Posts Tagged ‘AFSPA’

Vol – XLVIII No. 08, February 23, 2013 | Anuradha Bhasin Jamwal

There have been numerous allegations of rape by the police and armed forces in the Kashmir Valley ever since insurgency began in the late 1980s, but very few cases were ever investigated, prosecutions have taken place in a negligible number, and justice delivered in none. Even when cases are registered, the legal sanction required for prosecution, as per the provisions of laws like Armed Forces Special Powers Act, is never accorded. The Justice Verma Committee Report has addressed sexual aggression in confl ict areas such as Kashmir, Chhattisgarh and the north-east, where women’s bodies have been used as instruments of war by paramilitary forces, but can we hope for a change on the ground?

Anuradha Bhasin Jamwal ( is Executive Editor, Kashmir Times and a human rights activist based in Jammu and Kashmir.

Last month when the 600 page- Justice Verma Committee Report, suggesting not just the amendments in the criminal laws dealing with sexual assault, but challenging the very core of patriarchal power structures came out, it kindled some hope among feminist groups and groups working for rights of the marginalised communities including in the conflict areas.

In Jammu and Kashmir (J&K), barring the Sangh parivar and the armed forces, the report was by and large welcomed for its path-breaking recommendations on amendment of the Armed Forces Special Powers Act (AFSPA) to exclude personnel accused of sexual offences from immunity, from being prosecuted in a civil court, provided by this special law and also for recommending a complete review of the AFSPA. However, there was also a guarded scepticism with which the state, particularly the Valley, the worst hit by the impunity provided to men in uniform under AFSPA, responded. The social networking sites were filled with discussions with phrases like “too good to be true”, “doesn’t look like it will be implemented” or “don’t forget, Justice Verma is also the man who upheld the legal constitutional validity of AFSPA in a Supreme Court judgment in 2011”.

Historical Scepticism

The scepticism has a historical background as Kashmiris have been witness to promises and lip sympathy that never get translated into action in the last over six decades. From Nehru’s promise of plebiscite to Narasimha Rao’s “sky is the limit” assurance, from Vajpayee’s peace process to Manmohan Singh’s promise of zero tolerance to human rights abuse, in the collective memories of people in the Valley everything that sounds good is followed by disaster on the ground.

The historical inherent scepticism apart, there were valid reasons why the Justice Verma Committee Report would not generate enough optimism in the Valley. The state has always responded with a kind of obsessive protectiveness when it comes to saving the neck of the security personnel including the local police which does not enjoy impunity under AFSPA as happened in the Shopian rapes and murders of 2009 and the over 120 killings in 2010, in which police stand indicted but unchallenged by instruments of law. There is a belief that the government will find a way to wriggle out of at least this part of the Verma panel report to keep up with the tradition of going out of the way to protect men accused of human rights abuse including sexual offences. And so when on 1 February 2013 the central government came up with a hurried ordinance without the major provisions of the Verma report, given the presidential nod two days later to become a law for the next 18 days till Parliament could debate it, for the sceptics in the Valley it was a vindication of their cynicism. The Valley slipped back into its pessimism after a short-lived glimmer of half-hearted hope.

Sealed Fate of Rape Cases

At the core of this pessimism lies the sealed fate of the cases of rapes and molestations at the hands of security forces and the untold stories of similar harassment, buried behind the fear of stigma and ostracisation or lack of access to institutions of justice as also the shoddy legitimisation of such acts of sexual violence in the name of “national interest”, “counter-insurgency”, “in the line of duty” and “upholding the morale of the security forces” who enjoy blanket impunity for acts that cannot be justifiably defended. From the infamous gang rapes of Kunan Poshpora in 1990 to Shopian’s spine-chilling double rapes and murders, and the equally shocking cover-up by official investigating agencies, two decades of insurgency and counter-insurgency period in J&K are littered with cases that exemplify the victimisation and vulnerability of women in a militarised conflict.

There is a complete denial of the same in official circles and according to a former J&K director general of police (DGP), as stated in 2009, there are only 10 cases of rape reported by security forces. A publication of the United Nations, however, puts the number of rapes by security forces at 882 in 1992 alone. A report of the Human Rights Watch in 1994, stating that there was high incidence of rapes in Kashmir, documents the use of rape as a means of targeting women whom the security forces accuse of being militant sympathisers. The report also gives a detailed account of how in raping them the forces attempt to punish and humiliate an entire community.

Rape as a Weapon

One case of mass rapes in Shopian in 1992 typifies the official response. A government statement on the case maintains, “two of the women alleged to have been raped were wives of terrorists, viz, Takub Hussain, a platoon commander of Hizbul Mujahideen and Mohd Yakub a group commander of the same militant group”. Asia Watch maintains that one of the ways security forces in Kashmir use rape is as a weapon against women suspected of being sympathetic to or related to alleged militants. While we do not know whether such suspicions motivated the soldiers responsible for the rapes of these women, it is clear that the authorities intend to use the accusation that the women associated with “terrorists” – both to discredit the women’s testimony and implicitly at least shirk responsibility for the abuse. When countered with the Asia Watch report, the police officials maintain that Asia Watch has its own agenda to put the security forces in a bad light. The allegations, mentioned by Asia Watch, do not figure anywhere in the official records.

The manner in which official data on rapes in conflict is collated illustrates the callousness, deliberate or conditioned by an inherent prejudice. Statistics compiled by the crime branch of police states 936 women were killed by militants since 1990. One hundred and twenty-five of them were abducted and killed. Another 132 women were abducted and freed and many of these were also raped, though no numbers are as yet compiled. However, the cases of rapes by security forces are not even acknowledged. A top police officer some years ago maintained, there are only 20 cases of rapes registered since 1990 against security forces in which four cases were proved and 14 security men were punished. DGP Kuldeep Khoda in 2009, faced by the outrage over Shopian twin rapes and murders, reduced this number to 10.

Farce of Inquiries

While only a fraction of the cases of rape and sexual violence by armed forces are discussed in media and academic circles, the official denial continues, followed or aided by the farce of inquiries, probes and reports that are one-sided or never see the light of the day. The normal process of the law, starting with registering of a formal complaint in the police station, followed by a trial, is not the norm. The case is either simply hushed up or even if there is a magisterial probe, or an inquiry by a retired judge or a court martial proceeding – all in a bid to respond to public anger – they end up as an eyewash. The cases where the armed forces claim to have taken action in the courts of inquiry remain a poor joke, all at the expense of the trauma of the victim and her further ostracisation from society. In May 1990, Mubina Gani, a bride being taken along with her bridegroom and baratis after the marriage was solemnised, was raped in south Kashmir by the Border Security Force (BSF). Her aunt accompanying the marriage party was raped too. One man was killed and several wounded. A government inquiry held the BSF men guilty but the latter were never prosecuted. However, a BSF staff court of inquiry that held the men guilty “suspended seven men”. Normally, a person convicted for rape could get up to 10 years in prison if the normal Indian legal procedures are followed.

In yet another case, in November 2004, when a mother-daughter duo was allegedly raped by an army major in Handwara-Badar Payein, the case simply ended in an internal army enquiry which held the major “guilty of misconduct”. While these words were misleading, the post-mortem reports in the case were never really made public. The government inquiries are neither made public nor followed up with the security forces. The courts of inquiry by the security agencies, even if they hold their own men guilty, never punish them adequately. The maximum punishment given is suspension, or no more than the remark of “severe displeasure” gets recorded.

In a negligible number of cases, prosecution takes place. In none of them has justice been delivered. In some cases where the government has ordered inquiries mostly under judicial magistrates, or where security forces order their own court of inquiries, the findings and punishments are not made public, leaving victims to believe that such abuse is committed with impunity. The security forces are just not held accountable, and in many instances cases are not even registered against them. Even when cases are registered, the legal sanction required for prosecution, as per the provisions of laws like AFSPA, is never accorded.

Significant to Conflict Areas

This is why the Justice Verma Committee Report is significant with respect to Kashmir and other conflict areas since it looks into sexual aggression of a different kind in places like Kashmir, north-east and Chhattisgarh, where women’s bodies have been instruments of war by the paramilitaries which are supposed to protect them. The panel not only outright rejects the impunity that the soldiers enjoy for sexual offences and calls for an amendment in the law to exclude the mandatory central government sanction for prosecution of such offenders, maintaining that they need to be straightaway tried in the civil court of law, it also questions the very utility of the AFSPA that gives the armed forces this clause of massive impunity. The panel has called for a complete review of the law and significantly points out, “It must be recognised that women in conflict areas are entitled to all the security and dignity that is afforded to citizens in any other part of our country”. In doing so it has questioned the very biased role of the State in a place like J&K and has placed sexual violence in the centrality of the AFSPA discourse, which has been missing even from a Kashmiri perspective.

There has been strong opposition to the draconian law imposed in the state in 1990 owing to the pattern of impunity it offers to the armed forces for torture, killings, fake encounters, custodial killings, custodial disappearances and rape. Women activists have been at the forefront challenging AFSPA. However, protests are much more feeble in cases of rapes and molestations, where a woman is seeking justice for herself, than over cases of torture and custodial killings or missing youth, where women come forward not just in the traditional role of mothers, daughters and sisters, but also enter the public domain as household heads. Kashmiri society may have to look inward to challenge the centrality of this patriarchal set-up which not only sets the limits of women entering the political domain in the role of agitationists, also for challenging the “honour” discourse, often with the binaries of “us” and “them” that encourages sexual violence to be seen from the prism of stigma and forbids greater participation of women in seeking justice for the surviving victims.

Though sexual violence has not been central to the discourse challenging AFSPA, opposition to it is something that lies at the core of the human rights movement in J&K. For this reason, any move to revoke the law, or challenge some of its demeaning provisions would be welcomed by and large in the state, particularly in the Valley. The Criminal Laws Amendment Ordinance 2013 in no way matches the Justice Verma Committee Report. Silence on AFSPA is only one of the differences. However, the report is yet to be placed before Parliament for formulation of a final law; so it is still too premature to conclude that the government would try its best to exclude the recommendations related to AFSPA, though the haste with which the ordinance was brought about when Parliament session was less than a month away raises doubts. The recent statements of Union Law Minister Ashwani Kumar that carried an implicit approval of rape in “the line of duty” and another by Union Finance Minister P C Chidambaram that broad consensus is needed to accept the recommendations on the review of AFSPA further strengthen these doubts. Chidambaram’s more recent remarks at a public lecture that it is difficult to challenge AFSPA because of the army’s opposition strengthen this scepticism. Yet, hypothetically, if AFSPA-related recommendations are incorporated into the proposed law, would it make any difference to Kashmir?

Any hypothetical outcome would depend on how the J&K state government implements the provisions of this law. By virtue of the special status accorded to the state, the Indian Penal Code (IPC) does not apply to J&K, which has its own equivalent Ranbir Penal Code (RPC) and so amendments carried out in the IPC have not been adopted in the RPC. Any law legislated by Parliament or any amendments carried out in the existing laws are not automatically extended to J&K. It is also not legally binding upon the state government to incorporate them. In most probability, the state government would review its own existing laws dealing with sexual offences. An exercise to this extent has already begun with the state government on 6 February announcing a committee to enter into consultations with various groups and stakeholders as well as study the Justice Verma Committee Report. The panel headed by the state’s advocate general was to submit its report within a week’s time, according to official spokesperson. The state’s law department has also sought suggestions from law experts, civil society members and academicians. But while the initiative has not been much publicised for encouraging holistic public participation, one week is too short a period for inviting and studying such suggestions and then finalising a report.

At the time of writing, the State’s Commission for Women (SCW), a highly politicised body headed by a member of the Jammu and Kashmir National Conference, is the only one that is known to have so far responded to the law department with suggestions regarding amendments to the state law. The contents of its suggestions are not known, but the only public statement made by the SCW called for harsher laws like death penalty and chemical castration, which goes against the grain of the Verma Committee Report. The composition of the committee formed by the J&K’s law ministry to review the criminal laws dealing with sexual offences itself is problematic. How does one expect a body comprising government functionaries minus any women representation to either challenge the patriarchy that endorses the culture of rape or the might of the state that protects the culprit by subverting the process of justice?

These might not be the only flaws with the state government’s exercise which has a record of raising the bogey of special status of the state to thwart and oppose people-friendly central laws, though exceptions are made when it comes to laws like the Terrorist and Disruptive Activities (Prevention) Act and the Prevention of Terrorism Act (POTA). J&K was the first state in the country to implement POTA. It was under pressure that the J&K government framed its own Right to Information Act but in a diluted form. Later amendments that strengthened the Act a bit were modified again last year to further weaken it. Despite tremendous pressure, the state government is neither able to incorporate the provisions of the 73rd and 74th amendments to the Indian Constitution, providing for decentralisation of powers to the grass roots, nor frame an equivalent state law. The state government has also been stonewalling the Lokayukta in J&K on grounds that the state has its own state accountability law, which stands diluted and looks like a hollowed-out clone of the Lokayukta.


Given the background and tradition of hostility to introducing people-friendly laws and the hasty and clumsy manner in which a committee has been framed with a deadline of a week for studying recommendations and framing a suitable report, it is difficult to presume that the state government would come out with a law matching the Verma panel recommendations. It might in all probability be a cut and paste of the Ordinance 2013, which has omitted AFSPA and most other suggestions that challenge the patriarchal order that lies at the core of sexual offences and the might of the state that stonewalls an effective legal justice system through procedural protocols to be followed in investigations and medical examinations and calls for penalisation of cops guilty of dereliction of duty in responding to complaints of rape and other sexual assault.

So even if the central law eventually incorporates the suggestions related to AFSPA as recommended by the Verma Committee, unless the state law is adequate enough to ensure an effective legal justice mechanism and is powerful enough to challenge patriarchy (patriarchy being central to how rape is placed within the paradigm of honour and encourages a tendency to stigmatise the survivors) so that survivors can freely report complaints of sexual assault, it is unlikely that the armed forces personnel charged of the crimes would be adequately penalised. The state has appropriated enough power to give full protection to the culprits in uniform overtly or covertly with all-out efforts made to hide facts and even tamper with evidence. The state police personnel, not covered under AFSPA, accused of rapes are already being shielded through methods like hushing up cases at the medical examination level, tampering evidence, delaying the basic documentation of the case, refusing to register cases, sending in state-sponsored teams or the highly influenced Central Bureau of Investigation to probe such cases.

Such methods employed for obfuscating and burying the truth have already been used in the Shopian rapes and murders of 2009 to the extent of sending the proactive judge of the high court, at whose intervention the arrests of the police officers he held guilty of tampering with evidence if not committing the rapes and murders were made, on a transfer to Sikkim. They have also been employed in cases where the armed force personnel are involved. In the Kunan Poshpora rapes of February 1991, in which over 30 women and children were allegedly gang-raped by soldiers of the fifth Rajputana rifles, no formal complaint was lodged. A local magistrate was called for investigation, but authorities in Delhi vehemently denied the incident without even verifying with local officials. A police investigation was never carried out.

The absence of adequate documentation of such cases would make any fair trial in all these cases of sexual abuse very difficult, even if it is assumed that the lawmakers at the centre and in J&K are able to frame the best of laws. The union law ministry in maintaining that the Ordinance 2013 will have no bearing on the Delhi bus gang rape having come into being after the Act also betrays the impossibility of a hypothetical diluted AFSPA being used with retrospective effect. Justice in the known cases of rapes by men in uniform will, in that case, remain elusive. In all probability, the security forces and the politicians, who have enabled the armed forces to trample women’s right to safety, security and dignity will continue to do so without being accountable, despite the painstaking efforts of the three-member Verma Committee.



Fair Game

Photo: Shailendra Pandey

The killing of two sarpanches in a fortnight has mortally threatened the existence of the valley’s fledgling Panchayat Raj institutions. More than a 100 panches and sarpanches have tendered their resignations through paid advertisements in the local newspapers. Many, who couldn’t do it through the media, have rushed to their village mosques to announce the decision.

The situation is reminiscent of the early nineties when classified pages in local newspapers were filled with resignation letters of political workers. The ads ran under the heading, “Non-affiliation to any Political Party,” and carried a short message which expressed remorse and sought forgiveness for the person’s past political activities while announcing the decision to quit.

In an uncanny throwback to the period, the local newspapers are once again running the similar ads. This time, it is panches and sarpanches resigning from their jobs after suspected militants killed their two colleagues in quick succession.

Does this underline a certain resurgence of militancy in the state? It does appear so from a distance. But actually, militancy today is far past its prime, limited to an odd shoot-out or a grenade throw in urban areas or an encounter in the hinterland. But this decreased physical footprint of the violence has hardly detracted from its larger psychological presence. It lurks in the shadows, ready to spring upon us when we least suspect it. And it does so often, in bewilderingly diverse and resourceful ways: There were thirteen targeted killings of the political workers, attacks on CRPF and ambushes on the army in Srinagar over the past two years and it turned out that the brain behind them was actually a cop, a personal security officer of a Senior Superintendent of Police, who was committed to the separatist ideology.

But sarpanch killings are not only about the existence or absence of militancy. Kashmir, despite the prevailing semblance of normalcy remains, for all practical purposes, an abode of conflict where its troubled history continuously melds with the present. The violence may have declined but it is not over. The sentiment and the environment that produced it haven’t gone anywhere.

It is in this treacherous environment that panchayat members operate. Their election and existence not only signifies an idyllic peace but also the starkest message so far that the Kashmiris at the grassroot level have abandoned the Azadi discourse. But this is not exactly the case, at least to the extent conveyed by the existence of this third tier of democracy. This is what makes them the biggest challenge for the militants: a dense village to village network of the elected grassroots representatives, if left undisturbed, means absolute negation of everything they stand for.

The government, on the other hand, is happy that panchayats are in place. They primarily represent a normal Kashmir. Their democratic worth and the need to protect them come last. They are, therefore, valued for the very purpose that militants hate them. Then, there is the impossibility of securing them from militant attacks. The state’s Panchayat Raj minister, Ali Muhammad Sagar, now says that the government will provide security to whichever panchayat members has a threat perception. But the fact remains that all of them face it.

Panches and Sarpanches are thus haplessly in the middle, a fair game for everyone. There are militants on one side who see their continuance as the mortal threat to separatist movement and government, on the other, which has left them to fend for themselves.

“Army tells us don’t resign and militants pressure us to do so. We don’t know what to do. Meanwhile, one by one, our colleagues are getting killed,” said a sarpanch from Baramulla, refusing to be named.

Author:   is special correspondent with Tehelka magazine.



Author: Saadut
•7:46 PM
Ye kamsund’oo naad, kusu aallav divaan?
Ye’ kamsind’e dupmm’phit tchoupi’ seeth aalam dazaan?
3.30 am is just between midnight and early morning when the night is still in transit and sleep still grips you tight. It was at this time in the late autumns of late 1990’s when piercing decibels from the Masjid loudspeaker announced an Army crackdown in the locality, ordering all males to assemble in the abandoned barren orchard that lay by high ground almost 900 meters away from my home.  A repeat of these announcements for the next 30 minutes or so seemed to drive more fear inside us, more of dread. In sleep deprived eyes mother was seen frantically looking for a safe place for her valuables, many crackdowns had been known to magically disappear many savings and valuables from households. By 4.15 am a half asleep habitation, now rubbing eyes and shaking heads was being herded in fading dark towards the high ground, that suddenly seemed so faraway today. Children in long pherans, tripped over each other, adults gripping their hands unsuccessfully tying to make them walk at an adult pace. Whispers were exchanged, whereabouts of extended families sought in this crowd. The autumn changeover to winter had just begun and most of us were already in our winter ‘astronaut’ dresses, spare for some deep sleepers who wore pheran draped over night trousers in their forced hurry to join the crowd.  The crowd grew by every lane, every turn; I never knew so many people lived in this habitation. These crackdowns were one social leveler; all classes, all levels of society were pushed and herded here like cattle by the security forces. As the peeping sunrays over the eastern hills created extended shadows of the breaking morning, crowds merged into the abandoned orchard. Like crowded packs of domestic animals let out in confined grazing grounds, security men were seen shouting and driving us to close in, on one side of the orchard slant which descended to the middle ground. On the opposite side of this orchard slant were rows of army vehicles, the whole orchard ringed by lines of uniformed men, looking down upon in stern glaze and finger on trigger at ‘helpless us’, as if in jeer and mock. And if the setting winter chill had not already set in our bones, the chilly stare and tone of these uniformed completed the freeze. We had nothing to beat this chill with; kangris for the day in Kashmiri homes are only prepared early morning, not in the middle of the night and there were clear instructions by the herders to assemble without any of these firepots. The overnight dew having inundated the barren orchard, all of us sat still on our knees; the vapor of our whispers mingling with the cold morning air. The shame of watching your elders and teachers being paraded the same way as you, forced on knees before gun trotting and stick wielding uniformed men, pushed and heckled like animals, is unexplained.  Showkat the tailor was holding his 7 year old son in the lap, juggling between his own balance and the cold wet grass; a stick wields, a blow comes his way, Showkat is unbalanced and his son falls from the lap, forcing them to sit separate. Soon such herding became the norm, as we were made spectators to our own shame.
By 10 Am that ‘CAT’ was already in the Gypsy, people were driven in extended queues to slow identification lines before the vehicle. In most likeliness an informer or a renegade, the ‘Cat’ lay firmly seated in the front of the vehicle, hooded and identity less deciding the life and death fate of people. It was no fancy act to walk past the ‘Cat’ even if you have had not even the remotest connection with militancy. Many a times these ‘Cats’ were known to have settled personal scores or dislikes in identification parades; his one hint would have the commoner bundled in or bundled out. Renegades were known to have created personal fiefdoms with the help of security forces in Kashmir where ‘God’ like aura was self assumed by them deciding the face of lesser mortals. While here our fate was being decided by ‘faceless hoods’ behind armed escorts, we were also worried about the ‘search operation’ by the uniformed forces back home, where only female folk had been retained.
A lean and tall boy with patches of a beard, in an old worn pheran and slippers was marked, pushed out of queue and segregated as he came in front of the ‘cat’. The quiet boy dragged, lay stone faced as he was taken behind the line of armored vehicles. After a brief jolt, the queue continued to trod, the masked hood continued to decide. It looked like an eternity at the barren orchard, the noon sun passed its peak, and dew absorbed some by the sun rest by the restless people who sat on it. Masterji (that is how we called him, was a retired teacher in his 80’s; flowing beard, a lifetime of humble reputation and lots of respect) was sitting by Dad’s side, felt restless for want of water. He dared standup and approach the herding uniformed soldier close by “where to drink some water”, the soldier raised his stick, frowned and pointed towards a muddy water cesspool that lay by a depression. Masterji quietly sat down, my Dad holding his hand. By afternoon there were already more than 8 boys marked by the ‘cat’, who lay bundled to behind the line of armored vehicles, fate unknown.
Zain, my cousin had recently returned from the US, his once in a lifetime holiday to Kashmir. We had in fact been in touch for long and decided that both of us would come to Kashmir on holidays at the same time.  His morning excitement of experiencing his first crackdown in Kashmir had already evaporated by the noon, now overtaken by a griping fear, the shake and trembles visible on his face. My own fears making me numb, I extended my arm on Zain just to soothe him, but he could see the blankness on my face, the brave mask that I was trying to put on failed. I tried to look up Dad sitting next to me, but failed to meet his eye, that was visualizing what we could not comprehend.
Hunger and thirst pangs had overtaken when our turn in joining the queue came must have been already 5 PM. I tried of be ahead of Dad and Zain but a violent push by the soldier entrenched me behind Dad and Zain. The serpentine queue moved so slow, while I lost pace of my own thumping heart beat, “get over with it damn it, will you” I kept repeating. We kept tracing steps of the earlier queues in slow motion, as if novices walking on a tight rope between two cliffs. The first cliff was our fear, the second being our fate, in between the two we were hung as if by a slender thread. The queue moved like a snail and so did our fate.
Dad stood composed facing the ‘cat’, there was no reaction from the vehicle, “move on” shouted the officer standing next to the vehicle. When Zain faced the ‘cat’ next, his shoulders had dropped dead and his ‘always cool’ composure was all gone. As white as cold marble, his face stared into a windshield, the officer signaled to move on and I heaved a sense of relief for him, my own fate yet unknown. I extended my step towards the precipice, heart galloping when I heard voices ‘wapas aao’ (come back); Zain had been marked, called back and hastily dragged to behind the line of these armored vehicles. I froze, everything became blurred in front of me and I wanted to cry out loud but could not. Suddenly I head noises, somebody pushed me and suddenly I realized a soldier was kicking me to move one ‘aage chalo’.  Dad had lost his composure on the other side, all my life I never saw him so pence, as clueless as on that day. Zain had been our responsibility in Kashmir, my responsibility, and now the unimaginable had happened.
The queues kept passing by the ‘hooded marker’ and by late evening as the process had been completed a few more boys had been ‘marked’ by the ‘cat’, only to be bundled up into the unknown. By 9.00 PM the cordon had been lifted and people were heading back home. Our standing at the same spot yielded no results, no amount of pleading with the officers helped. The boys had all been taken away in armed vehicles to the forces camp, destination we knew nothing of.
Back home, Mom had been successful in salvaging her valuables but our rice storages (Kashmiris store rice for long winters) had been all scattered from the store into the backyard; while in our rooms wardrobes were so disheveled, belongings ravaged as if relics of a war. By 10.00 PM Dad was ringing anybody he could lay his call on, his friends in the bureaucracy, acquaintances and a trunk call to an ‘connected’ uncle who lived in Delhi. Desperation was transmitted via the landline; whereabouts of the army camp (and Zain) were sought. Tears, sobs were heard from the kitchen, neighbors sat with us through the night consoling, assuring. The night never seems to end, I must have moved out in the garden barefooted unmindful of the winter chill, just wanting to grab the dawn and end this night as soon as I could. Morning Fajr prayers brought with them a telephone call from one of Dad’s friends who had traced the camp and Zain there.  Prayers done, we set out for the camp; I drove, shivered, rattled and lost. Over potholes and clayey paths, these undone roads seemed to never finish.
Dad’s bureaucrat friend had already talked to the camp commander, and only Dad was allowed to get inside the camp to meet him. I and my younger uncle waited seemingly in eternity outside the camp, the obnoxious fortifications standing like a monster before us.  When at around 9.00 Am Dad came out, seemed after ages he had gone inside the camp, he took my younger uncle to one side and all I could hear was ‘saas’ (thousands) to which uncle nodded and pointed to his bulging waist coat pockets (from the sides of his shawl) and both went inside the camp again.
It took another 30 minutes for Dad and uncle to come out of the camp along with Zain, who looked drained zombie like and limping bare footed like a recovered corpse. If you had seen Zain in better times, you would not believe this was the same Zain coming out of the army camp, being supported by Dad and uncle. I offered him my shoes, but he kept quiet, with a lowered gaze he hardly spoke in the car, a silence that made me feel the culprit for his condition. I felt wretched, had I not insisted on his Kashmir visit with me, he would not have gone thru this suffering. Back home Zain withdrew into recovery and reclusiveness for some days, recovering gradually from his shock and wounds; one reality of Kashmir had touched him very hard. But why had Zain been picked up in the first instance, why had he been called back by the ‘cat’? During the course of our conversations later it dawned that while Zain stood before the ‘cat’ (Zain was sans a Kashmiri pheran) on that fateful day, it was his ‘New Balance’ sneakers that had attracted the attention of the ‘cat’. And it was only when Zain had been asked to move on, did the ‘cat’ have an afterthought and signaled him to be retained; the American stuff had done him in. His sneakers, watch had been relieved of, he had been made to sit on a bare floor all night, despairing. And when he started hearing tormenting cries of torture in the room close by all night, he seemed to living close to his brutal nightmares. Close to midnight he himself had been caned, abused, beaten in this cell; his legs had been run over by jackboots, torture that had shattered him. Dad never told us about the ‘saas’ (thousands) bargain he had to undertake to free Zain, we never asked.
Some of the boys picked up on that fateful day were released within days, some detained longer. I could only guess if the ‘saas’ (thousands) tradeoff had helped any. The lean and tall boy with patches of a beard, in an old worn pheran and slippers who had been taken on that fateful day never came back home. Later found that he was the mansions son, who worked real hard through his school, did well in studies and had been preparing for a professional career. The poor boy used to support his studies by working as a laborer on odd days and later as a Mansion apprentice along with his Dad. The only son of his father, he was used as a conflict fodder by those in uniform, his erasure lost to decades of state denial. His crackdown never ended.
Along years, thousands of such poor, lean and hapless young men were to fall prey to state forced erasure, exhausting and depleting their improvised families of life and hope. Such people may have been lost to denial, but such stories live in our memory till eternity.
28th September, 2012 ; 19:44 PM

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Sunday, 29 Jul 2012

Srinagar, July 29: The Bandipora “fake encounter”, in which a local youth Hilal Ahmad Dar was killed, was orchestrated by 27 RR of army in connivance with one of its informers.
The circumstantial and technical evidence to this effect have been collected by police besides the eyewitness accounts about the chronology of the “conspiracy”.

Police has completed its investigation in the case after arresting two persons including an army informer who played a key role in staging the encounter.

A senior police officer said they have solved the case and are have solid evidence in terms of investigation and technical inputs to prove their claim.
Giving details of the case, police said army informer, Muhammed Ramzan Lone alias Rameez, a resident of Aloosa Bandipora, obtained two weapons from Army in the month of March. “Later, Ramzan handed over the weapons to Hilal as he lured him to join militancy after seeing his inclination.”
According to police, Ramzan asked Hilal to recruit one more boy who would be helpful to receive group of foreign militants in near future.
Later, Hilal contacted one Nazir Ahmad Bhat who happens to be a former militant. “He somehow convinced Nazir to become a militant.”
Hilal was known to Ramzan since childhood as both were brought up in the same locality.
“On the intervening night of July 24 and 25,” official said, “Hilal accompanied by Nazir went to nearby Halmathpora forests in Aloosa Bandipora to receive the so-called group of militants as told by Ramzan.
“Ramzan was in touch with Hilal and Army. The call detail analysis of their cell phones clearly proves that.”
Instead of finding the militants, Hilal and Nazir were face to face with an army contingent which had laid ambush in the forest.
“The army turned on search lights and opened indiscriminate fire at them. Hilal got killed on spot while Nazir managed to escape.”
The official said police has also traced Nazir. “A weapon has been recovered from him as well. Ramzan, the army informer who lured him and Hilal, is also behind bars.”
“The whole drama was orchestrated by 27 RR and Ramzan. Police has collected all circumstantial and technical evidence besides eyewitness accounts of the chronology of this conspiracy.”
DIG North Kashmir could not be reached for his comment on the issue as he did not respond to repeated phone calls.



Young Kashmiri rappers find their creative dissent muffled and face the axe if they step out of line
ENTERTAINING WITH PURPOSE:Zubair Magray has become an independent artiste. He shot to fame when his song ‘Azadi' uploaded online was forced to be taken down by the police.

ENTERTAINING WITH PURPOSE:Zubair Magray has become an independent artiste. He shot to fame when his song ‘Azadi’ uploaded online was forced to be taken down by the police.

It is not unusual that rap and hip-hop find favour with budding musicians of Kashmir. World over, starting from the inner city lanes of New York to the Middle East, these genres of music have been creative tools of resistance. Through popular culture, a critique of perceived discrimination takes place, dissent is voiced and racism and exclusion get challenged. Misrepresentation is also taken to task.

These genres do not exist in isolation but are embedded in and born from the socio-political environment of a society. For many years, youth have taken recourse to these global art forms to engage with and reflect the reality they see around them. A few years ago, this trend took shape in the Kashmir valley, where youngsters tried to articulate what they saw around them through their music.

Soon Renegade, MC Youngblood, The Revolutionary, Mista Shais, M1B, Haze Kay and MC Kash became popular stage names of young Kashmiri men who created music that came straight from the soul of the land and found resonance with the public, not only in the valley but across India. MC Kash or Roushan Illahi is a rapper and emcee who released a song, ‘I Protest‘ in the Kashmiri unrest of 2010 when hundreds of people were killed in paramilitary action. He has a huge fan following on the social networking sites with thousands of followers on Facebook, Twitter and ReverbNation. His popularity notwithstanding, his studio was raided by the police and henceforth he has been unable to find a place to record his songs. But he continues to sing, sometimes about love also, says Shayan Nabi, his manager.

Haze Kay or Zubair Magray used to perform with Roushan but has become an independent artist since he moved to Pune to pursue further studies. He shot to fame when his song ‘Azadi’ uploaded online was forced to be taken down by the police who were not amused by the lyrics.

He makes his own music and releases it through his own production house. His music was labelled anti-government. “I am living and studying in Pune, which is in India, how am I anti-government? As an artist, it is my duty to respond to the reality around me and express it through the art form,” says Zubair.

Other vibrant artists have now stopped making any music whatsoever. If a song has the words protest, stones or Kashmir, the police are quick to swoop down to the studios and threaten the producers to discontinue the recording. They are instead offered free promotion if they choose to sing about love and police-people harmony. A number of artists have stopped making music altogether due to the constant threats.

Only those artists, who either have some influence or sing about non-political subjects are able to survive in Kashmir today. A healthy non-violent mode of resistance guaranteed in any free society is thus being stifled even before it can take complete shape


Published: Monday, May 7, 2012, 9:45 IST
By Iftikhar Gilani | Place: New Delhi | Agency: DNA

Even as successive governments in Jammu and Kashmir have liberally extended security laws like TADA, POTA or Armed Forces Special Powers Act (AFSPA) to the state, they block implementation of central laws like Right to Education (RTE), granting constitutional status to panchayats etc, citing special status granted under the Article 370 of the Indian Constitution.

“Are you Indian? Or “Are you from India?” These are the questions asked to anybody from India landing in Kashmir. People apart, now such questions are asked even by the J&K government – ruled jointly by the National Conference (NC) and the Congress – which do not tire from always asserting that J&K is an integral part of India.

The state government is not entertaining even rudimentary queries under the Right to Information (RTI) Act, if you are not from the state. Your RTI applications will be rejected, citing the law enacted by the J&K assembly that the right under Section 3 is available only to the J&K residents. It says: “Every person residing in the state shall have the right to information.” A large number of scholars interested in Kashmir-related topics, are frustrated as their queries are rejected on this ground.

A Delhi organisation media studies group, specialising in research on media, had filed a simple RTI query to know the names of newspapers, news agencies and electronic agencies, the contact numbers of their journalists and employees, their addresses, emails, etc. and accreditations granted or pending.

The J&K Directorate of Information rejected the query and returned the postal order of Rs50 as the RTI fee, stating that “a person who is non-state subject is not entitled for right to information under Section 3 of the Jammu and Kashmir Right to Information Act, 2009. The group’s convener filed an appeal against this order, but it too was rejected as “not tenable”.

Conclusion- So, Kashmir is not in  India

Is this yet another instance of lack of sensitivity towards continued human rights violations in the Valley?

Parvez Imroz

Searing wound A man offers his prayers to the deceased Pathribal and Brakpora victims near a graveyard in Brarangan

Photo: Sajad Muniwari

On 1 May 2012, the Supreme Court of India issued its final judgment in the case referred to as the Pathribal case. In the context of the killing of 36 Sikhs on 20 March 2000, 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. A chargesheet was produced before the Chief Judicial Magistrate-cum Special Magistrate (CJM), CBI on 9 May 2006. The CJM granted an opportunity to the Indian Army to exercise the option of a court-martial.

The Army stated that in light of Section 7 of the Armed Forces Jammu and Kashmir (Special Powers) Act, (AFSPA) 1990, the chargesheet could not have been produced before the CJM without obtaining sanction for prosecution from the Central government. The matter was litigated up to the SC and by the judgment of 1 May 2012, the SC has found that as per Section 7 of AFSPA, while a chargesheet may be presented before a court, no cognizance may be taken.

Further, that the competent Army authorities has to exercise discretion on whether a court-martial is to be instituted after the filing of a chargesheet before a court. Section 7 of AFSPA states “no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act”. The fundamental issue before the SC was relating to the point at which sanction needed to be sought i.e. before the filing of the chargesheet, or after the filing of a chargesheet but before cognizance by a court.

Fake encounters, along with various other human rights violations, have been a reality for the people of Jammu and Kashmir over the last 22 years. In 2008, SC Justices Aftab Alam and GS Singhvi made oral observations in court, it was reported, in relation to the practice of fake encounters for rewards in Jammu and Kashmir. With about 8000 persons disappeared, 70,000 persons killed, numerous cases of torture, rape and other human rights violations, Jammu and Kashmir has seen little in the form of justice over the last 22 years.

Based on the above, the SC judgment in the Pathribal case was keenly awaited by activists, lawyers, and most importantly, families of victims of the conflict in Jammu and Kashmir. The 1 May 2012 judgment has unfortunately failed to address the legal issues within the reality of the ongoing conflict in the area, and has further strengthened the impunity that exists for human rights violations, particularly for security forces.

First, while the apex court states in its judgment at Para 23 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, in Para 66 (i) 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, AFSPA that 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 can only be brought alive if a competent court were to be allowed to take cognizance of a case i.e. apply its judicial mind to the chargesheet and decide whether the qualification applies. Further, in Para 66 (iii), the SC 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 the one hand the SC has effectively barred a court from taking cognizance of a case, but through this judgment, the SC has itself appreciated the facts of the Pathribal case and found that sanction would be required to be sought. This seeming contradiction between the conclusions of the SC 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.

Second, in Para 58, the SC, while addressing the issue of court-martials, states that Section 126 of the Army Act, 1950 (hereinafter “Army Act”), allows a criminal court to seek to prosecute an army personnel despite the Army also exercising the option of a court-martial. Section 126 of the Army Act provides the procedure to be followed when a criminal court is “of opinion” that proceedings shall be instituted before itself. For a criminal court to form such an “opinion”, it would necessarily have to apply its judicial mind to material before it i.e. it would have to take cognizance of the matter before it.

Therefore, by denying the right of a court to take note of a matter, and decide whether sanction for prosecution need be sought, the SC appears to have rendered the qualification in Section 7, AFSPA, meaningless, the power of the court under Section 126, Army Act, redundant, and further strengthened impunity in areas governed by AFSPA. While recognising, in Para 55 that the process of sanction seeks to protect persons acting in good faith, the judgment of the apex court effectively provides a blanket of impunity to the security forces.

This impunity has to be understood within the context of Jammu and Kashmir, and the actions of the Central government over the last 22 years. The following information received through responses to Right to Information (RTI) applications is striking. The government of Jammu and Kashmir, on 23 February 2012, stated in writing that no sanction for prosecutions had ever been granted in Jammu and Kashmir between 1990 and 2011. Not a single case. The Ministry of Defence, on 18 April 2012, stated in writing that out of a total of 44 cases received for the purpose of grant of sanction, 35 have been denied, and nine are under consideration. Further, that of these cases only one case was processed by the court-martial proceedings. Therefore, the reality of Jammu and Kashmir has been total and absolute impunity.

The Pathribal case was an opportunity for the SC to earn the respect of the people of the Valley, particularly in light of earlier criticised judgments of the apex court in matters related to human rights. But, the judgment further emboldens the security forces, which may result in further irresponsible actions by the security forces and strengthen a process that has appeared to never favour the victims of human rights violations, but only the accused.

People will continue to view this fall out as a continued disappointment with the institution of the Judiciary, and a recognition that further impunity for human rights violations awaits.

(Author is the president of Coalition of Civil Society, a civil rights group), Tehelka