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Cover of Impunity to Defend the Indefensible

The only way forward in Kashmir lies in dealing with the enormous human rights issue both with sincerity and with a purpose of making it the pathway to resolution of the basic political dispute


[dropcap]F[/dropcap]OURTEEN years ago, 5 innocent civilians were picked up and killed by army in a staged encounter in South Kashmir’s Pathribal area. After much delay, it took about 14 months for an army court to give a clean chit to all its indicted men including top officers and announce a closure, simply stating that evidence collected by it did not establish a prima facie case against any of the accused.

No explanations were offered about how such a conclusion was arrived at, 14 years after several probes have indicted the army men with clinching evidence, highlighting one simple reality — in case of Kashmir, that Indian legal justice system allows itself to dissolve in pursuit of an abstract and misplaced ‘national interest’. Pathribal case, a blot on Indian democracy, is a crude symbol of the patterns of human rights abuse in the Valley and the culture of impunity exercised through cover-ups and legal instruments. A quick re-cap into the case is instructive of the systemic regime that is followed.

In 2000, a few months after the Pathribal fake encounter, Justice S.R. Pandian, a retired supreme court judge, who was tasked to investigate the Brakpora firing on April 3, 2000 in which 7 people were killed and several injured, filed his report and raised the vital question of the limitations of treating Brakpora incident in isolation. It was intrinsically linked to the two preceding incidents, his report maintained, while indicting 7 CRPF and SOG men of opening uprovoked firing on a group of marching protestors.

The report referred in detail to the Chittisinghpora massacre on March 20, 2000, where 35 Sikhs were butchered by gunmen, who still remain unidentified, while the then U.S president Bill Clinton was visiting New Delhi as well as the Pathribal fake encounter on March 25, in which five innocent men gunned down were celebrated by a joint team of army and the SOG as a prize catch of “foreign terrorists responsible for Chittisinghpora massacre”. Justice Pandian’s probe on Brakpora had pointed out several flaws in the official narrative on Chittisinghpora and Pathribal cases but his request to enlarge the scope of his investigation had been turned down by the state government.

A day after Brakpora firing, the bodies of the five slain men in Pathribal encounter were exhumed, identified by their families, and their DNA samples taken. The government appointed a special investigation team of police to inquire into the Pathribal incident, which approached the Centre for DNA Fingerprinting and Diagnostics, Hyderabad, and the Central Forensic Science Laboratory, Kolkata, with medical samples of the relatives to match with those of the slain men.

Two years later, Times of India reported that the samples from the relatives had been substituted with some others, a fact that both forensic centers had conveyed to the state police more than a year ago. In three cases, the samples of women relatives were found to have come from men. Even after the report, senior state government officials continued to maintain that they had not received any communication from the forensic centers.

Dr Syed E Hasnain, Director of the Centre for DNA Fingerprinting and Diagnostics, contradicted the latter claim. “Certainly the report has been sent to the investigating officer,” Dr Hasnain confirmed, “I cannot comment on the fudging… but we stand by what we have said in the report.” ( ). The lie of the state government, headed by Farooq Abdullah, had been nailed, and in a fit of embarrassment, it sought to make amends.

Fresh samples were collected in April 2002, which, upon testing, conclusively proved that the victims were innocent local civilians, and not foreign militants as the Indian government had been claiming for the past two years. An inquiry under Justice Kuchay was also ordered in the DNA fudging case. Justice G N Kuchay Commission on the fudging of DNA samples was set up on March 8, 2002. It submitted its report December 12, 2002 but its finding were not made public but media reports suggested that it nailed SSP Farooq Khan for fudging the DNA samples. Later, the new state government under Mufti Mohd. Sayeed set up a ministerial committee to study the Justice Kuchay report in March 2003. The committee found that “only those persons would be interested in destruction and falsification of evidence, regarding identification of blood samples, who must have taken part in the actual act of killing the five civilians in the fake encounter at Pathribal” and on July 25, 2003, the SSP was once again suspended.

Earlier In 2001, Anantnag Deputy Commissioner, quoting the report submitted by the police’s special investigating team, admitted that the five men were innocent and ordered Rs 1 lakh as ex-gratia relief. It was later during Mufti Mohd. Sayeed’s tenure that struggle and campaigns for justice by family members and civil rights activists forced the government to hand over the investigations to CBI.

The CBI investigated the same and filed a charge sheet in May 2006, before the Chief Judicial Magistrate-cum Special Magistrate (CJM), alleging it was a fake encounter – the outcome of a criminal conspiracy hatched by Col. Ajay Saxena, Major Brajendra Pratap Singh, Major Sourabh Sharma, Subedar Idrees Khan and some members of the troops of 7 RR to kill innocent persons and termed them ‘cold-blooded murders’.

Major Amit Saxena (Adjutant) had prepared a false seizure memo and also gave a false complaint to the police station for registration of the case against the five civilians showing some of them as foreign militants, and offered false information to the senior officers, the CBI report said.

The report of the CBI imbued some hope for justice in the case, even though the institution, with its poor track record of being used by central governments for cover-ups, does not enjoy much credibility in Kashmir. The report did indict some army personnel including 4 top officers. However, it completely skirted the role of the Special Operations Group (SOG), the counter insurgency wing of the Jammu Kashmir police in the fake encounter.

Following the Pathribal killings, it was the SSP that was first quoted by television news channels as claiming to have killed the men behind the Chittisinghpora massacre. Justice Pandian in his report has raised pertinent questions about the ambiguous role and depositions of the SOG.

The then Anantnag SSP, Farooq Khan, in his statement before this one man commission of inquiry has maintained that while technically it was a joint operation by army’s Rashtriya Rifles and SOG, the latter had not been party to the shoot-out. Pandian Commission report has also pointed out the inaccuracies in police versions about the accountability and control of the SOG in the Brakpora firing. The SSP chose to shun responsibility by maintaining that the SOG did not come under quoting a government that the SOG of the state police will function under the administrative control of the concerned district superintendent of police.

However, the order No. Home 224 ISA of 2000 is dated 23-05-2000, which is more than a month after the Pathribal killings and Brakpora firing. Interestingly, the SSP, who was among the personnel suspended after both these incidents, was reinstated about the time the government was facing the heat of DNA fudging samples. The CBI, in all probability, may have been brought in to save the skin of the SOG; the army would eventually bail itself out through the legalized impunity offered by Armed Forces Special Powers Act. The prolonged litigations and the final culmination in the army’s court martial proceedings are illustrative.

After the CBI report was filed in court, the CJM granted an opportunity to the Army to exercise the option of a court-martial. Showing contempt for the CJM, the army refused to face any trial, maintaining that in light of Section 7 of the Armed Forces Jammu and Kashmir (Special Powers) Act, (AFSPA) 1990, the charge sheet could not have been produced before the CJM without obtaining sanction for prosecution from the Central government. The matter was litigated up to the supreme court.

The apex court, in its judgment of May 1, 2012, instead altered the very meaning of justice and right to life by endorsing a blanket impunity for the armed forces personnel. Not only did it offer the army the choice of being tried in a civil or military court, equating the two institutions — one a symbol of fair play and the latter a farcical lopsided exercise where the guilty judge themselves.

Worse, the court placed implicit faith in AFSPA’s rider of killings ‘in the line of duty’ and those carried out in ‘good faith’ without even going into the circumstances of the case, where 5 men were picked up without any pretext, killed and passed off as “terrorists” to earn awards and promotions. The court, however, maintained that as per Section 7 of AFSPA, while a chargesheet may be presented before a court, no cognizance may be taken.

Even more shockingly, the apex court observed that “an act which may appear to be wrong or a decision which may appear to be incorrect is not necessarily a malicious act or decision”. Maintaining that military court martials, for which no central sanction was required for prosecuting armed forces personnel, were akin to civil court proceedings, the court gave army the option of choosing between the two. There were no surprises at army’s final choice.

The final conclusion of the army’s court martial in Pathribal also did not quite come as a surprise but the brazen manner in which all kinds of evidence in the last 14 years have been set aside with a simple one-page briefing about the exoneration of the army personnel, not even its subtle indictment, is shocking for its mocking arrogance. There’s little to be expected when the accused begin acting as both the investigator and the judge.

As it is, the history of court martial proceedings in allegations of human rights violations reveals the inadequacy of this mechanism – reflected through inadequate punishments, lack of transparency about court proceedings and above all the unresolved ethical issue of whether the accused can judge his own case. This, especially in the backdrop of the fact that AFSPA has been excessively used and abused to stonewall justice in cases of human rights abuse.

This impunity needs to be understood in the larger context of the central government’s handling of allegations of human rights abuse. The reality of this impunity is spelled by responses to a series of RTI applications by Srinagar based Coalition of Civil Societies.

The government of Jammu and Kashmir, on 23 February 2012, stated in writing that no sanction for prosecutions had ever been granted in Jammu and Kashmir between 1990 and 2011. The Ministry of Defence, on 18 April 2012, stated in writing that out of a total of 44 cases received for the purpose of grant of sanction, 35 have been denied, and nine are under consideration. It further stated that of these cases only one case was processed by the court-martial proceedings.

Institutionalised justice in respect of Kashmir moves in a vicious circle – from a pack of lies to fudged evidence, from botched up investigations to kangaroo courts or incapacitated courts. And, so it has been in this case – just one long tale of buried truths, DNA fudging, lopsided reports, prolonged litigations handicapped by regressive laws like AFSPA and a final burial with elusive transparency, all like spokes in a wheel endlessly moving to create confusion till lies can be told with greater conviction.

In the Valley, where this culture of impunity is the norm, how does this impact the people and politics? The Pathribal official closure in January was responded to by angry statements and sporadic protests, many of them as hopeless rituals, some as part of political expediency – the vital issue of human rights abuse having for long been a tool in the hands of both separatist and mainstream politicians. As for the general public, the official finality of the case is both significant and trivial, depending upon perceptions.

It is significant because of extensive documentary evidence of a systemic botch up, layer after layer, in pursuit of institutional injustice, revealing the obnoxious arrogance of the State in the face of sufferings and institutional human rights abuse, which lies at the core of anger against the Indian government and its agencies operating in Jammu and Kashmir. The outcome of court martial proceedings was not expected to be path-breaking and yet it evokes shock.

Going beyond the expected trivialisation of the Pathribal crime and the nailed army personnel getting away with mere suspensions, the ruling has completely exonerated them of any charge for what army says ‘lack of evidence’. Five men are gunned down in cold blood which the army celebrated it as a major achievement 14 years ago.

And, yet even as the slain men are proved to be innocent, the personnel involved in the operation are not held responsible. What more evidence does one need to establish the guilt of the men involved in the operation of kidnapping these men and shooting them dead. What could be a worse form of such lack of accountability and complete arrogance?

At the same time, the official closure is insignificant for two reasons. The army courts are never expected to be more sympathetic than the Indian judiciary, which through its verdict of 2012 had already set the terms of reference with its ‘good faith’ and ‘in the line of duty’ arguments. Secondly, the Valley is witnessing excessive levels of despair, skepticism and cynicism regarding any expectations from the State, especially after 2010 killings and Afzal Guru hanging in 2013. After those legitimised killings of 2010, again without a mechanism of addressing the wounds through a process of justice system, and Guru’s execution, what is construed in public perception, as a judicial murder, the Valley has already reached a saturation point where hopes for justice have long back been diluted to a naught. Writing about the closure report on Pathribal, Kashmiri journalist and author Mirza Waheed (Fake encounter: The expendable Kashmiris, Al Jazeera, Feb 12, 2014) draws a link between Afzal Guru and Pathribal cases and maintains that Indian state’s institutions and agencies treat the Kashmiris like ‘expendable commodities’. “For Kashmiris, the military, the judiciary, and the government of India are one and the same thing, different faces of the same aggressor. Pathribal – and other such incidences of extra judicial killings of Kashmiris — constitute an act of brutal aggression,” he writes.

This brutal aggression and the notion of institutional justice is deeply entrenched and its physical and psychological impact inescapable. Beyond Afzal Guru hanging, that struck the finality of this psyche, little else matters except in acting as further catalyst in increasing the ferocity of a volcano simmering beneath the surface before it finally bursts — activated by any trigger like a Pathribal incident or its instutionalised cover-up. When that happens is just a matter of guess but what is a foregone conclusion is that the damage has already been done, much before the army brought in its lopsided closure report on Pathribal – and this damage is irreversible. Almost!

The only way forward lies in dealing with the enormous human rights issue both with sincerity and with a purpose of making it the pathway to resolution of the basic political dispute. Pathribal instead of being a closed case could be a beginning by re-opening it and challenging it in the court.

The state government has already expressed willingness to do so. But that may simply be a political ploy. How much can one expect from a government that has stonewalled all forms of institutional justice in Shopian rapes and murders and 2010 killings, where political patronage and not AFSPA was used as a shield of impunity, or from a government that silently became a collaborator as Afzal Guru was sent to the gallows, out of his turn, without giving him chance of a judicial review?

The credibility of the successive state governments in Pathribal case itself is severely impeded by a long history of not only initially fudging evidence in this fake encounter incident but also ignoring both the Chittisinghpora massacre of 35 Sikh men and the Brakpora firing on innocent protestors peacefully demonstrating against the staged Pathribal encounter.

Justice Pandian’s report on Brakpora in 2000 rightly links up the three cases which happened in quick succession as a result of one another and emphasized on the need for linking up the probes. The guilt in Brakpora firing has been established beyond a shadow of doubt but the tainted security personnel have yet to be tried. As for the Chittisinghpora massacre, with the multiple layers of lies invoked from time to time, it has only added to the Valley’s long list of cases that have become an eternal whodunit puzzle. The remedy for the wrongs in Pathribal and perhaps for opening a window in Kashmir lies in what Justice Pandian observed in his report, regarding the three successive incidents:

“Let the curtain be completely raised;

Let the veil be removed; and

Let the truth be unearthed, leaving no wire un-pulled and no stone unturned and brought to the surface without allowing the truth to remain in the graves.”

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