keenly awaited the Supreme Court judgment in the Pathribal fake encounter case, where personnel of the 7 Rashtriya Rifles [RR] were found by the Central Bureau of Investigation [CBI] to have killed five persons in a fake encounter on 25 March 2000. .
On 1 May 2012, the Supreme Court of India issued its final judgment in the Pathribal fake encounter case [General Officer Commanding v. Central Bureau of Investigation (CBI) & Anr]. The judgment unfortunately failed to address the legal issues within the reality of the ongoing conflict in Jammu and Kashmir, and has only strengthened the impunity that exists for human rights violations, particularly for the armed forces. The Supreme Court found that as per Section 7 of the Armed Forces Jammu and Kashmir [Special Powers] Act, 1990 [AFSPA] [Annexure 1], while a chargesheet may be presented before a court, no cognizance may be taken. This means that even where clear evidence exists indicting members of the armed forces of crimes, the court cannot recognize the prima facie validity of this evidence as crimes and begin trial, as it would in the normal course, without prior sanction of the government .
While the Supreme Court initially states in its judgment that .the question as to whether the sanction is required or not under a statute has to be considered at the time of taking cognizance of the offence
., it concludes by stating that cognizance may not be taken by a court without prior sanction. The effect of this conclusion might well be a complete negation of the qualifying portion of Section 7 of AFSPA which limits the need .
for seeking sanction only .in respect of anything done or purported to be done in exercise of the powers conferred by this Act.. This .
qualification is redundant unless a competent court is empowered to take cognizance of a case i.e. apply its judicial mind independently to the chargesheet and decide whether the qualification applies. .
The Supreme Court states that .facts of this case require sanction of the Central Government to proceed with the criminal prosecution/trial. .
[emphasis added]. Therefore, it appears that on one hand the Supreme Court has effectively barred courts from taking cognizance of a case, but through this judgment, it has appreciated the facts of the Pathribal fake encounter case and found that sanction would be required to be sought2. .
The thrust of the Supreme Court judgment is that there is a presumption of good faith when considering the need for sanction, and this presumption can only be dislodged by cogent and clinching material. Therefore, the Supreme Court when considering the application of Section 7 AFSPA places the onus on the investigating agency to sufficiently prove that an act was outside the official discharge of duty and was not in good faith. This finding of the Supreme Court would appear completely ignorant of the realities of rights violations in Jammu and Kashmir. For example, an allegation of rape would on the very face of the facts be clearly outside the official discharge of duty and there could be no question of the rape being committed in good faith. .
The implications of the judgment in the Pathribal fake encounter case for human rights violations in Jammu and Kashmir remain relevant even in 2012. On 2 January 2012, Altaf Ahmad Sood was killed and two others injured at Boniyar village3. On the late evening of 10 February 2012, Ashiq Hussain Rather stepped out of his house and was shot dead by soldiers of the 32 Rashtriya Rifles of the Indian Army4. On 22 March 2012, Sajad Ahmad Dar, resident of Sopore, died in a hospital, having been in police custody, detained under the Public Safety Act, 1978 [PSA]5. The family of the victim stated to members of IPTK that the Special Operations Group [SOG] of the Jammu and Kashmir Police had tortured him. .
Altaf Ahmad Soods death allegedly took place when people from the village were protesting power shortage in the area near a local power station. Personnel of the Central Industrial Security Force [CISF], guarding the power station, allegedly fired at the protesting crowd. The media reported that on 30 September 2011, a circular was issued by the CISF Deputy Inspector General [DIG] that .We may not wait for the arrival of the police or the presence of a magistrate for taking any steps against any activities which threatens the security of the installation.6. The CISF also initiated an independent parallel enquiry. The CISF probe report was submitted to the Ministry of Home Affairs and reportedly concluded that the CISF personnel had followed the standard operating procedure during the incident7. Police investigations resulted in a chargesheet against five CISF personnel, but not for the crime of murder8. A magisterial enquiry ordered by the Government of Jammu and Kashmir .
1 The Hindu, www.hindu.com/2008/04/30/stories/2008043060391300.htm, 30 April 2008. .
2 This seeming contradiction between the conclusions of the Supreme Court would require further clarification in the future, and perhaps is a pointer to the need to .
allow competent courts the opportunity to fully appreciate the specifics of a case before a request for sanction is necessitated. .
3 Economic Times, articles.economictimes.indiatimes.com/2012-01-03/news/305..., 3 .
January 2012. .
4 Al Jazeera, www.aljazeera.com/NEWS/ASIA/2012/02/2012211192417545776.html, 11 February 2012; Greater Kashmir, .
www.greaterkashmir.com/news/2012/Feb/12/youth-s-killing-t..., 12 February 2012. .
5Daily Excelsior, www.dailyexcelsior.com/web1/12mar25/news2.htm, 25 March 2012. .
6 Mail Today, indiatoday.intoday.in/story/kashmir-cisf-men-had-orders-t..., 4 January 2012. .
7Greater Kashmir, www.greaterkashmir.com/news/2012/Jan/9/inquiry-officer-to..., 9 January 2012. .
8Greater Kashmir, www.greaterkashmir.com/news/2012/Mar/4/cisf-men-charged-f..., 3 March 2012. .
.
alleged Perpetrators 9 IPTK/APDP .
.
.