Posts Tagged ‘Human rights’

amnes

Amnesty International’s report on Jammu & Kashmir, ‘Denied’: Failures in Accountability in Jammu and Kashmir, reminds us of what we know but choose to ignore – that the Armed Forces Special Powers Act (AFSPA) confers an impunity on its personnel which is abused to commit the gravest violations of human rights, that civil courts cannot entertain charges against soldiers without sanctions from government which are almost never given, and the only recourse therefore is to the tender mercies of military justice which, like military intelligence, is usually a contradiction in terms.

The ground it covers is a via dolorosa, over which everyone who follows human rights to its crucifixion in that state must trudge. In 2012, for instance, when the UN Human Rights Council conducted India’s second Universal Periodic Review, the process through which every country’s record on human rights is assessed by its peers, the submission from the National Human Rights Commission included this:

“The Armed Forces Special Powers Act remains in force in Jammu & Kashmir and the North-Eastern States, conferring an impunity that often leads to the violation of human rights. This, despite the fact that India’s 2011 report on the Optional Protocol to the CRC states that “India does not face either international or non-international armed conflict situations”.”

Nothing has changed since then. By concentrating on AFSPA however, a blot though it is on Indian democracy, Amnesty’s report presents only a facet of the systemic faults that make it almost impossible for victims of human rights violations in J&K to get relief, or to punish the men who violated their rights.

The NHRC is the only body in the country that has a reasonably accurate tally of the number of deaths that take place every year in what are called encounters, and which tries to establish the truth in each case. Under its guidelines, police superintendents (SPs) must report to it within 48 hours any death in police action in their jurisdiction. Each case is then taken up by one of the five members, until all documents are received, at which point it is transferred to one of two division benches, with two members on each, which meet twice a week only on these “encounter killings”. J&K, however, is a blind spot for the NHRC, and where it has been able to do the least, for a number of reasons.

Army excluded

The problem is that the NHRC asks only for reports on deaths in police action. There is a legal reason for this, which brings no credit to our systems of governance. Unless the Army or paramilitary forces conduct a joint operation with the police, the SP simply receives a first information report (FIR) from them, but sees no reason to report deaths for which his force bears no blame. When J&K was at its most troubled, in the 1990s, the NHRC only received reports on a fraction of the deaths that took place, through sporadic complaints, some from NGOs which collated several cases, others from families of victims.

The NHRC is unable to get comprehensive reports from the Army or the paramilitaries because its powers vis-à-vis India’s armed forces are shamefully restricted by Section 19 of the Protection of Human Rights Act (PHRA). This lays down that the Commission can only act if it receives a complaint against them, when it may ask for a report from the Central government, and take a view on the reply it gets. If there is no complaint, and in J&K there were few because civil society was muzzled and the families terrified, there is no inquiry. And the inquiry cannot be as thorough as it is on encounter deaths or disappearances for which the police are responsible, because the NHRC can only act on what the Ministries of Defence and Home send it, which is whitewash stippled as typescript.

No other public servants enjoy this screening from the NHRC’s scrutiny, including police up against the Maoists in conditions at least as difficult as those where the armed forces are deployed. Section 19 of the PHRA is as obnoxious as AFSPA; both should be repealed, but are unlikely to be, because the armed forces will fight it tooth and nail. In a case pending for several years at the Supreme Court, the Commission has therefore urged it to read down the provisions of Section 19. However, in a PIL matter which it filed recently asking for a ruling that it had the power to demand substantive reports from the Central government on complaints against the Army, the court recently ruled against the NHRC. That does not bode well.

Kashmir body no solution

The Kashmiri families to which Amnesty spoke told it that after the State Human Rights Commission was formed they now had a body to which they could take their complaints. This is forlorn because though the J&K SHRC has been far more active than many others, which are moribund, it is also powerless to help. The state government ignores its recommendations, and on cases involving the armed forces, victims or their families get an entirely false hope that they can get justice through the SHRC, which, even without AFSPA, has no jurisdiction on complaints against central forces.

The sordid problem is that the government of J&K is so jealous of its special position under the Constitution that it sees the NHRC as a threat rather than an ally in trying to get redress and relief for the residents of the state. The PHRA lays down that it will apply to J&K only for subjects under Lists I and III of the Seventh Schedule of the Constitution. The state government’s interpretation of this provision is that the NHRC has no jurisdiction over its police, or the authority to call for reports either from them or from other civil servants on the subjects in List II. It takes this to absurd extremes.

In 2010, after the summer of rage in the Valley, the NHRC took suo motu cognizance of a report that investigated the deaths, and called for responses from the Centre and the state. Since the state government had given some financial relief to the families of the dozens of children who were killed or injured, the Commission asked for details, to determine if it should recommend that the Central government supplement it, and to get a sense of the grounds on which the state had acted, which would help it to vet the reports from the paramilitary force involved. To its astonishment, the state government refused, instead filing a writ in the J&K High Court in which it claimed that the NHRC was exceeding its jurisdiction, and asking that its proceedings be struck down as ultra vires!

Before this, on a case where the NHRC held the police responsible for a death and recommended relief, the state government took the same view, arguing that the Commission had no jurisdiction, and again took it to court. Faced with this self-defeating obstinacy, the Commission issued proceedings in which it argued that List II of the Seventh Schedule of the Constitution simply specified the subjects on which the state had the power to legislate. The Commission’s orders did not touch on its exclusive power to legislate on the police, they simply asked it to take action against delinquent policemen and give relief to their victims. Seemingly run by “litigious men whom quarrels move”, the J&K government took the NHRC to court on this as well.

More than AFSPA

On AFSPA, as Amnesty International notes, the Jeevan Reddy Committee found that “the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness”.   What it does not recall is that the committee recommended that AFSPA be repealed for this reason, but also felt that in the North-East, there was an “overwhelming desire of an overwhelming majority of the region that the Army should remain (though the Act should go)”.  No such distinction is made in J&K between the Act and its brutal wards, and the cure the committee prescribed – to transfer the powers of AFSPA to the Unlawful Activities Prevention Act – would be worse than the disease, spreading its contagion throughout the country.

Amnesty argues that “the continued use of the AFSPA violates India’s constitutional guaranteed rights to life, justice and remedy” and, by not addressing the violations committed under its cover, India has “failed its own Constitution”. These are strong words, though true, but AFSPA saps our constitutional structure in far more insidious ways. As a law that permitted the armed forces to be deployed in aid of civil authority, AFSPA as originally enacted conferred the power only on a state government to designate an area “disturbed”, after which the Army could enter. An amendment in 1972 extended the power to the Central government as well. The extraordinary implication of this is that states in which AFSPA applies could not be trusted to ask for Central help, which must therefore be foisted on them even if they do not feel the need for it. This amendment undermined the basic structure of the Constitution. On the one hand it makes elected state governments look like traitors if they decline to invoke AFSPA; when the army is deployed over their objection, it becomes an army of occupation.

Since the Centre’s decisions on whether AFSPA should be lifted invariably depend on the wishes of the Army, now openly voiced, it also gives the Army a veto on when, where and how long it should be deployed within the country, overriding the wishes of elected state governments. That is a subversion of democracy, and must be anathema. If for this government the Constitution is the only holy book, and if it is serious about cooperative federalism, it should repeal AFSPA for these reasons alone.

Satyabrata Pal is a former Indian diplomat. He served as India’s High Commissioner to Pakistan, and as a member of the National Human Rights Commission

http://thewire.in/2015/07/03/what-amnesty-international-missed-in-its-kashmir-report/

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Investigate Border Security Force Actions
July 19, 2013

(New York) – The Indian [2] government should appoint an independent commission to promptly and transparently investigate the killing of four protesters by Border Security Force (BSF) troops in Jammu and Kashmir state, Human Rights Watch said today. The government should act to end the BSF’s longstanding impunity for large numbers of killings over many years.

The unclear circumstances resulting in the deaths of four protesters, and the wounding of nearly a dozen more people, highlight the urgency of an independent inquiry. The BSF reported that on July 18, 2013, in Ramban district, its troops interrogated a local resident who it said “made baseless and false allegations about being mistreated.” After protesters gathered and “started stone pelting vigorously on the BSF post,” troops fired at the protesters in self-defense, the BSF said.

Local residents allege that BSF soldiers entered a mosque during a search operation and were rude and disrespectful to the mosque staff. When unarmed protesters gathered at the post, the BSF troops called for police support. The security forces then opened fire on the protesters, the local residents said.

“The loss of life at the Ramban mosque needs a prompt investigation by an independent commission,” said Meenakshi Ganguly [3], South Asia director. “Any finding of illegal use of force by BSF troops should result in prosecutions. Too often the BSF’s version of events is simply accepted, allowing killing after killing for which no one is held to account.”

Senior Indian officials have responded appropriately to the incident, but need to follow up with action, Human Rights Watch said. Chief Minister Omar Abdullah said that it is “highly unacceptable to shoot at unarmed protesters.” Home Minister Sushil Kumar Shinde has promised an investigation and said that “any use of excessive force or irresponsible action will be dealt with strictly.” Previous investigations of BSF abuses have often been delayed and prosecutions stalled.

Human Rights Watch has previously documented [4] misbehavior and serious human rights violations by BSF troops along the Bangladesh border. The border guards, who are deployed to prevent infiltration, trafficking, and smuggling, had engaged in numerous cases of unlawful use of force, arbitrary detention, and torture, and killed over a thousand Indian and Bangladeshi nationals. The BSF was ordered to exercise restraint and use rubber bullets instead of live ammunition, which led to a decrease in the number of people fatally injured, though unlawful killings continue.

The government has repeatedly failed to prosecute BSF personnel responsible for serious abuses. Inquiries by the National Human Rights Commission receive a standard response that fatalities occurred when troops had to fire in self-defense.

Human Rights Watch called on the Indian government to publicly order the security forces to follow the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. The Basic Principles state that security forces shall “apply non-violent means before resorting to the use of force and firearms,” and that “whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall: (a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved; (b) Minimize damage and injury, and respect and preserve human life.” Furthermore, “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”

Since the shootings, violent protests have broken out in several parts of Jammu and Kashmir, and authorities have imposed curfews in some areas. Human Rights Watch called on organizers of protests to take steps to deter supporters from engaging in violence, including attacks on law enforcement officers.

Security forces sometimes react with gunfire when outnumbered by an angry crowd, which is why they need to be properly trained in nonlethal crowd control methods,” Ganguly said. “Incidents that end in shootings are not only terrible for all those involved, but set the stage for unnecessary bloodshed in the future.”


 

Asks DGP To Ensure Compliance Of Apex Court Directive
GK NEWS NETWORK

Jammu, Mar 29: Taking strong note of the practice adopted by police to handcuff under-trails, a court here has directed Director General of Police (DGP) to ensure compliance of Supreme Court directive in this regard.
Principal Sessions Judge Jammu Kartar Singh issued the direction after observing that several applications have been filed by the under-trails with the prayer to direct police not to handcuff them.
“It is now settled law of the country that handcuffing of the under-trial prisoners is in violation of Article-21 of the Constitution; as it is inhuman and not permissible in civilized society”, the court observed adding that unfortunately the under trial prisoners were being brought to the courts in handcuffs.
“It may be due to the reason that the lawful agencies are ignorant about the law of the country or they are doing it arbitrarily and intentionally and thus committing human rights violation of under trial prisoners”, the court observed adding, “Law enforcing agencies are assisted and guided by the prosecuting wing which is well-versed in law and for the said reason, the courts are not going to accept any excuse in future”.
“The Supreme Court has time and again deprecated practice of handcuffing of accused or under-trials without prior permission from the court concerned or any judicial magistrate and flouting of such directions amounts to contempt for which the law enforcing agencies are accountable and it may also amount to violation of human rights of a person”.
The court directed the state’s Director General of Police to issue appropriate administrative directions in this regard to subordinate officers and officials.

 

kunanposhpora

The Kunan Poshpora incident occurred on February 23, 1991, when units of the Indian army launched a search and interrogation operation in the village of Kunan Poshpora, located in Kashmir‘s remote Kupwara District. At least 53 women were allegedly gang raped by soldiers that night. However, Human Rights organizations including Human Rights Watch have reported that the number of raped women could be as high as 100.Although the Indian government‘s investigations into the incident rejected the allegations as “baseless,” international human rights organizations have expressed serious doubts about the integrity of these investigations and the manner in which they were conducted, stating that the Indian government launched a “campaign to acquit the army of charges of human rights violations and discredit those who brought the charges.
According to reports, on February 23, 1991 at approximately 11:00PM soldiers from the 4th Rajputana Rifles cordoned off the village of Kunan Poshpora to conduct a search operation. The men were taken from their homes and assembled in an open field for interrogation overnight. Once the men had been taken away, soldiers allegedly gang raped a large number of village women overnight till 9:00 AM the next day.Local villagers alleged that up to 100 women “were gang-raped without any consideration of their age, married, unmarried, pregnancy etc.,The victims ranged in age from 13 to 80.The village headman and other leaders have claimed that they reported the rapes to army officials on February 27, but the officials denied the charges and refused to take any further action. However, army officials claim that no report was ever made.On March 5, villagers complained to Kupwara district magistrate S.M. Yasin, who visited the village on March 7 to investigate. In his final report, he stated that the soldiers “behaved like wild beasts”and described the attack as follows: A large number of armed personnel entered into the houses of villagers and at gunpoint they gang-raped 23 ladies, without any consideration of their age, married, unmarried, pregnancy etc… there was a hue and cry in the whole village.
He went on to state: I found the villagers were harassed to the extreme possible extent. In the morning after 9 a.m. when the Army left, the village men folk were released and when they entered their houses, they were shocked to see that the Army forces have gang raped their daughters, wives, sisters, etc. The armed forces have forcibly taken No Objection Certificate from the locals as well as from the local police after doing the illegal action… I feel ashamed to put in black and white what kind of atrocities and their magnitude was brought to my notice on the spot.
The United States Department of State, in its 1992 report on international human rights, rejected the Indian government’s conclusion, and determined that there was “was credible evidence to support charges that an elite army unit engaged in mass rape in the Kashmiri village of Kunan Poshpora.
#Every heart cried and every eye shed tears in the intervening night of the 23rd and 24th February 1991, when the young and energetic, but inhumane, Indian troops of the 04 Raj Raffles of 68 Brigade C/o 56 APO launched a search operation in the village of Kunan Poshpora, just 5kms from the main township Kupwara, and toed all humanitarian principals with the raping of as many as thirty women, including teenage girls and a near 100 year old frail grandmother.-kashmirglobal.com

 

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 (anusaba@gmail.com) 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.

Conclusions

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.

 

TNN | Feb 3, 2013, 04.55 AM IST

After threats, Kashmir's first all-girl rock band stops live shows

After threats, Kashmir‘s first all-girl rock band stops live shows
SRINAGAR: Jammu & Kashmir chief ministerOmar Abdullah on Saturday led the chorus of support for the valley’s first all-girl Sufi rock band — ‘Pragaash’ (light) — that was forced to quit live performances after abuses on social media.

The CM promised action while public support including a Facebook community “I support Pragaash, Kashmir’s first all-girls’ rock band” has encouraged them to bounce back with an album as a befitting reply to hate mongers.

“They have stopped live performances for the time being but are working on their album,” said 22-year-old Adnan Muhammad Mattoo, Pragaash manager and a musician, who trained the teenaged girls — Farah Deeba, Aneeqa Khalid and Noma Nazir — at his Band Inn Music Academy in Srinagar. “They will be back with a bang.”

The three could not be contacted and are said to be in New Delhi. “Thanks for the support everyone. It really means a lot!” wrote the band’s guitarist, Aneeqa Khalid, on the community page that had managed 594 likes since Friday when it was started.

The band gained prominence after their exceptional performance at the annual “Battle of the Bands” event that Mattoo has been organizing to encourage young talent since 2008. The abuse began days later, forcing their alarmed parents to ensure they keep a low profile. They had won the best performance award in their first public appearance.

Omar joined hundreds of Pragaash supporters on Twitter to lend his support. “I hope these talented young girls will not let a handful of morons silence them…,” he tweeted. He said police would examine the threats and whether any provision of the law can be used to book those making them. ” Shame on those who claim freedom of speech via social media & then use that freedom to threaten girls who have the right to choose to sing.”

“We are yet to outdo haters. Keep the support coming in,” Shehla Rashid Shora, one of the band supporters, wrote on the Facebook page. “Misogyny is not restricted to Kashmir. It’s only being recognized here now because people are raising a voice against it.”

Another supporter Absaar Syed echoed Shora. “Quitting would amount to lending haters a win. Don’t do that.”. Nibha Majeed seconded him. “(T)hese personz who use such abusive language n dnt knw how to talk abt gals…are rotten lots themselves …”

Mattoo said the support had overwhelmed the girls, whose talents he described as “astonishing”. He said they also needed financial support to chase their dreams. “We need sponsors, otherwise we would be unable to realize the dream of releasing the album.”

He said he had ignored abuses when he was tagged and threatened on Facebook first in December. But it rattled the girls and their families. “They are just 15 and too young to face such abuse. They are hurt. They cried, but I tried to convince them to continue.”

He said they were doing nothing wrong and they were carrying forward the glorious tradition of Kashmiri Sufi music dedicated to love of the Prophet. “We do not know who these people are and want to get to the bottom of this.”

The 22-year-old said they were looking for more government support for over 40 music bands in the Valley. “People would be encouraged if they see a future in this profession and we need the government’s support for it.”

He said they have trying to get an appointment with the CM for over a year. “I expect Omar Abdullah, a music lover, to support us,” he said. “I have met (former chief minister) Mufti (Mohammad Sayeed) Saab. He was very encouraging and so are the common people, who are happy with us as we represent Kashmir.”

Lawyer Mohammad Ashraf said social network sites have been used to instigate violence and malign others to settle personal scores despite the cyber crime laws. “The police have set-up a wing to deal with it.”

Organizers of late Jagjit Singh’s concert some years back faced similar abuses.

 

Peoples’ Union for Democratic Rights (PUDR)
Cordially invites you

for a
Public Meeting/Discussion
On
“Impunity for Alleged Perpetrators and Quest for Justice in Jammu & Kashmir”
On the 24th Jan 2013, Thursday
Between 1pm—5pm at Gandhi Peace Foundation, New Delhi.

Speakers and Discussants:
Pervez Imroz, Arundhati Roy, Nivedita Menon, Karthik.

Asish Gupta & D. Manjit
Secretaries, PUDR

(N.B: Please see the following statement of PUDR)

People’s Union for Democratic Rights
Press Statement

PUDR welcomes study on ‘Alleged Perpetrators’ on the culture of impunity in Jammu & Kashmir. Peoples Union for Democratic Rights (PUDR) welcomes the release of the
study “Alleged Perpetrators” by the International Peoples’ Tribunal on Human Rights and Justice in Indian-Administered Kashmir (IPTK) and Association of Parents of Disappeared Persons (APDP)   on the culture of impunity ubiquitous in the state of Jammu and Kashmir. PUDR acknowledges that this is the first ever study in India which has broken the cover of anonymity which protects the perpetrators by raising the principle of ‘individual criminal responsibility’ which is well established under International Criminal Law starting with Nuremburg Trials and several UN tribunals.

Equally it raises the principle of Command Responsibility and principle of Joint Criminal Enterprise which too forms part of International Criminal Law. The Indian State ‘authorizations’ to armed forces to carry out every kind of operation, often without adherence to laws and norms under draconian legislations such as AFSPA  on the pretext of combating militant violence while simultaneously being in breach of bringing India’s domestic laws in line with International Conventions such as against Torture, Enforced Disappearance and Genocide compounds the impunity extended to India’s security forces because certain crimes are non-justiciable under Indian’s domestic law.

The study exposes the state of impunity through a study of 214 cases, using information garnered from official State documents. The documents include FIRs, statements before police and /or magistrates, police final reports, High Court petitions, objections, other documents forming a part of the court record such as compliance reports, status report, judicial enquiries, SHRC documents from complaints to objections, police submissions and final orders; the documents in custody of the State itself arraign the armed forces and the police of culpability in specific crimes. But the study also supplements these documents with testimonies of victims and other witnesses.

The study successfully refutes the claim of the Indian state that commission of crimes is an aberration than policy. It indicts the Indian State for pursuing a policy which engenders the state of impunity by listing 500 individual perpetrators, which include 235 army personnel, 123 paramilitary personnel, 111 Jammu and Kashmir Police personnel and 31 Government backed militants/associates. The list of perpetrators includes 2 Major Generals, 3 Brigadiers, 9 Colonels, 3 Lt. Colonels, 78 Majors and 25 captains of the Indian army as well as 2 Additional Director Generals of central para-military forces, 2 DIGs and 12 commandants. It also indicts a DG of Police and a serving IG of police.

The study shows how State violence is institutionalized through a culture of institutional impunity to the state forces where the police, the judiciary and other organs of the government perpetuate the state of human rights violation. This has resulted in enforced and involuntary disappearance of an estimated 8000 persons, besides more than 70,000 deaths, and disclosures of more than 6000 unknown, unmarked and mass graves as of November 2012. There is hardly any prosecution and conviction of the perpetrators. The unwillingness of the Indian State is revealed in the mass grave issue where the Kashmir Home Department on 19 October, 2012 expressed inability to carry out DNA tests because there are no more than “15-16 recognised labs in the Government as well as Private Sector”.  And then turns the entire issue into a farce when they ask that the blood relative should indicate “with fair amount of certainty the exact location of the graveyard and the grave”!

The study highlight that the state structure specifically sanctions commission of crimes through provisions such as the system of cash incentives, awards and out of turn promotions for anti-militancy operations, and prioritizing for the victims the system of monetary compensation over justice. The venerable Supreme Court has also ended up shielding criminals by upholding in the Pathribal fake encounter case denial of sanction for prosecution under AFSPA thereby raising yet another wall to protect the perpetrators.

The recent Universal Periodic Review by UN agency tasked with human rights, on India, revealed that Indian Government has rejected 67 recommendations out of 168 made by the committee which had among other things asked the Indian State to repeal AFSPA, and to ratify and bring domestic laws in accordance with International Convention Against Torture, Enforced Disappearance and Genocide. This blatant refusal by the Indian state currently engaged in taking its claim to a permanent seat in the UN Security Council only lends credence to the study which concluded by indicting India State and establishing that victims of armed conflicts stand little chance to get justice from Indian state institutions because they are themselves implicated in the perpetuation of impunity.

PUDR in extending solidarity with IPTK/APDP demands:
•         Adherence to domestic and international obligations and punishment to all perpetrators of human rights violations in Jammu and Kashmir.
•         Withdrawal of security related legislations that are in contravention of international humanitarian laws and norms.
•         Ratification of Convention Against Torture, Convention Against Genocide and the International Convention for the Protection of All Persons from Enforced Disappearance by the Government of India.

Asish Gupta and D. Manjit
(Secretaries)