Posts Tagged ‘Chattisinghpora Pathribal and Barakpora massacres’

AHMED ALI FAYYAZ, The Hindu

Responding to the public pressure, an Army court on Saturday decided to shift its centre of recording the statements of witnesses in the Pathribal carnage from Nagrota in Jammu to Awantipore in Kashmir valley. The court is holding trial on a chargesheet as the CBI has held a group of the Army officials guilty of killing five civilians in a fake encounter in Anantnag district in March 2000.

Even as the civilian witnesses had declined to travel to the headquarters of 16 Corps at Nagrota, the court had continued its initial proceedings in Jammu. It has finally relented to the extent of facilitating the recording of the evidences at headquarters of Victor Force at Awantipore in south Kashmir.

“Upholding the principles of justice, in a significant endeavour to facilitate timely conclusion of the case, the officer recording Summary of Evidence has been directed to move to Awantipur for recording the statements of the remaining witnesses,” an Army spokesperson said in a handout. He said that fresh summons had been issued to all the witnesses, including the family members of the five persons killed in the controversial shootout.

“Statements of 26 witnesses, including all the Army witnesses and some police as well as government officials, have been recorded so far. However, despite repeated summons issued to the civilian witnesses, they have not come forward to depose before the Army court, which is unduly delaying the judicial process”, said the handout. Recording of statements would commence from March 5.

On the night intervening March 20 and 21 in 2000, 35 male members of the Sikh community were massacred outside a Gurudwara at Chittisinghpura in Anantnag district. Four days later, officials of Rashtriya Rifles 7th battalion claimed to have killed “five foreign mercenaries” holding them responsible for the massacre. Soon, the residents of different villages developed suspicions with regard to the Army’s claim. They held demonstrations, asking the authorities to trace out the five civilians, who had been picked up in late night raids by different units of the armed forces.

As the residents’ demand grew louder with the death of seven demonstrators in firing by the men of Special Operations Group of Anantnag district police, a special investigation was ordered and all the five bodies were exhumed under magisterial supervision. Fudging of some tissue samples in a Forensic Science laboratory led to a fresh pandemonium. Finally, the investigation was assigned to the CBI.

In 2006, CBI completed its investigation and produced challan in a designated court in Srinagar. It found five Army officials responsible for stage-managing a fake encounter and claimed that the five innocent civilians had been killed so as to project them as the militants responsible for the Sikhs’ massacre.

Brig. Ajay Saxena, Lt. Col. Brajendra Pratap Singh, Maj. Sourabh Sharma, Maj. Amit Saxena and Subedar Idrees Khan were charged by the CBI with the murder of the five civilians.

However, Army put up resistance, claiming that the courts could not hold the trial without proper sanction from the government of India, as the Army in Jammu and Kashmir enjoyed special powers and immunity against such prosecutions. The High Court of Jammu and Kashmir stayed the proceedings in 2007.

The CBI pleaded that it was a “cold-blooded murder” of innocent civilians and the armed forces’ special powers and immunity were restricted only to the genuine counter-insurgency operations. The Supreme Court did not agree with the CBI but directed the Army to either hold the trial in its own court or choose the option of a civil court. On September 20, 2012, Lt. Gen. A.S. Nandal, who is also GOC of 16 Corps, started hearing the CBI case after the matter was shifted from the court of Chief Judicial Magistrate Srinagar to the Army court.

On January 14, 2013, the General Court Marshal asked the family members of the five deceased persons to depose at Nagrota on January 28 but they refused to travel to Jammu and expressed security concerns. Finally, the Army court decided to record rest of the witnesses’ statements in the Valley.

 

AP
Grief behind Photos are all that remain of Kashmir’s missing


Are the mass graves of Kashmir less heinous because they are the handiwork of a democracy?

Recently, I came across the work of Slovenian poet Tomaz Salamun and found myself unexpectedly distressed, even outraged, after reading his short poem Not the War. In the words “Not the murder, silence brings one back to the scene of the crime”, Salamun is perhaps talking of love. But I am thinking war, and am transported back home, to Kashmir, to scenes of nameless burials and sites of extra-judicial killings.

I was angry at the silence of the Indian State, and more crucially perhaps, the hushedness of the country’s vibrant civil society, at the discovery of thousands of unmarked graves in troubled Jammu & Kashmir. It has been nearly a year since the State Human Rights Commission (SHRC), a human rights body appointed by the state government, released an extensive report on the presence of 2,156 bullet-ridden bodies in unmarked graves in the border districts. It confirmed what a local rights group, the International People’s Tribunal of Kashmir, had revealed in a landmark investigation in 2008. Hundreds of the bodies were of men described as “unidentified militants”, killed in fighting with the armed forces during the armed insurrection of the 1990s. But, according to the report, at least 574 of them were of those “identified as local Kashmiri residents”.

Like many Kashmiris and Indians, I waited for something to happen—international outrage perhaps, a furore, a commission of inquiry and, one might be forgiven for thinking, even the possibility of justice—for the State cannot exonerate itself from its responsibility of delivering justice with a mere investigation. (Surely, one doesn’t hear too often of mass graves these days, except perhaps those of the Balkan conflict of the 1990s or of Saddam Hussein’s Iraq!) But, apart from news reports in the Indian and the international press, and the local administration’s vague talk of a truth and reconciliation commission—I wonder how one can reconcile in the absence of truth—nothing significant has happened.

Kashmiris have, of course, always known that the hundreds of Kashmiri men who disappeared, mostly in the 1990s, but also in subsequent years, did not vanish into thin air—they were buried, unaccounted and unrecorded, in nameless graves in the Himalayan tracks near the LoC. We have also known that not all of them were combatants killed in fighting with the armed forces. Many of them were victims of fake encounters and extra-judicial killings, as has been revealed in the many cases of men previously described as “dreaded militants” found to be innocents killed for medals or money. In one appalling instance of wilful perversion of justice—the Pathribal fake encounter of March 2000, around the time US president Bill Clinton was to visit India—the Indian State has so far refused to prosecute army officers involved in the premeditated murder of five innocent men portrayed as terrorists who had massacred 35 Sikhs of Kashmir. This, when the Central Bureau of Investigation has submitted evidence that the men were “killed in cold blood”. Many in Kashmir have reconciled to the idea that justice may never be done, the guilty may never be punished and grieving relatives may be condemned to Sisyphean waiting.

The publication of the SHRC report last year, confirming the presence of unmarked graves at 38 sites near the mountains of Kashmir, while reopening old wounds also gave fresh hope to the kin of those who had disappeared—that there may be some closure after all; that the Indian State may, in a rare moral turn, address one of the darkest chapters of the 22-year-old uprising against its rule in Kashmir; that it may finally be willing to listen to what rights groups, journalists and the parents of the missing have been saying for years.

Surely one does not hear of mass graves too often these days, unless they are those of Saddam’s iraq or the Balkan conflict? So why the silence over those found in a Democracy’s garden?

The report came out last August, and the same commission subsequently ordered a further probe, citing the presence of nearly 3,000 more graves in the remote districts of Poonch and Rajouri—some allegedly with multiple bodies in them. But apart from one impassioned editorial expressing shame, a couple of speciously-framed TV shows attempting, among other things, equivalence between the all-powerful state and a beleaguered people, the media, while running the story, largely ignored the issue. “There is every probability that these unidentified dead bodies buried in various unmarked graves at 38 places of north Kashmir may contain the dead bodies of enforced disappearances,” the SHRC report had said. How can we not, then, express outrage over what could potentially constitute evidence of crimes against humanity? We’d do that if, say, the graves were made in Tripoli, under a dictatorship, wouldn’t we? Somehow, and for reasons unknown, unmarked graves (some with only heads in them) found in the disputed backyard of the world’s largest democracy have been deemed not heinous enough. Are we to assume mass graves made in a democracy are somehow more humane?Does not such a discovery merit even a customary response from the Indian State? As far as I remember, there has been no official comment by the Central government in Delhi, so deeply entrenched is India’s policy of indifference and denial on Kashmir. And what of its intellectual classes who were on site, and rightly so, when India signed the UN resolution against Sri Lanka for its atrocities against Tamil civilians during the campaign against the ltte? If the conscience of a nation is not stirred by the discovery of thousands of nameless burials in what it claims as an integral part, the claim not only rings hollow, it was and will only ever remain a claim.

In recent months, some well-meaning commentators and Kashmir experts have started talking about moving on, about the dividends of peace, about economics as opposed to politics—as though these dual aspects were congenitally detached. This is more or less consistent with the outpourings of some members of India’s new class of beat intellectuals—they move from issue to issue, or studio to studio, with equal panache—and their callousness towards the tragedy of Kashmir is matched only by their disdain for even contemporary history. Perhaps the most serious and bizarrely anti-intellectual assertion, and therefore an insidious one, seems to project the idea of peace as somehow incompatible with the idea of justice, and those who demand it as some kind of violence fetishists—as though talking about massacres stems democracy and progress.

In the Indian establishment—and indeed the political philosophy espoused in statist writing on Kashmir employs language disturbingly reminiscent of an ‘establishment project’—there has been a sudden spurt in conversations around the ‘dividends of peace’ in Kashmir. This is, of course, not possible without the buy-in of a thriving comprador class in the conflict-torn land. Translated into realpolitik, this otherwise benign phrase seems to convey to a subject population that it is time they forgot their long-held aspirations for freedom, as also about possible crimes committed by a state that has been nothing but militaristic in its dealings with them. The jackboot comes draped in a flag emblazoned with the words “Let bygones be bygones”.

As for the talk of a truth and reconciliation commission to close the story of unmarked graves, while it is unambiguously noble in its pacifist aspirations and surely the right thing to do to assuage the pain of a people, it seems ludicrously premature in a place that is run by a system of repression. (It must be noted that, for all practical purposes, the Indian State and its client elites operate without a moral system in Kashmir.) One is, again, compelled to ask some elementary questions: truth and reconciliation, yes, but on who on whose terms? Can it mean anything if the terms are set by a repressive state? One hates to suspect this, but the people who tout this as a solution may not even fully understand the import of the phrase and have perhaps forgotten that the Truth and Reconciliation Commission in South Africa came into effect after the end of apartheid, not while it was in full play. Even if one were to make an attempt to attend to the views of those who preach “moving on”, a single, simple, inquiry stands in the way: How does one move on from thousands of graves in one’s front garden?


(Mirza Waheed, who lives in London, is the author of The Collaborator.), in Oulook, June 18, 2012

PTI | Srinagar | May 06, 2012

As many as 129 army personnel, including three dozen officers, were found guilty of human rights violations mostly in Jammu and Kashmir and Northeast in the last two decades, defence sources have said.

Following the establishment of human rights cell in 1993, the army has received more than 1,500 allegations of rights violations against its men but most of these have been found false and baseless, they said.

“Of the 1,532 allegations of rights violations, investigations revealed that 1,508 were false. Out of the 995 complaints in Jammu and Kashmir, 961 were false while only 29 out of the 485 complaints from Northeast were found correct,” the sources said.

The sources said 59 personnel, including some officers, were punished in Jammu and Kashmir in the nine cases of rights violations.

“Similarly, 70 personnel were punished in Northeast after their guilt was established,” the sources said.

Army has awarded compensation in 34 cases in which the complaints were found to be genuine. While compensation was paid in 15 cases in Jammu and Kashmir, 19 victims of rights violations were compensated in Northeast, they said.

The sources said if the army decides to exercise the option of court martial against its accused personnel in the Pathribal encounter case, due course of law will be followed if they are found guilty.

“Anyone found guilty of rights abuses has been punished and it should be no different in this (Pathribal) case,” they said.

Last week, the Supreme Court had directed the army to decide within eight weeks whether it would exercise the option of court martial or allow its personnel, accused of staging a fake encounter at Pathribal, to be tried by a civilian court.

According to the CBI charge sheet filed against the seven army personnel, five unarmed civilians were killed in a fake encounter on March 25, 2000 at Pathribal in south Kashmir‘s Anantnag district.

The alleged fake encounter took place five days after Lashkar-e-Taiba militants gunned down 35 Sikhs in nearby Chattisinghpora village.

The five civilians, dubbed as Lashkar militants, were held responsible for the massacre of Sikhs.

CBI investigations, however, revealed that the deceased were innocent civilians and accordingly, a charge sheet was filed before the designated trial court.

Army had challenged the charge sheet right up to the Supreme Court, pleading that CBI had not sought prior sanction for prosecution of its men from the Centre as required under Section VII of the Armed Forces Special Powers Act.

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

Srinagar, May 03: Voicing apprehensions that the Supreme Court’s ruling on the Pathribal killings could leave a negative legal and political impact, the High Court Bar Association has said that the apex court had given precedence to emergency laws over the universal and constitutional right to life.

The Bar Association echoed the Amnesty International in describing the ruling as a severe setback for the victims of human rights violations in Kashmir.

“The ruling will give forces immunity and exemption from civil prosecution,” Bar general secretary, GN Shaheen, said at an HCBA meeting held to discuss the supreme court judgement yesterday holding government sanction necessary for action against forces personnel deployed in areas under the AFSPA.

“The forces will use this law for human rights violations and extra-judicial executions,” he said.

“The ruling will give the forces the right and authority to decide whether to have the accused personnel tried in civil courts or in courts martial,” The HCBA said.

“People in Kashmir have a bitter experience over the past twenty years with respect to alleged killings by forces personnel. No one has been punished or tried by court martial. No one has been brought before the people, or the victims informed (in case of punishment of the guilty).

“The ruling will boost human rights violations in Jammu and Kashmir, and have a long-lasting impact,” the HCBA added. Observer News Service