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…and now Judicial Impunity?: JKCCS

May 2, 2012
2 May 2012: The recent Supreme Court judgment in the Pathribal case is very disappointing.
Fake encounters, along with various other human rights violations, have been a reality for the people of Jammu and Kashmir over the last twenty two years. In 2008, according to media reports, Supreme Court Justices Aftab Alam and G.S. Singhvi made observations in court in relation to the practice of fake encounters for rewards in Jammu and Kashmir. With about 8000 persons disappeared, 70,000 persons killed, numerous cases of torture, rape and other human rights violations, Jammu and Kashmir has seen institutional denial of justice.
The Supreme Court judgment in the Pathribal case was keenly awaited by the people of Jammu and Kashmir. The Supreme Court judgment states that cognizance may not be taken by a court without prior sanction. This would suggest that crimes like fake encounters, rape, custodial deaths, enforced disappearances would continue to be subject to seeking prior sanctions under AFSPA from the Government of India.
This impunity has to be understood within the context of unabated human rights abuses in Jammu and Kashmir over the last twenty two years.
On 23rd February 2012, the Government of Jammu and Kashmir, in response to a RTI application on AFSPA sanctions, stated that no sanction for prosecutions had ever been granted in Jammu and Kashmir since 1990 till date.
On 18th April 2012, the Ministry of Defence, in response to a RTI application, stated that out of a total of forty four cases received for the purpose of grant of sanction from the Jammu and Kashmir Government, thirty five have been denied, and nine are under consideration. Further, that of these cases only one case was processed by the army court-martial. Therefore, the reality of Jammu and Kashmir has been an absolute impunity.
The Pathribal case was an opportunity for the Supreme Court to earn the respect of the people of Jammu and Kashmir, particularly in light of the history of the Supreme Court vis-à-vis Jammu and Kashmir. Unfortunately the judgment further emboldens the armed forces, which may result in further human rights violations by the armed forces and strengthen a process that has appeared to always favour the perpetrators.
The fall out of this judgment on the people of Jammu and Kashmir would be a reaffirmation of their suspicion and distrust of the Indian state institutions.
17 Comments leave one →
  1. May 2, 2012 6:59 PM

    please do not talk in generalised terms of the “people of jammu and kashmir (and ladhak?)” please do not ignore the atrocities committed upon those kashmiris, who had been forced to leave the valley by the muslim extremists who asked for conversion or else to leave the homeland. and still they the azadiwallas are asking for more islamisation of the valley. how can one ignore these facts?
    btw the British who are mostly responsible for the indo-pak problems themselves never did body counts in their empire and for example buried most (millions) kenyan victims in unmarkes graves. the international agencies they belong to have no right to dictate to us whether what we do is right or wrong. (read The Hindu, April 30.2012 editorial pages)

    • May 4, 2012 12:42 AM

      All of us empathize with With Kashmiri but plz don’t derail the justice process by distractions and enabling excuse seeking culprits Military and sanctioning govt .I think justice for all victims of Kashmir irrespective of gender caste creed religion ,tribe is denied with secrets clandestine cover up investigation & lies .

  2. Varun Shekhar permalink
    May 2, 2012 9:16 PM

    There is democracy and freedom in Kashmir, excepting the freedom to secede. Recently, Pakistan based terrorists have threatened elected village representatives, demanding that they stand down( lest they be killed, of course).

    Why don’t you write about that? It shows the desperation of the Islamic terrorists and separatists in Kashmir. They know democracy, secularism and pluralism is working in Kashmir, and it angers them to no end.

    Your article is just another rant about extra-judicial killings, rapes, diappearances etc. Without any differentiation or qualification.What about the nature of the Kashmir movement itself? That is the most important issue.

  3. Apurba K Baruah permalink
    May 3, 2012 7:08 AM

    When will the blind supportes of Indian state understand that in a republic the legitimacy can be derived from voluntary consent of people and not from domination even if it consensual domination.
    The other issue about learning to distinguish between the state atrocities and non-state atrocities. When any non-state actor commits atrocities on citizens it is states duty to prevent those and also to punish perpewtrtors. Non-state co0mmiters of atrocities were not entrusted by us to enforce the rule of law and to protect us. The astate agencies were entrusted by us to protect us and the constitution and our democracy. Violations of law by them is a breach of trust. I am from north-east India and hence are familiar with the plight of the ordinary citizens in the face of extremism and state violence. More often than not the ordinary security personnel treat all of us as extremists. They treart the ordinary law abiding citizen with contempt and with AFSPA they act as tyrants. The Indian ruling classes turn their eyes away. This leads to alienation. Judiciary among the arms of the state rises atleast occasionally to protect the ordinary citizens in the periphery but not always. We need to continuously and publicly sensitise even the judges because even they live in the society.
    Apurba K Baruah

    • May 3, 2012 9:42 AM

      Apurba, please try to understand that north east issue is different from kashmir issue. also consent of which people do you have in mind? do you have the non muslims also in mind?and do you know that the muslims in kashmir asking for azadi are more interested in domination of their religion, their shariat etc. than the human needs of the common kashmiri. particularly think of the women in kashmir, these azadiwallas are real patriarchs and should be treated as such.
      btw in north east i am totally with sharmilla, what the security forces have done to the women there is a most shameful act..

      • Apurba K Baruah permalink
        May 3, 2012 5:17 PM

        Dear friend,
        It is true that some muslims in Kashmir are interested only
        in establishing a domination of their religion. But religious fanatics are fanatics are there in all religions! Don’t tell me that hindu
        fanatics would mind wiping out the entire muslim population.
        But not all Hindus would do that! There are Hindus who would
        protect Muslims if Hindu fanatics try to eliminate them.
        Same is the case with Muslims. Muslim fanatics would do
        atrocious things but humane Mislims would oppose that and
        stand against it.
        You are right, “these azadiwallas are real patriarchs and
        should be treated as such.” But so are the Khap Panchayats
        let us do something about them. Do you think we should let
        the Army loose on our patriarchs who traumatise girls and
        boys for not accepting the norms of Gotra? Should we impose
        AFSPA on them. Well I am glad that you thought North-east
        is not like Kashmir. Sad Irom Sharmila and those who are
        demanding Justice for Manorama do not think so. The state of
        India today has become intolerant and arrogant and is using
        force to silence some voices.

  4. May 4, 2012 1:00 AM

    There you go ‘Secular opolgist ‘ knowingly bring in ironically religion despite claiming being non secterian (fat chance )Just by being a Mohammed named A kashmiri he is out caste like dalits branded as different . Why not rights be irrespective of religion in the first place .Its a case of discrimination against Kashmiri Muslim exclusively to be treated unlike Sinhalese Tamil Buddhist Tibetan Irish even Maoist There identity is not religion when they become hard to handle but Kashmiris can easily be beaten killed jailed just by few terms Militants Secessionist Azadi without explaining what the people 99% of the country understand about the minuscule 1% of indian ( 10 millon Kashmiris in thousand million population)Why if you are khan and world renowned actor Shah Rukh his religion becomes criteria to negate his rights as in USA .Treat Muslims without baggage of prejudice judgment without trial and execution justified by cloud of hate razed

    • May 4, 2012 11:01 AM

      yousuf ali khanji i am an aethist and do not want to spend evn a minute on religious issues, but then it is your religious extremists who brought catastrofic situation in the valley and other people, like the azadiwallas farooqs geelanis and maliks who are so keen on spreading islamic values in secular kashmir you people are much more defined in your daily lives by your religion, none other as much i can say today with surity.also outside kashmir look at iran, sudan, afghanistan, pakistan.. the list is long, tell your imams, religious bigots and extremists to do away with the religion i am with you and we can talk on insaniyat, human beings, not hindus, muslims buddhists etc. etc.

  5. Varun Shekhar permalink
    May 4, 2012 4:55 PM

    Well said,ashakachrublog. It is also very important to affirm that Kashmir, Assam and Nagaland are democratic states within a larger democratic federation. Indians are not ‘ruling’, and the people of these areas are not the ‘ruled’. The European colonial powers, whether Britain, France, Portugal, Spain, Belgium or the Netherlands, were unambiguous and unequivocal about the whole master-race/subject race dichotomy, of superior-inferior peoples, right from the ideological level. The Japanese also expressed this ideology, in the territories under their sway.

    Not so at all in India’s democratic, pluralistic federation. There are no ‘colonies’ here.

  6. Rankar permalink
    May 8, 2012 12:55 AM

    Its most basic understanding of any sane person of moderate intelligence and education to know by now 1947 partition jinnah muslim league was not about religion Islam or Hindu .Dont you agree at least 65 years of research education and access to knowledge gathered for years past independence Jinnah was pork eating What % of muslims perform Haj with money or fast or offer even Friday prayer or even know kalima which used for initiation only people who convert

    Be real muslim are not different b/c they are different pujari but its a caste in India Just like all advantageous caste higher zamindar class suppress even hindu lower caste it cant be religion Religion is used by like of islomphobics just another punishment for prejudice . I bet you cant single good thing to say about muslim islam its not b/c you are hindu but you are advantaged superior by class a step ahead and preventing your antagonistic position to yield .Yes your best friend is a Muslim so is mine a hindu !!

  7. May 9, 2012 3:43 PM

    The above post is about the Pathribal case and about AFSPA but the comments are all about Kashmir issue, India-Pakistan and so on. I wonder if Varun Shekhar’s kin are killed by Indian Army in the name of national security, and passed of as terrorists, will he still be talking the way he is here? The Pathribal victims’ families have been let down by the Supreme Court but the comments above don’t feel for them – they’re Muslims after all, they deserve no justice. Bharat Mata ki jai. Jai Hind. Thank you

  8. Varun Shekhar permalink
    May 9, 2012 5:00 PM

    “I wonder if Varun Shekhar’s kin are killed by Indian Army in the name of national security, and passed of as terrorists,”

    Of course I would be bitter and angry, but I would, or at least I hope I would, look at the exigent circumstances. If there’s an extremely violent insurgency taking place in a specific area, and that too supported by a neighbouring country which has constantly infiltrated mercenaries and jihadists into the area, that constitutes a very special condition. It would be different if such people were just picked up in say, a relatively quiet and stable area like Chennai or Bangalore, and the same thing occurred. And the reason was so-and-so has given offense to the ruling party by his/their writings or comments.

    • Rankar permalink
      May 12, 2012 8:28 AM

      Mr Varun Simple question if i gave you a gun and a license to kill with immunity of no prosecution under any circumstances as long as you in your self proclaimed judgement condone it.would you ever let that be used when you are alone in the fields woods of valley

      .Even in war Marines are tried convicted just like any murder case But overwhelming cases here are condoned on the word of trigger happy gun man there is statistical red flag .If a hospital or doctor has majority patient die when performing “life Saving’ procedure that surgeon is criminal murderer .If you were or you father was the dead patient and hospital in its commission defends the doctor under the deceitful cover of ‘the standard of care was customary’ its the same kind of situation for the armed military men when he kills even though with poor judgement of labeling terrorist or questionable practice of subjectively feeling his judgement was correct gives a murderer license to be unaccountable for his fatal blow .No bodies life is superior to others for one to be justified killing

      • Varun Shekhar permalink
        May 12, 2012 5:26 PM

        Almost all this killing is because of the pressure of the security forces to obtain ‘results’ in a very volatile, terror filled region. It’s not out of any innate vileness or cruelty of the specific personnel. Let’s look at Pathribal. There was a particularly horrific massacre at Chitsinghpura(sp?) where *36* people were massacred. Incidentally, why is that atrocity not being given even a tiny amount of attention? That has to be one of the worst terrorist attacks of its time, only surpassed by the bombing of the American embassies in East Africa in 1998. The public outrage, the desire for retribution against the perpetrators was really building. In a war like situation, some desparate individuals took the short cut and killed some people, and declared that they were the Chitsingpura culprits. It’s bad, but it’s far from a simple law and order situation, where one finds who robbed the local milk and bread store, finds evidence and witnesses, then makes a case and charges the perpetrators.

  9. May 12, 2012 6:57 PM

    please shivam vij i want you to reply to varun shekhar’s question “There was a particularly horrific massacre at Chitsinghpura(sp?) where *36* people were massacred. Incidentally, why is that atrocity not being given even a tiny amount of attention?”

  10. May 14, 2012 7:58 PM

    Varun Shekhar loves his family so much that if the Indian Army kills them for no good reason except to cover their own ineptness at finding real militants, he will look at the ‘exigent circumstances’. He wants to justify the deliberate murder of innocent Kashmiris by the Indian Army, either in the name of pressure or national interest, or as a justification for militants killing innocent SIkhs in Chattisingpura. So how does that make the Indian side any better than militants, if both are killing innocent people? Also, this presumes that Chattisingpura was by militants. Many, including many SIkhs, doubt this:–49.asp

    Here’s a Sikh group from Kashmir demanding a re-investigation into Chattisinghpura: Hopefully you and Asha Kachru will be more sympathetic to their case because they are not Muslims. Last year the courts acquitted two Pakistani nationals charged with the Chattisingpura massacre because the government did not have ANY evidence: Please also read this New York Times story:

    So I have no hesitation in joining you in demanding justice for Chattisingpura. Only if it turns out that your government and mine, your army and mine, was the one who did it, what will you have to say? Where will you hide your face?

    And I’m sure you will also join me in asking for justice for four foreign tourists which a new investigative book says were killed by forces acting in your name and mine.

  11. May 14, 2012 8:10 PM

    And Varun Shekhar, you may want to consider that there could be other motives for fake encounters in an insurgency – such as cash rewards and promotions. There may be other motivations – such as giving some group or community a bad name because a perception wil be created that they did it. Think.

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