New Delhi: Human Rights Law Network and ANHAD came together to offer a platform to the victims of gross human rights violations in the conflict-torn Kashmir Valley, which culminated in a comprehensive documentation of the anguish and grievances of a generation that has gone under the gun. The report of the two-day ‘Indian People’s Tribunal on Human Rights Violations in Kashmir’, organized in Srinagar in February 20-21, 2010, was released on September 8, 2010 in New Delhi.
The hon’ble Jury, headed by, Justice H. Suresh, former Judge, Bombay High Court, heard the victims who showed unmatched courage and faith to depose before the tribunal despite the threats to themselves and their families, especially in the circumstances where people have lost faith in the remedial and retributive systems. In all, 37 testimonies came to be recorded.
Please find below the findings and recommendations of the Jury:
FINDINGS
It is true that we sat for two days for public hearings. The first day, there was a Bandh in Srinagar as someone had been killed by the police. The day after the 2nd day, again there was a Bandh, because a child had been killed in a stampede. Perhaps this is the kind of life for every Kashmiri citizen. No one knows when and for what time, and where curfew could be imposed, and every movement will be at a standstill. If we had been able to sit a little longer, we would have heard the same facts, and of course, more mothers and more Parents of Disappeared Persons would have told the same story – a story of illegal arrest, arbitrary detention and torture, custodial deaths and ****; all with no hope for justice.
Were Jammu and Kashmir to be called a ‘banana republic’ (as it often is), such a dubious distinction, though unfair in many ways, would be fairly apposite in many others. Some describe the socio-political upheaval of the past two decades as a civil war; others label it as a terrorist movement, with political and infrastructural backing from across the Line of Control: have it either way, there is no denying the fact that the people of the state have borne the brunt of the extreme violence of the past twenty years, all in the name of security, at the hands of armed forces.
I. Militarisation
In Kashmir, there is one soldier for every twenty people. There are 5,00,000 armed troops, 3,00,000 army men, 70,000 Rashtriya Rifle soldiers, 1,30,000 central police forces as against the total population of 1 crore. In the past 20 years, a generation of Kashmiris has grown with soldiers at every street corner “often even in their living rooms” (Sunday Times of India, 13th June, 2010). The grievance of the people is that instead of confining the role of the military and security forces to that of external defence and as against militants, it is regularly and continuously used for domestic repression; and as Professor Hameeda Nayeem says : “that has transformed the Indian state into a source of deep insecurity for the citizens – as instruments of the persistent violator of human rights and converted the Indian military into an illegitimate agent of repression. Both in turn seriously undermine the democratic credential of the state.”
This excessive militarization has resulted in wiping out all space for the exercise of democratic rights by the people, the result being terrorization of the people at large. This has resulted in ruthless action on all dissent, and at the same time the military indulges in acts of violence against people with impunity.
We are of the view that all these acts of violence against innocent people are violations under the Geneva Convention, 1949, to which India is a party. The provisions of the Common Art.3 of the Four Conventions dealing with “armed conflicts not of an international character” occurring within a State require the parties to treat humanely all persons taking no part, or not being able to take active part in the hostilities….; and further the parties are prohibited from indulging in violence to life and person, in particular murder of all kinds, and cruel treatment and torture.
There is a further Protocol II of June 1977 for Protection of Victims of Non-International Armed Conflicts which further reiterates that all persons who do not take any direct part in hostilities are “entitled to respect for their person, honour and convictions and religious practices.” They shall “in all circumstances” be treated humanely without any adverse distinction. Art.13 says: “The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.” To give effect to this protection, the Protocol says: “The Civilian population as such as well as individual civilians, shall not be the object of attack. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population are prohibited.” It is unfortunate that the State, which has sponsored these armed forces who have indulged in killings, loot, arson and **** of innocent victims, has not kept these provisions of the Convention in mind.
II. Draconian Laws
Militarisation is invariably accompanied by Draconian laws. Together they have such a cascading effect that all human rights and democratic rights get washed away. This is what happened in Manipur, Assam, Kashmir and other places
In Manipur, the Armed Forces (Special Powers) Act, 1958, has been in force for five decades. It was first enacted to contain Naga dissidence. It was introduced in Assam in 1980 and in Kashmir in 1987. Section 4 of the Act states that armed forces officers have only to form an “opinion” to consider what may be necessary, and then on the basis of such “opinion” they “can fire upon or otherwise use force, even to the causing death against any person” and they can “arrest, without warrant any person” and “enter and search without warrant any premises” at any time, and use force to achieve this objective. S.6 of the Act gives them full protection against any prosecution or legal proceedings in respect of anything done or “purported to be done” in exercise of the powers conferred by this Act. The result is that in all these States, and of course, in Kashmir, arbitrary arrests, detention, torture and custodial deaths, **** and midnight raids into homes and disappearances have become routine.
The other Act which is resorted to silence all protest and dissent is the Jammu and Kashmir Public Safety Act, 1978. This law is especially draconian in nature, falling far short of meeting international human rights standards, and has become notorious for its rampant misuse at the hands of the armed forces. Under this Act, the maximum period of detention is two years, without trial, for “persons acting in any manner prejudicial to the security of the State.” What would constitute such an action is again left to the better judgement of the arresting agency or official, thereby giving sweeping powers to the security forces to arrest and detain at their pleasure.
Prisons in Jammu and Kashmir and beyond are full of detainees booked under the infamous PSA, with reports suggesting that even minors have been arrested and detained under this law on a number of occasions. Furthermore, very often the PSA is slapped on a person again and again, at the end of successive periods of two years, thereby making the actual period of detention much longer. Farooq Ahmed Dar, one such detainee, had to spend sixteen years in prison before he was finally released in 2006. There have been various instances where political leaders and common people have been slapped with successive detention orders despite the fact that Courts keep on quashing them. This is done only with a purpose and intention not to release the detenue.
III. Disappearances
One other impact of militarization and arbitrary detention is large scale custodial deaths, extra-judicial killings and enforced disappearances. We have the testimony of M/s Parveena Ahangar, who is the Chairperson of the Association of Parents of Disappeared Persons (APDP), which clearly establishes that from about 1989, about 8-10,000 persons have just disappeared. Many of them were killed while in custody of the army or the security men. One Rashid Billa (SDPO) at Sowa is reported to have killed over 512 persons extra-judicially. Whenever and wherever the next of Kin went to the police stations or army camps to enquire, or to claim the bodies, they were either threatened or tortured. Some had to pay bribes to get information. What is important is that there has been no proper investigation to apprehend the culprits and to punish them.
Mohd. Yasin Malik (Chairperson of J&K Liberation Front – JKLF) says that he took 150 victims of disappearances to Delhi; but they were abused and black ink was thrown over him. The fact remains that no serious investigation was done even by the Central Government.
He also pointed out that the worst sufferers were women and children. He said : “they cannot say whether they are widows or whether their husbands are just missing. Neither can the children call themselves orphans or say that their father is still alive…this is what I conveyed to the PM of India. This is the primary case…the Kashmiri women; the ones who can neither say they are wives or widows. Tell what you are! Are you a widow or are you still married?”
The UN General Assembly in 2006 has unanimously adopted the International Convention for the Protection of all Persons from Enforced Disappearances. 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 that 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.
IV. ****
Militarised environments expose women to serious forms of dehumanization. The masculinity cult that pervades military establishments are intrinsically anti-female and therefore create a hostile environment for women. **** becomes a common feature in such a situation. In all such cases there have been no investigations. There are complaints pending from 1991. it appears that in 1991 about 100 women, including minors and the elderly (between 13 to 80 years), the pregnant and disabled were raped in Kunan Poshpara, Kupwara by the 4th Rajputana Rifles, during a search operation. However, till today no action has been taken against the culprits, despite several reports in the newspapers and journals, and also by various NGO groups, both national and international.
Apart from such direct abuse, women had to suffer further humiliation. In the workds of Bakthi (a witness before us) : “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 from their schools, for fear of being apprehended and tortured by the army. “My son and many young men from the village grew up harboring vengeance in their hearts, for what had been done to the women in their families.”
We must also say that quite a number of **** cases go unreported due to constant threats from the army men and also due to fear of social stigma and the futility of taking up an embarrassing legal battle.
Such abuses have taken place in places like Manipur where the army is placed above the civilian police, with the same result of utter indifference by the concerned authorities.
V. Plight of the Disabled
Throughout the conflict, people have been maimed and disabled due to the indiscriminate firing of 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 of 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.
VI. Failure of all Democratic Institutions and Redressal Mechanisms
Routine criminal investigations – a key function of the police – are among the first to deteriorate under militarization. All complaints against the army men just remain without any investigation. As we have seen above, under AFSPA, the army can shoot, kill, or do any heinous act, and they get protection; and the police become helpless. This also leads to a situation where the police acquire a taste for impunity, when they have to work within a military environment. This is exactly what has happened in Kashmir. Here, the rules do not operate as laid down in the statute books. For example, we heard testimonies from the victims, that FIRs filed by them were distorted by the police to accuse the victims themselves. In some cases, the police just refuse to record FIRs and the victims remain helpless. The police appear to be not bothered about the complaints from the victims, because they know that no one will question them.
This has also affected the Judiciary. No criminal court could be in a position to do proper justice, with impunity for the actions of the army, and with no investigation being possible by the police. It appears that in 1993 there were 7000 habeas corpus petitions pending in the Jammu & Kashmir High Court. Some of the petitions are still pending. In about 2001, there were 35000 civilians under detention and quite a number of them still continue to be inside, while the Courts remain judicially paralytic. In quite a number of cases where the victim had been killed, the courts have not even awarded any compensation to the next of kin. We have also some cases where the complainants have been made to go from one court to the other for nearly two decades, with no relief whatsoever. Many of them feel that they would get no justice through the courts.
Even the National Human Rights Commission (NHRC) and the State Human Rights Commission (SHRC) are not in a position to do anything, inasmuch as they have no power to investigate or to take any action on any complaint of violation o human rights by the army. Even when complaints were made to the SHRC, it has failed to exercise its powers proactively to provide justice to the victims.
Needless to say that the Executive and the Legislature were more involved in playing power politics than in rescuing the people from gross human rights violations.
RECOMMENDATIONS
1. Withdraw the Armed Forces (Special Powers) Act, 1958 (AFSPA) and the Jammu & Kashmir Public Safety Act, 1978 (JKPSA)
It is necessary that these draconian laws should be withdrawn forthwith. These laws together with militarization emanate from the notion that the use of force is necessary for the effective ruling of a population. Similar is the belief that Terrorism cannot be eliminated without a harsh law like TADA, POTA, etc. However, it is our universal experience that nowhere in the world have harsh laws ended terrorism, nor has any militarization succeeded in suppressing insurgency, unless taken to the extreme, developing into a situation of genocide, as in Sri Lanka.
It is true that all these laws have been upheld by the Supreme Court of India. That does not mean (as Justice B.P. Jeevan Reddy’s Committee for Review of AFSPA says) that the Supreme Court has pronounced “upon the wisdom or the necessity of such an enactment”. The Act has become “a symbol of oppression, an object of hate, and an instrument of discrimination and highhandedness”. Therefore (as the Committee has recommended) the Act should be withdrawn forthwith.
It should be noted that India has been repeatedly criticized in the UN Human Rights Committee for the existence of the Armed Forces Special Powers Act, which violates crucially several articles of the ICCPR. Hereto annexed as Annexure I is the Concluding Observations of the U.N. Human Rights Committee on the Report of India (Extracts).
The other Act - the JKPSA, which provides for arbitrary detention is equally violative of ICCPR. We wonder how such draconian laws could have been upheld after Maneka Gandhi’s(1978) case by any Constitutional Court.
2. Minimise the number of Army men
Keeping in view the large concentration of military and paramilitary forces in the state of Jammu & 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 minimize the number of these forces in order to bring relief to the civilian population.
3. The need for a Special Judicial Authority
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, ****, torture, including torture of prisoners, fake encounters, and all other cases related to excesses by security forces. In any case the NHRC and/or the SHRC be authorised to investigate all allegations of violence by the agents of the State, which includes the Army and the security forces (as recommended by the U.N. Human Rights Committee)
4. No licence to kill
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 license to kill anyone in any situation, unless they can justify this action under Section 100 of the IPC, which has to be done in a judicial procedure.
5. Need for rehabilitation
Provide proper rehabilitation to families of deceased, injured, and traumatized victims, especially the raped. 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
6. Establishment of Fast Track Courts
The State should immediately establish Fast Track Courts for the purpose of trying the large number of cases which are pending. The Courts should call for records from every police station and give suitable directions to investigate and file charge- sheets within a time bound framework.
7. Release all detenues
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.
8. Scheme for Witness Protection
The State should provide witness protection since many of the witnesses are being threatened.
9. Establish ‘Grievance Cells’
As Justice Jeevan Reddy’s Committee says, “Over the years many people from the region have been complaining that among the most difficult issues is the problem faced by those who seek information about family members and friends who have been picked up and detained by armed forces or security forces. There have been a large number of cases where those taken away without warrants have “disappeared”, or ended up dead or badly injured. Suspicion and bitterness have grown as a result. There is need for a mechanism which is transparent, quick and involves authorities from concerned agencies as well as civil society groups to provide information on the whereabouts of missing persons within 24 hours.”
As recommended by the Committee, 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 enquiries 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. The Cell should have one or two senior members of the local administration and one or two independent senior citizens who do not belong to any political parties.
10. The need for dialogue with the people
From the evidence put before us, and other human rights reports on J&K 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 J&K problem must squarely and frontally deal with this mass alienation of the people and directly confront its causes. As a confidence building measure, the Government should hold talks with the J&K 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.
Signed:
Justice H. Suresh, former Judge, Bombay High Court
Justice Malay Sengupta, former Acting CJ, Sikkim 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
