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LATEST NEWS UPDATES | Special powers to act and evade by Muzamil Jaleel

Special powers to act and evade by Muzamil Jaleel

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published Published on Nov 6, 2011   modified Modified on Nov 6, 2011

When Chief Minister Omar Abdullah announced the withdrawal of the Armed Forces (Special Powers) Act from certain areas areas in Jammu and Kashmir, it was a political move with many objectives.

The government, however, had to put the plan on hold. Though the Home Ministry has been in favour of a withdrawal, the plan came under severe criticism from the Army, which argued that a withdrawal, even if partial, would hamper its counter-insurgency effort because of the legal shield that the Act provides its troops.

The movement to remove the AFSPA is a popular one in Kashmir. The reason is not just the Act’s draconian nature, which critics say takes away even the fundamental right to life in a disturbed area (see box), but also the way the Army has misused it to stonewall every effort to bring to book those involved in fake encounters, killings in custody, and even rape.

According to the AFSPA, any armed forces personnel involved in a human rights violation cannot be prosecuted without the approval of the Centre — of the Defence Ministry for the Army, and of the Home Ministry for paramilitary forces. This legal shield provided to armed forces personnel in a disturbed area is a protection “for acting in good faith” during operations.

This would imply that the shield is only for genuine mistakes committed during counter-insurgency operations. But police investigations have found that violations committed by armed forces personnel were not always in the line of their duty — for example involvement in rape, fake and staged encounters and killings in custody — in which case the immunity provision should not have been applicable.

The Army, however, has routinely been invoking the immunity clause to shield its men from prosecution in civil courts. Even in cases of serious rights violations investigated by the state police, with chargesheets filed, and which were subsequently forwarded by the state government to the Ministry of Defence, sanction for prosecution has been very rare. The Army has not allowed the prosecution of even those of its men accused of rape, sexual violence and murder of civilians who had been picked up and then killed in staged encounters. Cases in point are Machil in 2010, Ganderbal in 2007, and Pathribal in 2000.

Following a 2003 writ petition in the Jammu and Kashmir High Court, joint secretary (Defence) Ajay Tirkey filed an affidavit on behalf of the ministry. It revealed that over the years, 35 cases had been received by the ministry but sanction to prosecute was not granted in any of them. According to the breakup for 33 of these cases, the ministry had declined sanction in 10 while 23 were still under consideration.

Rape

Cases forwarded to the Defence Ministry by the state government have included some that involved rape. On January 3, 1997, a housewife in Anantnag was allegedly raped by an Army officer, Major Arora of 5 Rashtriya Rifles. The police registered a case in Anantnag and, after the investigation was completed, the government sought sanction from the ministry to prosecute the Army officer. Tirkey’s affidavit reveals that the ministry received the request for sanction in December 2006 and it is “under consideration in Army headquarters/ Ministry of Defence”.

On December 5, 1999, an Army major allegedly raped a housewife at Panzalla in Rafiabad. The police investigations held that the rape was committed by Major Aman Yadav of 28 Rashtriya Rifles. Tirkey’s affidavit says that the MoD received this case in January 2009 and “the case is under consideration in Army headquarters/Ministry of Defence”.

Other cases have involved “custodial killings”, “torture that led to death” and “custodial disappearances”. The state police have identified the officers who allegedly committed these acts and their units, and chargesheeted them. Then there are several cases where courts have convicted police officers involved in fake encounters that had been jointly conducted by police and the Army, while the Army officials couldn’t even be questioned because they had the immunity clause of the AFSPA.

Encounters

In 2007, the Valley saw a series of fake encounters and legal proceedings being initiated, including four in Srinagar district and one in Sumbal police station’s area. These involved personnel of the police and the Army. The incidents were similar: a joint team would pick up a villager, often innocent, working in the city, carry him to a far-off area in Ganderbal or Kangan, stage a fake encounter, kill him and brand him a foreign terrorist.

After a police investigation, a senior superintendent of police (H R Parihar), a deputy superintendent of police (Bahadur Ram), an assistant sub-inspector (Farooq Ahmad), four constables and a driver were arrested. The police investigation found the involvement of a colonel, two majors, a JCO and several other Army men in such fake encounters. There was no action against them.

The investigations had begun when the family of Abdul Rehman Padroo, a carpenter, had sought help from the police after his disappearance on December 8, 2006. Technology helped the police track his mobile, with the trail leading to one of their own officers, who then blew the lid off a network involved in fake encounters. Five poor villagers had been killed and dubbed Pakistani militants. Other fake encounters were carried out by men of three Rashtriya Rifles units with alleged assistance from Ganderbal police. These units had filed FIRs after these encounters and also claimed seizure of weapons.

The state police immediately arrested their SSP and 12 other policemen and also approached the Army units to question their men and check seizure records. The Army units asked the police to approach the Corps instead.

When the investigators received the report of the DNA test, the probe took a new turn. It confirmed that a body exhumed from a graveyard in Bazipora village was actually that of Showkat Ahmad Khan, a Srinagar imam, and not that of Pakistani militant Abu Zahid — as claimed by 13 RR, which had also claimed to have recovered an assault rifle and a wireless set during this “encounter”. Once again, the Army stonewalled the police investigations invoking the immunity provisions.

The Pathribal “encounter” was first reported in March 2000. Within hours, then Union Home Secretary Kamal Panday and even Home Minister L K Advani went on record to say that the Army and the police had gunned down five Lashkar terrorists, responsible for the massacre of 36 Sikhs in Chittisinghpora. But once it became clear that five villagers had been killed in a fake encounter by personnel of 7 Rashtriya Rifles, Kashmir went on the boil. Then too, the Army and the police had described innocent villagers as Pakistani militants.

The CBI probed the case and charged five Army officials with abduction, murder, criminal conspiracy and destruction of evidence. While the CBI probe was on, the senior-most officer it charged, Colonel Ajay Saxena, was promoted to Brigadier. The Army had initially questioned the CBI’s authority to investigate them, while the CBI complained that the Army was not cooperating. The case is now pending before the Supreme Court.

A Killing and a surrender

Another case involved the arrest and subsequent murder of a Srinagar-based human rights lawyer, Jalil Andrabi, on March 8, 1996. Major Avtar Singh of 103 Territorial Army and his men had arrested Andrabi. Nineteen days later, the family found his decomposed body.

A report by a Special Investigation Team set up by the High Court in June 1996 identified Major Singh as prima facie responsible for the killing in custody. But Army representatives told the court that the major was no longer with the Army and that he had not committed the offence “in his official capacity”. The case lingered even as the police found Major Singh involved in 11 similar killings and the disappearance of surrendered militants who were witnesses to Andrabi’s murder. Major Singh has since immigrated to the US.

November, 9, 2004, saw a mass, fake surrender. A masked group of 47 villagers from Budgam were paraded as militants willing to lay down arms before 16 Corps Commander and J-K DGP in Nagrota. These villagers had been taken to Delhi by a Congress activist, with the promise of jobs, but handed over to the Army, who held them in a camp for six months before the fake surrender ceremony. The police probe had already identified a brigadier and a colonel as responsible for this drama but again there was no action.

The politics

Though a partial removal would not have caused any significant change on the ground, it would have helped Chief Minister Abdullah fulfil many political objectives.

Any talk of removing the AFSPA has faced resistance from the security establishment for years and a decision to do so, even partially, would have been taken as a bold pro-people move, especially at a time when the Chief Minister has been embroiled in a series of controversies. It would have helped the Chief Minister and his party, the NC, score a political point against rival People’s Democratic Party as well as separatists.

Various groups favour a withdrawal. A Central working group led by current Vice-President Hamid Ansari had strongly recommended repeal of the Act. Recently, the Centre’s three interlocutors too have been vocal about the need to withdraw the Act.

A partial withdrawal would, therefore, have helped showcase the Omar government’s own efforts at a time when it has been under fire for failing to curb human rights violations on the ground. For example, his government has not been able to make any headway on probes promised into the killings of more than 120 teenagers in police firing during the 2010 agitation, or in DNA profiling of the thousands of unidentified people buried in unmarked graves.

The government might have felt that withdrawal of the AFSPA from Srinagar city and the townships of Ganderbal and Budgam, areas where security is primarily the responsibility of the state police, was an easy bargain. The situation, however, took a sudden turn when the Valley was rocked by a series of grenade attacks – two of these in Srinagar city.

CM Abdullah’s uncle and the NC’s official spokesman, Mustafa Kamal, accused the Army for orchestrating these attacks to counter the plan to withdraw AFSPA. The Army reacted with anger. Soon the debate on partial withdrawal started creating fissures within the ruling coalition with Pradesh Congress president Saif-ud-Din Soz saying that the Congress was not taken into confidence before Abdullah made the announcement.

The difference of opinion between the Home and Defence Ministries, too, was out in the public. All of this forced the state government to put its plan on hold.

The Indian Express, 7 November, 2011, http://www.indianexpress.com/news/special-powers-to-act-and-evade/871650/


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