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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. .

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alleged Perpetrators 9 IPTK/APDP .

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2018

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around ongc-cisf colony at jorhat

The Minister of State for Home Affairs, Shri Kiren Rijiju in a group photograph with the medal winners during the 48th CISF Day Parade, in Ghaziabad, Uttar Pradesh on March 10, 2017..The Director General, CISF, Shri O.P. Singh is also seen..

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Condem n the Communally Targeted Madhya Pradesh Legislation.

~,,~A.

M ~l't on 'Cow Slaughter and Beef Eating'! Expose and Re.sist .

the Communal-.fascist Agenda of the Sangh Parivar!!.

5.1.1 2 .

Few days back, the Madhya Pradesh Cow Progeny Slaughter Prevention (Amendment) Bill was accorded Presidential sanction. So. now it's official: in MP, one can be jailed for seven years for the 'crime' of slaughtering, or even eating, keeping and transporting beef. Not just this, any police official, head constable upwards has the power to conduct 'raids'on any premises on mere suspicion that thisAct is being violated, or is likely to be violated! Moreover, the responsibility of proving the prosecution wrong would lie with the accused in case of cow slaughter. This draconian and fascist legislation is just the latest assault by the BJP government's communal offensives against Muslim and Christian .

minorities in MP. Though little highlighted, BJP has turned Madhya Pradesh into another laboratory of Hindutva's .

communal campaign: Sun God') was made mandatory in government schools in.

In 2007, surya namaskar(with its incantations to the '.

MP. .

Since 2009, students have to recite a Sanskrit hymn 'Bhojan Mantra', as part of government-funded midday meal .

schemes. .

Since 2011, the Gila Saar is compylsorily taught to all students. .

In 2010, the Bhopal police chief issued a usecret" circular to all police stations. directing them to collect all kind of .

information from Christian institutions under their jurisdiction. .

Many land allotments have been made to various Sangh Parivar organisations in the state. .

Several government schemes are named after Hmdu rituals and ceremonies. .

Chief Minister Shivraj Singh Chouhan has publicly appealed to government employees to take an active part in .

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RSS activities. The recent legislation against ban on cow slaughter is therefore clearly part of a larger communal agenda of the Sangh Parivar. Not surprisingly, simtlar laws have been passed in other states too when the BJP is or was m power· .

Gujarat, Karnataka and UP for instance. Himachal Pradesh, Tamil Nadu, West Bengal, Maharashtra, Orissa and Jharkhand .

too have legislations placing restrictions on cow slaughter. What exactly is so dangerous about this legislation? To begin with, it criminalises the eatmg and sale of beef, in the name of protecting religious sentiments. The real agenda to communally target and harass with his piece of legislation 1s just too obvious to be overlooked. Consider this: in India, when someone udestroys, damages or defiles any place of worship" (like each and every karsevakwho helped in the demolition ofthe Babri Masjid) the prescribed punishment is a maximum imprisonment for two years. And now, a person can be imprisoned for seven years merely for eating or selling beef, because it hurts religious sentiments! Moreover, it gives huge powers to the state administration to harass. intimidate, implicate, detain, arrest or prosecute Muslims. Many activists have also pointed out that a police force, which is anyway communal, will misuse such a legislation to the hilt. The response of the UPA to this draconian legislation is yet another indication ofthe Congress's soft-had already taken place and not.

Hindutva position. The Centre argued that raids should be allowed only when the 'offence' .

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when the offence is 'likely' to be committed! In other words, the Congress has no problem with crimina/ising of cow .

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slaughter. .

Faced with a barrage ofopposition from democratic voices across the country against the purposively motivated .

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' as an 'animal rights'.

agenda of communal targeting, there js now an attempt to pose the 'cow slaughter bitlissue-of course conveniently underplaying and forgetting that several animals other that cows are killed and eaten in this country, with the Hindu fundamentalists having no objection whatsoever!!! Therefore, one needs to expose and resist the real agenda behind this bill. ' conversions. use an Act criminalising.

The real agenda is crystal clear: target the Christians with a legislationagainst 'forcedslaughter and consumption of beef to harass and prosecute Muslims. The issue is, do such legislations really have a place .

in a supposedly ~democratic' and 'secular' country? AISA appeals to the student community to expose and resist such repeated communal-fascist moves to target minorities. r ~efln Kashrnir!.

Condemn the Killing of 18-year old Altaf by CISF Personn.

New Year in Kashmir started with the cold-blooded murder of 18-year old Altaf Ahmed Sood, who was shot dead in .

Boniyar (Uri, Kashmir) by CISF personnel a few days back. His 'crime'? He was standing by the people protesting .

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against protracted power scarcity in the area. It is high time that we recognise how it has become routine for the .

Indian state to address Kashmiri people's protest even on such issues as power shortage with such mindless repression and bullets. And now, after this brutal daylight murder, the CISF is not just justifying its role, it is also claiming immunity from prosecution! AISA strongly condemns this murder, demands Immediate and exemplary action against those officials .

responsible.AI SA stands by the demands of the struggling people of Kashmir for their basic democratic rights to .

defend their life and livelihoods, and against the imposition ofthe AFSPA and other ACT~all?wing security fqrces to .

perpetrate massacreswith full impunity. Sandeep Saurav., Gen.Secy.. AISA,JNU.

Abh;shek Kr. Yadav, Vice-President, AISA, JNU .

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Farooq Abdullah was reported to have stated the following: .My orders to the police are wherever you find a militant, dispatch him as I do not want to fill jails.22. The statement later reflected in the Indian Armys Doctrine for Sub-Conventional Operations released on 31 December 2006 which speaks of .neutralizing all hostile elements in the conflict zone that oppose or retard the peace initiatives and secondly, at transforming the will and attitudes of the people.23. Within a context of large-scale militarization, .neutralization. effectively means the use of violent force to subjugate any .element. that threatens or disrupts the coercive enforcement of .peace. and normalcy.. .

Privatizing Impunity .

The political and moral impunity created is compounded by the lack of prosecutions against groups that have played pivotal roles in human rights violations in Jammu and Kashmir. For example, limited prosecutions against Ikhwans [government backed militants used by the armed forces], members of the Village Defence Committees [VDC], composed of civilians, armed by the government and used by the armed forces] and Special Police Officers [SPO] [quasi-official personnel of the Jammu and Kashmir Police], allows these parallel militias to continue rights violations with no accountability24. On occasion, these groups are also used to shield the other perpetrators of crimes such as the armed forces. Most importantly, these informal and parallel forces are not recognized officially, even when it comes to seeking sanction for prosecution, and the State therefore has complete deniability when it comes to their operations. These forces were unlawfully constituted to outsource violent reprisals. The Supreme Court on 5 July 2011, in Nandini Sundar & Ors. v. State of Chattisgarh, declared the Salwa Judum militia [in the state of Chattisgarh] illegal and unconstitutional25. The similarities between Salwa Judum in Chattisgarh and the militia in Jammu and Kashmir are striking, and the continued reliance by the armed forces and the political class on such militia in Jammu and Kashmir is troubling, particularly as the number of these militias are far greater in Jammu and Kashmir [reportedly 23,78326] than in Chattisgarh [6500 as per the Supreme Court judgment]27.The Chief Minister of Jammu and Kashmir, Omar Abdullah, responded by stating that there could be no comparison between Jammu and Kashmir and Chattisgarh as the SPOs in Jammu and Kashmir were doing their .regular duties.28, with no further explanation as to the nature of these duties or response to the specific violations by SPOs pointed out by human rights activists in Jammu and Kashmir. .

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Incentivizing Impunity .

This web of collusion between the Government of Jammu and Kashmir, the Indian Government, government/armed forces sponsored militia and the formal armed forces in generating and sustaining structures of impunity is also troubling due to the creation of incentives in the form of monetary awards, other awards and out of turn promotions for the killing of .militants.. In Jammu and Kashmir where the line between militants and non-combatants is itself continuously ignored, and the entire population is held suspect, incentives prove highly problematic29. For example, an enquiry into the uprising of 2010 by a civil society fact-finding team attributed the Macchil fake encounter killings of 30 April 2010 to this system of incentives and awards for killing of supposed militants30. On 25 January 2012, two police officers former Superintendent of Police [SP], Sopore, Altaf Ahmad Khan and Deputy Superintendent of Police [DSP]Ashiq HussainTak received gallantry awards despite being implicated in the 31 July 2011 killing of Nazim Rashid Shalla, a resident of Sopore31. On 24 September 2012, in response to RTI request filed on awards [non-monetary] and out of turn promotions to the Jammu and Kashmir Police for anti-militancy operations since 1989, it was stated that 2226 police officials had received out of turn promotions for anti-militancy operations as per Government Order No. Home-3 (P) of 2000, dated 6 January 2000 for .consistently exceptional performance on the anti-militancy front. [Annexure 19]. 560 police officials had received gallantry awards for their .gallant acts.. But, the names of these persons were not provided as it was felt the disclosure would endanger them. Further, on a further response of 25 October 2012 it was stated that the names and details of militants killed that formed the basis of these awards and .

promotions could not be provided as the disclosure would .hit the sentiments of the general people and create unrest and law and order problem. .

[Annexure 20]32. The secrecy that shrouds the identities of the recipients and the reasons for the bestowal of these supposedly public honours is revealing, especially in light of cases detailed in this report where implicated individuals were subsequently rewarded. .

22 Express India, www.expressindia.com/news/ie/daily/20010115/ina15064.html, 15 January 2001. .

23See generally: Gautam Navlakha, Doctrine for Sub-Conventional Operations: A Critique, Economic and Political Weekly, Vol.42, No.14 (Apr. 7-13, 2007], pp. .

1242-1246. .

24See generally, Human Rights Watch, India.s Secret Army in Kashmir, 1996 [www.hrw.org/legacy/reports/1996/India2.htm]. .

25 In Para 59 of the judgment, the Supreme Court states that: .The appointment of tribal youth as SPOs [Special Police Officers], who are barely literate, for .

temporary periods, and armed with firearms, has endangered and will necessarily endanger the human rights of others in the society.. But, the Supreme Court did .

allow the operation of the Salwa Judum in matters relating to .help people in situations arising out of mutual or man-made disasters, and to assist other agencies in .

relief measures. and .To facilitate orderly movement of people and vehicles, and to control and regulate traffic.. .

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26 Daily News and Analysis, www.dnaindia.com/india/report_scs-salwa-judum-judgment-re..., 8 July 2011. 27See also generally: Times of India, 26 April 2011. 28 Daily News and Analysis, www.dnaindia.com/india/report_scs-salwa-judum-judgment-re..., 8 July 2011. 29Basharat Peer, What lies beneath, Foreign Policy, www.foreignpolicy.com/articles/2011/09/29/kashmir_mass_gr..., 29 September 2011; Disappearances in Kashmir,http://www.kashmirawareness.org/Page/View/disapearancesinkashmir, 16 March 2009, Kashmir police investigate Indian soldiers accused of murdering civilians, www.globalpeacesupport.com/globalpeacesupport.com/post/20..., 31 October 2011. 30 Fact finding team to Kashmir, 2010, Four months the Kashmir valley will never forget, An enquiry into the mass uprising of 2010, March 2011, p.1. 31 Hindustan Times, www.hindustantimes.com/India-news/Srinagar/Army-gives-gal..., 25 January 2012. 32 A similar RTI application was filed to both the MHA [for agencies such as the CRPF, BSF etc] and the MOD [for the army agencies]. No information was provided. The Central Industrial Security Force [CISF] and the Sashastra Seema Bal [SSB] stated that they were exempt from providing information under the RTI Act, 2005 except in cases of human rights or corruption matters but that in the instant case the exception would not be relevant for the information sought. A RTI was filed to the Government of Jammu and Kashmir on monetary awards granted to the Jammu and Kashmir Police and the armed forces in Jammu and Kashmir from 1989 to 2012 for anti-militancy operations. Similar applications were also filed to the MHA and MOD for agencies working under them. No information was provided by the Government of Jammu and Kashmir. In the case of the MHA, the IB stated that they were exempt under the RTI Act, 2005. The SSB stated that they were exempt from providing information under the RTI Act, 2005 except in cases of human rights or corruption matters but that in the instant case the exception would not be relevant for the information sought. No information was provided by the MOD. .

alleged Perpetrators 12 IPTK/APDP .

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