Has Law and Judiciary failed Kashmir?

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By Iftikhar Gilani

While there has been a marked decrease in the violence and the overall number of militants operating in Jammu and Kashmir, there does not appear to be a change in the approach of the authorities. They continue using the extraordinary detention powers under the Public Safety Act (PSA), rather than using the normal criminal justice system. Home Minister P. Chidambaram on his recent Srinagar visit said only 123 youth charged in stone-pelting were serving detention and only 45 of them have been booked under the PSA. His statement was punctured next day by Srinagar-based newspapers, which published a comprehensive list of all the jails, claiming that some 1465 prisoners were cooling their heals in various jails. The number excludes the youth currently lodged in various police stations.

Amnesty International in its report last year had described the PSA a “lawless law”. Criminal justice systems have developed procedures, rules of evidence, and the burden and standard of proof in order to minimize the risk of punishing the innocent and to ensure punishment of the guilty. It is unacceptable for any government to circumvent these safeguards by use of “preventive” or any other form of administrative detention: punishing those suspected of committing offences without ever charging or bringing them to trial.

The rate of conviction for possession of unlawful weapons - one of the most common charges brought against alleged supporters or militant groups - is 0.5 per 100 cases: over 130 times lower than the national average in India. Similarly the conviction rate for attempt to murder in J&K is eight times lower than the national average, seven times lower for rioting and five times lower for arson (see graph below). In contrast, the number of persons in detention under the PSA is 14 times higher than the national average.

Many of the people detained under the PSA without charge or trial for periods of two years or more may have committed no recognizable criminal offence at all. Under the PSA, detention can be justified for undefined acts “prejudicial to the security of the State” and for extremely broadly defined acts “prejudicial to the maintenance of public order”.  Detainees also cannot challenge the decision to detain them in any meaningful way; there is no provision for judicial review of detention in the PSA; and detainees are not permitted legal representation before the Advisory Board, the executive detaining authority that confirms detention orders.

Further, while India has the distinction of having an independent judicial system, known for its fairness and integrity, it has failed to deliver justice in Jammu and Kashmir. A study compiled by the Kathmandu-based South Asia Forum for Human Rights (SAFR) has very well documented failures of the judiciary to protect the rights of people. The remedy of habeas corpus is a complete failure in Kashmir. It (judiciary) did not protect the right to life. Nor did it punish those who violated it, noted the study.

Authored by noted Supreme Court lawyer Ashok Agarwal the 200-page report said the judiciary in Kashmir has merely perpetrated and perpetuated the myth of justice and, the myth of functioning particularly on the cases of custodial death or missing persons.

In over 57 per cent cases where the role of security forces and a particular unit was established, the Court failed to do anything except to order registration of an FIR. In the remaining 43 cases the Court did not even order the registration of an FIR. To compound the absurdity in 10 cases the order to register an FIR took between five to 12 years.

Even in cases of judicial investigations where the identity of the unit was duly established, the Court did not succeed in bringing the criminal to book. Over the years, the High Court has been displaying less and less inclination for playing out, or prolonging the cases. On the other hand, the security forces have displayed an increasing mastery on the process of justice.

Jammu and Kashmir High Court has also not displayed significant control over its own establishment so mush so the staff of the Court has no fear of consequences for culpably slack and careless work. The subordinate judiciary, the District Judges and the Chief Judicial Magistrates, who were appointed inquiry officers in most cases, were only marginally more responsive to the imperatives of their offices, the study concluded.

Documenting over 200 cases of disappearances where arrests were recorded by security forces, the report said their petitions were gathering dust in the corridors of the judiciary since as early as 1990.

Saying that the de jure abrogation of the right to life in Kashmir is rooted in the Armed (Jammu and Kashmir) Forces Special Powers Act 1990 (AFSPA), the study laments that the notion of justice that the courts dispense is deeply polluted by concepts of national security, integrity and sovereignty. It said that the primary role of law in Kashmir seems to be legitimising of forces and creating an aura of fair play and even handedness occasionally.

The single most striking feature of the habeas corpus proceedings is the powerlessness of the High Court. From the point of time when the Court issues notice of the petition upon the respondents, it loses all control over the proceedings. The pace, the manner in which the case would proceed, and the outcome of the case was controlled entirely by the respondents; the centre and the state governments.

In almost 62 cases where inquiries were ordered by the High Court, the accused unit did not participate in the inquiry proceedings. Even in some cases where the Inquiry Judge recorded adverse remarks against the conduct of an accused unit, security forces did not produce records pertaining to the deployment of their troops, or those pertaining to the crackdowns. Nor did they ever bring before the court any of the soldier/officers responsible for the impugned actions. Over the past 20 years since the militancy erupted and troops were moved into Kashmir, New Delhi has granted sanctions to prosecute in just two of the hundreds of cases in which sanction was sought.

As Kashmir reels back to normalcy, it is necessary to rely on normal criminal justice system rather on emergency administrative laws and carry out independent, impartial and comprehensive investigations into all allegations of abuses against detainees and their families. There is also need to take all appropriate criminal or administrative measures against officials who fail to comply with safeguards against human rights abuses to exhibit supremacy of justice and law. That is the only way to keep law and order in Kashmir, as it will also help to build a climate for a political resolution of the larger issue of Jammu and Kashmir. The author is associated with Tehelka group.