JEHANGIR ALI | 1 JULY, 2015
India Facilitated Impunity for Men in Uniform: Amnesty
A ‘clampdown’ in Kashmir
SRINAGAR: India has "facilitated impunity" for its security forces accused of grave human rights violations, including murder and rape, in the protracted insurgency in Jammu and Kashmir, a new Amnesty report says.
A scrutiny of government records and public documents, and interviews with lawyers, victims and civil society in Jammu and Kashmir by Amnesty has revealed that the central government denied permission to prosecute under Section 7 of the Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA) in each of the 70 cases brought against the members of Army or paramilitary forces.
Section 7 of the AFSPA gives immunity to members of the security forces from prosecution by requiring permission from the central government before members of the military or other security forces can be prosecuted in civilian courts.
"The evidence for dismissing prosecutions (using AFSPA) has never been given in the name of national interest. By doing this, India has not only failed to uphold its international obligations, but also failed its own Constitution," Govind Acharya, who is on the Amnesty International Board of Directors, said.
"AFSPA is most straightforward example of impunity. It breeds alienation from state authorities because justice is vanishingly rare," he said.
In the exhaustive report released in the 25th year of introduction of AFSPA in J&K, the global rights watchdog studied the alleged human rights violations between 1990, when the armed insurgency erupted in Kashmir Valley, and 2012, focussing on cases in which evidence had surfaced to link armed forces to cases of human rights abuses.
The researchers also interviewed 58 victim families for the report titled, “Denied: Failures in accountability for human rights violations by security force personnel in Jammu and Kashmir”.
One such victim family is of Javaid Ahmad Magray, a student who went missing on the evening of April 30 2003 from his home in Soiteng village. In the course of investigations by the State Police, it was revealed that Javaid was killed "without any justification" after being kidnapped by a patrolling party of Indian Army's Assam Regiment.
The J&K Police filed a case of murder and sought sanction for prosecution of nine Army men of the regiment led by a junior commissioned officer which was turned down by the union defence ministry. Till date, Javaid's family and the families of hundreds of such victims in Jammu and Kashmir continue to be denied justice.
Around 70 cases of rights abuses by security forces, including murder and rape, were sent to the union defence ministry by the J&K government, seeking permission for prosecution. But the ministry, the report says, acknowledged receiving only 44 cases in which the sanction was denied on 'flimsy' grounds, including that it will "prejudicially affect the sovereignty and integrity of India."
Interestingly, from 1990 till 2012, an RTI query has found that the state's government sent 46 cases for sanction of prosecution but the defence ministry told the J&K High Court in 2008 that 27 cases listed as "sent" by the state government were not received by it. "The status of the rest of these cases remains unknown," the report says.
Detailing a pattern of impunity enjoyed by the armed forces in J&K, the report says the justice for the victims is "obstructed" by authorities through delay in registration and investigations of complaints of abuses, the refusal to cooperate with investigations by accused forces, the opaqueness of trials conducted in military courts and "pressure tactics" on victim families to withdraw their complaints, among other reasons.
The report accuses the governments of using "de jure and de facto practices" to block justice for the victims of rights abuses in the state, sometimes taking even 15 years to register a simple complaint against the forces.
According to the official figures, 3642 civilians were killed by security forces in the state over the last 25 years while around 8000 have become victims of enforced disappearances. While the families of many victims had taken a judicial recourse to get justice, the courts, too, have let them down, resulting in loss of faith in the governments as well as the judiciary.
In the September of 2003, a police investigation showed that Manzoor Ahmad Mir, like Javaid Ahmad Magray, was allegedly abducted by an Army captain of Army's 23 Rashtriya Rifles with the help of two local informers and "summarily executed". The defence ministry denied permission to prosecute the accused captain but the victim's family challenged the decision before the Jammu and Kashmir High Court on the grounds that it was "arbitrary" and a "violation of Article 14 of the Indian Constitution".
However, till date, the Centre has failed to file a response to the petition in the High Court and Manzoor's family have no hope of justice. "The whole system is corrupt. We are fighting for the guilty to be put behind bars, but it is impossible," Bashir Ahmad Mir, the victim's brother, told the Amnesty.
"To date, not a single alleged perpetrator of a human rights violation has been prosecuted in a civilian court. Victims and their families routinely face intimidation and threats from the security forces when attempting to bring cases against soldiers. The climate of impunity encourages human rights violations to continue. Faith in the government and judiciary is almost non-existent in Jammu and Kashmir," the report says.
Amnesty has asked the Centre as well as the state government to first acknowledge the wrongs and set up a program to provide "effective reparation" to all victims of human rights violations in the state. It has also recommended investigation of such cases by "independent authority" and temporary removal or suspension any member of the security forces, pending investigation, against whom there is evidence of human rights violations to prevent non-repetition of such crimes in future.