PaRCha - JNU - AISA material - 2012 ID-32237
.
concluded that the firing was unprovoked9. Following the killing of Ashiq Hussain Rather, the Government of Jammu and Kashmir and the army constituted enquiries10. Sajad Ahmad Dars case was also subjected to a magisterial enquiry, which concluded that the jail authorities were found guilty of negligence11. The matter is presently before the High Court seeking further action. .
State of Impunity .
The above detailed incidents, seen in the context of the Pathribal fake encounter judgment of the Supreme Court serve as a useful prologue to the present report -killings, apparently unprovoked, followed by a response from the government usually as a reaction to public outcry] in the form of an enquiry or investigations, and a sense that the true perpetrators of the crimes may never be brought to justice. The story of Altaf Ahmad Sood, Sajad Ahmad Dar and Ashiq Hussain Rather strongly resonate with the story of impunity in Jammu and Kashmir. Coupled with the response of the Supreme Court, these implicate the Indian State in human rights violations in Jammu and Kashmir. .
The defining feature of human rights violations in the last 22 years in Jammu and Kashmir is that in the name of countering militant violence the Indian State authorizes armed forces to carry out every kind of operation, with or without adherence to laws and norms. Significantly, in a majority of cases crimes are not noted or investigated at all. Therefore, any listing or analysis of cases would be an incomplete one. .
The Jammu and Kashmir Police who are required to register First Information Reports [FIR] and carry out speedy and accurate investigations, often fail to do so. Families of victims are forced to approach various courts to order the police to file FIRs and carry out investigations. The situation is exacerbated in cases involving fellow police personnel. In fact, a circular was issued by the Home Department, Jammu and Kashmir, to the police stations [Letter# SP 5Exg/267881 dated 14 April 1992] directing them to disobey the Criminal Procedure Code [CrPC], 1989 by refusing to file FIRs against the armed forces without the approval of higher authorities, and refrain from reporting accusations of misconduct on the part of the armed forces in their daily logs. Besides, there is a routine lack of cooperation by the armed forces in police investigations. The reality of Jammu and Kashmir therefore points to an institutional impunity at political, judicial and moral levels. .
This institutional culture of moral, political and juridical impunity has resulted in, by some estimates [as of 2012], enforced and involuntary .
12 13.
disappearance of at least 8000 personsbesides more than 70,000 deaths, and disclosures of more than 6000 unknown, unmarked, and mass graves 14. The last 22 years have also seen numerous large-scale massacres, in addition to regular extra-judicial killings. The Gow Kadal [Srinagar] massacre of around 50 persons on 21 January 1990 and other mass killings discussed in this report are symbolic reminders of the persistent human rights violations in Jammu and Kashmir. .
On numerous occasions, over the years, governments in power [both in Jammu and Kashmir and at New Delhi] have used the specters of security, national interest and public order to propagate violence, ineffectively address human rights violations, or altogether disregard the concerns of the people of Jammu and Kashmir. Violations by the armed forces are disregarded and referred to as false allegations leveled to demoralize the armed forces or malign their image. Alternatively, they are termed as .aberrations.15. Occasionally, the lives of innocent persons are considered .collateral damage. in the larger war waged in Jammu and Kashmir16. This approach, evident in the manner in which investigations are handled, is also revealed by the manner in which the process of seeking sanctions for prosecutions under AFSPA is dealt with. To begin with, the insistence on the sanction process in cases where it is inconceivable that the acts were carried out in exercise of the powers conferred under the AFSPA, is telling. For example, in the Pathribal fake encounter case of 25 March 2000, the five victims were killed and then burnt. This act of burning bodies, leaving aside the actual killing, would constitute an international crime [certainly a war crime] and the prosecution of this crime should not require a sanction for prosecution. .
.
Impunity, Secrecy and the Politics of Misinformation .
Sanctions .
The positions taken by the Government of Jammu and Kashmir and the union Ministry of Defence [MOD] with regard to cases where sanction for prosecutions under AFSPA have been sought highlight the pervasive climate of secrecy and non-disclosure, and the misuse of the sanction process. On 6 September 2011, the Jammu and Kashmir Home Department, in response to an application under the Right to Information Act, 2009 [RTI] submitted a list of 50 cases where sanction had been sought from the Ministry of Home Affairs [MHA] and MOD [Annexure 2]. On 10 January 2012, in response to an application under the RTI Act, 2005, the MOD submitted a list of 24 cases received for the grant of sanction from the Government of Jammu and Kashmir Home Department between 2007 and 15 December 2011 [Annexure 3]. Out of the 24 cases in the MOD list 14 find no mention in the Government of Jammu and Kashmir Home Department list. Therefore, while the MOD indicates that these 14 cases had been received at its office, the Government of Jammu and Kashmir Home Department appears to have no record of forwarding these cases. Also disconcerting is the manner in which the MOD has dealt with these 24 cases. In 19 of the 24 cases, sanction has been declined. .
9Greater Kashmir, www.greaterkashmir.com/news/2012/Jul/21/cisf-resorted-to-..., 21 July 2012. .
10Daily Mail, www.dailymail.co.uk/indiahome/indianews/article-2099843/K..., 12 February 2012. .
11 Kashmir Reader, kashmirreader.com/09142012-ND-sopore-youth%E2%80%99s-deat..., 14 September 2012. .
12 Public Commission on Human Rights, State of human rights in Jammu and Kashmir, 1990-2005, 2005, p.96; IPTK, Buried evidence, Unknown, Unmarked and .
Mass graves in Indian-Administered Kashmir, A preliminary report, 2009, p.10; APDP, Half widow, Half wife?, Responding to gendered violence in Kashmir, .
2011, p.2. .
13 Public Commission on Human Rights, State of human rights in Jammu and Kashmir, 1990-2005, 2005, p.vi; IPTK, Buried evidence, Unknown, Unmarked and .
Mass graves in Indian-Administered Kashmir, A preliminary report, 2009, p.10; APDP, Half widow, Half wife?, Responding to gendered violence in Kashmir, .
2011, p.2. .
14 Kashmir Reader, kashmirreader.com/kreadernew/07042012-ND-government-has-n..., 4 July 2012. .
15 Outlook, news.outlookindia.com/items.aspx?artid=203079, 21 February 2004. .
16 Times of India, articles.timesofindia.indiatimes.com/2002-04-20/india/271..., 20 April 2002; Greater Kashmir, .
www.greaterkashmir.com/news/2012/Jul/29/reduce-footprints..., 29 July 2012. .
.
alleged Perpetrators 10 IPTK/APDP .
.
.
PaRCha - JNU - AISA material - 2012 ID-32237
.
concluded that the firing was unprovoked9. Following the killing of Ashiq Hussain Rather, the Government of Jammu and Kashmir and the army constituted enquiries10. Sajad Ahmad Dars case was also subjected to a magisterial enquiry, which concluded that the jail authorities were found guilty of negligence11. The matter is presently before the High Court seeking further action. .
State of Impunity .
The above detailed incidents, seen in the context of the Pathribal fake encounter judgment of the Supreme Court serve as a useful prologue to the present report -killings, apparently unprovoked, followed by a response from the government usually as a reaction to public outcry] in the form of an enquiry or investigations, and a sense that the true perpetrators of the crimes may never be brought to justice. The story of Altaf Ahmad Sood, Sajad Ahmad Dar and Ashiq Hussain Rather strongly resonate with the story of impunity in Jammu and Kashmir. Coupled with the response of the Supreme Court, these implicate the Indian State in human rights violations in Jammu and Kashmir. .
The defining feature of human rights violations in the last 22 years in Jammu and Kashmir is that in the name of countering militant violence the Indian State authorizes armed forces to carry out every kind of operation, with or without adherence to laws and norms. Significantly, in a majority of cases crimes are not noted or investigated at all. Therefore, any listing or analysis of cases would be an incomplete one. .
The Jammu and Kashmir Police who are required to register First Information Reports [FIR] and carry out speedy and accurate investigations, often fail to do so. Families of victims are forced to approach various courts to order the police to file FIRs and carry out investigations. The situation is exacerbated in cases involving fellow police personnel. In fact, a circular was issued by the Home Department, Jammu and Kashmir, to the police stations [Letter# SP 5Exg/267881 dated 14 April 1992] directing them to disobey the Criminal Procedure Code [CrPC], 1989 by refusing to file FIRs against the armed forces without the approval of higher authorities, and refrain from reporting accusations of misconduct on the part of the armed forces in their daily logs. Besides, there is a routine lack of cooperation by the armed forces in police investigations. The reality of Jammu and Kashmir therefore points to an institutional impunity at political, judicial and moral levels. .
This institutional culture of moral, political and juridical impunity has resulted in, by some estimates [as of 2012], enforced and involuntary .
12 13.
disappearance of at least 8000 personsbesides more than 70,000 deaths, and disclosures of more than 6000 unknown, unmarked, and mass graves 14. The last 22 years have also seen numerous large-scale massacres, in addition to regular extra-judicial killings. The Gow Kadal [Srinagar] massacre of around 50 persons on 21 January 1990 and other mass killings discussed in this report are symbolic reminders of the persistent human rights violations in Jammu and Kashmir. .
On numerous occasions, over the years, governments in power [both in Jammu and Kashmir and at New Delhi] have used the specters of security, national interest and public order to propagate violence, ineffectively address human rights violations, or altogether disregard the concerns of the people of Jammu and Kashmir. Violations by the armed forces are disregarded and referred to as false allegations leveled to demoralize the armed forces or malign their image. Alternatively, they are termed as .aberrations.15. Occasionally, the lives of innocent persons are considered .collateral damage. in the larger war waged in Jammu and Kashmir16. This approach, evident in the manner in which investigations are handled, is also revealed by the manner in which the process of seeking sanctions for prosecutions under AFSPA is dealt with. To begin with, the insistence on the sanction process in cases where it is inconceivable that the acts were carried out in exercise of the powers conferred under the AFSPA, is telling. For example, in the Pathribal fake encounter case of 25 March 2000, the five victims were killed and then burnt. This act of burning bodies, leaving aside the actual killing, would constitute an international crime [certainly a war crime] and the prosecution of this crime should not require a sanction for prosecution. .
.
Impunity, Secrecy and the Politics of Misinformation .
Sanctions .
The positions taken by the Government of Jammu and Kashmir and the union Ministry of Defence [MOD] with regard to cases where sanction for prosecutions under AFSPA have been sought highlight the pervasive climate of secrecy and non-disclosure, and the misuse of the sanction process. On 6 September 2011, the Jammu and Kashmir Home Department, in response to an application under the Right to Information Act, 2009 [RTI] submitted a list of 50 cases where sanction had been sought from the Ministry of Home Affairs [MHA] and MOD [Annexure 2]. On 10 January 2012, in response to an application under the RTI Act, 2005, the MOD submitted a list of 24 cases received for the grant of sanction from the Government of Jammu and Kashmir Home Department between 2007 and 15 December 2011 [Annexure 3]. Out of the 24 cases in the MOD list 14 find no mention in the Government of Jammu and Kashmir Home Department list. Therefore, while the MOD indicates that these 14 cases had been received at its office, the Government of Jammu and Kashmir Home Department appears to have no record of forwarding these cases. Also disconcerting is the manner in which the MOD has dealt with these 24 cases. In 19 of the 24 cases, sanction has been declined. .
9Greater Kashmir, www.greaterkashmir.com/news/2012/Jul/21/cisf-resorted-to-..., 21 July 2012. .
10Daily Mail, www.dailymail.co.uk/indiahome/indianews/article-2099843/K..., 12 February 2012. .
11 Kashmir Reader, kashmirreader.com/09142012-ND-sopore-youth%E2%80%99s-deat..., 14 September 2012. .
12 Public Commission on Human Rights, State of human rights in Jammu and Kashmir, 1990-2005, 2005, p.96; IPTK, Buried evidence, Unknown, Unmarked and .
Mass graves in Indian-Administered Kashmir, A preliminary report, 2009, p.10; APDP, Half widow, Half wife?, Responding to gendered violence in Kashmir, .
2011, p.2. .
13 Public Commission on Human Rights, State of human rights in Jammu and Kashmir, 1990-2005, 2005, p.vi; IPTK, Buried evidence, Unknown, Unmarked and .
Mass graves in Indian-Administered Kashmir, A preliminary report, 2009, p.10; APDP, Half widow, Half wife?, Responding to gendered violence in Kashmir, .
2011, p.2. .
14 Kashmir Reader, kashmirreader.com/kreadernew/07042012-ND-government-has-n..., 4 July 2012. .
15 Outlook, news.outlookindia.com/items.aspx?artid=203079, 21 February 2004. .
16 Times of India, articles.timesofindia.indiatimes.com/2002-04-20/india/271..., 20 April 2002; Greater Kashmir, .
www.greaterkashmir.com/news/2012/Jul/29/reduce-footprints..., 29 July 2012. .
.
alleged Perpetrators 10 IPTK/APDP .
.
.