No Trial of fake encounters have ever been initiated in civil courts in Indian Occupied Kashmir

By Anuradha Bhasin Jamwal

Anuradha Bhasin Jamwal is Executive Editor Kashmir Times, the oldest English daily in Jammu and Kashmir which has continued to maintain an independent voice despite many threats and intimidations. She has also accomplished long term research projects on media reportage, conflict, human rights, and gender.

“Three families belonging to the poor nomadic tribe from Rajouri in Kashmir (read as Indian Occupied Kashmir) are still waiting for the DNA results more than three weeks after they identified three men slain in a gunfight with Indian forces as their ‘missing’ kin,” writers Anuradha Bhasin Jamwal in her article “Encounters of the ‘fake’ kind” published by Kashmir Times on Saturday.

According to the official version of the ‘encounter’, three men were killed on July 18 inside an orchard during a joint operation of Army, Police and CRPF. It was not until August 10, 23 days later, that the Rajouri families discovered the photograph of the dead men on social media and made their claim, averring that they were innocent and laborers. The Army and Police have ordered two separate probes and DNA samples were collected within days of the allegations.

Kashmir, however, is neither unfamiliar with ‘staged encounters’, nor with fudged DNAs and forgotten probes. Ten years ago, in a similar case of killing of three civilians, who were passed off as foreign terrorists, in Macchil area of Kashmir had ended up in the rare conviction and sentencing of the army personnel in court martial proceedings in 2015. The convicted men were subsequently let off by the Army Tribunal which reversed the verdict.

Allegations of fake encounters and other abuses by Indian security personnel abound. None of the accused men have been tried in civil courts during three decades of the armed conflict owing to the legal impunity provided by the Armed Forces Special Powers Act (AFSPA) that requires the Indian government’s sanction for prosecuting the personnel accused of abuse.

In 2011, a Kashmir based human rights group, JKCCS, filed a slew of applications under the Right to Information Act (RTI) to find that at least 35 such pleas for prosecution sent to India’s defence ministry had been rejected but grounds were not explained. In 2018, the J&K government had sought sanction for prosecuting the accused men in uniform. A subsequent query filed by an RTI activist revealed that the government had rejected the request for sanctioning prosecution in 47 cases.

The culture of impunity is best epitomized by the Pathribal fake encounter of March 2000 which coincided with the then US president Bill Clinton’s visit to India. Five army personnel accused of killing 5 civilians and passing them off as foreign ultras evaded the net by using AFSPA as a shield. It took 14 years of litigation for Indian Supreme Court to direct the army to conduct court martial proceedings against the accused personnel. Two years later, the summary court martial proceedings into the case concluded with a clean chit to the accused men without placing details of the trial in the public domain.

The present case in question bears an uncanny resemblance to that of four casual labourers allegedly picked up by army personnel from Jammu city with the lure of promising them jobs as porters in April 2004. They were taken to Lolab, 365 kilometres away, and allegedly killed and buried. An anonymous letter that named eight army-men reached the family of one of the porters a year later, triggering a probe but its outcome was lost in the oblivion.

Accountability and fair probes have been a casualty in the face of allegations of human rights abuse. This should be of far greater concern at a time when the trust deficit between Kashmiris and Indian government has deepened to irreparable levels. Since April this year, after 100 people turned up at a militant’s funeral, the security forces are discreetly burying the bodies at undisclosed places, using pandemic as a pretext. The decision is probably also guided by the recent past of mammoth gatherings at the funerals, which some security experts view as sites of mobilizing support for the insurgency. But as three of those bodies interred in unmarked graves are now a ground for contestation, all the other unidentified slain militants are being seen with skepticism, feeding local perceptions of being reduced to expendables as a policy, especially when the past is littered with stories of enforced disappearances and unmarked graves.

The anxieties of the security agencies that in the past bodies have become sites of mobilizing rebellion may not be entirely misplaced. However, the perpetuation of abuse, impunity and institutional injustice provide the main fuel in inspiring young men to pick up the gun. Militancy had plunged in Kashmir coinciding with the peace process between India and Pakistan at the beginning of the first millennial. However, the brutal handling of street protests, initially peaceful, in 2008, 2010, denial of fair probe in Shopian rapes and murders of 2009 began to give a fresh impetus to militancy 2012 onwards. Many young men were driven by their own personal experiences of harassment and abuse to pick up the gun and this is well-documented.

In the summer of 2016, 80 people were killed and thousands injured by bullets, pellets and tear-gas shells, leading to a prolonged spiral of violent anger on the streets and triggering an epidemic of young men joining ranks of armed rebels to fight the mighty Indian state.

A possible spiral of anger stemming from the fake encounter allegations and bid to hush up the probe may well threaten security in the region. A related incident may add to India’s headache. Apanch believed to have been kidnapped in Kashmir went missing on August 19. Five days later, an audio clip, purportedly of some militant emerged on the social media with the claim that the man has been killed and his body not returned to his family “in view of Covid-19”. Though police were tight-lipped and questioned the veracity of the clip, few days later the body was found buried in an orchard in Shopian and speculations are rife whether this is a retaliatory offensive by a militant organization. In 2018, when allegations of police harassment to families of local militants in a bid to force the latter to surrender surfaced, some militants had kidnapped family members of some cops as a bargaining point.

Further adding to India’s spiral of human rights abuse are the latest cases of brutal action on a religious procession of Muharram, teargassing and shot-gun pellets injuring and even blinding dozens of people. According to one media report, 250 people have been injured in the last weekend. In the summer of 2016, 80 people were killed and thousands injured by bullets, pellets and tear-gas shells, leading to a prolonged spiral of violent anger on the streets and triggering an epidemic of young men joining ranks of armed rebels to fight the mighty Indian state.

As the trust deficit between India and Kashmir hits rock-bottom, the latest trends, providing ample arsenal for eruption, could well multiply India’s headaches. The primary concern should, thus, be to address the violations and the culture of impunity to stop Kashmir’s further descent into chaos and salvage India’s tarnished image abroad with respect to human rights.