Kashmir unrest: Rights violations, fake encounters galore as accountability goes for a toss under AFSPA cover

Srinagar: On 21 August, a young Shahid Bashir Mir left his home for an evening stroll. A day later, his body was handed over to his family by the police, riddled with bullets and badly disfigured. The youth's father, Bashir Ahmad Mir, refused to bury him until action was taken against the army unit stationed at the border area of Handwara, whom he blamed for killing the boy in a fake encounter.

Following strong protests by the locals, in which they torched government vehicles, an inquiry has been ordered to probe the involvement of the army in Shahid's death.

But human rights activists are pessimistic of any action against the security personnel concerned because of the immunity enjoyed by the army and paramilitary forces operating in Kashmir under the armed forces special powers act (AFSPA). Under AFSPA, the state government has to seek a sanction for prosecution against security officials deployed for anti-militancy operations from the Central government, which has denied permission to initiate trials in civil courts in most of the cases.

 Kashmir unrest: Rights violations, fake encounters galore as accountability goes for a toss under AFSPA cover

Representational image. AFP

Mir said that his son had left home at around six pm when he was picked up by personnel of a local army unit and later killed in 'a fake encounter'. While the investigations are still on, in many of the cases in which the complicity of the army and paramilitary forces have been proved by the police and judicial authorities, the accused personnel have not been subjected to trial due to lack of sanction for prosecution.

Even as the number of human rights violations has come down compared to the early 1990s, when militancy was at its peak in Kashmir, the custodial killings continue in the Valley. This year, Kashmir has remained relatively calm compared to 2016, when a widespread unrest was triggered after the killing of Hizbul Mujahideen commander Burhan Muzafar Wani.

As per the data of the Union Ministry of Home Affairs (MHA), in 2012-13, the number of complaints of human rights violations against the armed forces was 30; it declined to 21 in 2013-14; 17 in 2014-15; and 12 from 1 April, 2015, to 31 January, 2016. While the first half of 2016 was relatively peacefully, at least 77 people died in action by government forces from July to December.

Though the Kashmir Valley has remained relatively peaceful this year, complaints of human rights violations continue to pour in. In the last five months, the army and paramilitary forces have faced at least six cases of human rights violations, ranging from kidnapping to death in a fake encounter.

Human rights activist Mohammad Ehsan Untoo said that the involvement of government forces in rights violations continues unabated. "Even this year, many youths have died in direct firing by the force personnel and this latest case of rights violation against the army – the fake encounter case in Handwara – is among the many which have been registered here," he said.

Untoo has filed a petition with the State Human Rights Commission (SHRC), seeking action against the army and police officials responsible for the killing of the youth in the alleged fake encounter at Handwara.

Mir said that his son was killed brutally and the complicity of the army was also admitted by the concerned state government. "We have been assured of a probe by deputy commissioner Kupwara, who certified that my son was innocent. He was a student and had no role in militancy," he said.

However, the human rights activists have argued that even as the police have been filing cases against the army for involvement in human rights violations, they are not being arrested in the wake of the immunity that is granted to them under AFSPA. The Central government has been maintaining that the complaints levelled against the armed forces have proven to be incorrect.

Both in the current NDA rule of Prime Minister Narendra Modi and the UPA government of Manmohan Singh, the position maintained by the Central government has been in support of the armed forces. The Centre's reasoning for long has been that the conditions in Kashmir are not conducive to the withdrawal of AFSPA.

In 2011, the then defence minister AK Antony in a statement in Parliament said that from 2007 to 15 December, 2011, 24 cases seeking sanction for prosecution under AFSPA were received from Jammu and Kashmir Home Department out of which five cases were under examination and in the remaining 19 cases, the requests for prosecution sanction were rejected as "it was found on examination that no prima facie case was made out against the accused army personnel."

Legal practitioners said that the sanction for prosecutions was delayed in many of the cases and after the armed force personnel were found involved in cases of rights violations, they were transferred from Kashmir to evade arrests or trial.

Under the AFSPA Act, which came into force on 5 July, 1990, armed forces personnel can fire upon a person or a group of people if they suspect that they may cause a law and order problem. As per the Act, the armed forces are also empowered to "arrest, without a warrant, any persons who have committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest."

The Act further reads, "no prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the Central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this act."

Advocate Mir Shafaqat Hussain said that the AFSPA is used to protect the armed forces by the Central government. In a case that he is handling, the Union Ministry of Defence has denied the sanction to prosecute the personnel of an army unit based in Bemina area of Srinagar on the custodial killing of a youth.

"We had submitted the file in 2015 for sanction to prosecute the two officials of an army battalion which was based in Bemina, but no sanction has been received. The case pertains to the disappearance of a 22-year-old boy in 1996 and sanction is awaited even as the judicial inquiry has established the complicity of the personnel," Hussain said.

He said that in another case, of the custodial killing of a Baramulla youth, while trial has started against two government-backed gunmen, the lack of prosecution sanction against an army major has ensured that no trial was started against him.

Venkatesh Nayak, the coordinator of the Commonwealth Human Rights Initiative (CHRI), an international human rights group, has noted in a recent report on the implementation of AFSPA that most of the complaints of human rights violations from states under AFSPA have been from Jammu and Kashmir.

Quoting government figures, the report reveals that 186 complaints of human rights violations were received against armed forces (defence forces and paramilitary forces) deployed in the states of Assam, Arunachal Pradesh, Jammu and Kashmir, Manipur, Meghalaya, Nagaland and Tripura during the period from 2012 to January 2016. Out of these, 49 percent of the complaints were from Jammu and Kashmir.

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Updated Date: Aug 28, 2017 12:07:09 IST