Photo Feature: Children being humiliated publicly before their release by occupational forces

Sixteen Minors who were detained by occupational forces being humiliated publicly before their release

AFSPA Revocation - Army recaps opposition

We'll be handicapped : Parnaik

Amidst raging debate over Omar Abdullah government's intention to revoke Armed Forces Special Powers Act from parts of the state, Army on Thursday made its case clear saying any such move will handicap the capability of the force to conduct counter insurgency operations.

"We have a situation which has now carried on for more than 20 years and the Army requires the provisions to enable it to act... Without the provisions, the Army will be handicapped," General Officer Commanding in Chief for Northern Command Lt Gen K T Parnaik told reporters.

The Army commander, who visited this village - located on the Line of Control - in north Kashmir's Kupwara district, said removing the AFSPA from certain areas of the state will make it difficult for the Army to operate.

"It is a question of the confidence and trust that you repose in your Army. If you are removing the Act from certain areas then it will become difficult for the Army to operate in the manner we operate now," he said.

Debate over the partial revocation of AFSPA and Disturbed Areas Act, introduced in 1990 to give the Army and paramilitary forces powers to detain suspects and use deadly force began last month when Chief Minister Omar Abdullah announced that Acts will be revoked from parts of the state "within few days".

Lt Gen Parnaik, who was accompanied by General Officer Commanding of Srinagar based 15 Corps Lt Gen S A Hasnain, termed AFSPA as an "enabling" Act and said it was not a draconian law.

"The fact is that partial revocation from the areas may be seen as a genuine thing because there seems to be peace here. But peace is very fragile," he said. "After all we have seen one of the most peaceful summers in 2011 and that has happened with AFSPA only," he said.

He said if AFSPA is revoked from certain areas, "terrorists and inimical elements" will exploit the situation. "We don't want that to happen," he said.

Linking the revocation of AFSPA with the dismantling of the militant infrastructure across the border, Lt Gen Parnaik said it is not the "correct time" to remove the law till there is interference from Pakistan.

"We are not looking only at a few places or counter- terrorist operations or peace in few areas. It (AFSPA) has to be seen in context of the entire proxy war which is going on. The proxy war in J-K is externally abetted by Pakistan," he said.

"Therefore, we feel that unless we are able to neutralize that infrastructure and unless we are able to remove interference from Pakistan, it may not be the correct time for us to think of revoking it partially," he said.

The commander said Army was not on a confrontational path with any one and pleaded that there should be more discussions before taking a final call.

"There is no confrontation with anyone and these issues need a lot of discussions and deliberations. We have made our stance clear to the state government. I have had discussions with the high powered committee which came here for review recently and we continue to have dialogue with them," Lt Gen Parnaik said.

He said the chief minister had asked the Army to give its recommendations earlier this year.

"On our part, we have sensitised them on the manner in which it will affect our operations," he said.

"We have to see whether the AFSPA's revocation is a matter of security or political dispensation. It will all happen after discussions with the people who are concerned," he said.

Democracy Handcuffed

The photographs that have appeared on the front page of many newspapers today along with a story – ‘Kashmir’s handcuffed children’ is an eye-opener for all those who have been made to believe that the government is serious in implementing the confidence building measures (CBMs) announced during last year’s summer unrest as a part of efforts to reach out to the ‘angry’ people especially the youth. Even though chief minister Omar Abdullah before Eid-ul-Fitr had announced general amnesty for about 1200 stone-pelters with much fanfare, not just the youth but even the minors are still being cracked down upon. These photographs of minors are self explanatory. Not only have they been handcuffed, which should across as a shock for those who take pride in calling themselves a part of the world’s largest democracy, some even have torture marks on their bodies. And going by their statements, it is unfortunate that have been meted out treatments that are usually received by the hardened criminals while in the police custody. Take the statement of a sixth class student, Burhaan Nazir of Nalahbundpora Nowshera, for example. He was arrested last week from the streets of Srinagar’s Old City and his statement comes across as a shocker as to how these minors are treated by the police. ‘We were severely beaten in the police station and all we heard from policemen were just abuses,’ Burhaan has remarked while policemen as per the report dragged him back from the court and bundled him into a waiting armored vehicle. ‘They abuse my sisters, tore our clothes. I am afraid they will beat us again in the police station. They even abuse my mother, who is dead,’ he cried as he was bundled into the police vehicle even as his words shocked everyone who was present in the court premises. Other minors have a similar tale to tell of police torture and it belies all the claims of the government that often boasts of exercising restraint while dealing with the ‘agitated’ youth. And even if these minors have been found guilty of stone pelting, this is no way to treat someone who has not attained maturity. In fact, bringing them handcuffed to the court leaves nothing to imagination. These pictures speak for themselves as to how this government treats minors in police custody. True, the government had said it would not withdraw cases against those involved in arson. But then the authorities cannot treat minors in a manner in which adults are treated. And to conceal their shortcomings, the police before the court pretended that they did not the ages of these children who from no angle look like 18 years old. Even the lawyers have objected to the way these minors have been treated as one observed in the report: ‘This is a brute use of force by state and this is beyond any comprehension of any jurisprudence or human rights and I think police stations have turned into tyranny centres.’ The government owing to the pressure from both within and outside the state may have set up a juvenile home in Kashmir recently but these pictures tell a different story. These pictures are truly ‘beyond any comprehension of any jurisprudence or human rights’. And as far as the chief minister’s ‘Eidi’ goes, now Eid-ul-Adha is approaching but it seems the ‘bold’ announcement of last Eid is yet to be implemented the way it should have been. On the contrary there have been more arrests. Therefore, it is time that the government gives up its habit of only announcing these so-called huge CBMs that are never implemented on ground. The government may announce yet another CBM before the upcoming Eid but now it can no longer fool the public with its hollow promises that never see the light of the day. Ironically, now the government ahead of Eid-ul-Adha has turned itself into a sacrificial animal of sorts. It has been trying to give an impression that it wants to do a lot, be it the revocation of controversial Armed Forces Special Powers Act (AFSPA) or amnesty to the stone-pelters, but it is not allowed to do so by its ‘enemies’. While some leaders of the government continue to blame the opposition and the separatists for its shortcomings, others have chosen to point their guns towards the army and even the centre. Therefore, it is imperative that the government introspects and realize that since it is power, it has to take responsibility for all the issues facing Kashmir and at the same time look for their resolution.

|Kashmir Monitor|

Politics of deceit

BY: Hassan Zainagiree

That it is lust for power which holds pre-eminence to anything and everything for pro-Indian political parties has once again scripted its unalloyed truth. Witnessed in, what is hailed as, 'August' and 'sanctified' assembly the drama enacted has vindicated the stand of pro-resistance forces who rubbished the idea of joining political process managed and controlled by New delhi.

The manner in which two regional parties {a} NC which champions the cause of autonomy and b} PDP that swears for self rule acted as mute spectators in scuttling an innocuous resolution moved by independent MLA of Handwara Er. Rashid seeking clemency for parliament attack convict Afzal Guru, has brutally exposed their hypocritical and deceitful politics. That both have succumbed to the dictates of New Delhi reveals the value, weight and essence of’ people’s mandate' they say the people of Kashmir have given to them.

The BJP and Congress which have 'national' interests to serve for scuttling the resolution were expected to behave the way they choose. But the facilitating role the two regional parties played have unmasked their pro-Kashmir credentials. It has reinforced the belief that while hunger for power might make them growl and fight over what is thrown from New Delhi-with rulers in Delhi, incidentally , enjoying their head-butting and bull-fighting -they are seen clinching together in a bond of togetherness as and when it serves the political machinations of New Delhi.

Remember the precariously vulnerable positions of New Delhi when it was struggling to provide some semblance of democratic face to its otherwise garrisoned hold in Kashmir but fellt hamstrung. National conference volunteered to play the Trojan horse,. knowing that a party wearing all India nationalistic traits makes Kashmiris take a terrible fright, Mufti Muhammad , till then a staunch Congress leader , changed his political robes and carnated into new political formation , the PDP, where his soul remained the same only the body morphed up into different exterior. PDP did not act differently. It gyrated its hips and played to the tune of its masters as and when New Delhi asked it to do.

Both NC and PDP outsmarted each other to damage the freedom struggle. Delhi used them as political instruments in repressing and suppressing people of Kashmir.

Each of two tasted power and encrypted their profile on the memory genes of Kashmiris. Each one ruled under the blessings of Indian army and the shadow of AFSPA and PSA. The black laws which gave impunity to the armed forces from courts. While the NC helped creating the Shrine Board which helped outside state people to get membership of the Boards, the PDP accomplice in playing deceitful role in a cabinet decision giving forest land to the Shrine Board {which , as people well anticipated its political ramifications, led to the 2008 uprising}. if Dr. Farroq acted as a willing lackey in agreeing to the Chairman of Unified Head quarters comprising of army, police , CRPF and intelligence sleuths, signaling , albit wrongly to the world, that armed forces are sub-servient to the civilian government, Mufti Syed followed the suit.

The fact of the matter is that law-making bodies in JK have always breached the trust of people . The 'representatives' who get elected to these bodies get the 'mandate' of the people on local issues and governance but after getting 'elected' enact laws which they have no mandate of the people and which often tantamount to violating the autonomy of the state and peoples aspirations

So deeply and radically power have corrupted them that even when an unanimous resolution on autonomy is passed with two-third majority and Delhi pisses on it, the NC dispensation opts to bear with the ignominy than give up power. On the other hand, they remain on their toes not to miss any opportunity of showing their loyalty to Delhi. ‘If Farooq Abdullah’, as Syed Geelani says, ‘signed the death warrant of Shahhed Maqbool Bhat, his son Omer Abdullah, keeping alive the family tradition , rejected the Afzal Guru’s application to be shifted from Tihar jail to Central Jail Srinagar’.

The deceptive politics played by the PDP and the NC over Guru’s issue should not surprise us all. It is power and power alone that they are so energetically circumambulating around. For the sake of power, as their track record shows, they won’t mind even if entire Kashmir nation is hanged. They stand de-robed in their double-speak and double cross. People of Kashmir are too mature not to be fooled by their gimmicks.

AFSPA in Kashmir: "Armed Forces' Say Prevails Anyway"

By: Gowhar Geelani

There is a lot of noise in the media over AFSPA. Ask any senior Indian security official, a turn-coat politician or a retired Army General what AFSPA stands for. "Armed Forces Special Powers Act," they will say. Now pose the same query to an ordinary Kashmiri living there in the hapless Vale for the past two decades. The answer perhaps would be: "Armed Forces' Say Prevails Anyway".

Many experts on India's TV news channels and newspapers are debating the pros and cons of the proposed partial annulment of this draconian Act from a few selected areas of the Kashmir Valley. Much is being said about the "fissures" between the coalition partners in the state of Jammu and Kashmir, the National Conference and the Congress, over the "abrogation" of the AFSPA.

The glamour scenes of this staged drama are interesting. The lead role is being enacted by none other than Mr Omar Abdullah, the embattled Chief Minister of Jammu and Kashmir. Mr Saif-ud-Din Soz, President of the J&K Pradesh Congress Committee, seems satisfied with the role of a supporting actor. The people of Kashmir continue to be the real victims.

According to the Gazette of India, the Armed Forces [Jammu and Kashmir] Special Powers Act received the approval of the Indian President on the 10 September 1990. The Act, however, was deemed to have come into force on the 5 July 1990. What exactly is this Act? Basically, it is an Act that gives certain special powers to members of the armed forces in the disturbed areas in the state of Jammu and Kashmir. "Disturbed area" means an area which is for the time being declared by notification under section 3 to be a disturbed area.

There lies the root of the problem. How is an area declared disturbed and by whom?

The Governor of the state or the Central Government, may, by notification in the official gazette, declare the whole or any part of the state to be a disturbed area. In relation to the state of Jammu and Kashmir, the Gazette of India explains, if the Governor of that state or the Union Government, is of the opinion that the whole or any part of the state is in such a disturbed and dangerous condition that the use of armed forces in aid of the civil power is necessary to prevent- "activities involving terrorist acts directed towards overawing the Government, striking terror in the people or any section of the people, questioning or disrupting the 'sovereignty and territorial integrity' of India, or causing insult to the Indian national flag, the Indian national anthem and the constitution of India; etc.

Special Powers conferred upon members of the armed forces under the AFSPA can roughly be summarized as follows:

(a) Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may open fire if he/she is of the opinion that any person is acting in contravention or breach of any law or order;
(b) he/she may destroy any arms dump or any structure used as training camp for armed volunteers or utilized as a hide-out by armed gangs wanted for any offence;
(c) arrest, without warrant, any persons who has committed a cognizable offence or against whom a reasonable suspicion exists that he/she has committed or is about to commit a perceivable offence;
(d) enter and search, without warrant, any premises to make any such arrest as aforesaid;
(e) stop, search and seize any vehicle reasonably suspected to be carrying any person who is a proclaimed offender;
(f) power of search to include powers to break open locks; etc.

At a time when top Indian politicians are selling the news to the entire world about a record number of tourists visiting the Kashmir Valley this season, the massive voter-turn out in the just-concluded Panchayati polls, the successful completion of the holy Amarnath pilgrimage, the presence of only a few hundred gun-wielding youths where there were once thousands, and the state government's focus on the issues of "governance", "development" and "employment generation" in the state, how come many "wise men" in the Indian Parliament and Cabinet then justify the AFSPA in the same breath? Amazing.
Quite amazing is also the fact that as soon as Mr Omar Abdullah made his hasty and controversial announcement in a public meeting [he termed it as "good news"] about the partial withdrawal of the AFSPA, grenades were showered on the few bunkers of the paramilitary force, the CRPF, in Srinagar and South Kashmir. Though the Jamiat-ul-Mujahideen, a pro-freedom militant group in Kashmir, claimed responsibility for these attacks, many pro-India politicians in the Valley, including the General Secretary of the ruling National Conference, Mustafa Kamal, raised fingers of suspicion towards the vested interests in the Army, the opposition Peoples' Democratic Party as well as pro-freedom leaders. How come a place that was being described as the one fast returning to normalcy can all of sudden go volatile just because of one announcement made by a mercurial Chief Minister?
By the way, many wonder about the status of the judicial probe ordered into the death of a National Conference sympathiser, Haji Syed Mohammed Yousuf Shah, in Police custody on the 30 September. Two fellow National Conference workers, Muhammad Yousuf of Ganderbal and Abdul Salam Reshi of Kokernag, had accused the 61-year-old deceased S M Yousuf Shah of Anantnag, of taking Rupees 1.18 crores from them for "assuring them a ministerial berth and a berth in the J&K Legislative Council".
Mirwaiz Umar Farooq, chairman of a faction of pro-freedom alliance, the Hurriyat Conference, has said that the Army will not allow revocation of the AFSPA for obvious reasons. Addressing a group of people at Charar-e-Sharief, Budgam, he said: "If pro-India political parties in Kashmir are really sincere, they can repeal the Disturbed Areas Act on the floor of the J&K Legislative Assembly to make the AFSPA null and void."

Meanwhile, the Association of Parents of Disappeared Persons [APDP] has demanded to end the "culture of impunity" in Kashmir. In its press release, the APDP has said: "In Jammu and Kashmir, the 8000 people who were subjected to enforced disappearance have not disappeared because of the imposition of draconian laws like AFSPA, but due to an institutional policy of repression, where even the draconian laws were defied. AFSPA requires the arrested persons to be brought before the district magistrate within 24 hours, which of course has never happened in Jammu and Kashmir."

Some reports suggest that besides other recommendations the group of interlocutors on Kashmir have also called for a review and phased withdrawal of the AFSPA. Many political commentators in Kashmir have described the trio comprising of Mr. Dileep Padgaonkar, Prof. Radha Kumar and Mr. Ansari as a "bunch of jokers" who wasted one full year to compile a "laughable" report. Mr. Padgaonkar said that the separatists had "missed the bus", but in reality not a single passenger in Kashmir boarded this bus of interlocutors with "one driver, a conductor and a cleaner". Neither did the interlocutor's bus move beyond the main station [the Union Home Ministry] nor it had the fuel in the tank [the petrol prices have seriously gone up!] to take any serious decisions. It did not have a mandate to do that.

Omar Abdullah may be right in his claim that he has Union Home Minister, Mr. Palaniappan Chidambaram in loop on the issue of the AFSPA. But, there is all-powerful Ministry of Defence. Those army personnel found guilty of killing five innocent civilians in South Kashmir area of Pathribal, in 2000, are yet to be punished. That is why many wonder whether Omar Abdullah has the mandate to take any unilateral decision on the issue as contentious as the removal of the AFSPA. When it comes to Kashmir, the Indian Army has the final say!

AFSPA debate meant to overshadow mass grave issue: Bar

Kashmir High Court Bar Association Monday said that debate over revocation of Armed Forces Special Powers Act (AFSPA) by ruling coalition partners was meant to overshadow the growing public and international opinion about unmarked mass grave issue.

General Secretary the lawyers’ body, Ghulam Nabi Shaheen said that association wants complete demilitarization of the state. “Neither National Conference nor the Congress Party is interested in withdrawal of AFSPA but have enforced a debate on an issue to over shadow the gravity and increasing public and international opinion about unmarked mass grave issue,” he said, according to statement issued here.

It is pertinent to mention, he said, that even the European Parliament and the British Parliament debated upon the mass grave issue which has become a cause of concern for the government of India at international level.

“The international attention with regard to the unmarked mass grave issue has caused embracement to the Indian establishment in Jammu and Kashmir and across the globe; therefore, the so called state Govt. has been used to enforce a debate to mesmerize the public opinion and create a mirage to deceive the international opinion,” he said.

Shaheen said that the denial of the 15th Corpus Commander of Indian Army General Syed Atta Husnain about the discussions with regard to the withdrawal of the AFSPA in unified command meetings belies the Chief Minister Abdullah’s assertion that the sensitive issue was discussed in the unified command council meetings.

|Kashmir Dispatch|

AFSPA has no legal sanction

Disturbed Area Act expired in 1998

Amidst the deafening noise of the heated debate that is going on the issue of the proposed partial withdrawal of the dreaded Armed Forces Special Powers Act (AFSPA) from some select parts of Jammu and Kashmir, the bare fact that the said law have no legal cover or sanction and that its provisions are being invoked deceitfully as the same have no legal sanction or cover. As per the statute book, provisions of AFSPA can be invoked by the Army and other paramilitary forces only in areas that fall within the purview of the Disturbed Area Act DDA). That is, AFSPA can come in operation only in those areas which have been declared as being ‘disturbed’ under the provisions of the DAA.

As per the official records, We could lay its hands on, Jammu and Kashmir was brought under the purview of the DAA in 1990 by the then Governor Jagmohan, when entire Kashmir valley was caught in unprecedented militant violence and there happened to be no trace of any governance worth its name. At that time, Jagmohan invoked the provisions of DAA to confer special powers to the police (not Army), special powers to conduct searches, arrest those suspected of being involved in militancy related activities and also the power to open fire on what could be called as ‘unlawful assemblies’. That time, Army was not formally called to deal with the militancy and instead this job remained entrusted to the otherwise non-operational police and paramilitary forces.

The promulgation of Governor Jagmohan was to remain in force till July, 1992, when the centre invoked the provisions of AFSPA, as the state continued to remain under the direct central rule.

Incidentally, AFSPA, during this period, remained in force only because the state, which was for all practical purposes under the direct central rule, had declared Jammu and Kashmir valley as “disturbed”. In July 1992, with the armed rebellion only spreading, the President — the state was by now under President's rule — re-enacted the law and since then it was extended by the parliament every year, till a civilian government was formed in Jammu and Kashmir in 1996, with National Conference ‘sweeping’ the polls and Farooq Abdullah taking over as the chief minister of the state.

In 1997, National Conference government brought an enactment before the state legislature, replacing the old disturbed Area Act that was promulgated in 1992, by the President. The enactment adopted by the two houses of the state legislature in 1997, lapsed only a year after, 1998 and was never extended after that by the legislature.

This means that in the eye of the law, Disturbed Area Act is no longer applicable in any part of Jammu and Kashmir and consequently the dreaded AFSPA has lost its validity as the latter can be operational only in the areas that stand declared as ‘disturbed’, under the DAA. If one goes strictly by the provisions of the law, then from 1998, AFSPA in Jammu and Kashmir is being invoked in gross violations of the law and all the actions taken under the Act are illegal and unconstitutional.

Jammu and Kashmir’s Law secretary G H Tantray is on record to have confirmed that “The Act, enacted by the Assembly in 1997 to replace the old Disturbed Areas Act, 1992 lapsed only a year later in 1998”.

For quite some time it is being argued on behalf of the proponents of AFSPA that unless Disturbed Area Act is not withdrawn by the state government the law remains in force. They dare the state government to issue notification for the withdrawal of the DAA if it seriously and sincerely wanted to revoke AFSPA.

State government, on its part, might well decide to withdraw the Disturbed Areas Act, but doing that would be nearly impossible, because the law doesn't exist anymore on the statute book.

In fact, former Deputy Chief Minister, Muzafar Hussain Baig, who also held portfolio of Law in the previous government, pointing to this glaring illegality and impropriety had moved a resolution during the 2009 budget session of the Legislative Assembly calling upon the House to declare the existence of AFSPA in Jammu and Kashmir as ‘illegal and unconstitutional’ as the DAA no longer was operative in the state. Baig contended that when the very source from which the AFSPA derived its powers and authority was non-existent, how AFSPA could be in operation.

However, ironically, the Omar Abdullah government, which is now very vocal in calling for the revocation of AFSPA, vehemently opposed the resolution moved by Baig.

What AFSPA & PSA Actually Is?

THE ARMED FORCES (JAMMU & KASHMIR) SPECIAL POWERS ACT, 1990:

The Armed Forces (Jammu & Kashmir) Special Powers Ordinance, introduced in July, 1990,was later enacted by the Parliament of India and enforced on 10th September, 1990. When certain areas are declared to be “disturbed”, the army and paramilitary forces are granted sweeping powers under Section 4 (C) of this Act. The armed forces can be used in aid of civil authorities and even a non commissioned officer can search any place, stop/seize any vehicle, fire at any person (and kill), or arrest him even on the basis of suspicion with no obligation to inform him of the grounds thereof. It gives the Indian security forces sweeping powers that facilitate arbitrary arrests and detention and extra judicial executions as well as destruction of property. The provisions of the black law are further violated in the occupied Kashmir by the security forces. Under the law, an arrested person is to be handed over to the nearest police station. But it is seldom done. Besides, the armed forces personnel are supposed to act as and when requested by the civilian authorities. In other words, the former should work under the direction of the latter. However, factually the security forces are inflicting atrocities on the Kashmiris without informing the civil administration. The State government has proved ineffective in controlling the Indian security forces, who have unleashed a reign of terror in occupied territory. The Act legitimizes barbarism in the State, as under Section 7, the security forces are given an immunity from prosecution for any act committed by them.

JAMMU & KASHMIR PUBLIC SAFETY ACT,1978

The Act promulgated in 1978 (amended in 1987 and1990) empowers the State government to detain a person without trial for two years under the pretext of maintenance of public order. The Act fell short of the recognized norms of justice, such as equality before law, the right of the accused of appearance before a Magistrate within 24 hours of arrest, fair trial in public, access to counsel, cross examination of the witnesses, appeal against conviction, protection from being tried under retrospective application of law, etc. Even the provisions of the Act, though already unsatisfactory, have been consistently violated. The detainees are not informed of the reasons of their arrest and they are kept in custody for a much longer period of time than stipulated in the Act. They are not allowed to meet their relatives and counsels. The amendment of 1990 extended its operation beyond the State, enabling the State machinery to keep the detainees in the jails of India, outside the State. Under Section 22 of the Act, any legal proceeding against officials for acts “done in good faith” are also disallowed.The law has been widely used against the innocent Kashmiris as well as political opponents. Thousands of people have over the years been detained under the Act.

Illegal detentions in Kashmir unheard in Nazi Germany

Senior Bharatiya Janata Party (BJP) leader and eminent Supreme Court lawyer, Ram Jethmalani, Monday hauled up the state government for detaining people without any charge or trial for years, saying the practice was 'unheard of even in Nazi Germany'.

Addressing a press conference here, Jethmalani, who is leading a four-member panel of Kashmir Committee currently on a visit here, said he was “shocked” to know that people in Kashmir were languishing in jails “without any trial or charge for years.”

Referring to incarnated Hurriyat Conference (G) leader, ‘General’ Moosa , Jethmalani said it was “disgraceful” that a man could be detained for 18 years without trial.

“It was shocking to hear from his family that Moosa was being detained for the last 18 years without any trial. I mean this is something we haven’t heard of even in Nazi Germany,”

Jethmalani said.

He said it was distressing that under a democratically elected government, human rights abuses, including arbitrary arrests of “innocent people”, continued unabated .

Jethmalani warned that things could take an ugly turn if the state government continued to “mishandle” the situation.

Chief Minister Omar Abdullah must personally go through the cases of those detained under the Public safety Act (PSA), Jethamalani said.

“This lawlessness must end, innocent people must be freed, only then will the anger of people subside,” he said, “It will also help create an atmosphere for a solution of Kashmir issue.”

He also slammed police officers for summoning “innocents” to police stations without any written orders several times in a week.

Jethmalani also condemned the government crack down on press, saying he was informed that media organizations or persons who do not toe the official line were being “harassed.”

Jethamalani also called for scrapping of AFSPA, terming it as an “evil law which must go.”

He also termed the army’s presence in residential and urban areas as “unnecessary”.

The impunity of the armed forces in Kashmir

Activists argue that the AFSPA protects Indian forces from being prosecuted for
crimes in Indian-administered Kashmir [Showkat Shafi]

The reported 8,000 to 10,000 enforced disappearances in Indian-administered Kashmir are just one part of a series of human rights violations attributed to the Indian government, including extra-judicial killings, torture and illegal detentions. But the Indian state has been able to side-step international human rights conventions through a series of laws that grant special rights to the armed forces in Kashmir.

Al Jazeera's Azad Essa speaks to Aaliya Anjum, lecturer in law at Vitasta Law School, University of Kashmir, about the legal framework that enables the armed forces to act with impunity in the valley.

What allows the Indian government to legally get away with using enforced disappearances as a tactic?

I suppose it is primarily because of its overwhelming military presence in Kashmir. The Indian government empowers its military through special security legislations like the Armed Forces Special Powers Act (AFSPA) and the Public Safety Act (PSA), granting them sweeping impunity for acts carried out under these laws, which in turn facilitate the bringing about of enforced disappearances and other human rights abuse.

AFSPA for instance grants the 'powers' to members of the armed forces in 'disturbed areas' like Kashmir to shoot to kill or arrest persons on the ground of ‘mere’ suspicion. That is not only in contravention to core human rights standards, which guarantee a fair trial, but also goes against the basic principle of Indian criminal law itself : ’One is presumed innocent unless proven otherwise’. Likewise, the PSA provides for holding the arrested person in custody without trial for up to two years, dumping fair and speedy trial guarantees.

Also, for an act done under the AFSPA, the army is immune from prosecution, in other words, trial before a court (as provided under the provisions of the AFSPA itself).Otherwise than that also, for initiating an action against a member of the armed forces, permission is needed from the central government, under Sec 45 of the Code of Criminal Procedure, which is of course never granted.
In Kashmir, many of those arrested under AFSPA or PSA never make it out of detention centers .They are held under ‘incommunicado’ detention( unacknowledged and secret detention) leading to enforced disappearance, tortured or subject to extra-judicial killings. Besides, slapping of PSA on even juveniles (children below the age of 18) continues to take place. There are reportedly 8,000 to 10,000 cases of disappearances so far.

What legal avenues can victims' families take to fight this scourge?

The remedy available to an aggrieved relative in such a case would be to file a Writ of habeas corpus (you have the body/ produce the body) in the state high court. But the judicial process is long-drawn, expensive and unproductive largely, with hundreds of these writs lying pending in the court.

In addition, there are many more contempt petitions waiting to be heard by the court, which seek to challenge disregard of favorable orders in such cases i-e even if the state high court quashes detentions in some cases, it is often followed by slapping of fresh PSA charges on the detainee.

What sort of opposition has there been to the AFSPA and the PSA from civil society and human rights advocacy groups?

Civil society in India as well as in Kashmir has been vehemently demanding the repeal of the AFSPA, mainly through out of court advocacy.

The opposition to AFSPA first began in context of the north-east of India, where the law was first introduced in 1958.

It was extended to Kashmir in 1990, where the opposition towards the legislation became louder in street protest, media, and civil society campaigns(domestically and internationally), particularly after the discovery of the mass-graves, Amnesty International and Human Rights Watch reports on disappearances and impunity, and the killing and arrest of protestors in 2008 and 2010.

But Kashmir is a 'disturbed area', so surely India has a right to defend its borders against threats to its security?

For arguments sake, even if such a contention is to be considered, from a human rights perspective it lacks any substance. For so called maintenance of ‘law and order’ in a ‘disturbed’ area, common minimum human rights standards, as prescribed by core human rights treaties like the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and also under the UN Convention Against Enforced Disappearances (UNAED) cannot be contravened.

Not under any circumstances. India is a party to all core human rights treaties, together with UNAED and the four Geneva Conventions prescribing code of conduct in times of armed conflict.

It needs to respect the right to life, personal liberty and provide a fair and speedy trial guaranteed to all individuals it claims to govern and also ‘protect’ them from 'enforced disappearance'.

Do these laws fuel self-determination sentiment in Kashmir or are the laws a response to self-determination sentiment?

Human rights abuse and the denial of justice by way of these laws are seen as tools for curbing dissent and therefore suppressing the popular sentiment for freedom in Kashmir.

In that sense, they are not responsible for fuelling the sentiment for freedom to sustain it, nor has the sentiment been born out of acts resulting from these laws. As a matter of fact, these laws and the resultant abuse exist because of the sentiment for freedom.

Source : AlJazeera

Abuse 'widespread' in Kashmir jails

ALJAZEERA
Leaked cable suggests US diplomats were briefed by the Red Cross of continued torture in Indian-administered Kashmir


                             

Torture has been routinely used in prisons in Indian-administered Kashmir, a US cable released by the whistleblower website WikiLeaks has suggested.

The cable, released on Thursday, says that the International Committee of the Red Cross (ICRC) had briefed US diplomats on widespread torture in 2005.

The memo, titled "ICRC frustrated with the Indian government"dates back to April 6, 2005, and outlines a confidential meeting in which the ICRC told diplomats of "torture methods and relatively stable trends of prisoner abuses by Indian security forces", based on data derived from 1,491 interviews with detainees from 2002-2004.

ICRC was quoted as saying their staff made 177 visits to detention centres in Jammu and Kashmir and conducted 1,296 private interviews, but reported that "they had not been allowed access to all detainees".

Techniques included electric shock treatment, sexual and water torture and nearly 300 cases of "roller" abuse in which a round metal object is placed on the thighs of a sitting detainee and then sat on by guards to crush the muscles, according to the cable.

The memo added that since torture and ill-treatment continues unbated, "the ICRC is forced to conclude that the Government of India (GOI) condones torture".

Prerna Suri, Al Jazeera's correspondent in New Delhi, said though shocking, the allegations were not new.

"Human rights groups and activists have been bringing out all these allegations in the last few years at various public fora," she said.

"The spokesperson of the government of India said that this is an internal assessment of American diplomats, and for them isn't something that would warrant a response to."

Suri added that India has consistently denied human rights abuses in Kashmir, and that it is alleged that the root problem comes from a special dispensation that governs Indian troops in Kashmir.

"The Armed Forces special Powers Act gives the army sweeping immunity .They can pick up civilians who they think are perpetrators, and in some cases they can also get away with killings and torture with any prosecution and some say that this is where the rot actually stems from".

Growing anger

Suri said the cable was likely to create more restlessness in the region.

"We have seen this year, some of the worst protests on the streets of Srinagar ... Hundreds of thousands of people came out on to the streets protesting [against] army rule."

The cable said the ICRC revealed to US diplomats that in 852 cases, detainees reported cases of ill-treatment, including various forms of torture. As many as 681 detainees were said to be subjected to more than one form of ill-treatment.

The memo added that the ICRC reported that ill-treatment and torture "is regular and widespread" and "always takes place in the presence of officers" and that the ICRC "has raised these issues with the government of India for more than 10 years".

The cable added that while the ICRC reported that security forces were rougher on detainees in the past, "detainees were rarely militants [they are routinely killed], but persons connected to or believed to have information about the insurgency".

Violence linked to insurgents in Indian Kashmir has eased since nuclear-armed India and Pakistan launched a peace process in 2004 over the disputed Himalayan region.

But popular pro-independence protests since June have left more than 110 protesters and bystanders -- many of them teenagers - dead.

India and Pakistan each hold part of Kashmir but claim it in full

Amnesty International urges Indian authorities to release Kashmiri boy

Amnesty International has urged the authorities to immediately release a Kashmiri Boy, Murtaza Manzoor, 17, a resident of Zaina Kadal in Srinagar, who was unlawfully detained on January 21, this year, under the draconian law, Public Safety Act (PSA), by Indian police in connection with last year’s uprising. The Amnesty International in its recent report while quoting Murtaza’s family said that they had produced substantiated documents, which clearly mentioned the age of illegally detained youth as 17 years. “His detention clearly violates UN Convention on the Rights of the Child which stipulates that such detention should be in a separate facility for children, as close as possible to his family in order to facilitate family contact,” it added.

The report mentioned the inability of Murtaza’s family to meet him in Kot Bhalwal Jail Jammu where he was lodged. “Murtaza’s father is a rickshaw driver and cannot meet the expenses for jail visits and legal proceedings for his release,” the Amnesty International maintained. Pointing out the deplorable condition of prisons, it said that among a large number of Kashmiris detained by the police during last year’s massive anti-India demonstrations many were aged below 18. Amnesty International has specifically sought an amendment in the Jammu and Kashmir Juvenile Justice Act especially with respect to the age factor and that all underage prisoners be treated as juveniles.

With Amnesty International spearheading ‘ Free Murtaza’ campaign,’ the social networking sites are flooded with messages and tweets urging the puppet Chief Minister, Omar Abdullah to stick to his promise of not detaining minors under the PSA.

More than 16,000 Kashmiris Jailed under PSA in last 17 years

The Indian state of Jammu and Kashmir is holding hundreds of people each year without charge or trial in order to ‘keep them out of circulation’, a new Amnesty International report released today shows.

A ‘Lawless Law’: Detentions under the Jammu and Kashmir Public Safety Act, documents how the Public Safety Act (PSA) is used to secure the long-term detention of individuals against whom there is insufficient evidence for a trial.

Estimates of the number detained under the PSA over the past two decades range from 8,000-20,000, with 322 reportedly held from January to September 2010 alone.
“The Jammu and Kashmir authorities are using PSA detentions as a revolving door to keep people they can’t or won’t convict through proper legal channels locked up and out of the way,” said Sam Zarifi, Amnesty International’s Asia-Pacific Director.

“Hundreds of people are being held each year on spurious grounds, with many exposed to higher risk of torture and other forms of ill-treatment.”

Detainees include political leaders and activists, suspected members or supporters of armed opposition groups, lawyers, journalists and protesters, including children. Often, they are initially picked up for ‘unofficial’ interrogation, during which time they have no access to a lawyer or their families.

Over the past decade there has been a marked decrease in the overall numbers of members of armed groups operating in Jammu and Kashmir. But in the last five years, there has been a resurgence of street protests.

“Despite this apparent shift in the nature of the unrest, Jammu and Kashmir authorities continue to rely on the PSA rather than attempting to charge and try those suspected of committing criminal acts,” said Sam Zarifi. “The PSA undermines the rule of law and reinforces deeply held perceptions that police and security forces are above the law.”

Amnesty International research shows how the implementation of the PSA is often arbitrary and abusive, with many of those being held having committed no recognizably criminal acts. The Indian Supreme Court has described administrative detention, including the PSA, as ‘lawless law’.

Those held under the PSA can face up to two years in detention. But the Jammu and Kashmir authorities consistently thwart High Court orders for the release of improperly detained individuals by issuing successive detention orders. Many detainees are thus trapped in a cycle of detention and remain, in the words of one high-ranking Jammu and Kashmir official, ‘out of circulation’.
The PSA provides immunity from prosecution for officials operating under it.
“Those being held have no access to legal representation and cannot challenge their detention in any meaningful way,” said Sam Zarifi. “Once released, they cannot seek any redress or compensation for the wrongful detention they have endured and virtually never receive justice for the torture and ill-treatment.”

Amnesty International acknowledges the right, indeed the duty, of Indian authorities to defend and protect their population from violence. However, this must be done while respecting the human rights of all concerned and abiding by international law.
“The use of administrative detention does not conform to international human rights legal obligations and agreements that the Indian government is a party to,” said Sam Zarifi. “The Indian government must ensure that Jammu and Kashmir authorities repeal the PSA and end the odious system of administration detention once and for all.”

Amnesty International is calling on the Government of Jammu and Kashmir to:• Repeal the PSA and end the system of administrative detention, releasing all detainees or charging those suspected of committing criminal acts with recognized offences and trying them fairly in a court of law
• End illegal detentions and introduce safeguards ensuring those detained are charged promptly, have access to relatives, legal council and medical examinations and are held in recognized detention facilities pending trial

Amnesty International is calling on the Government of Jammu and Kashmir and the Indian Government to:• Carry out an independent, impartial and comprehensive investigation into allegations of abuses against detainees and their families, including allegations of torture and other ill-treatment, denial of visits and medical care, making its findings public and holding those responsible to account.

Statements of world organizations regarding HR abuses in IHK

Indian authorities must release 14-year-old held in Kashmir without charge18 November 2010

Amnesty International has urged authorities in the Indian state of Jammu and Kashmir to release a 14-year-old child who has been detained without charge or trial for seven months, for allegedly taking part in anti-government protests.

The authorities claim that Mushtag Ahmad Sheikh was part of