PaRCha - JNU - AISA material - 2012 ID-32240
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As a corollary to rewarding perpetrators of human rights violations, persons refusing to abide by the rules of impunity, find themselves marginalized, dismissed, or worse, killed. For example, the family of Captain Sumit Kohli, allegedly the author of an anonymous letter, to the families of four persons killed in Lolab, Kupwara in April 2004, that accused the army of the killings, claims that Captain Kohli was killed for speaking the truth33. .
Inquiries and Iniquity .
The reaction of the Government of Jammu and Kashmir to violations has been limited and ineffective, and amounts to complacence. Inquiries when ordered by the government, often in response to public anger and protests, have proved ineffective34. A RTI was filed to the Government of Jammu and Kashmir on all enquiries whether magisterial enquiries or under the Commissions of Inquiry Act, 1962 between 1990 and 2011. While the IPTK had independent information on the constitution of a total of 157 such enquiries between 1 January 2003 and 1 March 2012 [Annexure 21], the Government provided a list of only 22 [Annexure 22]. In addition to this being woefully deficient, an examination of the information provided clearly indicated that the ordering and subsequent conduct of these enquiries was merely symbolic in nature with little intent to thoroughly investigate and indict the accused. .
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Judiciary: Endorsing Impunity .
Lower Judiciary .
The lower judiciary in Jammu and Kashmir augments the failure of the Jammu and Kashmir Police by its ineffective functioning. A feature of the police investigative process has been the submission of closure reports before the lower judiciary. A closure report is filed under Section 173 .
(2) CrPC, 1989 and is filed when the police conclude that no prima facie case is made out in the matter. But the Magistrate before whom the report is filed must apply his own mind and may choose not to accept the opinion of the police and direct further investigations. The police and the court must inform the complainant/informant [often the family of the victim] of the closure report, accordingto Section 173 (2) (ii) CrPC, 1989 and the Supreme Court judgments on point35. Often, in Jammu and Kashmir, the lower judiciary has not exercised its judicial mind in this regard and has gone by the opinion of the police without issuing notice to the complainant/informant. This non-application of the judicial mind extends to other areas as well. For example in the Manzoor Ahmad Mir case, referred to in detail in this report, the victim disappeared on 7 September 2003 and was killed subsequently. The lower court stayed proceedings on a charge sheet against an officer named Captain Atul .
Sharma and stated that .no proceedings can take place against the accused. till necessary sanction under AFSPA is obtained. Therefore, no .
cognizance was taken of the charge sheet, which also indicted two other non-armed forces persons. The High Court, on 21 April 2007 found complete non-application of mind with regard to this order and stated that the Magistrate .should not have acted on the application of the Army, as the Army was not a party before the court at all.. The order was therefore quashed. .
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High Court of Jammu and Kashmir .
Over the years civil society groups and individuals have also criticized the role of the High Court of Jammu and Kashmir36. The primary criticism against the High Court has been that it has not played the role of an interventionist court, even in cases of grave violations of the letter and spirit of the law, and thus served the interests of the government and armed forces in fostering the climate of impunity. The role of an institution such as the High Court in a conflict zone is vital and, often, the only hope available for ensuring justice. The High Court must therefore serve as an effective check on the executive. Regardless of the state or level of the conflict, the High Court must be vigilant in ensuring that the human rights of individuals are not violated37. In Jammu and Kashmir the High Court appears to have undermined the institution of an independent judiciary by making itself subservient to the State38. For example, it was reported that a retired judge of the High Court, Justice [retired] A.M. Mir, stated at a Jammu and Kashmir Police function in 2006 that .counter terrorism. measures were justified in the 1990s in Jammu and Kashmir but that since the situation had changed there was now a need to follow the rule of law39. .
Numerous examples contained in this report show the High Court condoning the continued violations of law. Despite passing strongly worded orders against the State, on occasion, the High Court rarely uses its powers to ensure the implementation of its own orders. A contributing factor has perhaps been the deliberate appointment of judges who critics have considered non-interventionist in nature. The manner of transferring .
33NDTV, www.ndtv.com/article/india/did-anonymous-letter-lead-to-c..., 14 September 2010; Indian Express, www.indianexpress.com/news/capt-kohli-knew-truth-behind-f..., 15 September 2010. 34 In cases where an enquiry does indict the state, such as the 2009 Justice Muzaffar Jan enquiry into the Shopian double murder and rape case, the findings are ignored. 35See for example: Union Public Service Commission v. S. Papaiah & Ors., 1997 (7) SCC 614. 36See generally, Ashok Aggarwal, In search of vanished blood: the writ of habeas corpus in Jammu and Kashmir: 1990-2004, October 2008; Public Commission on Human Rights, State of human rights in Jammu and Kashmir, 1990-2005, 2005, p.161; Amnesty International, A Lawless Law, Detentions under the Jammu and Kashmir Public Safety Act, 2011 [www.amnesty.org/en/library/asset/ASA20/001/2011/en/cee7e8...]; Human Rights Watch, .Everyone lives in fear, Patterns of Impunity in Jammu and Kashmir, 2006 [www.hrw.org/reports/2006/india0906/india0906web.pdf]. 37 For a discussion on the role of the judiciary within a conflict by Aharon Barak, ex-President of the Israeli Supreme Court, see: Judgments of the Israel Supreme Court: Fighting Terrorism within the law, 2005, www.jewishvirtuallibrary.org/jsource/Politics/sctterror.html. Of note are the following passages: .We need laws most in times of war., .The protection of every individuals human rights is a much more formidable duty in times of war and terrorism than in times of peace and security. If we fail in our role in times of war and terrorism, we will be unable to fulfill our role in times of peace and security. It is a myth to think that we can maintain a sharp distinction between the status of human rights during a period of war and the status of human rights during a period of peace.. 38 In his dissenting judgment in Liversidge v. Anderson, [1942] AC 206, Lord Atkin stated that: .In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.. 39 Greater Kashmir, www.greaterkashmir.com/news/2006/Apr/5/-situation-under-c..., 5 April 2006. .
alleged Perpetrators 13 IPTK/APDP .
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PaRCha - JNU - AISA material - 2012 ID-32240
.
As a corollary to rewarding perpetrators of human rights violations, persons refusing to abide by the rules of impunity, find themselves marginalized, dismissed, or worse, killed. For example, the family of Captain Sumit Kohli, allegedly the author of an anonymous letter, to the families of four persons killed in Lolab, Kupwara in April 2004, that accused the army of the killings, claims that Captain Kohli was killed for speaking the truth33. .
Inquiries and Iniquity .
The reaction of the Government of Jammu and Kashmir to violations has been limited and ineffective, and amounts to complacence. Inquiries when ordered by the government, often in response to public anger and protests, have proved ineffective34. A RTI was filed to the Government of Jammu and Kashmir on all enquiries whether magisterial enquiries or under the Commissions of Inquiry Act, 1962 between 1990 and 2011. While the IPTK had independent information on the constitution of a total of 157 such enquiries between 1 January 2003 and 1 March 2012 [Annexure 21], the Government provided a list of only 22 [Annexure 22]. In addition to this being woefully deficient, an examination of the information provided clearly indicated that the ordering and subsequent conduct of these enquiries was merely symbolic in nature with little intent to thoroughly investigate and indict the accused. .
.
Judiciary: Endorsing Impunity .
Lower Judiciary .
The lower judiciary in Jammu and Kashmir augments the failure of the Jammu and Kashmir Police by its ineffective functioning. A feature of the police investigative process has been the submission of closure reports before the lower judiciary. A closure report is filed under Section 173 .
(2) CrPC, 1989 and is filed when the police conclude that no prima facie case is made out in the matter. But the Magistrate before whom the report is filed must apply his own mind and may choose not to accept the opinion of the police and direct further investigations. The police and the court must inform the complainant/informant [often the family of the victim] of the closure report, accordingto Section 173 (2) (ii) CrPC, 1989 and the Supreme Court judgments on point35. Often, in Jammu and Kashmir, the lower judiciary has not exercised its judicial mind in this regard and has gone by the opinion of the police without issuing notice to the complainant/informant. This non-application of the judicial mind extends to other areas as well. For example in the Manzoor Ahmad Mir case, referred to in detail in this report, the victim disappeared on 7 September 2003 and was killed subsequently. The lower court stayed proceedings on a charge sheet against an officer named Captain Atul .
Sharma and stated that .no proceedings can take place against the accused. till necessary sanction under AFSPA is obtained. Therefore, no .
cognizance was taken of the charge sheet, which also indicted two other non-armed forces persons. The High Court, on 21 April 2007 found complete non-application of mind with regard to this order and stated that the Magistrate .should not have acted on the application of the Army, as the Army was not a party before the court at all.. The order was therefore quashed. .
.
High Court of Jammu and Kashmir .
Over the years civil society groups and individuals have also criticized the role of the High Court of Jammu and Kashmir36. The primary criticism against the High Court has been that it has not played the role of an interventionist court, even in cases of grave violations of the letter and spirit of the law, and thus served the interests of the government and armed forces in fostering the climate of impunity. The role of an institution such as the High Court in a conflict zone is vital and, often, the only hope available for ensuring justice. The High Court must therefore serve as an effective check on the executive. Regardless of the state or level of the conflict, the High Court must be vigilant in ensuring that the human rights of individuals are not violated37. In Jammu and Kashmir the High Court appears to have undermined the institution of an independent judiciary by making itself subservient to the State38. For example, it was reported that a retired judge of the High Court, Justice [retired] A.M. Mir, stated at a Jammu and Kashmir Police function in 2006 that .counter terrorism. measures were justified in the 1990s in Jammu and Kashmir but that since the situation had changed there was now a need to follow the rule of law39. .
Numerous examples contained in this report show the High Court condoning the continued violations of law. Despite passing strongly worded orders against the State, on occasion, the High Court rarely uses its powers to ensure the implementation of its own orders. A contributing factor has perhaps been the deliberate appointment of judges who critics have considered non-interventionist in nature. The manner of transferring .
33NDTV, www.ndtv.com/article/india/did-anonymous-letter-lead-to-c..., 14 September 2010; Indian Express, www.indianexpress.com/news/capt-kohli-knew-truth-behind-f..., 15 September 2010. 34 In cases where an enquiry does indict the state, such as the 2009 Justice Muzaffar Jan enquiry into the Shopian double murder and rape case, the findings are ignored. 35See for example: Union Public Service Commission v. S. Papaiah & Ors., 1997 (7) SCC 614. 36See generally, Ashok Aggarwal, In search of vanished blood: the writ of habeas corpus in Jammu and Kashmir: 1990-2004, October 2008; Public Commission on Human Rights, State of human rights in Jammu and Kashmir, 1990-2005, 2005, p.161; Amnesty International, A Lawless Law, Detentions under the Jammu and Kashmir Public Safety Act, 2011 [www.amnesty.org/en/library/asset/ASA20/001/2011/en/cee7e8...]; Human Rights Watch, .Everyone lives in fear, Patterns of Impunity in Jammu and Kashmir, 2006 [www.hrw.org/reports/2006/india0906/india0906web.pdf]. 37 For a discussion on the role of the judiciary within a conflict by Aharon Barak, ex-President of the Israeli Supreme Court, see: Judgments of the Israel Supreme Court: Fighting Terrorism within the law, 2005, www.jewishvirtuallibrary.org/jsource/Politics/sctterror.html. Of note are the following passages: .We need laws most in times of war., .The protection of every individuals human rights is a much more formidable duty in times of war and terrorism than in times of peace and security. If we fail in our role in times of war and terrorism, we will be unable to fulfill our role in times of peace and security. It is a myth to think that we can maintain a sharp distinction between the status of human rights during a period of war and the status of human rights during a period of peace.. 38 In his dissenting judgment in Liversidge v. Anderson, [1942] AC 206, Lord Atkin stated that: .In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.. 39 Greater Kashmir, www.greaterkashmir.com/news/2006/Apr/5/-situation-under-c..., 5 April 2006. .
alleged Perpetrators 13 IPTK/APDP .
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