New Internationalist

Grave concerns over security laws in Kashmir

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A grim discovery has exposed the military’s abuse of draconian powers in a culture of impunity, says Freny Manecksha.

Kashmir Global under a CC Licence
An angry clash between locals and military in Kashmir. Kashmir Global under a CC Licence

Two days into 2012, a student was killed and two more were injured in a village in North Kashmir when the Central Industrial Security Force (CISF) guarding a hydroelectric plant opened fire on protesters, shattering a tenuous peace. In the recent past, (and most noticeably in 2010), students who have come out on to the streets chanting pro-freedom slogans – as part of a struggle for self determination whose roots go back further than Indian independence – have been fired upon and killed. This time, the protesters were merely demanding more electricity on an icy winter day during an acute power shortage. Chief Minister Omar Abdullah was quick to declare that the CISF did not come under the ambit of the Armed Forces Special Powers Act (AFSPA) – an extraordinary and draconian piece of security legislation – and sought to raise the pitch for partial revocation of the law.

AFSPA was enacted in 1990, ostensibly to fight the insurgency and armed militancy that surfaced in the state of Jammu and Kashmir and in some parts of northeast India. Although the government admits that militancy has significantly reduced in Kashmir, the law has not been revoked. In October last year Abdullah began issuing statements to the effect that AFSPA must be partially revoked.

Trampling human rights

Activists say there are two disturbing aspects of the law that can grossly trample upon fundamental human rights. One is the de jure abrogation of constitutional guarantees – such as the right to life – because of the extraordinary and unbridled powers it bestows on security troops to arrest, detain, destroy property and even kill on the basis of ‘reasonable suspicion’.

The other is the shield of immunity whereby it is not possible to prosecute armed forces, even for the most heinous crimes, without the sanction of the Central Defence Ministry and the Home Ministry. The state of Jammu and Kashmir and the Indian government claim there are provisions within the law for punitive action. In practice, impunity is deeply rooted.

Under the guise of defending the nation’s sovereignty at any cost, the police and armed forces have perpetrated huge crimes

Khurram Parvez, a rights activist working with Jammu Kashmir Civil Society (JKCS), says that the complete lack of culpability has been so pervasive that it has permeated down even to the police, who do not come under AFSPA. He says that under the guise of defending the nation’s sovereignty at any cost, the police and armed forces have perpetrated huge crimes such as custodial killings, mass rapes and enforced disappearances. ‘But who in the past 22 years has been punished, even when indicted?’ he asks.

Kashmir Global under a CC Licence
Which way now for Kashmir? Kashmir Global under a CC Licence

On the contrary, he charges, the state’s policy of handing out incentives in the form of payments for encounter killings has exacerbated the scale of rights violations. A recent example is the Macchil case, when three youths from poor families were recruited by an army unit to work as high-altitude porters. They were cold-bloodedly killed on 30 April 2010 after being falsely labelled as militants. A member of the state’s human rights commission charged the offending army personnel of murdering them to gain ‘undue promotions, awards and rewards’.

Parvez says any talk of revocation of the law from parts of Kashmir is meaningless if the political will to end this culture of immunity is lacking. ‘The crux of the issue is not whether such security laws are good or bad, but that they have engendered complete lawlessness. Armed personnel have violated every standard operating procedure, even within this draconian law. For example, any person who has been picked up for interrogation must be presented before the magistrate within a day or two. This is never done. That is why you have at least 8,000 cases of enforced disappearances, a figure that has been arrived at by Association of Parents of Disappeared Persons (APDP),’ he adds.

The state has long denied these figures. It maintains that the missing youths crossed the border to Pakistan to train as militants. The state has also declared that many of the anonymous and unidentified graves that lie scattered all over Kashmir contain bodies of militants, mainly foreign fighters from Pakistan or Afghanistan who had infiltrated the state.

Cover up exposed

Significantly, in September 2011 this cover up was blown away. What had been an open secret well documented by rights groups was eventually acknowledged by the state’s human rights commission (SHRC). A team comprising 11 members and led by senior police officer Bashir Itoo admitted, to the state’s acute discomfiture, that graves in North Kashmir contained the remains of locals. There was every possibility they contained bodies of those who had suffered ‘enforced disappearances’.

The state team began in 2008 its investigation of anonymous graves in 38 sites in North Kashmir. Their report states that out of 2,730 unidentified bodies that were buried, 574 were later identified as locals. The report also notes that some of the bodies, besides bearing bullet injuries, were also defaced. At least 20 were charred and five comprised only of skulls. At least 18 graves contained more than one unidentified body.

A local Kashmiri daily recently reported that one of the mass graves in Bimiyar, Baramulla district, contained the bullet-riddled body of a six-month-old infant. Atta Mohammed Wali Khan, a local gravedigger who testified before the state’s inquiry team, confirms burying the baby. All the bodies had been brought in by the police.

It is not possible to prosecute armed forces, even for the most heinous crimes, without the sanction of the Central Defence Ministry and the Home Ministry

It is the norm for security troops to hand over to the police for burial the bodies of those killed in encounters with militants, or civilians caught in crossfire. It is mandatory for the police, in turn, to maintain proper identification profiles, taking photos of those killed and placing them in the public domain. Suspicious deaths, such as those with slit throats, strangulation marks or signs of visible torture, must be investigated. But, as the state report indicates, none of this had been adhered to.

Itoo, who led the investigations despite the challenges of ‘insufficient logistical support’, confirms that the local police did not keep any such identification profiles, and in ‘some cases police claims were falsified’.

Demands have now grown for the investigation into anonymous graves to be extended to the whole of Kashmir. There is scarcely a district that does not contain such graves. Many of them spring up in open spaces adjoining police stations or security forces’ camps. Human rights groups such as the JKCS and the state human rights commission have sought accountability by demanding that all the graves be examined and a comprehensive DNA data base established for crosschecking with DNA samples of the next of kin of people who have disappeared.

What reconciliation?

At least 14,123 families have agreed to such DNA testing in a bid to bring about closure and end the agonizing search for loved ones. ‘But how serious [about it] is the state?’ wonders Parvez. The APDP has expressed concern that although three months have passed since the SHRC’s findings and recommendations, the government has done nothing. The Chief Minister’s only response has been to call for a truth and reconciliation committee.

‘There is no talk about finding the perpetrators of the crimes: the army, paramilitary troops, officers and civil administrators who aided and abetted them. There is no talk of trying them and giving them appropriate, even exemplary punishment’

This leads Kashmiri writer, researcher and legal activist Arif Ayaz Parray to declare that what the state is doing in a ‘legalistic’ sense is replacing ‘justice’ with ‘acknowledgment’. He explains: ‘There is no talk about finding the perpetrators of the crimes: the army, paramilitary troops, officers and civil administrators who aided and abetted them. There is no talk of trying them and giving them appropriate, even exemplary punishment, not only for “disappearing” people, killing them in fake gun battles and dumping them in mass graves, but also for failing to maintain DNA profiles and pictures of those killed and sharing the records with the administration of Jammu and Kashmir, New Delhi and Islamabad.

‘The state is absolving itself by pleading the impossibility of such justice – conveniently choosing to gloss over the fact that it is the state itself which has made it impossible in the first place, as a matter of policy – and therefore offering “reconciliation” in its place. What reconciliation?’

He likens this latest example of acknowledgment to a case of ‘double disappearance’. ‘Figuratively, the state took children from their mothers’ laps, killed them and buried them anonymously, creating a void which has hardened over many years. Now it wants to return the skeletons back to the mothers’ laps, force the void shut and claim that restorative justice has been delivered.’

Freny Manecksha is a freelance journalist.

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