Analysis

And you shall fail at your peril

By Nawaz Gul Qanungo

8 December 2016

The breathtaking obfuscations that form the viscera of India’s impunity in Kashmir.
Photo: Flickr/Anuj Gupta

Photo: Flickr/Anuj Gupta

(This is an essay from our print quarterly ‘The Southasian Military Complex’. See more from the issue here.)

“We were asked to recognise the soldiers who picked our family members. We couldn’t… we hadn’t seen them properly,” said Abdul Rashid. “It was dark that night.”

Rashid’s father, Jumma Khan, was among the five ‘foreign terrorists’ killed in a March 2000 ‘encounter’ in Pathribal, a small village in Kashmir Valley’s southern district of Anantnag. Rashid was at the Indian Army’s Victor Force headquarters at Awantipora, just outside Kashmir’s summer capital, Srinagar, where he had been summoned by the army for cross examination in March 2013.

Apart from his difficulty recognising the soldiers, Rashid, one of the prime witnesses, would surely have battled another handicap: human memory. He was being asked to recognise the accused 13 years after they had abducted his father and killed him soon after. Yet, the families of the victims of the Pathribal encounter continued to seek legal remedy. “After all these years, we don’t want our absence to be an excuse for them.”

The trial conducted by the Indian Army came in the wake of a long legal battle marked by a tortuous sequence of fudging, breathtaking obfuscations, and, well, actual investigations. It also came after overwhelming evidence led the Central Bureau of Investigation (CBI) – India’s top investigating body – to conclude that the killings were actually a “cold-blooded murder,” and that those responsible “deserve to be meted out exemplary punishment”.

The trial conducted by the Indian Army came in the wake of a long legal battle marked by a tortuous sequence of fudging, breathtaking obfuscations, and, well, actual investigations.

But the trial was also conducted after the Indian Supreme Court in 2012 gave the army the choice of allowing a civilian court to bring the accused soldiers and officers to trial, or trying them in a court martial. The army made an obvious choice: it would try them on their own, in their own court. Unprecedented though the intervention of the Supreme Court was, it only demonstrated how India’s top judicial institution had eventually upheld the legal immunity that the armed forces wield in Kashmir, even in cases with damning evidence against the killers.

In matters of the most brutal human rights violations, even with overwhelming evidence, what is it that gives the Indian armed forces the licence to neuter any move towards establishing culpability, let alone conviction?

A massacre in the dark
On the twentieth morning of March, 2000, millions of people across India were glued to their television sets, elated at yet another indication of the country’s arrival on the world stage. The president of the United States had just arrived for a grand official visit, the first by a US president in 22 years. Later that day, as darkness descended on the faraway Himalayan valley of Kashmir, approximately 20 armed men entered the sleepy village of Chattisinghpora. Dressed in army uniforms, they asked the men of the village, all Sikhs, to line up outside the village gurudwara while the women stayed indoors. It was projected as a usual cordon-and-search operation, a common army exercise. Minutes later, the gunmen disappeared into the night, leaving 36 dead. According to Farooq Khan, the district Senior Superintendent of Police (SSP), ‘Preliminary inquiries revealed that most of the militants were foreign mercenaries.’ As the world woke up to the gruesome news the next morning, President Clinton expressed his outrage, and “shared [the country’s] heartbreak over last night’s brutal attack in Kashmir”. The massacre reminded him, he said, of “what tremendous suffering” India had undergone. “The violence must end. This should be a time for restraint.”

Five days later, the Indian army said it had eliminated five militants responsible for the massacre. According to Colonel M K Bawa, the army received specific information that militants were hiding in the forests 13 kilometres from the village. A search operation led the militants to open fire, and the security forces retaliated. The encounter was said to have lasted about 10 hours, and ‘all the five militants, belonging to Harkat ul-Mujahideen and Lashkar e-Taiba, were killed’. ‘They were all in combat dress,’ the colonel said, while the ‘hutment where the militants were hiding was burnt’, as were the bodies of the militants.  The colonel confirmed that three of the killed ‘militants’, Abu Shaheen, Abu Hanifa and Rahim Bhai, had been involved in the massacre, and that the army ‘was still in the process [of] flushing out the rest of the militants’. The army attributed the source of this information to the J & K Police, specifically, Farooq Khan, the SSP.

What emerged next wasn’t unfamiliar in the then decade-old armed rebellion against Indian control of Kashmir. News began to spread of five civilians that had gone missing from Pathribal after being arrested by the army just before the 10-hour-long ‘encounter’ in  which five ‘foreign militants’ were supposed to have been killed. Tension gripped Pathribal, and soon the entire district. And nothing that the government or the state security forces did or said changed people’s minds about what they believed had happened – that the five ‘foreign mercenaries’ killed in the joint operation by the army and police in Panchthalan were, in fact, the five civilians taken from Pathribal days before. Thousands began pouring on to the streets of Anantnag in massive demonstrations seeking the whereabouts of the five men arrested in Pathribal. So unprecedeted were the protests that the district administration, taken aback, offered to conduct DNA tests of the bodies of the five ‘militants’ if the state government allowed the exhumation of the bodies. Five days after the ‘encounter’, Chief Minister Farooq Abdullah declared in the State Assembly that he had directed the police to inquire into the disappearance of the five civilians. But protests against the government and security forces increased.

The CBI, for its part, maintained that “the killing of innocent persons in a fake encounter cannot be construed as official duty”. But the CBI should have known better: the Indian Army in Kashmir was always on ‘duty’.

A week later, on 3 April, government forces opened fire on a crowd of civilian protesters at Brakpora. Eight people were killed, and at least 15 injured. A curfew was enforced in Anantnag district, and the police were given orders to shoot anyone who disobeyed. By this time, however, a wave of public demonstrations had engulfed the whole of the Kashmir valley. The entire region was at a standstill, shut down and ablaze amid relentless protests. After two more days, under immense pressure, Chief Minister Abdullah ordered the exhumation of the bodies of the five ‘foreign terrorists’. DNA samples were now to be taken from the dead bodies and matched against those claiming to be family members. For the first time since regaining the reins of government in 1996, Abdullah openly challenged the claims of the the armed forces, and in the Assembly claimed that the Brakpora killings were unprovoked.

On 6 and 7 April, the five bodies were exhumed from three separate villages in Anantnag. Kashmir waited with bated breath as relatives of the five missing persons attended the exhumations. All five bodies were found charred; one of the victims was likely beheaded. Two bodies were claimed on the spot by relatives. Nazir Ahmed Dalal identified the shirt and sweater on the body retrieved from one of the graves; they belonged to his nephew, Zahoor. Apart from the body, a bag was also found in the same grave. The contents of the bag were claimed by Roshan Jan as belonging to her missing husband: a nose and chin.

By 7 April, each of the bodies had been claimed and identified by the families of the persons missing after the Chattisinghpora massacre. Each of the men’s civilian clothes had been hidden under fatigues. Incredibly, the fatigues were almost brand new.

A day after the exhumations, a further embarrassed Abdullah announced a compensation package of INR 11 lakh for each of the families of protesters killed by security forces in Brakpora. The families of the five men, meanwhile, were given the bodies of their dead even as the procedure for DNA testing had hardly begun. Farooq Khan, the SSP, was suspended. Besieged and trying to assuage his electorate, a furious Abdullah lashed out at the forces. “I assure you that if the charge that the victims were ordinary civilians and not foreign militants, as claimed by the forces, is true, I will take stern action against those responsible,” he said. “I will skin them.”

 

Those responsible for the crimes, as well as state authorities working under Abdullah, were, however, unflinching. Indeed, so ruthless were they that they changed the DNA samples belonging to the kin of the victims of the Panchthalan encounter before the samples were received at the forensic science laboratory.

Two long years passed, the passage of time dousing much of the wildfire Pathribal had unleashed. In March 2002, however, the Times of India uncovered damning evidence of the state machinery’s attempts to thwart justice. The newspaper report claimed the state government had “fudged crucial DNA samples taken from the relatives… so as to ensure” that the army and police “could not be accused of having murdered innocent civilians in a fake encounter”.

Hard luck
Following the exhumation of the bodies in the immediate aftermath of the killings, five families had identified the remains as Zahoor Ahmad Dalal, Bashir Ahmad, Mohammad Yusuf Malik, Jumma Khan Sr, and Jumma Khan Jr, all of Anantnag. The government, however, refused to take action against the perpetrators until DNA tests conclusively proved the identity of the five bodies. But while the forensic lab report did conclude that the DNA samples of the ‘relatives’ did not match with those of the bodies, samples that were marked as having come from female relatives had actually come, as hard luck would have it, from “human males”.

The deception went deeper. “For more than a year,” the newspaper reported, “the J&K government has been sitting on the damning report from Hyderabad.” Indeed, it was only the public disclosure of the report’s findings and renewed public outcry that forced the state government to take fresh samples. In the Assembly, Farooq Abdullah felt “ashamed there are agencies that can behave in such a manner”. He apologised, promised another investigation, and asserted that those involved in sending the samples would be immediately suspended, and, if found guilty, dismissed and prosecuted. “Those responsible,” he meekly admitted, “had something to hide.”

Meanwhile, in September 2005, suspended SSP Farooq Khan was reinstated. About a year later, he would receive his second Police Medal for Gallantry. He’d go on to receive several more in the coming years.

That all of this occurred under a Farooq Abdullah-led government shouldn’t have come as a surprise. The heir of what was once a redoubtable Kashmiri nationalist party led by his father Sheikh Mohammed Abdullah, the younger Abdullah had traded off the promise of restoring autonomy to the region, the plank on which he came to power in 1996 after India had crushed the rebellion through a military campaign marked by massive human-rights violations. Abdullah’s political legitimacy was now being used to excise the last vestiges of the armed secessionist movement.

***

Quite apart from the fudged DNA samples, the first indictment in the entire series of violations around Pathribal had already come in October of 2000, in the form of the Justice S R Pandian Report. The one-man commission of enquiry instituted to probe the killings in Brakpora found prima facie evidence against as many as 27 security personnel in the incident that had killed eight and injured over a dozen. The report concluded that security forces had “deliberately crossed their barrier of authority”, and that “there was absolutely no justification for resorting to firing on the crowd”.

In May 2012, the Supreme Court held that while AFSPA did allow for a chargesheet to be presented before a court, the court simply could not take cognisance of it. Not just that, it declared that it was for the army to decide whether it wanted its officers tried in a civilian court or in an army court martial.

While admitting that its scope was limited to probing only the Brakpora killings, the report, however, made it abundantly clear that further investigation was required to cover the entire “unbroken chain of events”, including the Chattisinghpora massacre and the Pathribal encounter, of which the Brakpora killings were a part. The report made a passionate appeal to “let the curtain be completely raised.”

The report did little more than eat dust. That again shouldn’t have been a surprise considering the fate of the probe by even the Central Bureau of Investigation (CBI).

***

Apart from strong public resentment, and the fact that the state government was being headed by a new Peoples Democratic Party after the incumbent National Conference suffered a humiliating defeat in the 2002 state elections, the manner in which the Pandian report was disregarded by the government could, ironically, have been one of the reasons that yet another investigation into Pathribal was instituted. It was February of 2003, and the investigation was now in the hands of India’s top investigating agency. There was nowhere higher that the probe could go.

Some three years later, in May 2006, after completing its investigations, the CBI appeared in front of the Chief Judicial Magistrate (CJM) in Srinagar. It charged five army officers – including a now-brigadier, the army’s fourth highest rank – for the abduction and murder of five innocent civilians in Pathribal.

Naming the officers – Brigadier Ajay Saxena, Lt Col Brajendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena and Subedar Idrees Khan – the CBI accused the army of faking witness statements, fabricating evidence, stage-managing the encounter, hastily burying the deceased, and planting weapons as evidence. In response, the army invoked the Armed Forces Special Powers Act (AFSPA), which stipulates that no army officer can be prosecuted for actions performed while on duty without prior sanction from New Delhi.

Earlier that year, in January 2006, army headquarters had, according to Outlook magazine, requested the Indian Home Ministry “sensitise the civil administration” and, while quoting relevant sections of AFSPA, “stressed that military personnel cannot be prosecuted for acts done in the discharge of official duty”. The Pathribal killings had a context, the magazine had been told by army officials. “The [concerned army] unit 7 RR is affiliated to the Punjab regiment with more than 50 per cent Sikhs. Imagine their state of mind after Chattisinghpora.”

The CBI, for its part, maintained that “the killing of innocent persons in a fake encounter cannot be construed as official duty”. But the CBI should have known better: the Indian Army in Kashmir was always on ‘duty’.

From cold-blooded murders to blanket impunity
Another six long years passed before the matter came up for a final judgment before the Indian Supreme Court in New Delhi. Back in Kashmir, the CJM, the Sessions Court, and then the High Court had all rejected the army’s bid to close the case altogether. The CBI would go on to declare before the Supreme Court that its investigations had revealed Pathribal was a “fake encounter”, and an “outcome of a criminal conspiracy hatched” by the army officers. “If public confidence in the rule of law and dispensation of justice is to be sustained,” it said, “the accused officers deserve to be meted out exemplary punishment”.

While the CBI had filed the chargesheet before the CJM in 2006, the army insisted that, as per AFSPA, no prosecutions could occur without the previous sanction of the central government, and that the proceedings, hence, must be closed. The CJM dismissed this, saying it was for the court in which the offences were tried to determine whether the action complained of fell within the “ambit of the discharge of official duty or not”. Where, in fact, the case would be tried, was the key question. According to the Supreme Court, the “CJM himself could not analyse the evidence and other material produced with the chargesheet.”

The case eventually reached India’s highest judicial authority. Indeed, it was now for the Supreme Court to decide whether the offending acts of the army officers as identified by the CBI were within the ‘ambit of their official duty’; and in case they were not, where the accused would be tried.

 

In May 2012, the Supreme Court held that while AFSPA did allow for a chargesheet to be presented before a court, the court simply could not take cognisance of it. Not just that, it declared that it was for the army to decide whether it wanted its officers tried in a civilian court or in an army court martial. The Supreme Court wasn’t merely making the army the judge in its own cause. It did so with full knowledge of the army’s ongoing pursuit of full legal immunity.

The Armed Forces Special Powers Act, quite explicitly, allows the armed forces operating in ‘disturbed areas’ such as Kashmir to kill on the basis of suspicion. Many innocent civilians have been killed by the army, deliberately or otherwise, in regions throughout India in which AFSPA is in place, including the country’s Northeast and Naxal-affected regions. Prosecution, however, has remained hampered by the unbridled powers that AFSPA affords men in uniform.

But human-rights activists have long contested even this interpretation as simplistic. The armed forces escape prosecution not because of AFSPA, they observe, but in spite of it. The immunity that the Act affords the armed forces, according to the law, is extended only as far as their action remains within the ambit of their official duties. The armed forces escape prosecution, therefore, not because AFSPA is invoked, but because it is not invoked in its entirety. The Supreme Court’s Pathribal verdict rendered even this position redundant.

The Armed Forces Special Powers Act, quite explicitly, allows the armed forces operating in ‘disturbed areas’ such as Kashmir to kill on the basis of suspicion. Many innocent civilians have been killed by the army, deliberately or otherwise, in regions throughout India in which AFSPA is in place… Prosecution, however, has remained hampered by the unbridled powers that AFSPA affords men in uniform.

By leaving the onus on the army to decide whether it wanted its men tried in a civilian court or in a court martial, the Supreme Court took away the power of civilian courts to decide whether an act committed by the army could be deemed official duty. Therefore, even in cases involving grievous rights violations such as murder, or rape, the army was now granted the power to simply take over the case and examine it on its own. The meaning of ‘official duty’ had been legally defined, and the only scope for the prosecution of armed forces personnel removed. Indeed, the Supreme Court had, ironically, granted the army the reward of blanket impunity as a result of the Pathribal killings.

***

From the day the CBI filed charges of murder against the five army officers in 2006, expectations had been raised that justice might just be delivered. This was, however, optimistic. Days before the charges had been filed, the then CBI director Vijay Shankar had told the Indian Express that the army had “performed an exceptional role in Jammu and Kashmir”. The Pathribal encounter, he said, was “an aberration”, making it necessary for the CBI to clear the good name of the army.

The ‘good name’ of the army should hardly have been any of the CBI’s concern. As events demonstrated, the Supreme Court would pave the way for the army to clear its good name all by itself. But there are other reasons to doubt aspects of the CBI’s investigation and report. In the process of filing its chargesheet, the CBI effectively cleared the names of all of the police officers involved in Pathribal, including Farooq Khan, in spite of finding evidence against police personnel during its own investigations. Neither had it named all of the army men that it found clear evidence against. A separate question arose: even if the army officers required New Delhi’s sanction before prosecution, what saved the police officers, who couldn’t wield the shield of AFSPA and who were implicated in the killings, from facing prosecution? Where, after all, did the priorities of the state government lie?

Great expectations
In a scathing June 2012 article commenting on the Supreme Court’s decision, A G Noorani, India’s leading commentator on law and constitution, quoted Justice (retd) J S Verma: “‘For anyone to think that sexual assault could in any way be associated with the performance of any official task, well needs to think again…What we [his Committee] have said is only that in a case like this, there should be no need for a prior sanction’ for the court to take cognisance.” Noorani was quoting from the government-commissioned report of Justice Verma, who, in the wake of the Delhi gang rape of 2012, was tasked with investigating the country’s anti-rape legislation. Vis-a-vis AFSPA, Justice Verma had raised an obvious question: could army personnel be deemed to be on duty while, for example, committing the act of rape? As Noorani asked, “Does not this principle apply also to a cold blooded murder, which is what a fake encounter really is?”

Noorani, appropriately, traced the origin of AFSPA to a colonial law – Section 197 of India’s Code of Criminal Procedure, 1898 (CrPC) – which “provided that where any public servant is accused of any offence alleged to have been committed by him ‘while acting or purporting to act in the discharge of his official duty’, no court shall take cognisance of such offence except with the previous sanction of any government, Central or State, that employed him”. Section 197 has survived not just India’s independence and its democracy, but also informed laws such as AFSPA. “The Supreme Court, with its passion for judicial activism, had two clear options,” Noorani observed. “One was to strike down Section 197, and its replicas in AFSPA and others as being violative of the rule of law and the fundamental rights… The other was to restrict its meaning.” Sixty years later, Noorani questioned, can the Supreme Court of India certify that the ‘circumstances’ of colonial times still exist?

Nooani didn’t choose to directly answer that question – the answer being that in a place such as Kashmir, and for a people such as Kashmiris, such times clearly did exist. But that wasn’t the only fault with his analysis. He was holding the wrong end of the stick.

“The law on sanction defaces the statute book,” he protested. “It survives to protect the corrupt and the murderous – thanks to the Supreme Court” (emphasis added).

It does, but thanks to the Indian security state.

***

“We, in this Court, are not unaware of the gravity that extremist activities pose to the citizens, and to the State. However, our Constitution, encoding eons of human wisdom, also warns us that ends do not justify all means, and that an essential and integral part of the ends to which the collective power of the people may be used to achieve has to necessarily keep the means of exercise of State power within check and constitutional bounds. To act otherwise is to act unlawfully…”

It was the Supreme Court of India, in 2011, giving the verdict which deemed ‘unconstitutional’ the Salwa Judum, a renegade militia of civilians armed by the Indian state and deployed as a counterinsurgency force in the state of Chhattisgarh. Unleashed upon their own people, much like the Ikhwan (‘brothers’, ironically) in Kashmir, the Salwa Judum (again, ‘Peace March’) was responsible for the most brutal of human-rights violations.

For state governments that have cried hoarse seeking the revocation of AFSPA, a startling disclosure in 2012 revealed that not a single such recommendation had ever been forwarded to the Centre. Another RTI revelation showed that of the 50-odd cases where sanction for prosecuting army personnel was sought, none had been granted.

The verdict surprised even the most cynical. What was more revealing, though, was the reaction to it in the country. The corporate media, as expected, ignored it. In an extraordinary show of solidarity, the government (then led by the Congress party), and the then opposition Bharatiya Janata Party (BJP), challenged the Supreme Court order. The government decided to seek a revision of the verdict. But the BJP, in a brazen, rare attack, publicly trashed the integrity of the Supreme Court. Tearing at the verdict, BJP senior leader, Arun Jaitley, told television cameras: “Why Maoism took root, how it should be tackled – these things the judiciary cannot tell the executive. It is for the executive to decide, the judiciary cannot tell the government.” Jaitley, today, is the country’s defence minister.

Yet, all of this, and the fact that not a single objection was raised against the manner in which the Supreme Court was attacked by the opposition, is not the only reason why Noorani’s position, nay optimism – that the law on sanction survives at the behest of the judiciary – is grossly misplaced.

The Indian judiciary couldn’t stop the 2013 hanging of Mohammed Afzal Guru, convicted on terrorism charges related to the 2001 Mumbai attack. On the contrary, while the Supreme Court admitted that it found no evidence that he was part of any terrorist group, it decided that he must die to “satisfy the collective conscience of the society”. For the last decade and a half, the courts have been unable to stop the incarceration of innumerable innocents who were deliberately framed by the police in terror cases. The killing of unarmed protesters in their scores in Kashmir – where children as young as 12 have been charged with waging war against the State – fails to be processed. The Supreme Court has also held that the declaration of an area as ‘disturbed’ – a prerequisite to the invocation of AFSPA – must be made “for a limited duration and there should be periodic review of the declaration before the expiry of six months”. This procedure, according to Christof Heyns, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, has simply been ignored. In his 2012 report, Heyns noted: “the powers granted under AFSPA are in reality broader than that allowable under a state of emergency as the right to life may effectively be suspended under the Act and the safeguards applicable in a state of emergency are absent.”

It is this suspension of the right to life that the Indian judiciary has upheld. At any rate, the very existence of colonial laws such as the Public Safety Act, or AFSPA, continues. This is reason enough to point not at the failure of the Indian judiciary, but its subservience to the security state. What could possibly be a matter of contention is whether the subservience is willing.

***

“There will be no short cuts, we will be transparent and will ensure that every person who was involved is asked to depose in the inquiry. Therefore, witnesses will not only be from army, but they will be civilians, they will be from other security forces… whosoever was involved.” It was July 2012, and the then Commander-in-Chief of the Indian Army’s Northern Command Lt Gen K T Parnaik was talking about the Pathribal encounter.

A couple of months later, in September 2012, the army summoned the families of the victims of Pathribal. Among those summoned were two dead persons – fathers of two of the victims. Rasheed Khan, one of the prime witnesses, was missing from the list of those summoned. The families had been asked to appear at the army headquarters in Nagrota in Jammu, some 300 kilometres from their village. The summons read, “You shall fail at your peril.”

The families rejected the summons for a variety of reasons. Some feared for their lives, others couldn’t afford the travel costs. A few were simply ‘tired of it all’. The summons were repeated, and yet again rejected by the families, even as the army proceeded with the case in Nagrota. In March 2013, the army issued a fresh summons. This time, however, in the army’s own words, “Upholding the principles of justice, in a significant endeavour to facilitate timely conclusion of the case, the officer recording Summary of Evidence has been directed to move to Awantipur for recording the statements of the remaining witnesses.” While the families were to appear closer to home, the hearing was to be a ‘summary of evidence’, something that was not even a court martial, and the details of which the army wasn’t bound to make public.

Less than a year later, in January 2014, the army “dismissed the charges against the aforementioned accused persons”, saying “there is no evidence on record which in any way connects any of the five accused persons… with the murder, wrongful confinement, abduction/causing disappearance etc of the five deceased persons”. Beyond this, the only information that the army’s closure report revealed was that it was “clearly established” that the Pathribal encounter was “a joint operation launched by the army along with Civil police”.

In the final analysis, therefore, the army acquitted the accused, even as it admitted that the crime did actually take place. It couldn’t be established just who committed the crime even though it was “clearly established” that the police were a part of it. But the police had already been cleared by the CBI. The victims’ families later asked for the details of the army trial, but the details, expectedly, were denied. And no one got to know what had happened inside.

***

Late on the night of 23 January 2014, the army declared it had closed the Pathribal case. The following day, Rashid was still totally unaware that any such declaration had been made. Neither were any other of the victims’ families. Their last contact with the army had been at the Victor Force headquarters at Awantipora, just outside Srinagar, where they had been summoned for cross examination a year before. “After all these years, we don’t want our absence to be an excuse for them,” they had said.

Yet the Indian Army’s long history of brutal rights violations in Kashmir has seen few like the Pathribal fake encounter case, which traversed the highest echelons of the Indian judiciary. Calling Pathribal a rarest of the rare cases would be inappropriate – it is much rarer than that. Because for a vast majority of the cases of even the most brutal human rights violations, the question of whether New Delhi’s sanction needs to be sought for prosecuting the army personnel involved doesn’t even arise. Cases die slow deaths, long before the army is forced to invoke its immunity under AFSPA. Demands for complaints or FIRs to be lodged with the police have often ended up with more killings at the hands of government forces. In cases in which complaints are filed, flawed investigations, and procedures that lead to the often deliberate destruction of evidence, force the families of victims to just give up. In case investigations do happen, chargesheets are left aside without being filed for decades. Often, complaints are simply not lodged at all. In 1992, at the height of a decade of violent repression, the state home department issued a circular to police stations directing them to simply refuse filing FIRs against the armed forces without the approval of higher authorities.

For state governments that have cried hoarse seeking the revocation of AFSPA, a startling disclosure in 2012 revealed that not a single such recommendation had ever been forwarded to the Centre. Another RTI revelation showed that of the 50-odd cases where sanction for prosecuting army personnel was sought, none had been granted.

Entire generations and countless lives are yet to be afforded justice in Kashmir. For the contentment of having tested almost every possibility of achieving this in such a ruthless system, Rashid wonders, should the families of Pathribal’s victims feel among the most fortunate? As if taking stock of the 14 gruelling years gone by since the fateful event, he stares at nothingness. “Is it the other way round?”

It can only be in a crushing militarised space such as Kashmir that such contrarian questions arise so naturally, and yet leave no satisfactory answers. But that is, perhaps, an indication of the breathtaking obfuscations that lie behind India’s spectacular success at unleashing the most horrendous violence upon Kashmiris, and getting away with it.

~Nawaz Gul Qanungo is a Srinagar-based journalist. He can be followed on Twitter @drqanungo.

One Response to “And you shall fail at your peril”

  1. Mohammad Ilyas Bhat says:

    Indian forces have unleashed terror and innocent killing in Kashmir since last 25years.It is the human rights violation of highest degree.Indian governments are giving them a free hand and these killers are not only going Scott free but are being rewarded.With every passing day the belief of a common Kashmiri gets stronger that India is never going to be his homeland due to the atrocities committed by Indian military .
    Every government in power gives these forces a Licence to Kill innocents which they have been doing summarily under a well devised plan.

Post Comments

Leave a Reply

Comments will have to be approved by a Himal Southasian moderator before they are published. See Comment Moderation Policy.

More from Analysis