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11 Years, 108 Probes and Zero Prosecutions: In Kashmir, Justice Remains a Long Forgotten Prospect

As per data compiled by the Jammu Kashmir Coalition of Civil Society, a human rights organisation in the state, there have been 108 cases of human rights violations since 2008 where probes or enquiries have been ordered.

Sheikh Saaliq, Rishika Pardikar@sheikh_saaliq

Updated:April 23, 2019, 6:34 PM IST
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11 Years, 108 Probes and Zero Prosecutions: In Kashmir, Justice Remains a Long Forgotten Prospect
Image for representation (AP)

New Delhi: On March 17, security forces picked up a young school principal from his home in south Kashmir. Three days after his detention, people in the Valley woke up to the news of his death. The same day, the state police issued a statement, saying the 29-year-old “died in police custody”. Some time that evening, a First Information Report (FIR) was lodged.

For the principal’s family and those who now know of his death, there was one big question: Who will be named in the FIR? They didn’t have to wait long to know the answer; it was the principal himself, Rizwan Assad Pandit. The 29-year-old was charged under Section 224 of the Ranbir Penal Code for an attempt to escape from custody.

Pandit’s family alleged that he was killed in police custody because torture marks were visible all over his body. This was confirmed by a preliminary autopsy report compiled by the Government Medical College, Srinagar, which mentioned “excessive bleeding caused by deep wounds on his body”.

The report also pointed out that “some injuries were … older than others”. In 2018, Pandit was arrested for “anti-national activities” and booked under the Public Safety Act (PSA). After some days, the J&K High Court quashed the PSA but the police didn’t release the 29-year-old for the next 15 days, his family said. The family also alleged that he was tortured in custody.

After Pandit’s death, a jurisdictional commissioner in Kashmir called for a magisterial probe and the Assistant Commissioner, Revenue, in Pulwama was appointed the inquiry officer. The police had sought four days to file a report on the matter and in case discrepancies were found, an FIR would be filed, the family was told.

News18.com reached out to Tahir Saleem, senior superintendent of police, Awantipora, who was supposed to submit the investigation report regarding Pandit’s alleged custodial killing. Though Saleem said he had submitted the report, Qazi Masood — the enquiry officer in Pandit’s case — said the submitted document was not what he had sought from the Awantipora police station.

A month into the incident and this inquiry seems to be following a set pattern.

As per data compiled by the Jammu Kashmir Coalition of Civil Society (JKCCS), a human rights organisation in the state, there have been 108 cases of human rights violations since 2008 where probes or enquiries have been ordered. The violations include instances of killings and fake encounters, rapes and molestations, custodial killings, beatings and pellet injuries among others where the list of accused persons ranges from police and army personnel to Ikhwanis, militants and “unidentified gunmen”.

Of the 108 cases, nine are custodial killings.

The last custodial death reported in Kashmir took place in August 2016 when Shabir Ahmad Mangoo, a 30-year-old lecturer from south Kashmir, was allegedly dragged out of his house, beaten and taken to one of the army camps where he died of injuries. Back then, senior army officers had said an inquiry had been launched. However, when state police filed an FIR against the army, a counter-FIR was lodged by the force, which denied its role in Mangoo’s death. A year later, a Jammu and Kashmir police investigation held 23 personnel of the 50 Rashtriya Rifles responsible for Mangoo’s killing. While the police have sought the Centre’s sanction to prosecute the accused, the same has not been granted till date.

Earlier in 2008, the special operations group (SOG) — the anti-insurgency wing of the J&K Police — was accused of being responsible for the custodial death of Latif Ahmad. The then district magistrate ordered a probe and appointed an inquiry officer. But according to JKCCS, the persons concerned from the SOG were never held accountable. Likewise in 2011, when a youth in north Kashmir’s Sopore, Nazim Rashid Shalla, died in police custody, the government had suspended three police officials, attached a deputy superintendent of police (DSP) and had also transferred the then superintendent of police (SP) of the area. However, there were no prosecutions.

This pattern of ordering magisterial probes and appointing inquiry officers was followed in all the cases of custodial killings since 2008 — three in 2009, one in 2010, three in 2011 and one in 2015.

News18.com talked to Irfan Mehraj, a researcher with the JKCCS, who said more number of magisterial and judicial inquiries have been called in cases where killings have occurred, including custodial killings in recent years.

Mehraj pointed out that “in cases where security forces are accused, probes haven’t resulted in prosecutions”, further mentioning that “in cases where militants were involved, eyewitnesses did not want to identify them”. He added that “in some militancy-related cases, even FIRs are not filed because people are scared”.

It is important to mention that custodial killings were the order of the day in the early 1990s, an observation made by various human rights groups. It is believed that hundreds of Kashmiris perished in the interrogation centres run by the security forces, though there are no official figures available.

However, Muneer Khan, Additional Director General of Police, Jammu and Kashmir, believes otherwise. “In cases where armed forces were found responsible [for human rights violations], they have faced severe consequences like court martial. Security forces are accountable to institutions,” Khan said. He added that even in cases of custodial killings and fake encounters, security forces have been held responsible if they were found to be guilty. “It is only the militants who are not accountable to anyone,” Khan said.

But Mehraj disagrees. “The system of delivery of justice is not forthcoming in military courts,” he said.

In a report on the situation of human rights in Kashmir, the United Nations High Commissioner for Human Rights too acknowledged that military courts impede access to justice. Specifically, the reported stated that “military courts do not meet international fair trial standards and thus are not suitable to try offenses committed against civilians”.

Ata Hasnain, a retired General of the Indian Army who has served in Jammu and Kashmir, said if inquiries haven’t resulted in prosecution, it is largely owing to the fact that “credible evidence pertaining to the case has not been gathered and produced before a court of law”. To illustrate this point, Hasnain spoke of a case that he personally oversaw where court martial proceedings were initiated against a security personnel but the case was later struck down by the Delhi High Court.

“In 2005, Major Rahman Hussain, an officer of the Indian Army, was court martialled for alleged attempted rape by a General Court Martial of which I was the Presiding Officer. With limited evidence, the Court found him guilty and dismissed him from service. Later on, in his appeal to the Delhi High Court, the officer was exonerated and restored to service. Obviously, the High Court found that there was insufficient evidence to have punished the officer,” Hasnain said.

Hasnain also questioned the authenticity of figures provided by human rights groups, saying they “do not always pass muster”. “This in no way exonerates all and sundry from allegations which may be true but in cases where a serviceman is involved in an alleged rights violation, evidence is the first thing that must be worked upon,” Hasnain added.

The issue, though, is larger than what two sides of a story could portray, and points to a breakdown in institutional functionality in Jammu and Kashmir.

Waheed Parra, spokesperson of People’s Democratic Party (PDP), acknowledged this breakdown. “It’s true that probes are ordered and nothing happens after that,” Parra said. “This lack of impartial probes,” Parra believes, “is because of two things: the will of the system and people’s participation.”

Parra says the troubles facing the judiciary in Kashmir are systematic in nature and Kashmiri courts are not strong enough. “People lack faith in court processes,” he said. Parra added that core witnesses don’t appear before courts and this, he believes, points at a “confidence deficit”. “In Rizwan’s case, the situation is hostile… an FIR was filed against a dead person,” Parra said.

Responding to a question about the role of the state government in such situations, Parra said much of the responsibility “depends on the Centre”. Parra is part of the PDP that ruled the state for about three years — from 2015 to 2018 — after forming a coalition with the Bharatiya Janata Party (BJP). The coalition government eventually broke and the state is currently under the President’s Rule.

Parra said the decision to maintain peace in the Valley ought to come “from the top”. But this, according to him, is missing. “Today, the focus is only on campaigns for optics... there’s war mongering and there’s a fight going on against Kashmiris at all levels — constitutional, political and at a military and security level.”

Shafkat Hussain, a human rights lawyer based in Kashmir, however, believes that the filing of an FIR and the road to justice is a long process in Kashmir.

Explaining the procedure in cases where allegations are made against security forces, Hussain said, “First, a petition will have to be filed in a court of law. The court will then call for an inquiry and if it is found that there is sufficient evidence against security forces, the court will direct the police concerned to file an FIR. Once the police personnel conduct an inquiry, they present the charge sheet before a court of law,” Hussain said, further explaining that the Centre’s sanction is required to prosecute in such cases after the charge sheet is filed.

Jammu and Kashmir is a state where the security forces, including police personnel, are covered under the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (AFSPA) that states that “no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government”.

According to a question raised in the Rajya Sabha last year, a total of 17 requests for the sanction of prosecution under AFSPA were made between 2008 and 2016. Of the 17, permission was denied in 15 cases while the remaining two requests — kidnapping of a civilian and killing of a civilian — are pending.

“Permission to prosecute armed forces is almost never granted,” Hussain said. “So, inquiries are an eyewash.”

Then there’s the concept of filing ‘open FIRs’. “In this case, no one is named and no arrests are required to be made at the time of filing the FIR,” JKCCS’s Mehraj explained. “But even 10 years later, someone can be booked on the basis of this FIR,” he said.

This, according to Mehraj, provides scope for misuse. He further explained that “this method of booking people is used in PSA [Public Safety Act] cases too.”

PSA was enacted to provide for preventive detention. But according to both Mehraj and Hussain, the law is being abused. “In many cases, people are arrested and held at interrogation centres and police stations illegally without first producing them before a magistrate,” Hussain said. At times, the period of this illegal detention extends between six to eight months. “And this,” according to Hussain, “has been happening for about 30 years.”

News18.com tried reaching out to Justice Bilal Nazki, chairperson of Jammu and Kashmir State Human Rights Commission (JKSHRC), an autonomous state body with quasi-judicial powers tasked to investigate any violation of human rights in Jammu and Kashmir. The body was constituted in January 1997 by then National Conference government headed by Farooq Abdullah under the Protection of Human Rights Act.

Nazki declined to comment on the issue of probes into human rights violations that haven’t resulted in any prosecutions and the alleged “custodial killings” in Kashmir, owing to the fact that “interviews are largely opinion-based and he would rather rely on data and facts”.

Nazki also mentioned that those interested should look into the annual report of JKSHRC for 2018 that will be published in the next few days. Before filing this report, News18.com checked the JKSHRC official website and found that no such annual report has been listed on it yet.

Entangled in the throes of violence, Kashmir has long been witnessing custodial deaths. In 2008, the state police admitted that almost 330 people had died in custody since 1990. Many civil society members and activists back then had said the actual numbers were much more than that. According to the JKCCS, the state saw 225 cases of custodial killings from 2002 to 2009 alone. Amnesty international, an independent human rights organisation, had earlier recorded 706 custodial deaths between 1990 and 1994.

In Pandit’s case, though, the miscarriage of justice extends beyond the judicial probe or its findings. Thirty-two days later, the family hasn’t yet been given a copy of the FIR or the post-mortem report which found that Pandit died due to “external wounds…suspected to be caused by some sharp object”.

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