The recent news regarding the closure of Pathribal Fake Encounter Case did not come as a surprise for the people of Jammu and Kashmir. Generations of Kashmiris have been witness to extra judicial killings, torture, rape, enforced disappearances, molestation, humiliations and other heinous violations at the hands of the Indian soldiers and their collaborators in Kashmir. Every time a fake encounter is reported here, mass graves are unearthed or a woman raped, it opens up old wounds. The fact that not a single Indian soldier has so far been convicted for these crimes reflects that the tall claims of justice and reparation made by the Indian state and its collaborators are nothing but a tactics to hood-wink the international community and an attempt to cover-up India’s crime against humanity in Kashmir.
As parents and relatives of the victims of enforced disappearances we are not unfamiliar with the Indian state’s architecture of oppression. Last twenty years of our struggle for justice and liberty is witness to the fact that in Kashmir elaborate oppressive apparatus of Indian State ensures control over every aspect of our lives. The fair and impartial trials, which have historically been the cornerstone of civilized regimes across the globe, are impossible in case of Kashmir. However, Pathribal Fake Encounter Case was very unique as it attracted media attention and was indeed an exception among thousands of incidents of human rights abuses which never get reported. On 24th of March, 2000, while the whole of Kashmir was mourning the gruesome massacre of thirty six Sikhs in Chattisinghpora village of Islamabad (Anantnag), family members of five missing men suspected Indian soldiers of abducting their kin. Within two to three days of the gruesome massacre, people of Kashmir were again shocked with the killing of five innocent people: Juma Khan aged 50 years, Zahoor Dalal, aged 22 years, Mohd Yousf Malik aged 38 years, Bashir Ahmad Bhat aged, 26 years and Juma Khan aged 28 years. These five men were murdered by the Indian soldiers and buried in jungles of Pathribal village. Branded as ‘foreign terrorists’, the charred bodies of the deceased were photographed and video graphed before the Indian and international media. Locals were adamant that the “foreign terrorists” were innocent villagers. Also, the Jammu and Kashmir police complained that they have not received the ‘recovered’ arms and ammunitions, mandated by the law from the army. The whole of Kashmir erupted into massive protests. On 3rd April, 2000 the Central Reserve Police Force of India opened fire on the protestors, seeking justice to the victims of the fake encounter, and killed nine persons including the son of one of the deceased victims.
Amidst protests and shutdowns, the Government of India and its collaborators in Kashmir ordered a probe. However, the exhumation of the bodies of victims was followed by fudging of their DNA samples. Later a one man commission headed by a former Indian judge was constituted to investigate the fudging of the DNA samples. After immense public pressure the Indian state decided to ask its premier investigating agency, the Central Bureau of Investigation, to probe the case. In the year 2006, the CBI filed a charge sheet in the court of Chief Judicial Magistrate, Srinagar, against the Indian soldiers. The CBI claimed that the Pathribal incident was indeed a case of a fake encounter. However, in the court the army pleaded that under the Armed Forces Special Powers Act, 1990 (AFSPA) the CBI requires sanction from the Government of India before instituting court proceedings against them. But the CBI on the basis of the evidence gathered pleaded that in this case the accused Indian soldiers can be tried without prior sanction from the Government of India. The CBI further pleaded that fake encounters cannot fall within the category of official ‘discharge of duty’ performed in ‘good faith’ which is protected under AFSPA. However, the CJM expressed his inability by saying that he is bound by the law to give the army an option of being tried by a civil court or by a court martial. The CBI took the case to the High Court of Jammu and Kashmir pleading that army be prosecuted by the civil court. The High Court held that the army officers get the benefit under the AFSPA and that they will not be tried by the civil courts only in case if the alleged act was done in ‘discharge of official duty’ and the duty performed in ‘good faith’. Against this the Army went to the Supreme Court of India in an Appeal. In the Supreme Court of India, on the behalf of the victims, the CBI argued that by no stretch of imagination killing in a fake encounter is called “discharge of official duty” carried in “good faith”. However, the Supreme Court of India held that the government has absolute power to withhold or grant sanction. The Supreme Court upheld the constitutional validity of the AFSPA stating that the law does not suffer from the vice of arbitrariness. The Court further says, “The presumption of ‘good faith’ therefore can be dislodged only by cogent and clinching material…”. It is unfortunate that the highest seat of justice in India the Supreme Court does not consider a DNA determination test as cogent and clinching evidence.
In Jammu and Kashmir, Indian State acts as the judge, the jury and the executioner. Time and again, the Indian state has demonstrated that its interests in Kashmir guarded by its soldiers are superior to the rights of the individual Kashmiris. The Indian judiciary has been hand in glove with the state in sustaining the predominance of the India’s interests over the rights of the people of Kashmir. Such closures expose the Indian oppression and Indian State’s facade of justice in Kashmir. It also exposes the so called mainstream regional parties of Kashmir who have all along been their partners in the crime.
In these trying times we express our solidarity with the family members of the victims of the fake encounter and with the family members of the gruesome massacre of the Sikh community in Chattisinghpora for whom justice also remains as elusive as ever. We appeal to the world community to support us in exposing Indian State’s crime in Kashmir.
Sd/-
Parveena Ahangar,
Chairperson,
Association of Parents of Disappeared Persons (APDP)