This is the statement of Jammu Kashmir Coalition of Civil Society after the Supreme Court judgment in the Pathribal case.
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.