Among the instances described in the report is the case of 17-year-old Javaid Ahmad Magray from Budgam district, last seen studying in his room on the evening of April 30, 2003. His family believes he was picked up army personnel who came in through the window. Margay was reportedly taken to Nowgam police station and then shunted through three different hospitals before being declared dead.
According to the testimony of the Station House Officer at Nowgam, an officer of the Assam Regiment, “on May 1 2003 at 2.30 am came with a written application that their party was on patrolling of the area and at 00.30 hours [one militant was wounded] while three others taking the beneﬁt of heavy rains and darkness succeeded in running away”.
Then there is 16-year-old Zahid Farooq Sheikh, killed by Border Security Force personnel as he was walking home in Srinagar with friends after a game of cricket in February 2010. Though police investigations concluded in charges of murder, the BSF argued the case should be tried by its own courts since the killing had occurred while the officers were “on active duty”.
Lack of transparency
The report states that about 96% of the complaints against the army in Jammu and Kashmir have been dismissed as “baseless or false” or aimed at “maligning the image of Armed Forces”. As of December 2011, the army human rights cell had received 1,532 complaints from various parts of the country. Of these, only 54 were considered “true” and 129 military personnel had been prosecuted.
The main fault lies, according to Amnesty, in the lack of transparency across institutions. The executive has fared miserably when it comes to ensuring justice for the victims of AFSPA. The impunity under Armed Forces Special Powers (Jammu and Kashmir) Act, 1990, is derived largely from section 7 of the law, which stipulates that prior permission from the state or central authorities is required to prosecute the alleged perpetrators in civil courts. After charges are framed by the police, the case file must be sent to the ministry of defence or the ministry of home affairs for permission to prosecute.
Repeated efforts by the families to move the cases to civilian courts have proved futile. “To date,” the Amnesty report says, citing a Right to Information response from 2012, “the central government has denied permission to prosecute under section 7 of the AFSPA in every case brought against members of the army or paramilitary, or in a small number of cases, has kept the decision pending for years”. The defence ministry claims to have received 44 applications for sanction to prosecute since 1990. The sanction process is reportedly as opaque as the military courts. The reports states that victims’ families were rarely informed of sanction decisions and so were unable to challenge them.
Victims’ kin have also found the military unwilling to part with information on inquiries into alleged human rights violations or the conduct of court-martials. Neither did it provide evidence for branding complaints “false”. Amnesty raises doubts on the composition and abilities of military courts, whether the officers appointed to judge the cases had relevant knowledge of the law or were free of influence from their superiors.
The United Kingdom’s model of military justice, which provides the template for the Indian system, was reformed after a ruling by the European Court of Human Rights in 1997, the report notes. The European court had observed that a fair hearing by an “independent and impartial tribunal” was not impossible under the UK system, since the officers constituting the court martial were directly under the convening officer.
The state police is also held culpable. Families interviewed by Amnesty reportedly said they were often denied access to police stations or permission to speak to the officer in charge. In many cases, the police took years to even file a complaint. In the case of 25-year-old Mushtaq Ahmad Dar, who disappeared in 1997, it took the police 12 years to register a case. In other cases, the police itself was guilty of human rights violations.
In 2004, for instance, 16-year-old Sheila (name changed) was allegedly sexually assaulted by a police officer. She recounted being beaten up with the “leg of a chair with the nails still on it” on her legs, stomach and vaginal parts. Though the police reportedly offered her a sum of Rs 2 lakh and jobs for her two brothers the day after the attacks, justice has not been done in the case. In a one-page judgement issued in 2008, the Jammu and Kashmir State Human Rights Commission had recommended compensation for Sheila and her family as well as the registration of a police complaint. Neither step has been taken.
Amnesty recommends that all the violations committed under international law be tried by an “independent and impartial authority”, that the requirement for executive sanction be removed, that the jurisdiction of military courts be limited and prosecutions take place in civilian courts once criminal investigations have gathered sufficient evidence, and that a programme for reparations be established for the victims of human rights violations under AFSPA.
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