How the State and the armed forces play a complex game to ensure denial of justice.
On August 3 this year, a handful of people held a protest at an unusual site. Huddled in a graveyard in Surankote town of Poonch district, they raised banners and stood amidst the graves of their loved ones. In a statement to the press, they asked: “Where are the courts for people like us.” They questioned the system whereby justice has been denied to them for some 20 odd years. In 1998 of that very day,19 members of their family (13 were females and nine were minors) were axed and gunned down in the neighbouring village of Sailan by four Special Police Officers who were led by an Army Major of the 9 Para Army camp. By their accounts, the massacre was to avenge the killing of an SPO, Zakir Hussain, by a militant who hailed from the extended family.
The protesters were incensed because despite a “spot inquiry” by the State Human Rights Commission (a quasi-judicial human rights body) under Justice Kuchai, which concurred that the killings were in revenge for the killing of the SPO Zakir, the CBI probe concluded on August 25, 2015 that the case should be closed. Despite deposition of so many eye witnesses, the probe exonerated the accused and stated that the “families of the victims were untruthful.”
The family then filed a protest petition in the CBI court but the judge who was to give final orders was transferred. A new judge will now have to re-hear the case all over again.
The Jammu and Kashmir Coalition of Civil Society, which has taken up the case, states how this amply demonstrates the manner in which the “system seeks to exhaust, disappoint families of victims, and in the end attempt to ensure impunity for the armed forces.”
The Sailan massacre survivors are among a number of people who have appealed to the international community and the UN for justice under the aegis of an informal group called Survivors for Truth and Justice. Others include members of the Association for Parents of Disappeared Persons, survivors and families of those killed in the Gowkadal massacre of January 21,1990, survivors of mass sexual violence at Kunan Poshpora, victims of torture, families of those killed in Sadarkoot in 1996 and families of victims of extra judicial killings.
They have spent long years knocking on the doors of justice and held peaceful protests but to no avail.
At the crux of the impunity is the power of the State to control the prosecution of the members of the Armed Forces through the extraordinary security legislation of the Armed Forces Special Powers Act (AFSPA) 1990, which makes it mandatory for the Central government to give sanction for prosecution of those serving in the armed forces. No sanction has ever been given.
Equally draconian is the manner in which impunity has been interpreted to be a blanket one and the way it disconnects the normal law-enforcing machinery. This “lawless” scenario means procedures like filing a First Information Report, conducting investigations in a fair and proper manner, seeking for closure of a case through a magistrate and so on are routinely flouted. Most victims find it difficult, if not impossible, to even file a case or to proceed with investigations if it is a crime committed by the armed forces or even police.
Human rights lawyer Parvez Imroze notes that whilst AFSPA requires sanction from the Centre for prosecution of perpetrators from armed forces there is no such limitation in conducting investigations. And yet “ninety per cent of FIRs have not even been filed and only in two per cent of the cases have investigations ever been completed.” Cases remain stuck in court for years. People are exhausted fighting cases for over 15 to 20 years. Many are ill or dead. The next generation does not wish to continue because seeking justice is seen as chasing a mirage.
The shoddy investigations are compounded by what legal activist Ashok Agrwaal rightfully terms as “judicial pusillanimity.” In his article in EPW entitled A Paradigm of Impunity Two Months in the Life of the 20 Grenadiers he writes about a three-year-long research study into failure of the guarantee of right to life in Kashmir. The study examined 87 habeas corpus petitions filed before the Srinagar bench of the Jammu & Kashmir High Court from a random collection of 300.
In a chilling indictment he says: “The petitions reveal failure of justice of epic proportion. Our study makes it clear the Judiciary is fully complicit in the theatre of the absurd that is being played out in Kashmir at this very moment.”
Decrying the “complete lack of seriousness about dispensation of justice,” he notes the failure of the High Court to enforce its authority. The responses of the security forces to the petitions are cited as an example of this failure.
The petitions reveal failure of justice of epic proportion. Our study makes it clear the Judiciary is fully complicit in the theatre of the absurd that is being played out in Kashmir at this very moment.
“Our study shows they blandly deny arrest even when there are testimonies to prove the same. They stonewall and stymie the court’s processes using delay as an effective tool of attrition. The High Court succumbed in the face of such intransigence allowing power of judicial redress to slip out if its hands.
“In not even one of the petitions did the High Court pass an effective order challenging impunity of the State’s agencies or ensuring punishment upon a guilty person.”
Agrwaal also talks of the armed forces’ policy of “watchful disregard for court and its proceedings.” In many cases they simply refuse to file a reply before the court or cooperate in the judicial inquiry but choose to step in and file objections when the inquiry report is against them.
His article notes how, leave aside final orders, the court has no control over any aspect of the court processes. As an example he takes the case of Nisar Wani who was arrested and then suffered an enforced disappearance on February 30, 1997.
Despite numerous letters and summons, the 20 Grenadiers who were involved in the abduction refused to comply. In December 2002, the State government complained to the court that despite numerous letters and summons under section 16 of the Cr PC, the 20 Grenadiers had not complied. The police expressed inability to complete investigations. In January 2004 the High Court directed a copy of its order should be sent to the Central Government for ensuring compliance. Still failing to elicit cooperation, the court in March 2004, threatened “stern action” against the officers of the Central government for their laxity and failure to comply! It asked the police to file particulars of the army officers and officers of the Home and Ministry of Defence against whom proceedings should begin.
This was in 2004 but the circumstances and style of functioning has not changed.
In many cases, the police simply close files, declare the accused as untraced but do not even bother to submit a closure report before the magistrate who has the authority to accept or reject the investigation leading to the closure.
It may be recalled that the police carrying out investigations into the mass sexual violence of the women of Kunan-Poshpora on intervening night of February 22 and 23, 1991 by the 4th Rajputana Rifles had closed the file as “untraced.” They suddenly tried to file closure report on the investigations in March 2013, probably prompted by news of a proposed Public Interest Litigation into the case. Fortunately the Kupwara magistrate refused and ordered further investigations. But, the manner in which the case is now quagmired in the Supreme Court is yet another example of the way the State and the armed forces play a complex game of collusion as well as contradiction of each other’s stand to cause maximum possible delay.
Cases remain stuck in court for years. People are exhausted fighting cases for over 15 to 20 years. Many are ill or dead. The next generation does not wish to continue because seeking justice is seen as chasing a mirage.
Last year in July the Indian army (that is the Union of India) challenged the High Court’s order on a fresh probe and compensation for the victims. This very same order had earlier been challenged by the state of Jammu and Kashmir in November 2014. The state did an about turn after initially suggesting it was not averse to paying compensation. The Union had chosen to stay silent for almost a year after the J&K state sought a stay from the HC.
A similar quagmire and denial of justice is seen in the Tufail Mattoo case. The killers of young Tufail Mattoo, the 17-year-old who failed to return home after tuitions, are “untraced.” His skull was split open by a tear gas canister targeted at his head on June 11, 2010 and this sparked a big uprising in the Valley. Despite an inquiry by the Justice Koul commission and a SIT by the crime branch there have been no convictions and his father, Muhamad Ashraf alleges that the real perpetrators have been let off. Even his request for a copy of the Koul commission report has been denied.
The Indian electronic media almost daily shouts about the “terror” unleashed by militants or street protesters. But it maintains a criminal silence over the thousands and thousands who have reposed their faith in the judicial system and have never received justice. Is guarantee to right to life selective when it comes to Kashmir?