Justice and Accountability in Kashmir

HUMAN RIGHTS FEATURES

(Voice of the Asia-Pacific Human Rights Network)

(A joint initiative of SAHRDC and HRDC)

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HRF/19/00

Embargoed for 24 April 2000

Justice and Accountability in Kashmir - Chasing the Mirage

On 18 April 2000, the Jammu and Kashmir Government announced the setting up of a judicial inquiry into the killing of peaceful demonstrators in Anantnag district. The indiscriminate firing by Indian security forces resulted in eight deaths and many wounded.

Justice SR Pandian, a retired judge of the Supreme Court of India is to investigate into the firing incident on a peaceful procession at Brakpora, Bulbul Nowgam, which is a small village on the outskirts of Anantnag town.

On 3 April 2000, the Special Operations Group (SOG) of the Kashmir Police and the Paramilitary, Central Reserve Police Force (CRPF) went berserk. To quote the only independent newspaper in that woebegone valley, The Kashmir Times, the SOG and the CRPF " emptied their automatic guns on a procession in Anantnag outskirts without any apparent provocation killing seven and injuring 11 others." The respected Kashmir Times stated, "The processionists, on the seventh day of the continued strike in the entire belt, had taken out a procession with the sole aim of submitting a detailed memorandum to the district authorities seeking halt to routine kidnapping of the males in Kothar belt. Post Chatti Singhpora massacre, they were alleging that 17 youth were kidnapped by security men." The protesters had merely wanted to submit a memorandum on disappearances to the District authorities. Just a few days prior to the firing incident, Indian security forces allegedly extrajudicially killed five local villagers in a fake encounter at Panchalthan. Fake encounters are a sub-continental euphemism for cold-blooded murders. Immediately after the incident, the State's spin doctors swung into action. The state controlled electronic media, quoting an official spokesman, said the processionists resorted to stone pelting and, after baton charge and firing in the air failed to disperse them, they were fired upon. In a statement, the Zonal police headquarters claimed that militants accompanying the protesters fired upon the camp leading to the death of seven persons. A case was registered and the investigations started, it claimed.

Impunity has become a way of life in Kashmir. Impunity significantly contributes to further human rights abuses. The Indian state is unwilling to bring an end to the regime of impunity. The experience of the Biejbehara massacre is a case in point. On 22 October 1993, the Border Security Force (BSF) personnel opened indiscriminate gunfire on a crowd of peaceful demonstrators at the small town of Biejbehara in Jammu and Kashmir. According to official figures, 31 individuals were killed and 75 others sustained gunshot injuries, some of them grievous. After a major outcry, domestic and international, the Border Security Force authorities stated that they had taken action against the guilty officials. The South Asia Human Rights Documentation Centre (SAHRDC) was informed that an internal court of inquiry was held and that that the report of the inquiry proceedings could not be made public. On a complaint from SAHRDC, the National Human Rights Commission of India asked for access to the documents. It was refused. The NHRC, a statutory body has had to approach the Supreme Court of India to have access to these documents. If the state were confident of having conducting a fair enquiry, it is absurd that it hid its proceedings from its own National Human Rights Commission!

The National Human Rights Commission has no mandate to investigate Human Rights violations by personnel of the Indian Army and the Paramilitary forces. The Government of India often cites punishment given to the guilty officials. But, they are seldom made public. If accountability is to be established, the names, ranks, crime committed, quantum of punishment meted out and offence committed needs to be publicized. Justice needs not only to be done, but also to be seen to be done.

The Government and its security agencies often state that such transparency would endanger the morale of the armed forces. Any professional army would do credit to it by isolating the bad eggs within the basket. It would also have more than a salutary effect on discipline and command structures that have been wearing thin in situations of deployment in internal armed conflict situations.

In October 1997, the Government of India signed the Convention Against Torture (CAT). Nevertheless, on the ground, impunity remains the single most important factor contributing to torture. Members of the armed forces, for one, are practically immunised by domestic legislation. Section 197(2) of the Indian Code of Criminal Procedure states: "No Court shall take cognisance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government." Similarly, Section 6 of the Armed Forces Special Powers Act, 1958, provides: "no prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the Central Government against any person in respect of anything done or purported to be done in exercise of powers conferred by this Act. These statutory provisions virtually eliminate any possibility of prosecution of armed forces personnel. It is difficult to imagine a victim living under constant fear of intimidation and retaliation having the necessary material resources and courage to seek such permission from the Central Government. Consequently, the greatest obstacle to the prosecution of these torturers is the law itself. However, India is yet to ratify the CAT. Aside from the ratification problem, India has also filed reservations, which nullify important provisions of the Convention. These reservations effectively reject even a basic level of international scrutiny as envisioned by the Convention. Despite India's so-called commitment to the world community through signing the document, the Convention will have little meaning if the Government does not withdraw the reservations it expressed to Article 20 (relating to inquiry by the CAT Committee), Article 21 (relating to State complaints) and Article 22 (relating to individual complaints). The Government of India will not invite the United Nations Special Rapporteur on Torture to visit the country, despite repeated requests by his office. The United Nations Special Rapporteur on Extrajudicial Executions also waits for her invitation to visit the country. The victims also wait for Justice and for Accountability.

-Human Rights Features

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