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Truth and Justice: Buried in the Ground
-EPW
 
With laws like the AFSPA, when will truth and justice prevail in Jammu and Kashmir?

Like all Jammu and Kashmir (J&K) chief ministers after the dreadful years of president’s rule from 1990 to 1996, Omar Abdullah too stands discredited, especially in the wake of the 2010 uprising of the “stone pelters” which was later brutally suppres­sed. A widely held opinion in the Kashmir Valley is that the chief minister, whether of the National Conference (NC) or the People’s Democratic Party, on matters of life and death, is not accountable to the people of J&K; he or she is answerable only to New Delhi. Union Home Minister P Chidambaram perhaps understands the importance of the change of public perception that Omar Abdullah needs if the Congress-NC coalition is to win another term in office. The home minister and the chief minister are also concerned about extending their turf in relation to that of the Ministry of Defence.
 
The question of de-notifying two districts in Kashmir (Srinagar and Budgam) and two in Jammu (Jammu and Samba) under the Armed Forces (Special Powers) Act – AFSPA – must be seen in this light. Indeed, bringing the differences between the union ministries of home affairs and defence into the open also serves the purpose of conveying the impression of openness in decision-making. In a recent meeting of the unified command, the army’s senior-most commander in J&K is said to have argued (The Hindu, 11 November 2011) that the de-notification of the AFSPA would “provoke large-scale disturbances which in the context of looming withdrawal of western forces from Afghanistan and the enhanced pressures from members of the Organisation of Islamic Conference on the United Nations Security Council would lead to Jammu and Kashmir’s independence”. This, of course, is nothing but a reiteration of the official view that the AFSPA is a necessary measure to prevent secession and that without it, the insurgency will gain. But what has prompted all the theatrics?
 
The year 2011 is a long way from 1989 when, under army occupation, it all began – rape, torture, enforced disappearance and extrajudicial execution (false encounters). The State Human Rights Commission (SHRC) of J&K, otherwise a fig leaf to cover up a state that stands naked on the human rights front, has begun to feel acutely embarrassed. In August this year it released a report on unmarked graves in four districts – Bandipora, Baramulla, Kupwara, and Handwara – taking suo motu cognisance of the matter after verifying 2,156 unidentified bodies in unmarked graves (“Buried Justice”, EPW editorial, 27 August 2011). Indeed, J&K’s SHRC acknowledges and corroborates part of the December 2009 report “Buried Evidence” of the Inter­national People’s Tribunal on Human Rights and Justice in Indian-Administered Kashmir (IPTK), and there is thus an implicit ­acceptance that atrocities have been committed. Now the DNA profiles can be used to identify the dead. The official claim that all the unidentified graves hold the bodies of Pakistani terrorists can thus be verified against the contrary view that those unmarked graves hold the bodies of local Kashmiris who were subjected to enforced disappearance and were subsequently killed in fake encounters. If the latter view is proved correct, will investigation, prosecution of the perpetrators, exemplary punishments and reparations follow? (Even in the former, international convention protects all persons from enforced disappearance.) Will the witnesses be protected? Omar Abdullah has called for a Truth and Reconciliation Commission. But can there be reconciliation without justice?
 
The fact is that provisions in laws like the AFSPA and the Central Reserve Police Force (crpf) Act, and in Criminal Procedure Code (CrPC) 197 (where official sanction of prosecution is required) give legal immunity to army, paramilitary and police officers for their actions. Nevertheless, we need to know how many unmarked graves there are in J&K as a whole, the identity of the bodies in those graves, the circumstances of the deaths, whether the victims were tortured, killed in fake encounters, and so on. The accused have to be prosecuted and exemplary punishments then have to be meted out to the guilty. What is the record of governments so far? The virtual immunity to the armed forces, the paramilitary and the police means that they know that they are never going to be prosecuted and so they believe they have a licence to rape and kill (in fake encounters) in the discharge of their official duties. The Jammu and Kashmir Coalition of Civil Society, referring to an affidavit submitted to the J&K High Court by a joint secretary of the Ministry of Defence on 5 June 2009, finds that there is not a single instance where the ministry has given its sanction for prosecution under the AFSPA. Omar Abdullah may want to expand the turf area of the J&K police vis-à-vis the army, but the human rights record of the former is also despicable. Incriminating evidence that Kuldeep Khoda, the present J&K ­Director General of Police, when he was Deputy Inspector General 15 years ago, “instructed and provided arms and ammunition, and all the logistics” for the killing of three persons abducted from Bhaderwah in Doda district (whose bodies were allegedly thrown in the river Chenab and have not been found) has led to pleas that he be put on trial and be interrogated (Interview of Parvez Imroz, human rights lawyer and civil rights activist, The Kashmir Walla, 7 October 2011). Clearly, as long as laws like the AFSPA, Section 17 of the CRPF Act, and Section 197 CrPC are on the statute, one wonders if truth and justice will ever prevail in J&K.