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Sabrang
Sabrang
Dalit Bahujan Adivasi Violence

Valley of fear, depths of despair

01 Aug 2010
As unrest continues to brew in the Kashmir valley, and more and more innocent people lose their lives at the hands of the police or security forces, it is increasingly apparent that the Indian state urgently needs to re-examine its position and dramatically alter its tactics in Jammu and Kashmir. The Indian polity must insist on this. The strategy employed by the Indian government over the years has denied a sizeable section of the people basic human rights and estranged them from the mainstream. The wrongs that are still being inflicted on them by state forces and militant groups, the Kashmiri people’s burgeoning anger and continuing alienation feeds a conflagration that will not be extinguished unless corrective action is taken, and taken without delay. This is not a grave matter for Kashmir alone; it is a perilous situation for India as a whole. It is a blot on India’s conscience as a nation, a distressing account of systemic cruelty and studied indifference to the sorry plight of an ever-growing multitude of its citizens. And even as we urge for fundamental changes in the status quo, we must do all we can towards reparation and to ensure that the average Kashmiri’s valiant and ceaseless quest for justice yields positive results.

A report of the Independent People’s Tribunal on Human Rights Violations in Kashmir reveals the extent of deprivation of basic human rights and the depth of alienation felt by the Kashmiri people. Excerpts from the report:

Aims

There is a general perception that the human rights situation in Jammu and Kashmir is bad and largely unaddressed. The various official human rights mechanisms, including the judiciary and the State Human Rights Commission, are unable to act proactively and rein in human rights violators, including the army, paramilitary forces, police and surrendered militants. In this context, it was felt that a civil society initiative, including retired members of the judiciary, was imperative to clarify the situation and the reasons for the continued deaths and suffering.

The practice of human rights abuse is protected, if not encouraged, by legislation like the Armed Forces (Special Powers) Act, the Jammu and Kashmir Public Safety Act and the Disturbed Areas Act – where security forces are given sweeping powers to shoot, kill, arrest and detain along with blanket immunity from prosecution for such heinous acts. These powers are in complete disregard of the most fundamental postulates of international law enshrined in the UDHR (Universal Declaration of Human Rights 1948), the ICCPR (International Covenant on Civil and Political Rights), the ICESCR (International Covenant on Economic, Social and Cultural Rights), the UNCAT (UN Convention Against Torture) and the UN Convention on the Elimination of Enforced Disappearances, among others. The latter two have been signed but not ratified by India.

Keeping in view the basic principles of human rights as enshrined under the Constitution of India and various international covenants, and in order to highlight the forms and extent of human rights abuse suffered by civilians in Kashmir, the Human Rights Law Network, in collaboration with ANHAD, organised an Independent People’s Tribunal on February 20 and 21, 2010 at Srinagar, Kashmir.

The tribunal was organised with an aim to provide a platform to the victims of the ongoing armed conflict. The tribunal witnessed testimonies from all sections of Kashmiri society, including victims, their family members, social activists, journalists and academicians. In all, 37 testimonies came to be recorded during the two-day-long tribunal. Victims and their family members narrated their stories of suffering which they have experienced for the past two decades. The idea behind conducting such an event was to highlight the sufferings of all such victims and to formulate certain suggestions/ recommendations in order to minimise the use of force against the common man in the name of national security by the security agencies.

Summary

The tribunal heard testimonies from about 37 victims and their kin and we have also had testimonies/statements from journalists and members of civil society.

It is clear that there is a sense of suffering and injustice writ large on the faces of everyone who made their statements before the tribunal. We had made it clear that we are not in any way linked with the official institutions or authority and yet so many of them gave vent to their feelings in their physical and emotional state, which only strengthens our opinion that there is substantial truth in those allegations.

It cannot be gainsaid that the Armed Forces (Special Powers) Act 1958 has been in force for nearly two decades in this state. This act has been misused and is being misused wherever it is made applicable (Manipur, for example). Therefore if we take this situation into account, this draconian law has undoubtedly facilitated grave human rights abuses including “disappearances” by the very nature of the power bestowed on the armed forces.

Any abuse of powers by the armed forces is a criminal offence. It should promptly be investigated by an agency independent of the armed forces, followed by impartial prosecution. The testimonies of all witnesses clearly establish that there has been no satisfactory investigation by any agency or authority in the state, leave alone any prosecution. On the other hand, we get an impression that all institutions of the state, the executive, the legislature, the human rights commission and to a certain extent even the judiciary have failed to do justice to the victims of “disappearances” and other human rights violations.

The United Nations General Assembly in 2006 has unanimously adopted the International Convention for the Protection of All Persons from Enforced Disappearance. Earlier, there was the UN declaration to the above effect (December 1992). Article 2 of the declaration says that, “the prohibition” of “disappearances” is absolute and no state can find an excuse. Article 7 says: “no circumstances, whether a threat of war, internal political instability or any other public emergency, may be invoked to justify” these acts of violation. Hence it is not open to the state to resort to enforced disappearances, which would include all custodial deaths, on the ground of any threat to internal security or external safety and stability. It is here the state’s liability becomes absolute and we should have no hesitation in making these observations.

We have the testimony of Ms Parveena Ahangar, who is the chairperson of the Association of Parents of Disappeared Persons (APDP), which clearly establishes that 8-10,000 persons have disappeared from about 1989. Incidentally, we may point out that during the period 1984-1994, during the agitation for Khalistan in Punjab, there had been similar disappearances and recently a report based on the State’s Human Rights Commission shows that over 2,059 bodies were identified in Amritsar district and still over 1,000 bodies are lying there in the district and there are a large number of skeletons in other districts. Moreover, internationally, disappearances and “custodial deaths” fall within the definition of “torture”. Prohibition of torture and ill treatment is underlined by its non-derogable status in human rights laws. No state can justify such an act.

General findings
  1. Various instances of the security forces’ crimes have been brought to our notice. These are violations against the Geneva Conventions (Common Articles 2/3), the International Covenant on Civil and Political Rights, the Indian Penal Code and the civil law of the country. The police/paramilitary and surrendered militants have flouted Indian laws and the rules of war. As a consequence, large numbers of civilians have died, including women and children. Women, including young girls, have been harassed, raped and gang-raped and children in their early teens shot.
  2. The judicial machinery has barely functioned. Despite the stern report of the Bijbehara magisterial inquiry, recommending the severest action against the BSF (Border Security Force) officers and jawans, nothing was done. A number of cases filed in the district and high courts have been pending for years and there are numerous cases of lack of judicial action taken in terms of awarding compensation and instructing the security forces to produce the disappeared and so forth.The tribunal heard repeated examples of FIRs (first information reports) filed by the families that were distorted by the police to accuse the victims. Counter-FIRs have also been lodged by the police… Under the pretext of translating FIRs from Urdu into English, the police have completely distorted the complaints made in the original FIR. One such case with evidence was produced before the Independent People’s Tribunal.
  3. The State Human Rights Commission has no power to investigate paramilitary and military excesses though it does have the power to request investigation reports of the inquiry by the paramilitary and the military forces. The SHRC seems to have failed to exercise its powers proactively to provide justice to the victims. The general trend is that the state as well as the central government ignores the recommendations made by this commission.
  4. Rape: The worst case of mass rape was heard by the women jurists from the testimonies of women from Kunan Poshpora, who talked about the night of February 23, 1991 when the army came to their village, isolated the men and gang-raped at least 23 women of all ages from 14 to even a 100-year-old woman. The rape took place in front of their young children. There was brutal impact on their bodies and since then, they have suffered physical and mental trauma for years. They have been socially discriminated and ostracised, landing them into a traumatic state of mind that has been permanent. This is the grossest of human rights violations.
  5. Throughout the conflict people have been maimed and disabled due to the indiscriminate firing by security forces during even non-violent protests. People have also been disabled during interrogations where torture was used. We heard the testimonies from Bijbehara where forces had indiscriminately opened fire on peaceful demonstrators in 1993. Many injured persons have been disabled for life and have suffered mentally, physically and financially. Hardly any steps have been taken for their rehabilitation.

The testimonies we heard from disabled persons revealed that they were totally shocked and shattered. The disabled deposed before us to say that they could bear with the aftermath of physical injury but not with the mental pain, agony and trauma that make them feel that they die several deaths every day rather than living even once…

Custodial killings

There have been a large number of custodial killings since the conflict began. The pattern in most cases is similar even though the perpetrators may be from different forces serving the Indian state. The cases cited represent the dominant form of this method of violation of human rights. We are citing illustrative testimonies of victims, relatives of victims and others with first-hand information to illustrate our findings.

Testimonies

Masooda Parveen, representing the late Advocate Ghulam Mohiddin Regoo

Relation with victim: Wife

Resident: Pampore

District: Pulwama


“I am a mother of two. At the time of the incident my husband was a practising lawyer. On February 1, 1998, at around 9 o’clock, my husband had just returned from the mosque after offering the last prayer of the day. Two renegade militants – Bashir Ahmad and Abdul Khaliq – entered our house. Bashir’s face was partially covered with a handkerchief. He caught hold of my husband’s collar and alleged that a militant – Arshid Ahmad Ganaie – was hiding in our house. In fact, Arshid was already in their custody, in a car parked outside our house. The two people took my husband with them and a few days later his mauled dead body was returned to us. Major Poniyal of the Jat Regiment stationed at Laidpora, Pulwama, was involved in bringing all of this about. At the time of handing his body over to me they also gave me the relevant documents and the copy of the FIR.

“I approached the government authorities in order that the culprits are brought to book but to no avail. The district administration had offered me a job but later declined to acknowledge they had ever done that. When I contacted the local MLA regarding the matter, he avoided me. I approached the then chief minister, Mr Farooq Abdullah, but he shooed me away, stating that I was the wife of a ‘traitor’. My son, who is an agriculture graduate, has been constantly denied a passport by the state. I myself wanted to take the case of my husband’s gruesome murder to a UN body but was also denied a passport. I am now contesting my case in the Supreme Court with the hope that we get justice and my sons can travel abroad for their advanced studies. When the Supreme Court called for the records of our case from the police, they stated that they had lost the file. In the meantime, our harassment by the state continues as has been the case since my husband’s brutal murder.”

Gh Qadir Pandit

The case of Gh Qadir Pandit is a striking instance of the state of the judiciary and police. Even after the sessions court concluded the “custodial death”, which was reported to the Jammu and Kashmir high court, the high court directed the concerned sessions court to start investigations after three years of their filing the case. The police refused to file an FIR on the ground of jurisdictional ambiguity. The victim’s family then filed an application in the high court seeking directions to specify the police station under whose jurisdiction the case fell but no orders were passed. Mr Pandit’s brother’s comment that he was “…so disillusioned with the justice delivery system in Kashmir that I thought it best not to follow up on the case any further” sums up a common criticism of the judicial system, the SHRC and the police.

Gh Qadir Teli

Gh Qadir Teli, whose son was a victim, was himself severely tortured and stripped naked by the 21 RR (21 Rashtriya Rifles). He also filed petitions in the Jammu and Kashmir high court and SHRC about his missing son but nothing concrete happened.

“My son was a 17-year-old school dropout and had started working on our farm. He had three elder sisters and was the only substantial source of income for our family. I got him married in 2006, in district Baramulla. On the fateful day of November 25, 2006 he was not feeling well and had gone to see a doctor, Dr Habibullah Mattoo, in Sopore. While he had been waiting for his turn at the clinic, a fellow villager had called him on his mobile phone, which is when he had confirmed his location. At around 1 o’clock in the afternoon I saw a huge crowd outside my house. Some people standing close by advised me against going home at that time, as there the army had raided my house and were searching it. Disturbed by the gravity of the situation, I thought of calling my son. I went to a phone booth to make the call but his cellphone was switched off.

“During this time the rest of my family inside the house was being harassed by the army. Finally, I reached home at around 9:30 in the evening but my son was nowhere to be seen. For the next three days there was no news of him. I registered a missing report at the police station on December 8, 2006. However, the army – led by some DSP (deputy superintendent of police) Tickoo – raided my house soon after and asked for the original copy of the report, which I had to hand him out of fear. Fortunately enough, I had already made photocopies. I then returned to the concerned police station and lodged a fresh complaint.

“A few days following this the army came looking for me but somehow I managed to get away. But on another occasion the 21 RR raided my house again and took me into custody. They then took me to Handwara where I was severely tortured while being stripped naked. You can imagine what I might have gone through considering it was the body of an old man they were inflicting inhuman treatment on. They were trying to coerce me to accept that my son was a militant and that I had ammunition in my possession but I didn’t succumb. When they released me, I filed an application with the district magistrate reiterating that I had been subjected to illegal detention and torture and that the whereabouts of my son were unknown. I also filed petitions in the Jammu and Kashmir high court and the SHRC but nothing has come out of them.”

Enforced disappearance

One of the most harrowing consequences of the armed conflict in Kashmir is that people in detention go missing. The majority of missing persons are men, which leaves a large number of women awaiting news that would decide their fate, living lives of half-widows. A state like this results in a severe identity crisis amongst the women – with the immense agony of not being sure whether they are still married or widowed.

Enforced disappearances in Kashmir started in 1989 following the outbreak of armed conflict. The state has seen heavy deployment of security forces (more than 6,00,000 – the highest number of army personnel during peacetime anywhere in the world) since.

In international human rights law, disappearances at the hands of the state have been codified as enforced or forced disappearances. The Rome Statute establishing the International Criminal Court defines enforced disappearance as a crime against humanity. However, the police do not entertain missing reports with regard to these persons.

The Association of Parents of Disappeared Persons, an organisation founded by concerned persons in Kashmir, has been demanding the whereabouts of people who have been subjected to enforced custodial disappearance by various security agencies, troops and police – mostly since the break out of armed rebellion in 1988. Even though the association continues to highlight their sufferings and their demands, their genuine pleas and grievances are yet to strike the conscience of the so-called elected representatives of the people.

According to the International Convention on Enforced Disappearances, no exceptional circumstances whatsoever – whether a state of war, a threat of war, internal political instability or any other public emergency – may be invoked as a justification for enforced disappearance and the state is under an obligation to investigate acts of enforced disappearance.

Testimonies

Zahoor Ahmad Mir, representing Ali Mohd Mir

Relation with victim: Son

Resident: Nishat

District: Srinagar


“My father, namely Ali Muhammad, was killed by Ghulam Ahmad alias Papa Kishtwari on June 26, 1996. I filed a case in the high court in the year 2006. I also filed a case in the SHRC in the year 2007. After I got the case registered, it pressurised the police and only then could I get an FIR lodged against Papa Kishtwari in the concerned police station. Papa Kishtwari is a surrendered militant and is now a government-sponsored person. He even won uncontested elections. Papa Kishtwari is believed to have committed 150 murders but only 26 are registered against him. His accomplices have been left free. I want my father’s dead body. Papa Kishtwari is in jail because of me but he is not being punished. I want justice.”


Abdul Rashid Beigh, representing Fayaz Ahmad Beigh

Relation with victim: Father

Resident: Khajapora, Nowshera

District: Srinagar


“My son, namely Fayaz Ahmad Beigh, was working as a photographer in the department of Central Asian studies at the University of Kashmir. He was arrested during his duty hours by HR Parihar, SP (superintendent of police), STF (Special Task Force), at Awantipora on September 6, 1997 and was taken to some unknown destination along with his motorcycle. When my son didn’t return, I set to locate his whereabouts. I approached STF and SOG (Special Operations Group) officials through the SP, operations, Awantipora, who, after taking a lot of time, admitted my son’s detention. But my efforts brought no results. I haven’t seen my son till date. The STF agency concocted a baseless story that my son had escaped from custody.

“The SHO (station house officer), Soura, namely Abdul Rashid Khan alias Rashid Billa, is hand in glove with the criminals. He has given a legal cover to my son’s disappearance and has created false evidence by registering a false case against him. I approached the then home minister, Ali Mohammad Sagar, to seek his help in order to locate my son. He ordered a CID inquiry. The IG (inspector-general), CID, submitted its report stating that Fayaz Ahmad Beigh was arrested from the university campus and the story put forth by the STF was proved false.

“I approached the SHRC and registered a complaint (File No. SHRC /2008/09) in December 1997. The complaint was disposed of on April 3, 2000. The SHRC in its order rejected the STF/police story of Fayaz Ahmad’s escape from custody as ridiculous and recommended a compensation of Rs five lakh. The SHRC also directed the registration of a criminal case against SP Parihar and his subordinates. Unfortunately, the then state government did not pay any heed to the recommendations of the SHRC and left the case virtually unattended for years together. In the meanwhile, we also filed a habeas corpus petition (HCP No. 1411/97) in the high court wherein we prayed to show the case of detention of my son and the authority and law under which my son was detained. However, we were made to withdraw the writ petition on the ground that the case was already pending with the SHRC.

“Later on, in order to get the recommendations of the SHRC implemented, I filed a writ petition in the high court (OWP No. 263/OWP-2002). The hon’ble high court in its subsequent decision upheld the recommendations of the SHRC and directed the state government to execute the recommendations given by the SHRC. It is painful to note that the government has slept over the matter and shown no response even to the high court’s decision. In January 2004 the home department and SP, operations, HR Parihar, filed an appeal against the order passed by the high court division bench, Srinagar, on admission of the LPA (182/03). The hon’ble chief justice directed the trial court to pass an appropriate order in session of challan (239/97). On our application, the trial court, Srinagar, passed an order on December 12, 2007 that criminal proceedings cannot be started against a dead person; therefore the challan has been consigned to records after due compliance.

“The case is still pending before the division bench.”


Rape cases

Rape is a particularly heinous crime. It has been used as a method of humiliating an individual and community and destroying their honour. Since the stigma never goes away, the victim is shunned and shamed for life.

Testimonies from Kunan Poshpora village

Kunan Poshpora mass rape: On the intervening night of February 23 and 24, 1991 about 23 women from Kunan Poshpora village in the border district of Kupwara were raped by the troops of the 4 Rajputana Rifles during a search operation. As per reports, at around 11:00 p.m. army personnel in large numbers entered the village. This was followed by the segregation of women from men. While the men were asked to assemble in a village field, the women were ordered to stay put inside the houses. This is when the army men barged into the households and gang rapes followed. Reportedly, women from ages 13-80 were raped. One such woman, who is now 120 years of age, stated that she was stripped naked, dragged out of her house into the snow-filled front yard and gang-raped. A police investigation into the incident never occurred.

Bakthi (victim)

Wife of Mohd Siddiq

Resident: Kunan Poshpora

District: Kupwara


“On the night of February 23, 1991 our village was cordoned off by a large group of drunken army personnel. The next morning I came to know that other women from the village had similarly suffered. At this point the menfolk who had been assembled in the village field during the search operation the preceding night were being asked by the army to raise their hands in agreement and say aloud that no excesses had been committed in the village, and were being filmed while doing so. This is when we womenfolk went over to the field in half-naked condition to make it known to the men what had happened to us. On seeing us, the men lost their cool and refused to accept what they were being ordered to say.

“On getting home, the men too shared their stories of torture that had been inflicted on them by the army. Learning of the brutality that had been meted out to the women in the village, the men tried to file FIRs, which was a daunting task in context of the fear of reprisal by the concerned army men. There was no primary health centre nearby where we womenfolk could have got ourselves examined in order to collect medical evidence.

“At the time of the incident I was 30 years old. Within a year of the incident four women from our village – Saja, Mehtaba, Zarifa and Jana – succumbed to death stemming from the mental trauma and disgrace they had to put up with. These women had also been struggling with physical ailments subsequent to the incident. The self-humiliation resulting from our traumatic experience didn’t allow us to visit any of our relatives from other villages, nor did they pay us a visit. We also had to take our children out of school for fear of their being apprehended and tortured by the army. My son and many young men from the village grew up harbouring vengeance in their hearts for what had been done to the women in their families.

“Following the incident of mass rape in the village, proposals of marriage stopped coming from outside our village, since the news of the rapes had become common knowledge all around the valley. As a consequence, marriages between victim relatives from within our village started to take place. Many people came to our village for documenting or reporting the wrong that was done to us and we shared our stories with them yet justice has eluded us to date. Now we are disillusioned and personally I find it despairing and difficult to revisit that harrowing ordeal of ours by narrating it to people time and again. At the same time, the mental and physical pain suffered that night and after continues to haunt me. My old husband has died and now it is my last wish that the guilty army personnel be punished. I had lodged an FIR bearing No. RI/1387/83 under the Ranbir Penal Code, Sections 376, 452 and 342, at the Trehgam police station on March 2, 1991. However, nothing came of it.”


Faba (victim)

Resident: Kunan Poshpora

District: Kupwara


“I was approximately 25 years old and a mother of two at the time of the incident. At around 11:00 p.m. on February 23, army personnel barged into our house. They caught hold of my husband and were taking him away when I insisted on accompanying him. My husband stopped me by saying that I should wait for him at home, as he would be back in some time and there was nothing to worry. Therefore I stayed back and bolted the doors of my house. After a while, there was a loud knock at the door. On noticing that my house had been surrounded by the army, I did not unlock the door. At this, eight to 10 army men broke the door open, barged in and raped me and my unmarried sister. My sister is now suffering from post-traumatic stress disorder. With great difficulty we were eventually able to get my sister married to someone from the same village, whose family had suffered likewise. Post-rape, she even delivered a baby who did not survive. Within two to three months of the incident, a lady doctor was called into the village for conducting abortions on women who had conceived as a result of the rapes. My son was five to six years old at the time of the incident and he now faintly remembers what had happened to me and his aunt that night.

“The women from the village tried to preserve their clothes for some time in order to substantiate rape and showed them to the media or any other authorities who came to the village for investigating/reporting rape. Currently those clothes are in police custody.”


The judges asked the victims if any magisterial inquiry had taken place after the incident, as reports have suggested. The victims replied by saying that there were many people who came and asked questions after the incident; however, they do not know of their identities. In an aside, the victims collectively testified that they refrained from discussing the rapes with or in presence of their sons, apprehensive that they might take matters into their own hands. They added that on the next morning after the rapes a local resident, Abdul Ghani Dar, who was also a police constable, called a lady doctor to conduct check-ups of the victim women. (The said police constable’s cousin was also a victim and she had later conceived as a result of the rape. The foetus was later aborted.)

The said doctor conducted a medical check-up of all the women who had been raped and their clothes were taken to Trehgam police station later on. The doctor medically cleansed all of the raped women in order to prevent pregnancies. The victims stated that the police constable had taken the initiative of getting this done in order to save the village from humiliation. On February 17, 1993 an unidentified person killed the said policeman. His parents are still alive but his mother lost mobility and his father became a patient of depression after their son died.

The victims reported that women from Kunan Poshpora faced social rejection for many years after the incident; to the extent that they were not allowed seats in public transport by fellow passengers. Instead, they were made to sit on the floor, away from the others. On being asked by the judges what they expected from the tribunal, the victims replied in unison that they wanted the perpetrators to be punished.

The then chief justice of the Jammu and Kashmir high court, Justice Mufti Baha-ud-din, led a fact-finding mission to the village and concluded that normal investigative procedures were blatantly disregarded in this case. A Press Council of India investigation followed, which called the allegations of these women “a well-fabricated bundle of lies”. No further investigations were conducted and the matter remains unredressed till date. The government’s handling of the case was widely criticised in national and international circles, including international human rights organisations like Human Rights Watch and Amnesty International.

If such an incident had occurred in the rest of India, there would have been a sustained public outcry and agitation. The judiciary would also have responded.

Conclusion

It is clear that the rule of law does not operate as laid down in the statute books. Talks between Kashmiri leaders, including the separatists and the central government, have not led to any positive outcome. In fact, it would appear that the real mass discourse is a reflection of the mass alienation in the Kashmir valley. Demonstrations and street protests often resulting in clashes and stone-throwing have regularly led to civilian deaths fuelling another cycle of protest. The government’s focus is on containing the armed militants but not on having a sustained dialogue with the population and its leaders. The numbers of militants killed as indices of peace in the valley is misleading. The crucial indicator of mass alienation is not the infiltration of militants but resistance by the people.

Any path for a solution of the Jammu and Kashmir problem must squarely and frontally deal with this mass alienation of the people and directly confront its causes.

Recommendations
  1. The controversial Armed Forces (Special Powers) Act 1958 should be withdrawn from Jammu and Kashmir. The Jammu and Kashmir Public Safety Act 1978 and other anti-terror laws should correspond to the provisions of the International Covenant on Civil and Political Rights which India has ratified. It should be noted that India has been repeatedly criticised in the UN Human Rights Committee for the existence of the Armed Forces (Special Powers) Act which violates, crucially, several articles of the ICCPR.
  2. Keeping in view the large concentration of military and paramilitary forces in the state of Jammu and Kashmir, which is disproportionate to the civilian population and is also making civil administration ineffective in many matters, the government of India should take immediate steps to minimise the number of these forces in order to bring relief to the civilian population.
  3. We recommend the establishment of a special judicial authority making an independent and thorough inquiry into all allegations of human rights violations, including disappearances, custodial killings, rape, torture, including torture of prisoners, fake encounters, and all other cases related to excesses by security forces.
  4. Every case of killing by police and security forces in situations like protests, demonstrations, riots, etc should be followed by a judicial inquiry into the police/security forces firing/actions, followed by proper, time-bound administrative action. It is made clear that the police have no licence to kill anyone in any situation unless they can justify this action under Section 100 of the Indian Penal Code, which has to be done in a judicial procedure.
  5. Provide proper rehabilitation to families of deceased, injured and traumatised victims, especially the raped.
  6. Compensation as interim relief should be arranged promptly. Compensation should be adequate and purposeful. Compensation should be for both injury to person as well as for damage to property i.e. houses, etc.
  7. The state should immediately establish fast track courts for the purpose of trying the large number of cases which are pending.
  8. Both state as well as central governments should take immediate steps to address the sufferings of detainees who are languishing in various jails and interrogation centres in and outside the state of Jammu and Kashmir and have been complaining of torture and inhuman treatment inside the jails.
  9. The state should provide witness protection, since many of the witnesses are being threatened.
  10. It is necessary that the government should first establish a “Grievance Cell” in every town where armed forces are deployed. These cells will receive complaints regarding allegations of missing persons or abuse of law by security/armed forces, make prompt inquiries and furnish information to the complainants. The cell should have the full authority to inspect and call for every record maintained by the security forces or by the local authorities.
  11. As a confidence building measure, the government should hold talks with the Jammu and Kashmir representatives, organisations of men and women, in Srinagar. Currently talks on these matters are held in Delhi, including talks with Pakistan. The Kashmiris find themselves out of the dialogue process, as no talks are held in Srinagar.
  • Justice H. Suresh, former Judge, Bombay High Court
  • Justice Malay Sengupta, former Chief Justice, Sikkim High Court
  • Justice A. Barua, former Judge, Calcutta High Court
  • Professor Kamal Mitra Chenoy, Jawaharlal Nehru University, Delhi
  • Dr Nusrat Andrabi, former Principal, Government Women’s College, Srinagar
  • Professor Anuradha Chenoy, Jawaharlal Nehru University, Delhi
  • Shujaat Bukhari, senior Journalist, Srinagar n

The Independent People’s Tribunal on Human Rights Violations in Kashmir, organised by the Human Rights Law Network, HRLN, and ANHAD, was held in Srinagar on February 20-21, 2010.


Archived from Communalism Combat, July-August 2010, Anniversary Issue (17th).Year 17, No.153 - Cover Story 3

Valley of fear, depths of despair

As unrest continues to brew in the Kashmir valley, and more and more innocent people lose their lives at the hands of the police or security forces, it is increasingly apparent that the Indian state urgently needs to re-examine its position and dramatically alter its tactics in Jammu and Kashmir. The Indian polity must insist on this. The strategy employed by the Indian government over the years has denied a sizeable section of the people basic human rights and estranged them from the mainstream. The wrongs that are still being inflicted on them by state forces and militant groups, the Kashmiri people’s burgeoning anger and continuing alienation feeds a conflagration that will not be extinguished unless corrective action is taken, and taken without delay. This is not a grave matter for Kashmir alone; it is a perilous situation for India as a whole. It is a blot on India’s conscience as a nation, a distressing account of systemic cruelty and studied indifference to the sorry plight of an ever-growing multitude of its citizens. And even as we urge for fundamental changes in the status quo, we must do all we can towards reparation and to ensure that the average Kashmiri’s valiant and ceaseless quest for justice yields positive results.

A report of the Independent People’s Tribunal on Human Rights Violations in Kashmir reveals the extent of deprivation of basic human rights and the depth of alienation felt by the Kashmiri people. Excerpts from the report:

Aims

There is a general perception that the human rights situation in Jammu and Kashmir is bad and largely unaddressed. The various official human rights mechanisms, including the judiciary and the State Human Rights Commission, are unable to act proactively and rein in human rights violators, including the army, paramilitary forces, police and surrendered militants. In this context, it was felt that a civil society initiative, including retired members of the judiciary, was imperative to clarify the situation and the reasons for the continued deaths and suffering.

The practice of human rights abuse is protected, if not encouraged, by legislation like the Armed Forces (Special Powers) Act, the Jammu and Kashmir Public Safety Act and the Disturbed Areas Act – where security forces are given sweeping powers to shoot, kill, arrest and detain along with blanket immunity from prosecution for such heinous acts. These powers are in complete disregard of the most fundamental postulates of international law enshrined in the UDHR (Universal Declaration of Human Rights 1948), the ICCPR (International Covenant on Civil and Political Rights), the ICESCR (International Covenant on Economic, Social and Cultural Rights), the UNCAT (UN Convention Against Torture) and the UN Convention on the Elimination of Enforced Disappearances, among others. The latter two have been signed but not ratified by India.

Keeping in view the basic principles of human rights as enshrined under the Constitution of India and various international covenants, and in order to highlight the forms and extent of human rights abuse suffered by civilians in Kashmir, the Human Rights Law Network, in collaboration with ANHAD, organised an Independent People’s Tribunal on February 20 and 21, 2010 at Srinagar, Kashmir.

The tribunal was organised with an aim to provide a platform to the victims of the ongoing armed conflict. The tribunal witnessed testimonies from all sections of Kashmiri society, including victims, their family members, social activists, journalists and academicians. In all, 37 testimonies came to be recorded during the two-day-long tribunal. Victims and their family members narrated their stories of suffering which they have experienced for the past two decades. The idea behind conducting such an event was to highlight the sufferings of all such victims and to formulate certain suggestions/ recommendations in order to minimise the use of force against the common man in the name of national security by the security agencies.

Summary

The tribunal heard testimonies from about 37 victims and their kin and we have also had testimonies/statements from journalists and members of civil society.

It is clear that there is a sense of suffering and injustice writ large on the faces of everyone who made their statements before the tribunal. We had made it clear that we are not in any way linked with the official institutions or authority and yet so many of them gave vent to their feelings in their physical and emotional state, which only strengthens our opinion that there is substantial truth in those allegations.

It cannot be gainsaid that the Armed Forces (Special Powers) Act 1958 has been in force for nearly two decades in this state. This act has been misused and is being misused wherever it is made applicable (Manipur, for example). Therefore if we take this situation into account, this draconian law has undoubtedly facilitated grave human rights abuses including “disappearances” by the very nature of the power bestowed on the armed forces.

Any abuse of powers by the armed forces is a criminal offence. It should promptly be investigated by an agency independent of the armed forces, followed by impartial prosecution. The testimonies of all witnesses clearly establish that there has been no satisfactory investigation by any agency or authority in the state, leave alone any prosecution. On the other hand, we get an impression that all institutions of the state, the executive, the legislature, the human rights commission and to a certain extent even the judiciary have failed to do justice to the victims of “disappearances” and other human rights violations.

The United Nations General Assembly in 2006 has unanimously adopted the International Convention for the Protection of All Persons from Enforced Disappearance. Earlier, there was the UN declaration to the above effect (December 1992). Article 2 of the declaration says that, “the prohibition” of “disappearances” is absolute and no state can find an excuse. Article 7 says: “no circumstances, whether a threat of war, internal political instability or any other public emergency, may be invoked to justify” these acts of violation. Hence it is not open to the state to resort to enforced disappearances, which would include all custodial deaths, on the ground of any threat to internal security or external safety and stability. It is here the state’s liability becomes absolute and we should have no hesitation in making these observations.

We have the testimony of Ms Parveena Ahangar, who is the chairperson of the Association of Parents of Disappeared Persons (APDP), which clearly establishes that 8-10,000 persons have disappeared from about 1989. Incidentally, we may point out that during the period 1984-1994, during the agitation for Khalistan in Punjab, there had been similar disappearances and recently a report based on the State’s Human Rights Commission shows that over 2,059 bodies were identified in Amritsar district and still over 1,000 bodies are lying there in the district and there are a large number of skeletons in other districts. Moreover, internationally, disappearances and “custodial deaths” fall within the definition of “torture”. Prohibition of torture and ill treatment is underlined by its non-derogable status in human rights laws. No state can justify such an act.

General findings
  1. Various instances of the security forces’ crimes have been brought to our notice. These are violations against the Geneva Conventions (Common Articles 2/3), the International Covenant on Civil and Political Rights, the Indian Penal Code and the civil law of the country. The police/paramilitary and surrendered militants have flouted Indian laws and the rules of war. As a consequence, large numbers of civilians have died, including women and children. Women, including young girls, have been harassed, raped and gang-raped and children in their early teens shot.
  2. The judicial machinery has barely functioned. Despite the stern report of the Bijbehara magisterial inquiry, recommending the severest action against the BSF (Border Security Force) officers and jawans, nothing was done. A number of cases filed in the district and high courts have been pending for years and there are numerous cases of lack of judicial action taken in terms of awarding compensation and instructing the security forces to produce the disappeared and so forth.The tribunal heard repeated examples of FIRs (first information reports) filed by the families that were distorted by the police to accuse the victims. Counter-FIRs have also been lodged by the police… Under the pretext of translating FIRs from Urdu into English, the police have completely distorted the complaints made in the original FIR. One such case with evidence was produced before the Independent People’s Tribunal.
  3. The State Human Rights Commission has no power to investigate paramilitary and military excesses though it does have the power to request investigation reports of the inquiry by the paramilitary and the military forces. The SHRC seems to have failed to exercise its powers proactively to provide justice to the victims. The general trend is that the state as well as the central government ignores the recommendations made by this commission.
  4. Rape: The worst case of mass rape was heard by the women jurists from the testimonies of women from Kunan Poshpora, who talked about the night of February 23, 1991 when the army came to their village, isolated the men and gang-raped at least 23 women of all ages from 14 to even a 100-year-old woman. The rape took place in front of their young children. There was brutal impact on their bodies and since then, they have suffered physical and mental trauma for years. They have been socially discriminated and ostracised, landing them into a traumatic state of mind that has been permanent. This is the grossest of human rights violations.
  5. Throughout the conflict people have been maimed and disabled due to the indiscriminate firing by security forces during even non-violent protests. People have also been disabled during interrogations where torture was used. We heard the testimonies from Bijbehara where forces had indiscriminately opened fire on peaceful demonstrators in 1993. Many injured persons have been disabled for life and have suffered mentally, physically and financially. Hardly any steps have been taken for their rehabilitation.

The testimonies we heard from disabled persons revealed that they were totally shocked and shattered. The disabled deposed before us to say that they could bear with the aftermath of physical injury but not with the mental pain, agony and trauma that make them feel that they die several deaths every day rather than living even once…

Custodial killings

There have been a large number of custodial killings since the conflict began. The pattern in most cases is similar even though the perpetrators may be from different forces serving the Indian state. The cases cited represent the dominant form of this method of violation of human rights. We are citing illustrative testimonies of victims, relatives of victims and others with first-hand information to illustrate our findings.

Testimonies

Masooda Parveen, representing the late Advocate Ghulam Mohiddin Regoo

Relation with victim: Wife

Resident: Pampore

District: Pulwama


“I am a mother of two. At the time of the incident my husband was a practising lawyer. On February 1, 1998, at around 9 o’clock, my husband had just returned from the mosque after offering the last prayer of the day. Two renegade militants – Bashir Ahmad and Abdul Khaliq – entered our house. Bashir’s face was partially covered with a handkerchief. He caught hold of my husband’s collar and alleged that a militant – Arshid Ahmad Ganaie – was hiding in our house. In fact, Arshid was already in their custody, in a car parked outside our house. The two people took my husband with them and a few days later his mauled dead body was returned to us. Major Poniyal of the Jat Regiment stationed at Laidpora, Pulwama, was involved in bringing all of this about. At the time of handing his body over to me they also gave me the relevant documents and the copy of the FIR.

“I approached the government authorities in order that the culprits are brought to book but to no avail. The district administration had offered me a job but later declined to acknowledge they had ever done that. When I contacted the local MLA regarding the matter, he avoided me. I approached the then chief minister, Mr Farooq Abdullah, but he shooed me away, stating that I was the wife of a ‘traitor’. My son, who is an agriculture graduate, has been constantly denied a passport by the state. I myself wanted to take the case of my husband’s gruesome murder to a UN body but was also denied a passport. I am now contesting my case in the Supreme Court with the hope that we get justice and my sons can travel abroad for their advanced studies. When the Supreme Court called for the records of our case from the police, they stated that they had lost the file. In the meantime, our harassment by the state continues as has been the case since my husband’s brutal murder.”

Gh Qadir Pandit

The case of Gh Qadir Pandit is a striking instance of the state of the judiciary and police. Even after the sessions court concluded the “custodial death”, which was reported to the Jammu and Kashmir high court, the high court directed the concerned sessions court to start investigations after three years of their filing the case. The police refused to file an FIR on the ground of jurisdictional ambiguity. The victim’s family then filed an application in the high court seeking directions to specify the police station under whose jurisdiction the case fell but no orders were passed. Mr Pandit’s brother’s comment that he was “…so disillusioned with the justice delivery system in Kashmir that I thought it best not to follow up on the case any further” sums up a common criticism of the judicial system, the SHRC and the police.

Gh Qadir Teli

Gh Qadir Teli, whose son was a victim, was himself severely tortured and stripped naked by the 21 RR (21 Rashtriya Rifles). He also filed petitions in the Jammu and Kashmir high court and SHRC about his missing son but nothing concrete happened.

“My son was a 17-year-old school dropout and had started working on our farm. He had three elder sisters and was the only substantial source of income for our family. I got him married in 2006, in district Baramulla. On the fateful day of November 25, 2006 he was not feeling well and had gone to see a doctor, Dr Habibullah Mattoo, in Sopore. While he had been waiting for his turn at the clinic, a fellow villager had called him on his mobile phone, which is when he had confirmed his location. At around 1 o’clock in the afternoon I saw a huge crowd outside my house. Some people standing close by advised me against going home at that time, as there the army had raided my house and were searching it. Disturbed by the gravity of the situation, I thought of calling my son. I went to a phone booth to make the call but his cellphone was switched off.

“During this time the rest of my family inside the house was being harassed by the army. Finally, I reached home at around 9:30 in the evening but my son was nowhere to be seen. For the next three days there was no news of him. I registered a missing report at the police station on December 8, 2006. However, the army – led by some DSP (deputy superintendent of police) Tickoo – raided my house soon after and asked for the original copy of the report, which I had to hand him out of fear. Fortunately enough, I had already made photocopies. I then returned to the concerned police station and lodged a fresh complaint.

“A few days following this the army came looking for me but somehow I managed to get away. But on another occasion the 21 RR raided my house again and took me into custody. They then took me to Handwara where I was severely tortured while being stripped naked. You can imagine what I might have gone through considering it was the body of an old man they were inflicting inhuman treatment on. They were trying to coerce me to accept that my son was a militant and that I had ammunition in my possession but I didn’t succumb. When they released me, I filed an application with the district magistrate reiterating that I had been subjected to illegal detention and torture and that the whereabouts of my son were unknown. I also filed petitions in the Jammu and Kashmir high court and the SHRC but nothing has come out of them.”

Enforced disappearance

One of the most harrowing consequences of the armed conflict in Kashmir is that people in detention go missing. The majority of missing persons are men, which leaves a large number of women awaiting news that would decide their fate, living lives of half-widows. A state like this results in a severe identity crisis amongst the women – with the immense agony of not being sure whether they are still married or widowed.

Enforced disappearances in Kashmir started in 1989 following the outbreak of armed conflict. The state has seen heavy deployment of security forces (more than 6,00,000 – the highest number of army personnel during peacetime anywhere in the world) since.

In international human rights law, disappearances at the hands of the state have been codified as enforced or forced disappearances. The Rome Statute establishing the International Criminal Court defines enforced disappearance as a crime against humanity. However, the police do not entertain missing reports with regard to these persons.

The Association of Parents of Disappeared Persons, an organisation founded by concerned persons in Kashmir, has been demanding the whereabouts of people who have been subjected to enforced custodial disappearance by various security agencies, troops and police – mostly since the break out of armed rebellion in 1988. Even though the association continues to highlight their sufferings and their demands, their genuine pleas and grievances are yet to strike the conscience of the so-called elected representatives of the people.

According to the International Convention on Enforced Disappearances, no exceptional circumstances whatsoever – whether a state of war, a threat of war, internal political instability or any other public emergency – may be invoked as a justification for enforced disappearance and the state is under an obligation to investigate acts of enforced disappearance.

Testimonies

Zahoor Ahmad Mir, representing Ali Mohd Mir

Relation with victim: Son

Resident: Nishat

District: Srinagar


“My father, namely Ali Muhammad, was killed by Ghulam Ahmad alias Papa Kishtwari on June 26, 1996. I filed a case in the high court in the year 2006. I also filed a case in the SHRC in the year 2007. After I got the case registered, it pressurised the police and only then could I get an FIR lodged against Papa Kishtwari in the concerned police station. Papa Kishtwari is a surrendered militant and is now a government-sponsored person. He even won uncontested elections. Papa Kishtwari is believed to have committed 150 murders but only 26 are registered against him. His accomplices have been left free. I want my father’s dead body. Papa Kishtwari is in jail because of me but he is not being punished. I want justice.”


Abdul Rashid Beigh, representing Fayaz Ahmad Beigh

Relation with victim: Father

Resident: Khajapora, Nowshera

District: Srinagar


“My son, namely Fayaz Ahmad Beigh, was working as a photographer in the department of Central Asian studies at the University of Kashmir. He was arrested during his duty hours by HR Parihar, SP (superintendent of police), STF (Special Task Force), at Awantipora on September 6, 1997 and was taken to some unknown destination along with his motorcycle. When my son didn’t return, I set to locate his whereabouts. I approached STF and SOG (Special Operations Group) officials through the SP, operations, Awantipora, who, after taking a lot of time, admitted my son’s detention. But my efforts brought no results. I haven’t seen my son till date. The STF agency concocted a baseless story that my son had escaped from custody.

“The SHO (station house officer), Soura, namely Abdul Rashid Khan alias Rashid Billa, is hand in glove with the criminals. He has given a legal cover to my son’s disappearance and has created false evidence by registering a false case against him. I approached the then home minister, Ali Mohammad Sagar, to seek his help in order to locate my son. He ordered a CID inquiry. The IG (inspector-general), CID, submitted its report stating that Fayaz Ahmad Beigh was arrested from the university campus and the story put forth by the STF was proved false.

“I approached the SHRC and registered a complaint (File No. SHRC /2008/09) in December 1997. The complaint was disposed of on April 3, 2000. The SHRC in its order rejected the STF/police story of Fayaz Ahmad’s escape from custody as ridiculous and recommended a compensation of Rs five lakh. The SHRC also directed the registration of a criminal case against SP Parihar and his subordinates. Unfortunately, the then state government did not pay any heed to the recommendations of the SHRC and left the case virtually unattended for years together. In the meanwhile, we also filed a habeas corpus petition (HCP No. 1411/97) in the high court wherein we prayed to show the case of detention of my son and the authority and law under which my son was detained. However, we were made to withdraw the writ petition on the ground that the case was already pending with the SHRC.

“Later on, in order to get the recommendations of the SHRC implemented, I filed a writ petition in the high court (OWP No. 263/OWP-2002). The hon’ble high court in its subsequent decision upheld the recommendations of the SHRC and directed the state government to execute the recommendations given by the SHRC. It is painful to note that the government has slept over the matter and shown no response even to the high court’s decision. In January 2004 the home department and SP, operations, HR Parihar, filed an appeal against the order passed by the high court division bench, Srinagar, on admission of the LPA (182/03). The hon’ble chief justice directed the trial court to pass an appropriate order in session of challan (239/97). On our application, the trial court, Srinagar, passed an order on December 12, 2007 that criminal proceedings cannot be started against a dead person; therefore the challan has been consigned to records after due compliance.

“The case is still pending before the division bench.”


Rape cases

Rape is a particularly heinous crime. It has been used as a method of humiliating an individual and community and destroying their honour. Since the stigma never goes away, the victim is shunned and shamed for life.

Testimonies from Kunan Poshpora village

Kunan Poshpora mass rape: On the intervening night of February 23 and 24, 1991 about 23 women from Kunan Poshpora village in the border district of Kupwara were raped by the troops of the 4 Rajputana Rifles during a search operation. As per reports, at around 11:00 p.m. army personnel in large numbers entered the village. This was followed by the segregation of women from men. While the men were asked to assemble in a village field, the women were ordered to stay put inside the houses. This is when the army men barged into the households and gang rapes followed. Reportedly, women from ages 13-80 were raped. One such woman, who is now 120 years of age, stated that she was stripped naked, dragged out of her house into the snow-filled front yard and gang-raped. A police investigation into the incident never occurred.

Bakthi (victim)

Wife of Mohd Siddiq

Resident: Kunan Poshpora

District: Kupwara


“On the night of February 23, 1991 our village was cordoned off by a large group of drunken army personnel. The next morning I came to know that other women from the village had similarly suffered. At this point the menfolk who had been assembled in the village field during the search operation the preceding night were being asked by the army to raise their hands in agreement and say aloud that no excesses had been committed in the village, and were being filmed while doing so. This is when we womenfolk went over to the field in half-naked condition to make it known to the men what had happened to us. On seeing us, the men lost their cool and refused to accept what they were being ordered to say.

“On getting home, the men too shared their stories of torture that had been inflicted on them by the army. Learning of the brutality that had been meted out to the women in the village, the men tried to file FIRs, which was a daunting task in context of the fear of reprisal by the concerned army men. There was no primary health centre nearby where we womenfolk could have got ourselves examined in order to collect medical evidence.

“At the time of the incident I was 30 years old. Within a year of the incident four women from our village – Saja, Mehtaba, Zarifa and Jana – succumbed to death stemming from the mental trauma and disgrace they had to put up with. These women had also been struggling with physical ailments subsequent to the incident. The self-humiliation resulting from our traumatic experience didn’t allow us to visit any of our relatives from other villages, nor did they pay us a visit. We also had to take our children out of school for fear of their being apprehended and tortured by the army. My son and many young men from the village grew up harbouring vengeance in their hearts for what had been done to the women in their families.

“Following the incident of mass rape in the village, proposals of marriage stopped coming from outside our village, since the news of the rapes had become common knowledge all around the valley. As a consequence, marriages between victim relatives from within our village started to take place. Many people came to our village for documenting or reporting the wrong that was done to us and we shared our stories with them yet justice has eluded us to date. Now we are disillusioned and personally I find it despairing and difficult to revisit that harrowing ordeal of ours by narrating it to people time and again. At the same time, the mental and physical pain suffered that night and after continues to haunt me. My old husband has died and now it is my last wish that the guilty army personnel be punished. I had lodged an FIR bearing No. RI/1387/83 under the Ranbir Penal Code, Sections 376, 452 and 342, at the Trehgam police station on March 2, 1991. However, nothing came of it.”


Faba (victim)

Resident: Kunan Poshpora

District: Kupwara


“I was approximately 25 years old and a mother of two at the time of the incident. At around 11:00 p.m. on February 23, army personnel barged into our house. They caught hold of my husband and were taking him away when I insisted on accompanying him. My husband stopped me by saying that I should wait for him at home, as he would be back in some time and there was nothing to worry. Therefore I stayed back and bolted the doors of my house. After a while, there was a loud knock at the door. On noticing that my house had been surrounded by the army, I did not unlock the door. At this, eight to 10 army men broke the door open, barged in and raped me and my unmarried sister. My sister is now suffering from post-traumatic stress disorder. With great difficulty we were eventually able to get my sister married to someone from the same village, whose family had suffered likewise. Post-rape, she even delivered a baby who did not survive. Within two to three months of the incident, a lady doctor was called into the village for conducting abortions on women who had conceived as a result of the rapes. My son was five to six years old at the time of the incident and he now faintly remembers what had happened to me and his aunt that night.

“The women from the village tried to preserve their clothes for some time in order to substantiate rape and showed them to the media or any other authorities who came to the village for investigating/reporting rape. Currently those clothes are in police custody.”


The judges asked the victims if any magisterial inquiry had taken place after the incident, as reports have suggested. The victims replied by saying that there were many people who came and asked questions after the incident; however, they do not know of their identities. In an aside, the victims collectively testified that they refrained from discussing the rapes with or in presence of their sons, apprehensive that they might take matters into their own hands. They added that on the next morning after the rapes a local resident, Abdul Ghani Dar, who was also a police constable, called a lady doctor to conduct check-ups of the victim women. (The said police constable’s cousin was also a victim and she had later conceived as a result of the rape. The foetus was later aborted.)

The said doctor conducted a medical check-up of all the women who had been raped and their clothes were taken to Trehgam police station later on. The doctor medically cleansed all of the raped women in order to prevent pregnancies. The victims stated that the police constable had taken the initiative of getting this done in order to save the village from humiliation. On February 17, 1993 an unidentified person killed the said policeman. His parents are still alive but his mother lost mobility and his father became a patient of depression after their son died.

The victims reported that women from Kunan Poshpora faced social rejection for many years after the incident; to the extent that they were not allowed seats in public transport by fellow passengers. Instead, they were made to sit on the floor, away from the others. On being asked by the judges what they expected from the tribunal, the victims replied in unison that they wanted the perpetrators to be punished.

The then chief justice of the Jammu and Kashmir high court, Justice Mufti Baha-ud-din, led a fact-finding mission to the village and concluded that normal investigative procedures were blatantly disregarded in this case. A Press Council of India investigation followed, which called the allegations of these women “a well-fabricated bundle of lies”. No further investigations were conducted and the matter remains unredressed till date. The government’s handling of the case was widely criticised in national and international circles, including international human rights organisations like Human Rights Watch and Amnesty International.

If such an incident had occurred in the rest of India, there would have been a sustained public outcry and agitation. The judiciary would also have responded.

Conclusion

It is clear that the rule of law does not operate as laid down in the statute books. Talks between Kashmiri leaders, including the separatists and the central government, have not led to any positive outcome. In fact, it would appear that the real mass discourse is a reflection of the mass alienation in the Kashmir valley. Demonstrations and street protests often resulting in clashes and stone-throwing have regularly led to civilian deaths fuelling another cycle of protest. The government’s focus is on containing the armed militants but not on having a sustained dialogue with the population and its leaders. The numbers of militants killed as indices of peace in the valley is misleading. The crucial indicator of mass alienation is not the infiltration of militants but resistance by the people.

Any path for a solution of the Jammu and Kashmir problem must squarely and frontally deal with this mass alienation of the people and directly confront its causes.

Recommendations
  1. The controversial Armed Forces (Special Powers) Act 1958 should be withdrawn from Jammu and Kashmir. The Jammu and Kashmir Public Safety Act 1978 and other anti-terror laws should correspond to the provisions of the International Covenant on Civil and Political Rights which India has ratified. It should be noted that India has been repeatedly criticised in the UN Human Rights Committee for the existence of the Armed Forces (Special Powers) Act which violates, crucially, several articles of the ICCPR.
  2. Keeping in view the large concentration of military and paramilitary forces in the state of Jammu and Kashmir, which is disproportionate to the civilian population and is also making civil administration ineffective in many matters, the government of India should take immediate steps to minimise the number of these forces in order to bring relief to the civilian population.
  3. We recommend the establishment of a special judicial authority making an independent and thorough inquiry into all allegations of human rights violations, including disappearances, custodial killings, rape, torture, including torture of prisoners, fake encounters, and all other cases related to excesses by security forces.
  4. Every case of killing by police and security forces in situations like protests, demonstrations, riots, etc should be followed by a judicial inquiry into the police/security forces firing/actions, followed by proper, time-bound administrative action. It is made clear that the police have no licence to kill anyone in any situation unless they can justify this action under Section 100 of the Indian Penal Code, which has to be done in a judicial procedure.
  5. Provide proper rehabilitation to families of deceased, injured and traumatised victims, especially the raped.
  6. Compensation as interim relief should be arranged promptly. Compensation should be adequate and purposeful. Compensation should be for both injury to person as well as for damage to property i.e. houses, etc.
  7. The state should immediately establish fast track courts for the purpose of trying the large number of cases which are pending.
  8. Both state as well as central governments should take immediate steps to address the sufferings of detainees who are languishing in various jails and interrogation centres in and outside the state of Jammu and Kashmir and have been complaining of torture and inhuman treatment inside the jails.
  9. The state should provide witness protection, since many of the witnesses are being threatened.
  10. It is necessary that the government should first establish a “Grievance Cell” in every town where armed forces are deployed. These cells will receive complaints regarding allegations of missing persons or abuse of law by security/armed forces, make prompt inquiries and furnish information to the complainants. The cell should have the full authority to inspect and call for every record maintained by the security forces or by the local authorities.
  11. As a confidence building measure, the government should hold talks with the Jammu and Kashmir representatives, organisations of men and women, in Srinagar. Currently talks on these matters are held in Delhi, including talks with Pakistan. The Kashmiris find themselves out of the dialogue process, as no talks are held in Srinagar.
  • Justice H. Suresh, former Judge, Bombay High Court
  • Justice Malay Sengupta, former Chief Justice, Sikkim High Court
  • Justice A. Barua, former Judge, Calcutta High Court
  • Professor Kamal Mitra Chenoy, Jawaharlal Nehru University, Delhi
  • Dr Nusrat Andrabi, former Principal, Government Women’s College, Srinagar
  • Professor Anuradha Chenoy, Jawaharlal Nehru University, Delhi
  • Shujaat Bukhari, senior Journalist, Srinagar n

The Independent People’s Tribunal on Human Rights Violations in Kashmir, organised by the Human Rights Law Network, HRLN, and ANHAD, was held in Srinagar on February 20-21, 2010.


Archived from Communalism Combat, July-August 2010, Anniversary Issue (17th).Year 17, No.153 - Cover Story 3

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