Posts Tagged ‘SHRC’

Two days in the Srinagar High Court: Shrimoyee Nandini Ghosh

May 10, 2013
 by SHRIMOYEE NANDINI GHOSH, 

Impressions of the Hearing of the Public Interest Petition on the Mass Rapes at  Kunan Poshpora

Day 1: 7th May 2013: I happen to be in Srinagar. I hear through a friend that a Public Interest Petition has been filed by a group of fifty odd Kashmiri women, before the Srinagar Bench of the High Court, asking that the Kunan Poshpora mass rape case be reopened, and re-investigated. It would take a group of very odd women indeed, to ask for something so far fetched. They are students, housewives, teachers, doctors, some of whom were not even born in 1991, when the rape took place on the ‘intervening night’ (as such records always read) of the 23rd and 24th of February during a ‘search and cordon’ operation by personnel of the Indian army.

An FIR [FIR no.10/1991, Trehgam Police Station] about the incident was filed. On 21st of October, 1991 according to police, in RTI applications, and before the State Human Rights Commission, the case was closed as ‘untraced’, (as such records always read). Some survivors andfamily members approached the State Human Rights Commission, seeking relief. The SHRC took suo moto cognisance of the case as well, and passed an order on the 19th of October, 2011 recommending that the case be reopened and re-investigated, that the survivors be given a ‘minimum compensation’ of at least Rupees 2 lakhs, that the Director of Prosecutions and other government and administrative officers responsible for ‘scuttling the investigations ‘be criminally prosecuted. So far so good. One and a half years passed, and nothing happened. No reopening, no investigation, and certainly no prosecutions. Oh… except 39 of the 40 named survivors received Rupees 1 lakh in cash as compensation, shortly after the SHRC decision. (An important fact, not to be missed, for reasons that will become clearer hereafter).

Then, on 20th April 2013, our fifty odd women file their PIL. On the first date of hearing, which was about a week ago, the Court asks two questions, which they want answered before they admit the Petition: 1) Is Public Interest Litigation really a remedy, in cases such as this? (2) Can a PIL be filed after twenty two years? The answers are obvious (Yes, and Yes) but the questions have  have puzzled the court, and must be answered. Today, the 7thof May, a new bench assembles to hear the Petitioners’ response.

It’s 9:55 am and I walk through the High Court gates. I am subject to the most thorough frisking I have ever been through—they are scrupulously polite, but extremely suspicious, especially of my under-wired bra. They poke and prod, and feel me up good and proper. Later I hear that there were not quite so polite, with one burkha wearing Petitioner, who had her veil forcibly removed.

10:20 am: The Courtroom, (wood panelled, sky-light lit) is beginning to fill up. I am in the third row, behind the lawyer’s padded seats– a good spot.Behind me are some journalists. I strain to overhear them. They’re talking of the case in whispers.

10:45 am: Anxiously waiting for the lawyer. Where is he? Ah, he arrives at last. Thank God.

10:55 am: So many women in court today. Are they all here for the same reasons as me? I smile at some familiar faces. I doodle through a complicated Income Tax matter, a Civil Appeal, and a couple of pass-overs. When will they ever get to it? 

11 am: Item Six. Uzma Qureshi and othersvs State. That’s it! That’s the one. The lawyer for the petitioners, Parvez Imroz, convenor of local human rights group JKCCS, stands, and begins his submissions. He reiterates their questions,  (in case they’ve forgotten, as judges are wont to do) and hands over a compilationof cases on the point.The judges are conferring amongst themselves. Mr Imroz continues. He explains how the Indian Supreme Court has repeatedly held that any member of the public can approach the Court on a matter of public importance. That this is really the meaning of Public Interest Litigation.The Bench is impatient. The Junior Judge (the one who was on the bench that asked the original questions) says: ‘You have missed our point. We are not questioning your locus.’

The Chief Justice says: ‘Of course, rape is a heinous crime. There is no doubt.’ The Junior judge nods.  They confabulate again. The Junior Judge appears to be leading the discussion. He has a lot to say. He used to be the former Additional Advocate General I hear later. Very good at deferring, delaying, denying. He did it with the case against Ex-Director General of Police, Kuldeep Khoda, which never managed to get past the admission stage. But I still want to believe the best of them. Tell us, they ask: ‘Does this court have the power to direct that SHRC decisions be implemented?’

I want to interrupt: But, But… That wasn’t your original question! That’s not fair! How can you change your questions? But they are judges, creatures of whimsy, like the best of us. Today they have a different question.

Mr Imroz is  unperturbed. ‘Let me assist your lordships on the point’, he says.  He speaks of the complete non-implementation of the SHRC orders, the non-filing of the Action Taken Report before the SHRC.He says that 22 years have passed, without even a basic investigation into what happened that night. He points to a Madras High Court Judgment, something about SHRC decisions, but is interrupted, before I can catch his drift.The Bench clearly has something else on their mind. The Junior Judge is furiously consulting some notes he seems to have already prepared. Mr Imroz mentions that the petitioners—a group of Kashmiri, ‘public spirited’ women, have just visited the village. It appears some of the victims have recently received Rs. One Lakh as compensation, though the SHRC decision recommends at least Two Lakhs.

Suddenly, the Bench is all ears. The Junior Judge leaps in. ‘Ah! So they have implemented some part of the SHRC recommendation?’ Mr Imroztries to stem the tide: ‘That is not the point at hand. In fact, I do not know the extent…What we are asking for… If your Lordships kindly turn to page…’ But it’s useless. The Bench has seenthe light. It addresses a state lawyer, who happens to be in Court, seated right next to Mr Imroz. He jumps to attention when called.‘We want to see the file on the matter’, they say.‘Some of the recommendations seem to have been implemented. We want to know to what extent. Let the Advocate General  come tomorrow with the entire file.’ ‘Certainly M’lord’, the state counsel is all nods.

Are you kidding me?.Tomorrow? You want the state to produce all their records tomorrow? The same state that has done sweet fuck all for twenty-two years?‘And,’ the Junior Judge adds as a post-script: ‘We’ll also hear the Advocate General on the maintainability question.’‘This is Bull shit!’I say aloud. I am hushed by my neighbour. We’re in Court, I’ve forgotten my place.The Chief Justice has the grace to seem embarrassed by the way things have unfolded. ‘It is a sensitive matter, you know’, he mutters, Yes, I want to say. We  know. Mr Imroz bows, accedes to a higher power.The next case is announced. About sixty people stand up as a body, and leave. The Courtroom empties.

People in the corridors are talking. What exactly happened? Who said what? Why? What now? Some old hands hold court: It’s a delaying a tactic. An oldie, but a goodie. Hearing after hearing. Wearing you out, just on admissibility. This is legal limbo. Neither here nor there, not in, not out. Making you jump through hoops. Just to get your foot through the damn door. In this case, in the Kunan Poshpora rape, they want to see the whole state file, even before admission? And then, they take suo moto cognisance on the Amarnath Yatra, and the LPG shortage.

Some young ones are more outraged: Just because, they may have paid out some money, after twenty years? Why are they going on this compensation point? Surely, it’s beside the point? Under what law? What rule? By what logic, or what common-sense can it be of any importance? Why keep us hanging like this? Why didn’t they admit it, then issue notice to the state to bring the record? Or why can’t they just dismiss it? And then we’ll see what to do next… We can go to Supreme Court. At least, it would be a decision. The battle-hardened reply: Oh no they’re too smart for that. It’s a waiting game. They have done it before. Sailan, Machil, Khoda…the names of so many massacres, so many cases, so many days in court. The air is thick with it, my head reels.Today is the twentieth anniversary of the Khanyar Massacre. I can’t process it all. People can’t stop talking

We troop back to the JKCSS office, still talking. I stop on the Bund for Golgappas. I meet some of the petitioners, a young and angry bunch. They want to know, why the rape of a single Indian woman can have the whole country in an uproar, but a case about the rapes of fifty (seventy? more? We may never know exactly how many women were raped that night) Kashmiri women must prove its ‘public importance’ in three separate hearings.  Back at the office, it’s chaotic. Arguments have to be redrafted, cases found, precedents cited. We’re back in court tomorrow. Some people from the village of Kunan Poshpora arrive: four wizened old men, and one very vociferous middle aged one. They came to the court as well, but I had missed them in the crowd. They tell us that on the 25th of April and 2nd of May, twenty three of the villagers were summoned to the Court of the Judicial Magistrate in Kupwara, and their statements about the case were recorded. They are very categorical and pull out several crumpled pieces of hand -written papers from their pockets as proof,  but we’re not entirely sure of the whats or whys of it. After some protracted conversations between the lawyer in Kupwara, and the activists in Srinagar, over a very bad (and probably tapped) phone line we realise that though the case has been closed on the police files in 1991, the ‘closure report’ has never been officially filed. It seems like the buzz about the PIL, has made the police suddenly awaken to this fact. They want to file an official closure report, and in a hurry. Hence the flurry of summons.‘Typical!’ , someone says. I am naïve enough to be shocked.

I help draft affidavits, averring that even though, yes, it is true they have received compensation, they still want ‘complete justice’ (as such affidavits always read). We solemnly assert on behalf of the victims: ‘We want the investigation done by an independent agency, we want the perpetrators punished.’ The old men will get these affidavits signed, and bring them to court, by ten am tomorrow. The journey to Kunan Poshpora takes four hours. They want us to hurry up, and finish drafting the papers already, so they can get home before it’s too late. But they constantly get in the way of us legal ones –the names on the record are all wrong (as such names always are): X is the daughter of Y, not his wife- ‘That is irrelevant’,  we say. Four of the women are dead we realise, once the affidavits are drafted, the names tallied, the stamp papers bought.They have to be redone. One of the people in the office, gives the villagers a talk about not hoping for too much. ‘Nothing may come of it.’ ‘ Yes,’ they say. ‘We know.’

Tomorrow, the 8th of May, is the date of the next hearing. I wait with a bad feeling in my gut. But I still hope.

Day 2: 8th May 2013 

Today I go to the JKCCS office first. Scenes of confusion. The  forty affidavits have been signed / thumb printed, but more inconsistencies have been discovered. The villagers point out each one, they have learnt the hard way in the State Human Rights Commission, that a misspelled name can cost a lot. Whitener is liberally applied. Printing on stamp paper is a bitch; one always gets it the wrong way around. Finally, the papers are ready, and we walk to the High Court.

10:35 am: We walk in to the Chief Justice Court, as a huge group of people troop out. The Court has been hearing the ‘Dal Lake matter’, concerning the unfortunately named LAWDA (Lakes and Waterways Development Authority) and the city master plan. When we enter, the Bench is empty. The Judges are in chambers conferring.

10: 45 am: The Court is not as full as yesterday

11:00 am: The Judges re-enter, we all stand. Mr Imroz has stepped out for a cup of tea. Someone is sent to fetch him. The Judges begin with their list. The Kunan Poshpora PIL shall be heard at the end of their Admissions list, since it was only taken on board yesterday. The listed matters drone on.

11:35 am: An interlude in the tedium. On a matter about the inauguration of public park, the Chief Justice remarks: ‘It should not be some one hi-fi. When I was in Punjab, a bridge was to be inaugurated, and we ordered that the oldest labourer should cut the ribbon. His statement was in the press. He said he had only been garlanded twice in his life: once when he got married, and next when he inaugurated the bridge.’

11:45 am. I am bored and hungry. An administrative appeal about Promotions, an urban zoning matter about illegal constructions, drag on endlessly. Seated next to me is the Advocate General’s court clerk. He is reading his boss’s copy of the Kunan Poshpora Petition. I read over his shoulders. In the margins against the first two prayers (for reopening and re-investigation, and criminal prosecution of Wajahat Habibullah, the then Divisional Commissioner for his rlein the cover up) it says in bold letters in ball-point ink: NO. NO.

12 noon. The Kunan Poshpora case is up. The Advocate General is on his feet, a crew-cut junior by his ear. He addresses the question of maintainability, reeling off sections from the Protection of Human Rights Act. His point is that the act says the SHRC decisions are merely recommendatory. That the SHRC itself should approach the Court, ‘Who are these Petitioners? What is their Locus?’ Then he talks about compensation. He says: ‘The Government is going to hold a meeting on 14th of May, at 3 pm. It is under active consideration. The agenda, the timing is already fixed’ – a bureaucrat passes him a file, which he passes on to the Court. 

This is a shocker! The survivors maintain that they have been already paid compensation of Rupees 1 Lakh, shortly after the SHRC case ended. We just filed their affidavits to that effect. Later, in the office the details I had missed become clearer to me. They were paid Rs 1 lakh in cash, all thirty-nine of them (for reasons that are not clear, one did not receive the money) by the local MLA (now Law Minister) in his official residence, in the presence of the local Tehsildar. Thirty Nine Lakhs in cash! Where did it come from? Why was it paid? Why will the Government not acknowledge this payment? We still don’t know the answers, but we can guess.

The Advocate General moves on to the criminal proceedings. He says that the matter is presently before the Judicial Magistrate Kupwara, that he is examining the Police Challan. Witnesses have been summoned. This, we have been expecting, from what the men from the village told us. The Advocate General makes the mistake of saying, the Court “cannot” take cognisance when the Magistrate is seized of the matter. The Chief Justice takes offence ‘You should not use the word cannot in relation to the Court. Especially, a person in your position. You cannot tell the Court what it can or cannot do.’ The Advocate General’s apologies are perfunctory. The Bench wants to hear more on the question of maintainability, ‘Do you have any authorities?’ The Advocate General fumbles. His junior passes him some Judgments. The Advocate General reads from them, they are all on the question of whether a High Court can be approached, when a matter is pending before a lower court. He never explains, why  if the case is still pending before the Magistrate, the FIR has repeatedly been referred to in the past, as ‘Closed as Untraced’.

Now, it’s Mr Imroz’s turn. He points out judgments on the question of implementability of SHRC decisions. The Madhya Pradesh High Court has held that even though SHRC decisions are recommendatory, the Court can take independent cognisance of their findings– the human rights, and constitutional violations they disclose . He continues to the point about reopening, and monitoring criminal investigations, and mentions Vineet Narrain’s case  on investigations into the Hawala scam. The judges want him to refer to a specific paragraph. He rifles through his pages. Then, he mentions the affidavits, but they haven’t been formally  registered yet, so he cannot fully rely on their averments, which put lie to his ‘Learned Friend’ the Advocate General. He ends by saying, ‘Crime Never Dies’—the Judges nod in recognition of a well worn legal cliché. The limitation question does not interest them anymore.The Court reserves the matter for orders. They will not pronounce immediately on whether the case can be admitted.

We file out. The buzz in the corridors today is more subdued. Is it a good sign, this reserving for orders?What does it portend? At least they are going to pass orders, no more proceeding without even admitting the case. No more legal limbo. We can only hope, while we await further orders. And what about the money? How will they explain that?

The villagers seem to find it hilarious, that the Government now claims never to have paid them. They carefully count the copies of the affidavits we have prepared, and put them away in a plastic bag full of other papers, before they leave the office.

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While the Omar Abdullah government might be bringing out advertisements and patting its back for a peaceful year in Kashmir, human right violations are as rampant and as under-reported as before.

This brief has been put out by the JAMMU AND KASHMIR COALITION OF CIVIL SOCIETY

TOTAL KILLINGS

The year 2012 has just passed, and yet again like previous years, the government of Jammu and Kashmir has disgracefully claimed the year to be peaceful. This hyped peace is void of justice & peace and is packed with violence & injustice. In the year 2012 the people of Jammu and Kashmir in routine have witnessed unabated violence, human rights abuses, denial of civil and political rights, absence of mechanisms of justice, heightened militarization and surveillance. The figures of violent incidents suggest that 2012 as usual has been the year of loss, victimization, lies, mourning and pain for the people.

In 2012, a total of 148 people have lost their lives due to violent incidents in Jammu and Kashmir. Out of 148 persons, 35 were civilians, 75 were alleged militants, 36 armed forces personnel, 1 was an unknown person and 1 a retired police officer.

Out of the total 35 civilians killed this year, 6 were children and 9 were women, amongst whom 4 were tourists.

On 27th July 2012, four women tourists were killed in a grenade blast at Bijbehara, Anantnag. The government lied to the media that it was a gas cylinder blast, while as the injured and the eye witnesses made it clear that it was a grenade attack. On that day Indian Defence Minister, A. K. Antony was in Kashmir and had snubbed the army a day before by stating that there would be an inquiry into the fake encounter killing of Hilal Ahmed Dar of Bandipora, which had taken place on 25th July. The army had clearly stated immediately after the killing of Hilal Ahmed Dar that he was killed in a ‘genuine encounter’. Now recently on 28th December 2012, Jammu and Kashmir police said that the two militants killed in Pulwama encounter were responsible for the grenade blast on tourists in Bijbehara. Given the circumstances it is very important that this incident is probed by independent investigators.

UNMARKED GRAVES AND MASS GRAVES

PARTIAL ACKNOWLEDGEMENT BY POLICE

The Jammu and Kashmir government in response to a Right to Information application regarding unmarked graves in all the districts of Jammu and Kashmir while initially rejecting the information as threat to sovereignty and integrity of India and also threat to security and peace denied the information but later after the decision was challenged, the Police on 13th March 2012 vide order no: PHQ/RTI-4/2012/76-77 the First Appellate authority of the Police Headquarters conceded to our arguments shared 2683 FIRs numbers pertaining to 3 districts of North Kashmir. According to Jammu and Kashmir Police these 2683 FIRs are of those persons who after their killings continue to be unidentified and those were buried in unmarked graves. So far police has not revealed the details about other districts and also has not revealed how many unidentified persons buried in unmarked graves have been registered in these 2683 FIRs.

DENIAL OF DNA TESTS

In 2011 the SHRC after endorsing the findings of Association of Parents of Disappeared Persons (APDP) and International People’s Tribunal for Human Rights and Justice in Kashmir (IPTK) regarding the presence of unmarked graves and mass graves in north Kashmir asked the Government of Jammu and Kashmir to carry out DNA tests and investigations into the unmarked graves and mass graves of North Kashmir. On 13th August 2012, the Jammu and Kashmir government submitted the Action Taken Report to the SHRC, wherein it is mentioned that the government would not carry out any DNA investigations of the unmarked graves and mass graves, as according to them it is an ‘academic exercise in futility’, has the ‘potential of hurting the local sentiments’ and can ‘become the trigger for serious law and order disturbances’.

In this Action Taken Report submitted by the government to the SHRC while keeping the option available for the families of enforced disappearance to carry out DNA tests the government has laid out the procedure for the families to approach for DNA tests the Superintendent of Police of Human Rights Cell of CID, who has been made the nodal officer for the DNA tests.

The family members of the disappeared have been asked to identify the graveyard and the particular grave in which they suspect that their loved ones have been buried and only then the nodal officer would proceed with the procedures of getting the DNA tests of the specific grave to be matched with the family claiming that to be their relative. It is an unfortunate statement by the government. How would the family members of the disappeared know whether their relatives are dead or alive and also if they are dead, where they have been buried?

We believe that the DNA tests of all the unmarked graves should be carried out first and only after that the family members should be asked to give DNA samples.

POONCH AND RAJOURI UNMARKED GRAVES

So far APDP/IPTK has submitted the prima-facie evidence of 6217 unmarked graves and mass graves in 5 districts; Kupwara, Baramulla, Bandipora, Poonch and Rajouri. While as the SHRC has acknowledged existence of 2156 unmarked graves and mass graves in Kupwara, Baramulla and Bandipora. This year during multiple hearings of the case of unmarked graves and mass graves of Poonch and Rajouri, the Deputy Commissioner of the Poonch district has submitted the factual report so far and the factual report from the Deputy Commissioner of Rajouri is still pending.

The Jammu and Kashmir Police in its report submitted to SHRC while negating the presence of unmarked graves in Poonch and Rajouri has claimed that in various anti-militancy operations in these two districts have killed 3431 militants and out of whom 2080 are unidentified.

The Deputy Commissioner (DC) of Poonch in his factual report has claimed that there are no unidentified or unmarked graves in Poonch district and that they have identified all the foreign militants as well. The DC Poonch besides his reply has furnished the list of all the encounters in Poonch district and total number of casualties which have taken place in these encounters. Surprisingly the document annexed to the DC Poonch’s reply suggests that the DC Poonch is lying, as the 110 page annexure has details of 1685 unidentified bodies and also reveals that in most of the cases of these encounter killings of the alleged militants the police does not have any photographic evidence.

The details which DC Poonch has provided are only about those cases where government claims people were killed in encounters, but there are a lot many cases reported in the media over last two decades where police has recovered unidentified dead bodies from various place and were buried as unidentified persons, the details of which have not been provided by the DC Poonch so far.

It appears that the government officials at various levels on the issue of unmarked graves and mass graves are attempting to obfuscate the truth and confuse the matter.

ENFORCED DISAPPEARANCES

On 10th December 2011, Association of Parents of Disappeared Persons (APDP) submitted 132 cases of enforced disappearances from Banihal to the SHRC. APDP urged SHRC to investigate the causes and circumstances which led to the disappearance of these 132 persons from Banihal. APDP had also stated that the family members of these victims were willing to cooperate for DNA tests.

The SHRC issued notices to Director General of Jammu and Kashmir Police and the DC Office Ramban for submitting their factual reports regarding the disappearances. So far after many hearings at SHRC the government has failed to provide any factual report regarding the disappearance of these 132 disappeared men from Banihal area.

On 30th August 2012, the International Day of Disappeared, APDP submitted 507 cases of enforced or involuntary disappearances from Baramulla and Bandipora districts to the State Human Rights Commission (SHRC) for investigations into the causes and circumstances which led to their disappearances.

APDP had urged SHRC to investigate whether these people are dead or alive and if they have been killed, then it should be ascertained whether these people have been buried in unmarked graves and mass graves in entire Jammu and Kashmir through DNA tests. After initial reluctance from the SHRC and the Jammu and Kashmir government to admit these 507 cases of enforced disappearances, finally on 24th December 2012 the case has been admitted and the notices have been issued to the Director General of Jammu and Kashmir Police and the Deputy Commissioners of Baramulla and Bandipora districts to furnish their reports regarding the disappearance of these 507 persons.

Besides the unabated denial and injustice from the government regarding the cases of enforced disappearance of last 22 years, the phenomenon of disappearance continues to haunt the people of Jammu and Kashmir. People have disappeared even in this year. Atleast 2 persons have disappeared this year. Mohammad Maqbool Khan S/O Ghulam Nabi Khan R/O Drangbal, Baramulla, a 47 year old man disappeared mysteriously on 23rd March 2012. Shabeena Begum W/O Amir-ud-Din Naik R/O Azmabad, Mandi, Poonch, a 40 year old woman was abducted by Jaswant Singh a personnel of Army, 13th Sikh Light Infantry. The government as usual has failed to initiate any conclusive investigation into those who disappeared this year.

Successive governments have given contradictory statements about the total number of people ‘missing’ in Jammu and Kashmir. In 2002, the National Conference government said 3184 persons are ‘missing’, then in 2005 Peoples’ Democratic Party led government claimed 3931 persons were ‘missing’ and in 2009 the present National Conference led government divulged that 3429 persons are missing in Jammu and Kashmir since 1989. Recently, on 8th October 2012, Chief Minister, Omar Abdullah said that 2305 persons have been declared missing in Jammu and Kashmir since 1989 and in 182 cases FIRs have been lodged, while missing reports have been filed in most of the remaining cases.

Pertinently, APDP on 7th October 2011, applied for information under Jammu and Kashmir Right to Information Act 2009 from the State Home Department for providing all the lists of ‘missing persons’ as claimed by various governments. More than a year has passed the state government has failed to provide any information regarding the contradictory figures of ‘missing persons’ divulged by various governments on the floor of Jammu and Kashmir Legislative Assembly.

EXTRA-JUDICIAL KILLINGS AND CUSTODIAL KILLINGS

The year 2012 has not been free of extra-judicial killings and custodial killings.  8 persons were killed extra-judicially by the armed forces and police. In all these cases of extra-judicial killings, the government has failed to either prosecute or conduct an impartial conclusive investigation.

Whether it was the killing of Altaf Ahmad Sood, a 21 year old boy allegedly shot dead by paramilitary Central Industrial Security Forces (CISF) when they opened fire upon protesters demonstrating against non-availability of power supply at Boniyar in North Kashmir’s Baramulla district, or Hilal Ahmad Dar, a 25 year old a resident of Lahipora, Aaloosa, Bandipora who was killed in a fake encounter by army (27 RR) which was admitted by the army as a ‘genuine encounter’, or Ashiq Hussain Rather, a resident of Rafiabad, Baramulla killed by the army (32 RR); the armed forces continues to kill civilians with the impunity provided under Armed Forces Special Powers Act (AFSPA) and so far in none of these cases as well any  meaningful investigations has been carried out, which could have led to the prosecution of the armed forces personnel.

Nazir Ahmed Sheikh, a 35 year old employee of Srinagar Municipal Corporation and a resident of Dalgate, Srinagar, according to his family was killed after torture in the Srinagar Central Jail.

PROBES AND INQUIRIES

In 2012, the government while remaining consistent with the previous year has ordered 8 different probes on various human rights abuses.

So far only two inquiries have concluded and officials have been indicted but no prosecution proceedings have been initiated, which is nothing unprecedented as even in the past probes have been announced by the government to neutralize the public pressure. From 2003 to 2012, different governments have appointed 163 probes but justice remains elusive.

On 12 January 2012, JKCCS sought information under RTI Act regarding all the probes and inquiries ordered and/or conducted by the Government of Jammu and Kashmir, including inquiries under the Commissions of Inquiry Act, 1962, and magisterial inquiries, between 1990 and 2011. Since almost a year the Home Department has not given any information related to the inquiries ordered from time to time by government on various human rights violations.

It appears that the Jammu and Kashmir government’s reluctance to share this information is based on the fact that these inquiries will only expose the lies of the politicians and officials who order these inquiries to mislead the people of Jammu and Kashmir and to pacify public anger. The aim of these inquiries has never been to convict perpetrators. If perpetrators would have been punished as a result of meaningful and effective probes in the past, it would have helped in creating deterrence for the recurrence of these crimes. We urge the government to ensure that investigations and probe should not be politically motivated, but aimed at holding the perpetrators accountable.

KILLINGS OF POLITICAL WORKERS

Killings of civilian political workers continue to be an unabated phenomenon. In the year 2012, we have recorded killings of 5 civilian political workers. 3 out of the 5 political workers killed belong to ruling National Conference party, 2 were independent Sarpanches. In the last several years the political workers who have been killed no one has been prosecuted.

Killings of civilian political workers at the hands of state or non-state actors, is completely unacceptable. Killing of civilian political workers only creates a culture of intolerance and chokes dissent. It is therefore, JKCCS has been urging all the combatant forces – Indian military forces and the members of United Jehad Council to refrain from killing any civilian political workers.

JKCCS demands an impartial and independent investigation into all the killings of civilian political workers. Impartial investigations would help bringing the perpetrators to justice and also act as a deterrent.

SUICIDES AND FRATRICIDES BY ARMED FORCES PERSONNEL

Suicides and fratricides by the personnel of the Indian armed forces, continues to exist as an issue in the year 2012. This year, 9 armed forces personnel committed suicides in Jammu and Kashmir due to unknown reasons and 1 personnel was killed in fratricidal incident of violence.

TORTURE/HARASSMENTS/ILLEGAL DETENTIONS

The paranoia of government regarding the summer uprising of 2008 and 2010, was very evident this year in the actions taken by the government. Even in 2011 and 2012, when there was no apparent street uprising, hundreds of boys were detained on the pretext of being stone pelters. These young boys are subjected to torture, intimidation and harassment.

In many police stations boys are illegally being detained; sometimes for few hours and sometimes for few days. Some boys are regularly being called to police stations on one pretext or the other. There is complete disregard towards the juvenility of the boys being detained. This year many minors were arrested on charges of stone pelting. Around 225 persons were detained under the Public Safety Act in the year 2012.

In some cases people alleged that police officials have been demanding ransom for releasing these boys who were illegally detained in various police stations. Also this year parents of some alleged stone pelters were detained in various police stations to pressurize their children to surrender before the police.

RAPES AND MOLESTATIONS

On 15th August 2012, Altaf Ahmed Khan presently a S.P ranking officer in Jammu and Kashmir Police was awarded Gallantry Award by the President of India. Altaf Ahmed Khan is an accused in a rape and torture case of 2004, when he was posted in Handwara area. In November 2008, SHRC in its judgment recommended investigation and prosecution against Altaf Ahmed Khan.

So far Police has neither carried out any investigation nor have they registered a case against Altaf Ahmed Khan, instead he was awarded with DG’s commendation award in 2012 followed by that on 26th January 2012 the General Officer Commanding of the 15 Corps Army awarded Altaf Ahmed Khan for bravery and finally his name was recommended for President’s Gallantry award.

In October 2011 the State Human Rights Commission (SHRC) passed a judgment on the Kunan Poshpora mass rape case of 1991, demanding re-opening of the case and also filing a case against the then Director Prosecutions. More than a year has passed the Jammu and Kashmir government has not implemented the SHRC recommendation to re-open the Kunan Poshpora mass rape case.

In none of the other rape and molestation cases registered by Jammu and Kashmir Police for the previous years any progress was made on investigations. The Ministry of Defence this year released information regarding 24 cases in which Jammu and Kashmir government has sought sanction for prosecution under Armed Forces Special Powers Act (AFSPA) against army personnel in last 5 years. The Ministry of Defence mentioned that out of 24 cases sanction has been declined in 19 cases.

Unfortunately the Ministry of Defence in some of the rape cases has also declined the prosecution sanction. In a case of rape of 1997, the Ministry of Defence claims, despite the police investigation, that the rape victim was the wife of a dreaded HM militant and was forced to lodge this false allegation by the anti-national elements.

IMPUNITY

Government of India has been claiming that despite the imposition of AFSPA, mechanisms of justice are functional and deliver whenever anyone is found indulging in human rights abuses, but this year the International Peoples’ Tribunal on Human Rights and Justice in Indian-Administered Kashmir [IPTK] and the Association of Parents of Disappeared Persons [APDP] released a report, “alleged Perpetrators – Stories of Impunity in Jammu and Kashmir”.

“Alleged Perpetrators”  report examines 214 cases of human rights violations using information gleaned mostly from official State documents, in addition to witness testimonies. The report portrays the state of impunity prevalent in Jammu and Kashmir. Out of 214 cases a list emerges of 500 individual perpetrators, which include 235 army personnel, 123 paramilitary personnel, 111 Jammu and Kashmir Police personnel and 31 Government backed militants/associates. Among the alleged perpetrators are two Major Generals and three Brigadiers of the Indian Army, besides nine Colonels, three Lieutenant Colonels, 78 Majors and 25 Captains. Add to this, 37 senior officials of the federal Paramilitary forces, a recently retired Director General of the Jammu and Kashmir Police, as well as a serving Inspector General.

This report seeks to turn the focus on identities of alleged perpetrators of crime and atrocity. This stems from the understanding that despite a culture of systemic impunity that exonerates perpetrators, it is individuals who commit violations, and they must first and foremost bear responsibility for their acts. By naming names the report seeks to remove the veil of anonymity and secrecy that has sustained impunity. Only when the specificity of each act of violation is uncovered can institutions be stopped from providing the violators a cover of impunity.

After the release of the report Chief Minister Omar Abdullah was reported to have told the media that the government will examine this report. Followed by this statement two of the alleged perpetrators named in this report were cleared for their promotions in the Departmental Promotion Committee meeting of the Jammu and Kashmir Police.

AFSPA REVOCATION

The Chief Minister Omar Abdullah on 20th December 2012 said that Army has scuttled AFSPA revocation and also previously on 16th April 2012, ex-Army chief had said that AFSPA was a functional requirement in certain areas like Jammu and Kashmir. Jammu and Kashmir Congress Chief said on 9th August 2012 said that he was instrumental in stalling the AFSPA revocation. These statements bring into focus the fact that army is defacto controlling Jammu and Kashmir, and Chief Minister is helpless, while as army has been using the services of some politicians to maintain its existence in Jammu and Kashmir with impunity.

KILLINGS DUE TO UNEXPLODED SHELLS AND LANDMINES

This year three persons have lost their lives in explosions, which were caused due to unexploded shells used during counter insurgency operations. Two out of the three persons killed are minors.

The Indian army continues to use landmines on the pretext of protecting the borders from ‘infiltrators’, but the fact is that these landmines used by Indian army have not deterred infiltration ever, but has caused havoc in the lives of those living close to border areas. This year as well, Jammu and Kashmir has witnessed several persons injured due to landmines, which also include the personnel from the armed forces.

ROLE OF INSTITUTIONS OF JUSTICE

Judiciary in Jammu and Kashmir continues to show an abysmal performance and has failed to live up to the expectations of the victims. Amongst the people of Jammu and Kashmir disillusionment regarding judiciary is at its lowest, as it has failed in holding perpetrators accountable. Notwithstanding the powers to protect life and liberty of citizens, judiciary has disappointed people of Jammu and Kashmir. Judicial activism for protecting the civil and political rights and seeking accountability from the state actors is very apparent in India, but it seems to be completely absent in the Jammu and Kashmir judiciary.

Justice Masoodi [then an additional Judge] of the Jammu and Kashmir High Court dismissed the petition filed by the families of three persons abducted and killed in Bhaderwah on 3 January 1996. The ex-Director General of Police, Kuldeep Khoda was implicated in the case by a Crime Branch progress report that came to light through the media on 13 August 2011.

The families of the deceased filed a petition before the Srinagar Bench of the High Court in September 2011. The families of the victims of the killings had waited 16 years for justice. The High Court decision by Justice Masoodi is a further disappointment to the families who have watched with increasing frustration the proceedings before the High Court. Following the filing of the petition, at every step, the families have witnessed a judicial process that they may well perceive as being against the interests of justice.

Simultaneously the family members of the Bhaderwah triple murder case had also filed a petition at SHRC. Subsequent to the dismissal by High Court the SHRC has dismissed the case. The SHRC by its decision has affirmed its unwillingness to look closely at the facts of the case and instead follow the Trial Court, High Court and National Human Rights Commission [NHRC] decisions.

The SHRC rationale for dismissing the complaint was that the case had been litigated before the High Court and findings had already been returned on 29 May 2012. While recognizing its powers to consider the complaint notwithstanding the High Court order, the SHRC chose to dismiss the complaint by refusing to appreciate the facts of the case and thereby affirmed its disinterest in ensuring justice, particularly in a serious case of human rights violations that was perpetrated by a senior police official.

SUPREME COURT OF INDIA

On 15 July 2012, the Supreme Court took suo-moto cognizance of the deaths of 67 Amarnath pilgrims over the first 17 days of the Amarnath yatra. Referring to a clear disregard for human life, the Supreme Court cited the constitutional rights to life [Article 21] and freedom of movement [Article 19(1) (d)] in India and issued notices to the Central Government, Government of Jammu and Kashmir and the head of the Amarnath Shrine Board. Subsequently, a high powered committee was constituted to investigate the reasons behind the deaths.

This pro-active approach of the Supreme Court when contrasted with its past record in Jammu and Kashmir related human rights matters raises serious questions on the manner in which human rights violations in Jammu and Kashmir from 1989 to date are viewed in New Delhi. The approximately 8000 persons subject to enforced disappearances, 70,000 persons killed during the conflict, at least 120 persons killed in the 2010 protests, disclosures of 6217 unmarked graves largely authenticated by the Government of Jammu and Kashmir through the RTI process and the State Human Rights Commission, rape, widespread torture and numerous other human rights violations should surely have merited similar pro-active action from the Supreme Court. On the contrary, cases that have been litigated before the Supreme Court, from the Masooda Parveen case to the recent Pathribal fake encounter case; have been dealt with in disappointing and problematic ways.

We believe that the enforced disappearances of the men, women and children of Jammu and Kashmir are a clear disregard for human life and should shake the conscience of any State or judicial system that considers itself civilized, and respectful of the rule of law and human life. The right not to disappear and right to life in Jammu and Kashmir should also be a concern for the Supreme Court.

That the human rights violations, coupled with the complete failure of the investigative and prosecutorial mechanisms in Jammu and Kashmir, are not considered worthy of attention by the Supreme Court is shocking and a damning indictment of the Indian State and all its functionaries. This prioritization of some lives over others is condemnable.

 

 Altaf Ahmed Khan
15th August 2012

Celebrating tyranny and victimization

It is despicable that the police officers responsible for serious human rights violations are receiving awards despite the crimes they have perpetrated. Today’s awards to some of the Jammu and Kashmir Police officers are an act of celebrating tyranny and victimization.

Superintendent of Police, Altaf Ahmad Khan is one of the officers who has been awarded with the President’s Police Medal for Gallantry. Altaf Ahmad Khan is notoriously known for perpetrating human rights violations in the areas where he has served.

On 3rd July 2004 a 16 year old girl (name withheld) was abducted from her school by Altaf Ahmad Khan, then Deputy Superintendent of Police Handwara, and taken to the Zachaldara Police Post. The girl was kept at the Police Post for three hours. Altaf Ahmad Khan and his associates tortured her. Altaf Ahmad Khan tore her clothes. Her shirt and pyjama were removed and she was thrown on the floor. When she asked for water and she was given water with salt and chilli. A heavy roller was rolled over her legs as well. She was kicked in the abdomen by Altaf Ahmad Khan and this resulted in her falling unconscious. Subsequently, the victim realized that she had been raped while she was unconscious as she was bleeding profusely from her vagina.

The victim was hospitalized for close to fifty days where she was operated upon and her uterus was removed.

The girl approached the State Human Rights Commission and on 19 November 2008 the final decision was issued where it was stated that the victim had been subject to “the worst type of human rights violations at the hands of two lady constables and the Dy.S.P. Altaf Ahmad Khan”. The SHRC recommended appropriate relief and an enquiry by a senior administrative/police officer. Despite the SHRC recommendation for an inquiry, it appears no investigations have taken place. Further, Altaf Ahmad Khan was promoted as the Superintendent of Police and has multiple accusations of human rights violations while he was posted in the Sopore area of Baramulla District.

On 31st July 2011 Nazim Rashid Shalla died in police custody in Sopore, due to torture, after being picked up by a joint group of the Jammu and Kashmir Police and the army. In the extra-judicial execution of Nazim Rashid Shalla, Altaf Ahmad Khan was implicated and transferred from Sopore. During the pendency of the enquiry in the same case Altaf Ahmad Khan on 26th January 2012 received Gallantry Award from the army and now today he received a President’s Police Medal for Gallantry.

Pertinently in 2008, it was reported in the media that Supreme Court Justices Aftab Alam and G.S. Singhvi made observations in court in relation to the practice of fake encounters for rewards in Jammu and Kashmir.

In the past two decades several armed forces personnel and Jammu and Kashmir Police officers notoriously known for human rights violations have received gallantry awards, which suggest the institutional endorsement of the crimes perpetrated by these men in uniform. This policy of awards and the perpetual impunity in Jammu and Kashmir shows the complete disregard of the Indian state towards the human, civil, political and democratic rights of the people of Jammu and Kashmir.

On the other hand Police officers who have shown exemplary service towards the people of Jammu and Kashmir have either been dumped or reprimanded. The police officer who conducted the investigation on unmarked graves and mass graves in North Kashmir on the orders of SHRC has not been encouraged. The Assistant Superintendent of Police, Bandipora after carrying out investigation regarding the recent fake encounter killing carried out by Army, was demoted and humiliated, which has sent a message to other officers that performing their duty diligently is undesirable for the government.

issued by- JAMMU KASHMIR COALITION OF CIVIL SOCIETY

 

Muzamil Jaleel : Srinagar, Sun Aug 21 2011

For the first time in Jammu and Kashmir, an official inquiry has said that it is “beyond doubt” that there are scores of unidentified bodies in unmarked graves in the Valley — as many as 2156 bodies buried at 38 sites since militancy began in 1990.

All these bodies, according to an inquiry by the investigative wing of the J&K State Human Rights Commission (SHRC), were handed over by the police to the local population for burial with bullet injuries and were classified as “unidentified militants.” Strongly contesting this in the absence of any profiling done by the police, the probe has called for a thorough investigation across the state, FIRs, exhumation and prompt DNA profiling of the bodies and comparison of samples with those taken from residents who have been campaigning against the disappearance of their relatives.

It quotes former British Prime Minister William Gladstone to make a telling point: “Show me the manner in which a nation cares for its dead and I will measure with mathematical exactness, the tender mercy of its people, their respect for the law of the land and their loyalty to high ideals”.

The report says that of the bodies, a few were defaced, 20 were charred, five only have skulls remaining and there are at least 18 graves with more than one body each.

This startling conclusion comes after a three-year-long inquiry by an 11-member team led by Bashir Ahmad Yatoo, the Senior Superintendent of Police of the investigative wing of the J&K SHRC.

The team scoured police records to count the number of “unidentified bodies” sent for burial, cross-checked this against testimonies from police officials, eyewitnesses, village committees, village heads, elders, mosque committees, gravediggers and records prepared by caretakers of the graveyards. Many witnesses spoke on the condition that they not be named — the testimonies of 62 who didn’t seek anonymity have been made part of the report.

There were 21 unmarked graves in Baramulla, three each in Bandipore and Handwara and 11 in Kupwara. The probe said it established 851 unidentified bodies in Baramulla, 14 in Bandipore, 14 in Handwara and 1277 in Kupwara.

The report of the investigation, obtained by The Sunday Express and handed over to the SHRC last month.

“It is beyond doubt that unmarked graves containing unidentified dead bodies do exist at various places in north Kashmir. The local police while handing over the unidentified dead bodies to locals for burial, was claiming them to be the dead bodies of unidentified militants but later on, out of 2730 unidentified dead bodies, 574 were identified as the dead bodies of locals by their next of kin at these 38 places visited by the investigating team,” says the report.

In fact, the SHRC investigation was the response to a campaign by the Association of Parents of Disappeared Persons (APDP) which in March, 2008, released a report, “Facts Underground” and alleged the presence of unmarked graves. The next month, the SHRC issued notices to then Congress-PDP government and set up the probe committee. In December 2009, another human rights group, the International People’s Tribunal on Human Rights, released a report claiming that unmarked graveyards “entomb bodies of those murdered in encounter, fake encounters and extrajudicial, summary, and arbitrary executions.”

The SHRC team included Inspectors Mohammad Yousuf, Baghwant Singh, Ashiq Hussain and Veer Singh; Sub Inspector Khalid Mehraj, Assistant Sub Inspector Farooq Ahmad, Head Constables Ghulam Mohammad and Aijaz Ahmad besides Special Grade Constables Ghulam Qadir and Nazir Ahmad.

“The scope of DNA extraction from remains of these unidentified bodies buried in unmarked graves of north Kashmir is still very bright. As the time will go on to elapse, chances will be more and more reduced,” the report says. “Thus the Commission should pass an order with directions to do the needful as soon as possible so that the identity of the disappeared persons and those unidentified bodies buried in nameless graves may be established or negated. The DNA sampling techniques can be supplemented by other techniques like dental examination, distinctive medical characteristics, finger prints and physical description etc”.

The report also suggests that “to stop the misuse of powers under AFSPA (Armed Forces Special Powers Act) and Disturbed Areas Act,” it is necessary that wherever anybody is killed — whether he is a militant or an innocent civilian — his or her identification profile including DNA profile should be maintained properly.”