HUMAN

Vol. 9No. 6

J&K

www.humanrightsjournal.com

RIGHTS
Perspective
Nov-Dec., 2011

Bimonthly Review of Jammu and Kashmir Affairs with Human Rights Perspective

Relevance of People's Convention of 1968

hat is the significance of J&K State People's Convention held in 1968 under the leadership of Sheikh Mohammad Abdullah? Any event associated with Sheikh Mohammad Abdullah would, of course, be a matter of interest. But this was made more momentous because of the other important personalities of Kashmir who attended it, as well as the issues that were discussed threadbare for the first time. The leaders included almost the entire spectrum of separatist politics-the extremist leader Syed Ali Shah Geelani and his party Jamaat-eIslami; G M Karra, leader of the proPakistan People Conference; Mirza Mohd. Afzal Beg, President of the Plebiscite Front; Mirwaiz Maulvi Farooq; and veterans like Maulana Massoodi, P N Bazaz and Shamim Ahmad Shamim. Regional dimensions Though Jammu and Ladakh-based parties were invited to the Convention, they boycotted it, for it proposed to discuss the final solution of Kashmir problem, which they believed had been resolved with J&K as an irrevocable part of India. The Kashmir-based parties considered this to be only a provisional solution. The discussions in the Convention were not based on any special claims

of region or community, but on universal principles of democracy, secularism and egalitarianism. Its resolution made a specific reference to the abiding values of the freedom movement of Kashmir that most pro-India parties believed was inspired the by freedom movement of India, and which drew popular Kashmiri leaders to India, not Pakistan, in 1947. The relationship between Kashmir and India had, however, been over a period of time been strained due to conflicting regional claims, and divergence between Kashmiri nationalism and Indian nationalism. The resolution, therefore, wisely affirmed that any decision about "the political future of the state should keep in view the interests of all its regions". This was not the first time such a commitment was made by Kashmiri leaders. In 1952, Sheikh Abdullah had supported the demand of regional autonomy. Dialogue between Kashmiri leaders and national leaders The Sheikh's cordial relations with liberal national leaders like Nehru and Jaya Prakash Narayan epitomised the strength of the avowed common values of the two freedom movements. JP continued to maintain contact with the Sheikh even after Nehru's death in 1964. Indeed, he had opposed Sheikh's arrest in 1953, and sympathised with his

political stand. But, after Indo-Pak war of 1965, he came round to the view that Pakistan had lost its claim over Kashmir as it had used war as a weapon to decide the issue. The Sheikh invited JP to inaugurate the People's Convention. JP in his inaugural address ruled out any solution of the Kashmir problem outside the framework of India. The Sheikh countered this statement by saying azadi has to be snatched, it is not donated. The Convention prepared the ground for a dialogue between leaders of Kashmir and those of others regions, as also between them and the national leaders. It also broadly indicated the limit of any solution of Kashmir problem that was acceptable to the people of Kashmir. But a number of developments intervened to prevent any solution acceptable to all parties. Indo-Pak war on Bangladesh in 1971 ruled out any settlement between two powers of the region, while return to power of Sheikh Abdullah in the State opened the prospects for a settlement of the problem within India. In no case, People's Convention should be treated as an exercise in futility, and its relevant lessons should not be completely dismissed. Balraj Puri

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HUMAN RIGHTS VIOLATIONS IN 2011

TOTAL KILLINGS Year 2011 has just passed, and many have declared this year, a peaceful year in Jammu and Kashmir. Of course assertions of peace by various quarters are relative. Enforced silence cannot be construed as peace. Despite the hype of peace, people of Jammu and Kashmir have witnessed unabated violence, human rights abuses, denial of civil and political rights, absence of mechanisms of justice, heightened militarization and surveillance. The figures of violent incidents suggest that 2011 as usual has been the year of loss, victimization, mourning and pain for the people. In 2011, a total of 233 people have lost their lives due to violent incidents in Jammu and Kashmir. Out of 233 persons, 56 were civilians, 100 were alleged militants, 71 armed forces personnel and 6 were unidentified persons and counter insurgent renegades. Out of the total 56 civilians killed this year, 11 were students, amongst whom 7 were minors. Also amongst the civilians killed 6 were women. UNMARKED GRAVES AND MASS GRAVES This year has been very significant for those struggling against the human rights abuses in Jammu and Kashmir. It is for the first time a state institution like State Human Rights Commission (SHRC) endorsed the findings of Association of Parents of Disappeared Persons (APDP) and International People's Tribunal for Human Rights and Justice in Kashmir (IPTK) regarding the presence of unmarked graves and mass graves in north Kashmir, besides acknowledging the possibility of burial of some of the people subjected to enforced disappearances in these unmarked graves and mass graves. So far APDP/IPTK has submitted the prima-facie evidence of 6217 unmarked graves and mass graves in 5 districts; Kupwara, Baramulla, Bandipora, Poonch and Rajouri. While as the SHRC has acknowledged existence of 2156 unmarked graves and mass graves in Kupwara, Baramulla and Bandipora. The SHRC inquiry in Poonch and Rajouri is not yet concluded. ENFORCED DISAPPEARANCES This year APDP submitted a list of 1417 cases of enforced disappearance to the Chief Minister of Jammu and Kashmir and urged the government to inquire into all the cases of enforced disappearances, but so far the government continues to be indifferent. Successive governments have given contradictory statements about the total number of people 'missing' in Jammu and Kashmir. In 2002, the National Conference government said 3184 persons are 'missing', then in 2005 Peoples' Democratic Party led government claimed 3931 persons were 'missing' and in 2009 the present National Conference led government divulged that 3429 persons are missing in Jammu and Kashmir since 1989. In this context APDP on 7th October 2011, applied for information under Jammu and Kashmir Right to Information Act 2009 from the State Home Department for providing all the lists of 'missing persons' as claimed by various governments. More than 2 months have passed the state government has failed to provide any information regarding the contradictory figures of 'missing persons' divulged by various governments on the floor of Jammu and Kashmir Legislative Assembly. CUSTODIAL KILLINGS The year 2011 has not been free of custodial killings and fake encounters. 7 persons were allegedly killed in custody. In all the cases of custodial killings, the government has failed to either prosecute or conduct an impartial conclusive investigation. Whether it was the killing of Ashok Kumar, a mentally challenged person who was killed in a fake encounter in Surankote (Poonch) or the killing of Nazim Rashid of Sopore who succumbed to custodial torture or the custodial death of ruling National Conference party worker, Mohammad Yousuf, who died after he was handed over by the Chief Minister to the Crime Branch officials, the practice of impunity is consistent. No credible investigations have been carried out, thus creating space for cover ups, which otherwise also is the norm in Jammu and Kashmir. JKCCS on 4th August 2011, had filed an RTI application for seeking information regarding the investigations being conducted in the killing of Nazim Rashid of Sopore, but so far the Jammu and Kashmir Police has failed to provide the information. PROBES AND INQUIRIES In 2011, the government has ordered 8 different probes on various human rights abuses. So far no probe has yet yielded any results, which is nothing unprecedented as even in the past probes have been announced by the government to neutralize the public pressure. From 2003 to 2011, different governments have appointed 151 probes but justice remains elusive. It appears the basic objective of the government to appoint probes is not to convict perpetrators but to only deflate the public anger. If perpetrators would have been punished as a result of meaningful and effective probes in the past, it would have helped in creating deterrence for the recurrence of these crimes. We urge the government to ensure that investigations and probe should not be politically motivated, but aimed at holding the perpetrators accountable. KILLINGS OF POLITICAL WORKERS Killings of civilian political workers continue to be an unabated phenomenon. In the year 2011, we have recorded killings of 8 civilian political workers. 4 out of the 8 political workers killed belong to ruling National Conference party, 2 were from Indian National Congress, while as 1 belonged to Peoples' Democratic Party and Moulvi Showkat Ahmed Ahmed Shah of Jamiat Ahle-Hadith. Killings of civilian political workers at the hands of state or non-state actors, is completely unacceptable. Killing of civilian political workers only creates a culture of intolerance and chokes dissent. It is therefore, JKCCS has been urging all the combatant forces - Indian military forces and the members of United Jehad Council to refrain from killing any civilian political workers. Somehow government was very quick in probing the death of Molvi Showkat
(Contd. on page 6)

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J&K HUMAN RIGHTS Perspective

November-December, 2011

BOOK

REVIEW

Shattering the myth of homogeneity

By Luv Puri Religion, Inter-Community Relations and the Kashmir Conflict Yoginder Sikand, 2011 "WE were told that Muslims in Kashmir are not allowed to practice their religion and Islam is in danger. This is what moved me to come here and fight Indian troops," said the 17-year-old Lashkar activist, Mohammad Abdullah, nervously in police custody in August 2002. Abdullah, a Seraki speaking resident of Multan area of south-western Pakistan, had massacred twenty-nine dozen Hindu slum dwellers including 14 children on the outskirts of Jammu, the winter capital of J&K, on the evening of 13th July, 2002. Mohammad Abdullah is not the only Pakistani national to have invoked solidarity with Muslims of Jammu and Kashmir as a prime motivating factor to join terrorist ranks in the region. Ironically, the person who tipped off the police about Abdullah was a Muslim resident of J&K, in whose house the militant tried to take shelter after carrying out the massacre. Jammu and Kashmir is often seen as a conflict between Muslims and Hindus. However, internally, it is the diversity within the Muslim community of the region that is pivotal in understanding some of the critical aspects of region's political history. In 1947, when the Muslim leadership of Kashmir Valley under Sheikh Abdullah supported state's accession to India, the Muslim leadership of Jammu supported Dogra Maharaja and his desire for an independent state. For the last six-decades, scholarship on Jammu and Kashmir has virtually ignored this political and social divergence within Muslim community of the state. A myth of homogeneity has been re-cycled again and again, thus ignoring the far complex world of the region's politics. This divergence has been a key determinant of the state's political developments for more than sixdecades. Sikand in his latest work, Religion, Inter-Community Relations and Kashmir conflict, brings to light some of these aspects. One of the strengths of the book is with respect to Sikand's narrative on various strands of theological interpretations within Islam. Sikand says in the book "Islam like any other religion has been interpreted diversely" and even the Muslim majority region of Jammu and Kashmir does not buck this trend. Though his work, Sikand implicitly challenges the binary notions of Muslim community which slots them into the categories of moderates and hardliners in the present context. For example, his chapter on Politics and the Tabligi: Views from Doda is an excellent exposition of how Jamaate-Islami and Tabligi Jamaat perceive each other which many will categorize as extremists thus non-amenable to engagement. Tracking the debates and tensions among various strands of Islam is one of the ways to comprehend a large section of sub-continental Muslim society's engagement with the political, social and religious challenges of the present era. Jammu and Kashmir is an excellent laboratory for any scholar working on pluralistic multi-religious societies. Far from the capital cities of Srinagar or Jammu, Yogi Sikand brings to light some of the interesting inter-community dynamics which were at play in the farflung rural societies of the region particularly Doda region at the peak of militancy. Doda is a microcosm of state's plurality as around twelve dialects are spoken in this region. Unfortunately, the region became a playground for Hindu and Muslim right wing politics in the 1990's with many groups trying to exploit the anxieties of their respective communities to advance their parochial and narrow agendas. The author brings out the stresses and strains on inter-community relations of the area in the backdrop of militancy and how the vulnerable communities tried to cope up with these pressures. Many of the themes illustrated by Sikand are worth expanding upon, particularly in the light of the recent developments, which include the situation in Pakistan and declining graph of militancy in the region, and its ameliorative impact on the societal fabric of the region may be worth additions. It is hoped that the younger generation of scholars and researchers will carry forward this exercise to lay foundations of a more informed polity about the themes identified and discussed in the book. (Luv Puri is the author of Across the LOC(Penguin, 2010 and Hurst/Columbia University Press, 2012).

Award to Yusuf Meherally Centre

Maharashtra Foundation (USA) announced on December 23, 2011 that it will felicitate Dr. G. G. Parikh on January 13, 2011, at Pune, with their "Samajkarya Jeevan Gaurav Puraskar". This prestigious award is bestowed to honour GG's lifetime achievement in upliftment of the less fortunate in our society. The award recognises GG and thereby the Centre's contribution in the fields of Watershed Development, Education, Healthcare, Employment Generation, Adivasi Welfare and Rehabilitation of Disaster affected persons. The Foundation has announced, in all, 13 awards to persons active in social and cultural fields in Maharashtra. Maharashtra Foundation (USA) is a charitable institution based in the USA which gives awards, each year, to persons contributing to Marathi literature and Social change in Maharashtra. The award, in addition to the citation, includes a cheque of Rs. Two lakhs. GG plans to gift the same to the Corpus Fund of Yusuf Meherally Centre. Dr.G.G.Parikh, Chairman Yusuf Meherally Centre Mumbai - 400007

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J&K HUMAN RIGHTS Perspective

November-December, 2011

HUMAN RIGHTS UPDATE

Incidents of human rights violations given below are such specimen in which victims are innocent civilians, whosoever be responsible for the violations.

JK Government detains minors illegally: ACHR

'Police in the State fond of applying PSA' New Delhi, Nov 16: The Asian Centre for Human Rights (ACHR) has accused the Jammu and Kashmir government of illegally detaining minors under the controversial Public Safety Act (PSA) that provides for preventive detention of up to two years. Delhi based human rights watchdog, ACHR has said in the absence of a proper juvenile justice system, the state administration has been flouting rules in dealing with minors. Releasing a report based on a study conducted by its team related to the assessment of the prevailing juvenile justice system in J&K, ACHR director Suhas Chakma said there is no juvenile home for girls in the state which is violative of J&K Juvenile Act. The girl prisoners were sharing space in jails and police lock-ups with mail inmates. Out of the 51cases of juvenile justice examined by the fact-finding committee, nine related to girls, out of which two were categorises as "in need of care". "J&K government has been illegally detaining minors," Chakma said and added the arrests of dozens of juveniles during the mass uprising in Valley from June to September 2010 brought the abuse of PSA against the children in conflict with the law, into focus. He said while across the country, school certificates are used to determine the age of a juvenile that is not the practice in J&K. "The J&K Police in all cases argue that those detained are adults." He said J&K Police has been fond of applying the PSA and they seldom invoke the Jammu and Kashmir Juvenile Justice Act, 1997. "Consequently, juveniles are denied access to justice and benefits of the special protection provided under the 1997 JJA. The judiciary in Jammu and Kashmir is forced to intervene in every case to invoke the JJA", he said. In what he claimed as the pathetic situation of juvenile justice system in the state, Chakma said the only juvenile inmate home located in R S Pura (Jammu) also lacked basic amenities. On top of that the juveniles detained there were not being produced before the courts resulting in their illegal detention in contravention of the existing national laws and international obligations. Quoting the instance of such an inmate, the team found that Fayaz Ahmed Bhat (25) resident of Gooripora (Ganderbal) was still being kept at the R S Pura centre. He was arrested in 2007 and was detained with adult prisoners for about three years in Srinagar Central jail. Although the police had contended that

Fayaz was an adult when he was picked up but the First Additional District and Sessions Judge, Srinagar in its order dated 12 March 2009, had declared him a juvenile on the date of commission of offence registered against him under Section 302 of the Ranbir Panel Code. "He is condemned to stay in the R S Pura Juvenile Home as both the judiciary and the state have no interest to ensure expeditious trial of his case registered 16 years back," Chakma alleged. Enlisting the findings of the fact-finding team, he said the state government has been illegally detaining an unspecified number of minors under PSA. A large number of juveniles have currently been placed in the general jails where many of them attained adulthood during the course of their detention due to a lax justice delivery system. The study has expressed concern that the state neither has a Juvenile Justice Board nor a Child Welfare Committee resulting in the minors being tried in normal courts. Also, juveniles were being tried with adults if charged in the same offence. ACHR has recommended that additional measures should be taken to strengthen the juvenile justice system. In this regard it has pointed out that the Juvenile Home being constructed at Harwan was a measures "too little too late". The state government must provide all facilities to house juvenile delinquent girls. The existing Juvenile Justice Act should be repealed and replaced by a new law in conformity with the Juvenile Justice (care and protection of children) Act, 2000. It has demanded that immediate orders should be issued to try all the pending cases against juveniles by the Juvenile Justice Boards established under the new Act. Ensure that inmates at the R S Pura Home are provided expeditious trial and regularly produced before the courts. A look at ACHR report suggests that Kashmir is still anything but normal, a situation which continues to fan discontent illustrated by last year's stone throwing. Chakma admits it is hard to know exactly how many juveniles are kept in the state's adult prison system because of lack of transparency. The report cites 51 cases involving juveniles which ACHR says are being tried illegally in Kashmir's normal court system. The detention of juveniles under Kashmir's special laws is only part of the problem, according to the report. The study titled "Juveniles of Jammu and Kashmir: Unequal before the Law & Denied Justice in Custody" was conducted by ACHR after field visits to Srinagar, Budgam, Shopian, Pulwama, Islamabad, Kulgam, Ganderbal and Jammu districts from May to July 2010 followed

up by updates. (Greater Kashmir, November 11, 2011)

Militants strike 2nd time in a fortnight

NC worker killed in Batamaloo Srinagar, Dec 24: Striking for the second time in a fortnight, suspected militants shot dead a ruling National Conference worker in Batamaloo area of city on Saturday. Police said militants fired from point blank towards NC worker Bashir Ahmad Dar son of Muhammad Jamal at Batamaloo around 9.20 am. He sustained critical injuries in the head and was rushed to SMHS hospital, where doctors declared him brought dead. Bashir hailing from Dhobi Mohalla of Batamaloo was a shopkeeper by profession. Immediately after the attack, police and paramilitary men deployed in the area launched a massive combing and search operation in Batamaloo to flush out the militants responsible for the attack. However, no arrests were reported. A police official said police have registered an FIR No. 164 of 2011 and launched investigations. Police sources said Bashir's father Muhammad Jamal Bhat, who was block president of National Conference, was shot dead by unidentified gunmen in Batamaloo area in 1996. Meanwhile, a lesser known militant outfit, Islamic Movement of Kashmir claimed responsibility of the killing. In a statement to a local news gathering agency KNS, a spokesperson of the outfit, who identifies himself as Omar Mukhtar, claimed that Bashir was killed by them. He also claimed responsibility of the recent attack on Law and Parliamentary Affairs minister Ali Mohammad Sagar and NC Safakadal block president. Another militant organization Jamiat-ulMujahideen had also claimed responsibility of attack on Sagar. However, Omar Mukhtar claimed that Jamiat had no role in the attack "as it exists only on paper." This is the second shooting incident in the city in less than a fortnight. Militants had made an abortive bid on the life of Minister for Law and Rural Development Ali Muhammad Sagar in old city on December 11. (Rising Kashmir, December 25, 2011)

Two DySPs attached, cop suspended

JAMMU/RAJOURI, Dec 4: Police authorities today ordered attachment of two DySPs and
(Contd. on page 5)
J&K HUMAN RIGHTS Perspective

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November-December, 2011

Human Rights Update...

(Contd. from page 4)

suspension of a police constable in connection with the death of a police constable-cumdriver Abdul Qayoom Bhat at the residence of DySP Daljeet Singh of IRP 11 battalion at Sainik Colony yesterday. DySP Daljeet Singh and DySP Mohinder Singh, Adjutant, IRP 11 battalion have been attached to IRP Lines while constable Ajay Kumar, PSO of Daljeet Singh with whose Insas Bhat had allegedly shot himself dead has been placed under suspension, official sources said. A departmental inquiry has been ordered into the case while investigations under Section 174 RPC have already been initiated, they added. Meanwhile, the protests continued for the second consecutive day at Rajouri today with irate mob blocking Abdullah bridge and Gujjar Mandi for hours together in protest against the mysterious killing of IRP Bn 11 driver Shahid Mohammed son of Abdul Qayoom Bhat of Ward No 10, Rajouri at the residence of DySP Daljeet Singh in Sainik Colony Jammu yesterday. The mob shouting slogans in protest against the death of the cop demanded an impartial probe and action against the guilty. They warned to continue the road blockade and protest till the guilty was punished. However, later at the assurance of Deputy Commissioner, Rajouri, G A Khawaja and SSP Vijay Samyal that an inquiry will be conducted by the Government into the death of the cop and those found guilty will be punished that the people lifted the blockade. Meanwhile, hundreds of mourners attended the Namaz -e-Jinaza of slain cop after his dead body reached in the town this afternoon after post-mortem from GMC Jammu. Both DC Rajouri and SSP Rajouri also attended the Namaz-e- Jinaza of the slain cop which was performed at Talab mosque. The people accompanied over one kilometre long Namaz Jinaza procession from Dak Bungalow Rajouri to Talab Masjid. Addressing the Namaz-e-Jinaza Moulana Mohammed Youns and Khateeb Jama Masjid Rajouri Ghulam Rasool said that with this heinous act the people have lost all faith in police. They wanted to know why driver was denied leave (Daily Excelsior, December 5, 2011)

Mirwaiz as saying in a statement. He said the party has always condemned and rejected such incident. Mirwaiz has expressed sorrow and condolences with the bereaved family. (Rising Kashmir, December 26, 2011)

Six time fall in separatist sponsored strikes

Nov 27: Jammu and Kashmir has witnessed a six-time fall in demonstrations called by separatists in 2011 as compared to the previous year, police said on Sunday. "There were 35 separatists sponsored strikes in 2009 and the number increased to 131 in 2010. However, only 21 protests took place till November 15 this year, indicating a six-time decrease," a senior police officer said here. According to J&K Home department data, a total of 2,096 separatist-sponsored processions and demonstrations took place in Kashmir valley in the past two decades, 1,692 such protests were recorded so far from January 1990. The state witnessed highest 416 demonstrations in 1992, while 207 strikes took place in 1991, the report said. (Northlines, November 28, 2011)

deployed under the operational control of the Army in J-K. "All incidents of ceasefire violations are investigated and protests are lodged with Pakistan military authorities at appropriate level through the established mechanism of hotlines, flag meetings and meetings between the Directors General of Military Operations (DGMO) of the two countries," he said. The issue of ceasefire violations was taken up with the Pakistan side during the Foreign Secretary level talks between India and Pakistan held in Islamabad in June, he added. (Kashmir Times, November 30, 2011)

Use of non-lethal weapons reduces casualties in Kashmir: Cops

Jammu, Dec 4: Use of non-lethal weapons while dealing with demonstrators and stonepelters in Kashmir Valley has successfully prevented casualties and reduced injuries to civilians and security men, according to police. "Use of non-lethal equipments and body protectors by police have resulted in zero death of civilian or security personnel and injuries to only 58 persons in law and order disturbances this year," a police official said. Last year, 112 civilians and policemen died and 1,049 civilian and 4,000 security men were injured in law and order disturbances in the Valley, he said, adding that of these 825 security men suffered critical injuries due to stone pelting. However, only 13 civilians and 45 policemen received minor injuries this year, he said. The three month long civil unrest in Kashmir valley last year saw angry mobs torching government properties. Security personnel used grenades, modified plastic body tear smoke shell dye-maker grenade (which dyes protesters), water cannons to deal with demonstrators and stonepelters in down town and Srinagar city, the official said. The state police had approached the state government and Ministry of Home Affairs, seeking non-lethal weapons and appropriate gear to avoid damage to life and property after the last year's unrest he said. (Greater Kashmir, December 5, 2011)

NC worker's house set ablaze

Dec 28: Unidentified persons set ablaze a house of National Conference activist at Tangchater village of Central district of Ganderbal last night. Reports said that gunshots were heard from the house owned by Habibullah Shah after which it caught fire. His son Shamim Ahmad said that they had vacated their house two years ago after receiving threats from unknown gunmen. He said that his father is a senior NC worker and has always remained on forefront to develop the area and it seems the house was set on fire to terrify the family. (Kashmir Times, December 29, 2011)

45 ceasefire violations in J&K

New Delhi, Nov 29: Government today said 45 ceasefire violations were reported this year along the India-Pakistan border in Jammu and Kashmir, the Lok Sabha was informed. 117 ceasefire violations were reported between 2009-11 along the Line of Control, of which 28 were in 2009, 44 in 2010 and 45 between January and November this year, Minister of State for Home Mullappally Ramachandran said in a written reply. Nine security personal were killed and around 52 injured in various firing incidents reported in 2008-11 along the international border. Besides, tow civilian porters were killed in cross Line of Control firing, he said. Ramachandran said the Centre has paid compensation of over Rs two crore to the next of kid of Border Security Force personnel

Tangdhar girl's arm may be amputated

SRINAGAR, Dec 2: Littered explosives are taking a heavy toll of lives of people of Kashmir and in the latest incident, a 14-year old girl was critically injured at Tangdhar Tehsil of frontier district of Kupwara today and doctors say that her right arm might be amputated. According to police sources, Masrat Fatima daughter of Nazir Hussain, a resident of Pingla Hari Dal village of Tangdhar while collecting firewood at Pingla near Nallah
(Contd. on page 7)
J&K HUMAN RIGHTS Perspective

Mirwaiz condemns NC worker's killing

Dec 25: Hurriyat Conference (M), chairman, Mirwaiz Umar Farooq Sunday condemned the killing of National Conference worker Bashir Ahmad Dar by unidentified gunmen and termed it as unfortunate incident. "Murder is a murder, whether on political or personal grounds and we condemn such incidents," Hurriyat (M) spokesman quoted

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HUMAN RIGHTS VIOLATIONS...

(Contd. from page 2)

Ahmed Shah, which is a welcome step, but investigations into the killing of 7 other civilian political workers have not yielded any results so far. JKCCS demands an impartial and independent investigation into all the killings of civilian political workers. Impartial investigations would help bringing the perpetrators to justice and also act as a deterrent. SUICIDES AND FRATRICIDES BY ARMED FORCES PERSONNEL Suicides and fratricides by the personnel of the Indian armed forces, continues to exist as an issue in the year 2011. This year 15 armed forces personnel committed suicides in Jammu and Kashmir due to unknown reasons and another 9 were killed in fratricidal incidents of violence. TORTURE/HARASSMENTS/ILLEGAL DETENTIONS The paranoia of government regarding the summer uprising of 2010, was very evident this year in the actions taken by the government. Even in 2011, when there was no apparent street uprising, hundreds of boys were detained on the pretext of being stone pelters. These young boys are subjected to torture, intimidation and harassment. In many police stations boys are illegally being detained; sometimes for few hours and sometimes for few days. Some boys are regularly being called to police stations on one pretext or the other. There is complete disregard towards the juvenility of the boys being detained. This year many minors were arrested on charges of stone pelting. In some cases people alleged that police officials have been demanding ransom for releasing these boys who were illegally detained in various police stations. RAPES AND MOLESTATIONS State Human Rights Commission (SHRC) passed a judgment on the Kunan Poshpora mass rape case of 1991, demanding re-opening of the case and also filing a case against the then Director Prosecutions. It is for the first time a government institution has acknowledged this mass rape incident.

It took state 20 years to acknowledge the crime and it isn't clear how long government will take to convict perpetrators. This year in Kulgam area of south Kashmir, there was an allegation of rape, where a woman alleged that she was raped for 2 days. The way police conducted investigations into this case and also kept the family literally under house arrest, raised more suspicion against the government. Fear and social stigma makes it difficult for the victims to report the rape or molestation cases. One such case, by coincidence came into the notice of JKCCS in north Kashmir this year where the rape victim did not want to report her victimization. In the month of February a woman (identity withheld) from north Kashmir was allegedly raped in police custody in front of her husband. The husband was kept under detention as a hostage so that his wife would not report her case. The woman did not want to file complaint as she had no hope of getting justice and also was worried that by filing the case she would endanger her husband's life. IMPUNITY Government of India has been claiming that despite the imposition of AFSPA, mechanisms of justice are functional and deliver whenever anyone is found indulging in human rights abuses, but facts provided by the state institutions this year contradict the claim of the Indian state. In a reply to an application under Right to Information Act by JKCCS, the State Home Department of the Jammu and Kashmir government on 6thSeptember 2011 claimed that from 1989 to 2011, they have applied for sanctions for prosecution from Ministry of Defence and Ministry of Home Affairs under section 7 of AFSPA in 50 cases only. Out of these 50 cases, 31 pertain to Ministry of Defence and 19 others have been sent to Ministry of Home Affairs. Within these 50 cases stated to be applied by the State Home Department for sanctions under AFSPA, sanction for prosecution is awaited in 16 cases and declined in 26 cases. The State Home Department claimed sanction for prosecution has been recommended in 8 cases. A deeper study of these 8 cases where the State Home Department says

that the status is "recommended", it appears that the information given is incorrect as the cases according to Defence Ministry are still in the category of "under consideration" or sanction has been declined. Above facts reveal that the provision of sanctions for prosecution under AFSPA is a fig leaf and the truth is that there is 100% impunity for the soldiers operating in Jammu and Kashmir. In the context where in Jammu and Kashmir we have more than 8000 cases of enforced disappearances, thousands of cases of custodial killings and fake encounters, thousands of cases of rape and molestation and thousands of cases of torture etc; applying for sanctions for prosecution in only 50 cases speaks volumes about the seriousness shown by the State Government so far for protecting the human rights of people of Jammu and Kashmir. This year there have been voices raised by politicians regarding the revocation of AFSPA, which is also aimed at generating an impression that human rights violations will end by the revocation of AFSPA. The fact is that Jammu and Kashmir Police has been an equal partner in crimes committed on the people. The Jammu and Kashmir Police personnel also have been responsible for a huge number of human rights abuses. The armed Village Defence Committees (VDCs), Special Police Officials (SPOs), and the counter insurgent government sponsored militias like Ikhwan have also been responsible for perpetrating heinous crimes. Which law allows the creation of these groups? Which law encourages them to perpetrate human rights abuses? Which law sanctions their impunity? It is the law of lawlessness. Revocation of AFSPA from some areas would not help in ending the human rights abuses as the sense of immunity in the soldiers is not derived from laws but from the political culture of impunity, for which State Government and the Government of India are largely responsible. The government should help the processes of justice and help prosecute officials accused of human rights abuses. The mechanisms of justice which have been forced to not function by the
(Contd. on page 7)
J&K HUMAN RIGHTS Perspective

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HUMAN RIGHTS VIOLATIONS...

(Contd. from page 6)

Human Rights Update...

(Contd. from page 5)

government should be empowered to punish the guilty, which would be a meaningful confidence building measure for the people of Jammu and Kashmir. We urge the Government of India to end the culture of impunity and not just AFSPA from Jammu and Kashmir. KILLINGSDUETOUNEXPLODEDSHELLS AND LANDMINES This year 8 persons have lost their lives in explosions, which were caused due to unexploded shells used during counter insurgency operations and 1 out 8 deaths was reported due to landmine explosion. ROLE OF INSTITUTIONS OF JUSTICE State Human Rights Commission (SHRC) has tried to assert its existence by passing some very significant judgments this year. Prominent amongst the cases where SHRC passed the judgements was the case of unmarked graves and mass graves in north Kashmir, Kunan Poshpora mass rape case and the plight of prisoners languishing in various jails across Jammu and Kashmir. Besides these judgments SHRC has been actively helping in the cases to provide ex-gratia relief. Judiciary in Jammu and Kashmir continues to show an abysmal performance and has failed to live up to the expectations of the victims. Amongst the people of Jammu and Kashmir disillusionment regarding judiciary is at its lowest, as it has failed in holding perpetrators accountable. Notwithstanding the powers to protect life and liberty of citizens, judiciary has disappointed people of Jammu and Kashmir. Judicial activism for protecting the civil and political rights and seeking accountability from the state actors is very apparent in India, but it seems to be completely absent in the Jammu and Kashmir judiciary. Jammu and Kashmir Coalition of Civil Society The Bund, Amira Kadal, Srinagar - 190001. Email: p_imroz@yahoo.co.in Editor Office Phone

Qazinag Karnah, Kupwara, came in contact with some explosive device which exploded, resulting in injuries in her right arm. Police sources added that the injured girl was shifted to SDH Tangdhar where from she was referred to Bone and Joint hospital, Srinagar for further treatment. Police said that the explosive device is believed to be pressure mine that seems to have been drifted or carried away by the flowing water in the Nallah from the "No Man's Land" near the Line of Control (LoC). Masrat had been admitted to Bone and Joint hospital Srinagar and doctors said that her right arm might be maimed. "She has a critical injury. Right hand is almost dislocated. She is under observation," a senior doctor told Kashmir Times. Police records maintain that around 15 persons have died and 17 injured due to the littered explosives in Jammu and Kashmir this year. On July 24, two teenagers-21-year-old Ashfaq Ahmad Khan and Babar Khan (20)were killed while fiddling with unexploded explosive object in a forest in Rafiabad area of north Kashmir's Baramulla district. In the same month two teenagers were killed while another was injured due to an explosion from unattended explosive brought by the teens from the rubble of a house damaged in an encounter between militants and joint team of army and police in Tral town of Pulwama district in South Kashmir. Earlier, in September this year a 14-yearold boy was among two persons killed and seven others including four females injured in an accidental explosion in the same district. In April, two persons were killed in Akhnoor area of Jammu when a shell exploded in a scrap shop. A month later, another youth was killed in the same area in a similar incident. A labourer Abdul Hamid was killed in South Kashmir's Anantnag district when a live shell inside dead stock went off last month. In February this year, three children of Muhammad Maqbool of Maloora on the outskirts of city were killed when they were playing with a live shell, after a gunfight in the area. In July this year, security forces and separatist guerrillas had faced each other in a gunfight in Maidanpora village of Lolab. (Kashmir Times December 3, 2011)

the 2010 unrest in Kashmir. It denied that Kashmir had witnessed highest number of attacks on the police personnel compared to other states. In a written reply to questions by two members, Ravi Shankar Prasad and Shivanand Tiwari, the Minister of State for Home Affairs, Jitendra Singh, told the Rajya Sabha. "As per National Crime Record Bureau data, 91 civilians got killed and 494 civilian got injured in police firing during 2010 in Jammu and Kashmir," he said. He, however, dismissed the suggestion that the number of police personnel, who become victims of violence at the hands of rioters, is highest in Kashmir in comparison to other states. Instead, he said, police personnel in other states had been the target of far more attacks than those in Kashmir. Since 2008, the minister said, the security agencies had busted 46 ISI networks in India and that the Pakistani agency continued to help militant outfits like Lashkar-e-Taiba, Jaishe-Muhammad and Hizbul Mujahideen. However, he said, such activities would be tackled with a firm hand. It may be recalled normal life across Kashmir valley remained virtually paralyzed for around five months in the wake of the killing of a minor student, Tufail Ahmad Mattu, on June 11, 2010 after he was hit by a tear smoke shell fired by the police. The incident triggered massive protests all over the valley disrupting normal life for around five months during which 125 civilians, mostly teenagers, were killed as a result of use of disproportionate force by police and paramilitary personnel. Hundreds of others were injured, many of them being maimed for life. (Kashmir Times, November 26, 2011)

Delhi journos to protest for Kashmiri colleagues

NEW DELHI, Nov 30 (Agencies): Delhi Union of Journalists (DUJ) will observe a "Black Day" to protest against moves to scuttle the wage board for journalist and non-journalists, and concerted moves to kill the working journalists Act on December 2. The Black Day will also spotlight the increasing attacks on journalists in sensitive areas, and moves by the Jammu & Kashmir state government to withdraw advertisements to select newspapers A statement issued by the DUJ general secretary SK Pande called upon members to be ready for a phased action plan, with full support to all confederation plans. The "Black Day" will be the first action plan which could culminate in a march to Parliament in coordination with the Confederation, the DUJ said (Kashmir Times, December 1, 2011)

91 Civilians killed, 494 wounded in 2010: Home Ministry

NEW DELHI: The Indian Ministry of Home Affairs has said 91 civilians were killed and 494 others were injured in police firing during

: BALRAJ PURI Associate Editor: ELLORA PURI : Karan Nagar, Jammu - 180 005 (J&K) INDIA. : 91-191-2542687, 2543556 Mobile: 94191-02055 E-mail : balraj_puri1@rediffmail.com
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J&K HUMAN RIGHTS Perspective

SEVEN

November-December, 2011

Special Detention Laws and Important Judgements relating to detention of persons

WHAT PETITIONERS CAN DO?

he following special detention laws are in force in J&K: 1) J&K Disturbed Areas Act 1992 2) J&K Armed Forces Special Powers Act, 1990 3) J&K Public Safety Act 1978 There is no readily available information about the Rules under these laws. Here are some suggestions on how petitioners can obtain this information: J&K Disturbed Areas Act, 1992 There is no rule-making power under the J&K Disturbed Areas Act. However, there might be Standing Orders, Standard Operating Procedures, guidelines, office memoranda, instructions or circulars issued under one or more provisions of this law. If such documents do exist, they are required to be proactively disclosed under Section 4(1) (b) (v) of the J&K Right to Information Act, 2009. Petitioners can perhaps file RTI applications with the Home Department asking for these documents. If so, they should not forget to mention in their application that these standing orders, guideline etc. ought to have been proactively disclosed under the J&K RTI Act and because this has not been done they are constrained to file a formal RTI application-seeking the information. Citizens outside J&K cannot ask for these documents as they are not entitled to seek information under the J&K RTI Act. J&K Armed Forces Special Powers Act, 1990 The J&K Armed Forces Special Powers Act also does not contain any provisions for making Rules. So there might be standing orders, standard operating procedures, guidelines, office memoranda, instructions or circulars issued under one or more provisions of this law also. If such documents do exist they are required to be proactively disclosed under

Section 4(1) (b) (v) of the Right to Information Act, 2005 passed by the Parliament. The petitioners may like to file RTI applications with the Union Home Ministry asking for these documents. If so, they should not forget to mention in their application that these standing orders, guidelines etc. ought to have been proactively disclosed under the J&K RTI Act. Because this has not been done they are constrained to file a formal RTI application seeking the information. Citizens outside J&K can ask for this information as it is under the Central RTI Act. J&K Public Safety Act, 1978 The J&K Public Safety Act gives the State Government rule-making powers. None of these Rules have been placed in the public domain. In addition to the rules there might be standing orders, standard operating procedures, guidelines, office memoranda, instructions or circulars issued for operationalising this law. If such documents do exist they are required to be proactively disclosed under Section 4(1) (b) (v) of the J&K Right to Information Act, 2009. They petitioners might like to file RTI applications with the Home Department asking for these documents. If so, they should not forget to mention in their application that these standing orders, guidelines, etc. ought to have been proactively disclosed under the J&K RTI Act. Because this has not been done they have been constrained to file a formal RTI application seeking the information. Citizens outside J&K cannot ask for these documents as they are not entitled to seek information under the J&K RTI Act. Court Decisions on Detention under Special Laws Here are a few decisions of the Supreme Court and the J&K High Court regarding information disclosure provisions under these special laws:

The J&K High Court decision in Abdu Aziz Dar makes it very clear that merely stating vague and unsubstantiated reasons is not enough for detaining somebody. Reasons must include all materials that constitute the basis for justifying the detention of a person. If petitioners come across unjustified detentions, they might be able to use the 48-hour clause in Section 7(1) of the J&K RTI Act to get all this information on an urgent basis. Similarly, Section 4(1) (d) of the J&K RTI Act obligates the detaining authority to give specific and detailed reasons for detaining an individual under any of these laws. The recent decision of the Supreme Court in relation to detention under special laws, in Ummu Sabeena case, clearly states what will be treated as delay in the disposal of representations against detention orders. Detentions under special laws are covered by Article 22 of the Constitution and the safeguards are built into paras 7-15 of this decision. Even though these decisions relate to laws other than those applicable in J&K the common thread is the Court's interpretation of a detenue's rights under Article 22 of the Constitution. This issue relates centrally to detentions made under the laws mentioned above in J&K. Petitioners might be able to link this with Section 4(1) (d) of both the J&K RTI Act and the Central RTI Act. Every detenue has the right to know the detailed reasons for rejection of his or her representation against the detention order or its confirmation. These provisions in law can be used to challenge illegal or unjustified detentions in J&K. Venkatesh Nayak Programme Coordinator Access to Information Programme Commonwealth Human Rights Initiative

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J&K HUMAN RIGHTS Perspective

Edited, Printed and Published by Balraj Puri for Institute of Jammu & Kashmir Affairs, Karan Nagar, Jammu. Printed at ESS ESS ESS Offset Press, Wazarat Road, Jammu.