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Posted on 08 February 2012 |
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| CURRENT AFFAIRS |
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JAMMU & KASHMIR |
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Will AFSPA lose its bite in the Valley soon?
Civil society welcomes SC observations that rule out the mandatory sanction from Central government for the prosecution of security personnel in human rights cases address the main grievance against the Act and could also render Chief Minister Omar Abdullah’s demand for withdrawal of the law redundant
Riyaz Wani
Srinagar
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Searing wound A man offers his prayers to the deceased Pathribal and Brakpora victims near a graveyard in Brarangan
Photos: Sajad Muniwari |
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Supreme Court’s observations in the infamous Pathribal case, where five civilians were killed in a fake encounter by the Armed forces, that the Armed Forces Special Powers Act (AFSPA) cannot protect the rogue security personnel have redrawn the terms of debate on the law in Jammu and Kashmir. The observations that rule out the mandatory sanction from Central government for the prosecution of security personnel in human rights cases address the main grievance against the Act and could also render Chief Minister Omar Abdullah’s demand for withdrawal of the law redundant.
“It is an important step in the direction of modifying AFSPA. It strengthens our case that the law in the state has been used to safeguard the personnel responsible for serious crimes,” J&K’s Law Minister Ali Muhammad Sagar told TEHELKA. “We hope this leads to an order that leaves no scope for the offending security personnel to claim impunity under AFSPA.”
Sagar, maintained that it was is too early to comment if this observation will persuade the government to give up its demand for the withdrawal of AFSPA from the state. “A positive order in the case by Supreme Court will certainly help matters,” Sagar said.
However, Nayeem Akhter, chief spokesman of Opposition People’s Democratic Party (PDP), termed the SC observation “very strong” and one which could redraw the terms of debate on AFSPA. “The observations have a moral punch. They add another dimension to AFSPA debate where the provision that renders the law draconian is sought to be diluted,” he said, adding, “In that sense it does make CM Omar’s demand for AFSPA withdrawal redundant.”
Akhter's views are shared by Ghulam Nabi Shaheen, the general secretary of Kashmir High Court Bar Association, an influential organisation at the forefront of the demand for withdrawal of AFSPA from the state. “Yes, the demand for AFSPA revocation can become irrelevant if there is no provision for the Central government’s permission for prosecuting soldiers involved in rape and murder,” said Shaheen.
The SC in its observations on Friday said there was “no question of sanction” from the government before prosecution of offending personnel in criminal cases. What makes the observations even more significant is that they were made in the Pathribal fake encounter case whereby security forces killed five civilians in South Kashmir in 2000 and passed them off as Lashkar-e-Taiba terrorists responsible for killing 36 Sikhs at Chittisinghpora. The case has since emerged as the reference point for security excesses in the state.
According J&K Advocate General Ishaq Qadiri the state government will wait for the order in the case. “We recognise that the SC arguments are positive and have a bearing on the AFSPA debate. But we will have to see whether the observations are reflected in the SC order,” Qadiri said. “Only an order will make the desired modification in the law.”
Defence forces in the Valley, on the other hand, don’t see anything adverse for them in the observations. They say they are not interested in shielding the black sheep among them but their resolve comes with a rider—the guilt of the accused personnel needs to be proved beyond any shade of doubt. “In the environment in which we operate there is every chance that the allegations could be malicious. This mandates a high degree of circumspection before we act against our personnel,” Defence sources told TEHELKA.
However, civil society organisations in the state maintain that it is the Army that comes in the way of the investigation of these crimes. “When you don’t cooperate with the probe, how will you prove the guilt? There is not a single case of human rights violation in the state where the Army has helped the investigation. In fact, in the past two decades the Army has undermined the traditional processes of justice,” coordinator of Coalition of Civil Society Khurram Parvez said.
Khurram said that SC’s observations have put in question all the rejections of sanctions for prosecution for the offending security personnel in the state. “There is a need now to review the denial of sanctions by the defence and home ministry to cases of human rights violations in the state that include rapes, murders and fake encounters,” he added.
Riyaz Wani is a Special Correspondent with Tehelka.
riyaz@tehelka.com
Editing by Karuna John
Courting hope again
The families of the five civilians who were killed at Pathribal now see a hint of justice at the end of a dark tunnel
Riyaz Wani
Srinagar/Anantnag
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Qasmi Jan, daughter of Juma Khan, with a photo of her father |
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Raja Begum is listless, alone in her palatial bungalow. Twelve years ago, she lived here with her only son Zahoor Ahmad Dalal who was one of the five men killed allegedly in a fake encounter by the Army at Pathribal. The dead men were then passed off as the terrorists responsible for the massacre of 36 Sikhs at Chittisinghpora.
Begum now spends time at her brother’s house next door. She is in a constant struggle to forget and thus rebuffs any effort to remind her of the dreaded evening when Dalal went missing. Her face reddens and eyes go moist at the mere mention of the incident. “Why does everybody always come asking me what happened to my son? The world knows what happened to him,” she says. “Please go away. I don’t want to talk”.
The story, common knowledge in the town, is poignantly short. On a fateful March evening, Dalal, a businessman, left his home to go for a walk within minutes of returning from his shop, never to come back again. A red security vehicle, eyewitnesses recalled, had picked him up from the road. His mutilated body, along with four others, was recovered from a forest grave a week later. Ever since, the case has been dragging on in the courts, with the Army saying its personnel are protected from prosecution under the Armed Forces Special Powers Act.
With the Supreme Court pulling up the Army for stonewalling the trial, the spotlight is once again on the urgent need for justice in Kashmir ’s most infamous case of human rights violation. There is a new sense of hope among the families of the victims in South Kashmir and for Begum’s extended family too—while she remains stoic in her agony.
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Roshan Jan and her son Rashid Khan with a picture of Juma Khan in Brari-Angan |
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The families of the five victims are scattered across a wide area in district Anantnag, showing the meticulous thought that had gone into the planning of the encounter and to make it look genuine. While Dalal was picked up from Anantnag town, two others were lifted 20 km from village Brari-Angan and the other two from the inaccessible Halan in Kokernag.
Two elderly Gujjar men, coincidentally both named Juma Khan, were taken from their homes in the dead of night. “We were sleeping when there was a knock on the door,” recalls Rashid Khan, son of one of the men. “We were scared and couldn’t muster the courage to open it. Soon we found uniformed men breaking through the window. They were not aggressive. They told us they wanted my father to guide them through the hilly track. So we happily let him go”.
His mother Roshan Jan said the family thought her elderly husband won’t be touched. “He had a grey beard and bent posture, so we thought he would be back in a while,” Jan said. “They killed him too.”
Her tragedy doesn’t stop here. A week after the villagers of Brari-Angan took out a protest against what they then suspected to be the killings of their men in a fake encounter, CRPF opened fire on them near Barrackpora, killing nine. Among them was one of Juma Khan’s sons. “In a span of one week, I lost both my husband and my son,” Jan says.
In the same village, the other Juma Khan’s family has a twist in their tale. This Juma Khan had returned from Samba in Jammu province where he had travelled through the hills to graze his livestock in winter. “My father was tired from the travel. He offered to go with the uniformed men to save me,” said Shakoor Khan, the only son among Juma’s six children.
There are two more families who live high up in the hills of Kokernag with similar tragedies. Unlike the Juma Khans of Brari-Angan, Muhammad Yousuf Malik and Bashir Ahmed Bhat were rounded up from their villages.
The Central Bureau of Investigation (CBI) probe found that the encounter was fake and the persons killed were innocent civilians. The investigating agency has identified and charged five senior Army officials, including a brigadier for abduction, murder, criminal conspiracy and the destruction of evidence in the fake encounter. The accused are Brig Ajay Saxena, Lt Col Brajendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena and Subedar Idrees Khan.
Pathribal was not an isolated incident. It was a part of three successive and related killings that occurred 20 March to 3 April 2000 which took 50 lives. On 20 March, unidentified gunmen—their identity is still shrouded in controversy—killed 36 Sikhs at Chittisinghpora followed by the Pathribal killings on 25 March and the killing of nine civilians who were part of the protest at Brackpora on 3 April.
Their families don’t believe that the Apex Court’s rap on the Army’s knuckles will push the lingering trial of the case to its logical conclusion. For them, the case and its location is far removed from their lives and its outcome, therefore, has an abstract ring to it. Still, any talk of the justice in the case nevertheless strikes a chord. “We have suffered for so many years for no fault of ours. So, it really feels good when somebody stands up for us,” Shakoor said.
People like him are surviving on such a hope – and a prayer.
Riyaz Wani is a Special Correspondent with Tehelka.
riyaz@tehelka.com
Editing by Karuna John
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