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Fake Encounters in Kashmir: Dangerous for the Integrity of the Country

by Mahi Pal Singh, 12 June 2010

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Fake encounter killing of innocent people at the hands of the personnel of the armed forces has become customary in those parts of the country where the draconian Armed Forces Special Powers Act is in force. Rarely do such incidents come to light except when some individual members of the armed forces come forward and speak the truth out. Only recently an army jawan, Abbas Hussain Shah of 161 Battalion of the Territorial Army in Gauntmullah, Baramullah, who himself was involved in the conspiracy, confirmed the killing of three youths on April 30 at Machil sector along the LoC in Kupwara district of Jammu and Kashmir. These young men were earlier lured from their village three days ago by a former special police officer and his accomplice on April 27 in the name of providing them work with the army, and handed over to an army Major, Opinder, for the set up encounter. After the fake encounter got exposed a Colonel was removed from his command and Major Opinder was suspended. The Army officers had claimed that the three young men were Pakistani terrorists and were killed during an encounter while infiltrating into the country, though inquiries later revealed that they were residents of Nadihal in Baramullah district.

They had also claimed recovery of assault rifles and ammunition from their possession, which were obviously implanted by the army personnel themselves. Last month, in a similar incident the Army had claimed killing a 70-year-old militant in a gunfight inside Rainawari forests of Handwara. However, the deceased later on turned out to be beggar. The Police later registered a murder case against the Indian Army in that case also.
In another incident two young men from the valley were fitted with spiked boots and jackets and taken to the LoC with the help of a local SPO to be killed in a fake encounter. Fortunately, the plot became known and the local police sprung into action and saved the youths from sure death for them and ignominy for their families.

Allegations of planned and fake encounters by security forces for reward, money and promotions are frequent in Kashmir.
Some estimates put the number of Kashmiri’s killed by the Armed Forces at 1,00,000 and the incidents of rapes at 20,000 during the last 21 years since 1989. According to International People’s Tribunal on Human Rights and Justice more then eight thousand people have been reported missing during these years of insurgency. To a great extent they can be attributed to the impunity enjoyed by the Armed Forces under the AFSPA, which has similarly been misused in Manipur also from where similar reports pour in day in and day out.

The Armed Forces Special Powers Act (AFSPA), which has been in force for fifty-two years since 1958, is in clear violation of the letter and spirit of the Constitution and has led to an undeclared Emergency and Martial law in the Northeastern states of the country. The AFSPA has been responsible for the untold misery, death, rape and torture and the denial of civil and political rights to the people of Nagaland, Manipur and Assam.

With the extension of AFSPA to Jammu and Kashmir the same culture has dawned upon the state. Extra-legal killings have become the order of the day there and people are denied their civil and political rights because the armed forces there enjoy unfettered powers over areas declared as ‘disturbed area’ prohibiting the assembly of five or more people. The citizen is wholly dependent upon the whimsical and subjective satisfaction of a warrant officer or a non-commissioned officer who becomes the ultimate officer to define “order” and determines the steps to be taken to maintain “order”. Under Section 4(a) of the Act if the concerned officer is of the opinion that it is necessary to maintain public order, after giving such due warning as he may consider necessary “fire upon, or use such force, even to the causing of death,” and under sub-section (c) arrest any person without warrant who has, or is likely to commit a cognizable offence; and
under sub-section (d) enter, and search without warrant any premises to make such arrest.” And the worst part of it all is that to take such action the officer needs no permission from a superior and is not answerable to anyone.

Under Section 197 of the Code of Criminal Procedure (Cr.P.C.) no court can take cognizance of an offence alleged to have been committed by a public servant or member of the Armed Forces while acting or purporting to act in the discharge of his official duty except with the previous sanction of the central or state government whereas the permission of the central government has to be obtained to prosecute a military officer under Section 7 of the Armed Forces Special Powers Act, which practically means that people have no right to approach the court and launch prosecution for atrocities committed by any such officer. Even various commissions of enquiry appointed by the government have found security forces guilty of gross human rights violations but in most of the cases the guilty officials have not been prosecuted for the offences committed by them. When personnel of the armed forces go even beyond the powers invested in them under the AFSPA and indulge
in extra-judicial killings, the gravity of the situation and helplessness of the affected people can well be imagined. Unfortunately all this happens in the name of protecting the unity and integrity of the country.

There is no doubt that the imposition of AFSPA in Kashmir and elsewhere has resulted only in an increased violation of human rights, breeding discontent and a sense of alienation in the minds of the people and pushing the frustrated youth into taking to arms and joining the insurgents – for self-defence, freedom from unwarranted killings, rapes and brutalities and for the establishment of a political and social order which would give them the right to live a dignified life as equal citizens of the country. Their angry, and quite often violent, demonstrations against extra-judicial custodial and fake encounter deaths should be seen and interpreted in the backdrop of these incidents. To continue to treat them the way they are being treated, as second-class citizens, can only result in further alienating them and strengthening their demand for freedom and separation from India.

Unless the draconian laws like the AFSPA (and UAPA which is in force in other parts of the country) are repealed and the army withdrawn from the state of Jammu and Kashmir and other parts of the country, a sense of safety cannot be produced in the minds of the people. To reinforce that sense of safety the presence of the armed forces should be strengthened on the borders, which is their mandated place during war times and when there is a threat perception from across the border. During peace times barracks are their best habitat. Their arms are also meant to be used against the enemy and not against their own countrymen who they are supposed to defend. Everybody praises and respects their deeds of bravery and sacrifice during their fight against the enemy. We should not allow their image to get tarnished by posting them in areas where they wreck havoc on their own people.