This press statement was issued by the JAMMU AND KASHMIR COALITION OF CIVIL SOCIETY on 19 October 2011
Over the last 22 years in Jammu and Kashmir, the Armed Forces Special Powers Act (AFSPA) and Cr.P.C. 197 has provided absolute legal impunity to the armed forces and the Jammu and Kashmir Police.
The Government of India claims that despite the imposition of AFSPA, mechanisms of justice are functional and deliver whenever anyone is found indulging in human rights abuses, but facts provided by the state institutions contradict the claim of the Indian state.
In a reply to an application under Right to Information Act by Jammu Kashmir Coalition of Civil Society (JKCCS), the State Home Department of the Jammu and Kashmir government on 6 September 2011, claims that from 1989 to 2011, they have applied for sanctions for prosecution from Ministry of Defence and Ministry of Home Affairs under section 7 of AFSPA in 50 cases only. Out of these 50 cases, 31 pertain to Ministry of Defence and 19 others have been sent to Ministry of Home Affairs.
Within these 50 cases stated to be applied by the State Home Department for sanctions under AFSPA, sanction for prosecution is awaited in 16 cases and declined in 26 cases. Surprisingly the State Home Department claims sanction for prosecution has been recommended in 8 cases. The State Home Department does not make it clear, what “recommended” means.
Contradicting the claim of State Home Department, the Joint Secretary, Ministry of Defence on 5 June 2009, in an affidavit submitted to the Jammu and Kashmir High Court, in the case of Ghulam Nabi Magray Vs Union of India (Writ Petition no. 1842 of 2003), states that they have received 35 cases from the Jammu and Kashmir government for prosecution sanctions under AFSPA. Apparently they have received 4 more cases, than what is claimed by the state Home Department of Jammu and Kashmir government. In the affidavit submitted by the Joint Secretary of Ministry of Defence, there is not even one case where sanction under AFSPA is granted for prosecution.
Interestingly in the list of 50 cases furnished by the State Home Department, out of the 8 cases where it claims that sanction for prosecution has been recommended, 2 cases are pertaining to the Ministry of Defence. The State Home Department version about these 2 cases is contradictory to the Ministry of Defence. According to Ministry of Defence, in its affidavit submitted on 5June 2009 states that sanction for prosecution in the cases of FIR no. 99/98 of Uri Police Station and 213/95 of Anantnag Police Station, had been declined, while as the State Home Department in its 6 September 2011 communiqué continues to claim that in both these cases sanction for prosecution is recommended.
Pertinently in a very well known case of the killing of human rights defender Jalil Ahmed Andrabi, under FIR no. 29/97 of Police Station Saddar, Srinagar, the State Home Department response claims that the prosecution sanction under the AFSPA for the proclaimed offender Major Avtar Singh is awaited, while as the Ministry of Defence affidavit claims that they have not received the case in Ministry of Defence. Amazingly there is another application for prosecution sanction under AFSPA against Major Avtar Singh under FIR no. 139/96 of police Station Baramulla, where he killed one Imtiyaz Ahmed Wani in custody and according to Ministry of Defence the case is under consideration for prosecution sanction under AFSPA. Even when there is a red corner Inter-Pol warrant against Major Avtar Singh and he continues to live a comfortable life in the United States of America, the Ministry of Defence is still not concerned in helping the processes of justice.
The information supplied by the State Home Department appears to be both inadequate and inaccurate when compared with the affidavit of Ministry of Defence.
This contradiction between the state government and the Ministry of Defence exhibits both inefficiency and lack of any sense of accountability. This lack of accountability persists due to legal, political and moral impunity which exists due to the policy of institutionalized and systematic violence.
While upholding the constitutional validity of AFSPA, the Supreme Court of India in the famous case of Naga Peoples’ Movement for Human Rights Vs Union of India had asserted that the provision of sanction under AFSPA should be strictly adhered but in Jammu and Kashmir the policy of total impunity of government is demonstrated through this total denial of sanctions under AFSPA.
Above facts reveal that the provision of sanctions for prosecution under AFSPA is a fig leaf and the truth is that there is 100% impunity for the soldiers operating in Jammu and Kashmir. In the present circumstances due to impunity laws and lack of any sense of accountability the mechanisms of justice in Jammu and Kashmir are dysfunctional.