24 October 2011
Last week, the cabinet approved five amendments in the J&K Public Safety Act, a law many think is ruthless and misused. The changed PSA would be promulgated through an ordinance till the assembly starts its budget session.
Section 8 has been amended to ensure that the PSA should not be slapped on a state subject who has not attained the age of 18 years.
Section 13 has been amended to ensure that grounds on which the order (of detention) has been made should be in the language understandable to the detainee.
Section 14 stands amended, suggesting that the Chairman and the members of the (advisory) Board shall hold the office for a period of three years which will be extendable for a period of two years.
Section 16 has been amended under which the advisory board has to take a call on the basis of the material evidence placed before it (on detention) within six weeks and not eight weeks.
Section 18 of the law that deals with the period of detentions also stands changed. Now under sub section (a) the detention period is reduced from 12 months to three months. For those indulging in timber smuggling there is no change in detention period and in fact a new clause has been added (a-1). Section 18(b) will read like this: “Six months (and not two years) in the first instance which may be extended up to two years from the date of detention in the case of persons acting in any manner prejudicial to the security of the State.”
Public Safety Act is one of the many laws termed draconian that are in vogue in J&K. Initially introduced to manage timber smuggling, it was later used as a political weapon by the ruling government against the opposition. Some lawmakers did take up the issue of changing the “most misused law” a few times in the state legislature, but the government maintained that it was “a must for running the affairs in the State.” After it was targeted by the Amnesty International by publishing a report ‘The Lawless Law’, the government decided to make certain amendments to the PSA.
However, the government did not delete section 10(a) that makes PSA ruthless. This section provides that the order of detention cannot be deemed to be invalid even if “the grounds of such detention are vague, nonexistent, not relevant and not connected with the person to be detained.”
The changes have not pleased many people. Lawmaker,Engineer Rashid is unimpressed. The draconian law, he said, has already brought a bad name to the state internationally. “How does it make a difference if grounds of detention or dossier is given to a person in his mother tongue?” he asked. dignity.
Geelani TAKING OFF!
Indicators are quite bleak, but there is a whiff of change in the air. It started soon after the interlocutors submitted their report that is still a secret with the MHA. There were reports that New Delhi might engage inflexible separatist Syed Ali Geelani, and then there was news that his younger son was issued a passport.
Hurriyat (G) insiders said the passport was issued to Naseem on the plea that he intends to fly to Saudi Kingdom to see his sister who is indisposed for last few months. But there were reports that New Delhi is considering to issue a passport to Mr and Mrs Syed Ali Geelani also on the same plea.
It was in this backdrop that Geelani addressed a news conference. He said if there is some kind of invitation, his alliance would consider it. “There is nothing much I can tell except that we are not against any purposeful dialogue,” he said. He actually read from Iqbal’s poetry suggesting: “It is your prayer that your desire be granted / while it is my prayer that your desire changes.”
“Let us see”, Geelani told reporters, “if and when there is any invitation (for talks), we will discuss it in the advisory council. We have a system in place, we will talk within and we will seek suggestions from the like-minded,” he said. “It is important to see the nature of the invitation first and then only we will decide and tell you.”
Geelani, however, ducked questions about the militant leaders asking Kashmir separatists not to get involved in any kinds of dialogue. Muzaffarbad-based United Jehad Council leader Syed Salahuddin has asked the rival factions of the Hurriyat to stay away from any bilateral process with New Delhi because the latter has never exhibited sincerity.
Sources in the alliance said there are reports (through track-II) that New Delhi is interested in “unconditional talks”. But nothing concrete has been suggested so far.
Kashmir’s Chief Minister has stated that the two most controversial security laws, the Armed Forces Special Powers Act (AFSPA) and the Disturbed Areas Act (DAA) could be revised or even revoked from at least four districts in the state of Jammu and Kashmir.
“With the gradual improvement in the security situation and return of peace, some laws (AFSPA and DAA) are being removed from some areas of the state within the next few days,” said Omar Abdullah.
Meanwhile, the J&K government has revealed that the Centre has declined to prosecute members of the military force in 26 cases out of the 50 sent by them in the past 22 years.
Out of 50, prosecution is now awaited for only 16 cases. This was revealed when an application under RTI was filed by the Jammu and Kashmir Coalition of Civil Society (JKCCS). In its reply, the Home Department disclosed that they have applied for a sanction to prosecute 31 cases from the Ministry of Defense and 19 cases from the Ministry of Home Affairs, under Section 7 of AFSPA in only 50 cases from 1989 to 2011.
In a reply to the RTI filed by JKCCS, the Union Home Ministry and Defense Ministry revealed they have recommended prosecution in eight out of 50 cases involving the Armed Forces in Jammu and Kashmir in the past 22 years. However, they did not elaborate on the “recommendation.”
KhurramParvez, program coordinator of JKCCS says, “They have received four more cases than what is claimed by the Home Department of the Jammu and Kashmir government. In the affidavit submitted by the Joint Secretary of the Ministry of Defense, there is not even one case where the sanction under AFSPA is granted for prosecution.”
A JKCCS statement says, “Contradicting the claim of the state Home Department, the Joint Secretary of the Ministry of Defense, on 5th June 2009, in an affidavit submitted to the Jammu and Kashmir High Court in the case of GhulamNabiMagrayvs Union of India (Writ Petition no. 1842 of 2003), it was revealed that they have received 35 cases from the J&K government for prosecution sanction under AFSPA.”
The statement further claims that the state Home Department’s version of two cases from Uri and Anantnag contradict the claim of the Ministry of Defense. According to the Ministry of Defense, in its affidavit submitted on 5th June 2009, the 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, where as the state Home Department continues to claim that in both these cases, sanction for prosecution is recommended.
In the well known case of the killing of human rights defender Jalil Ahmed Andrabi under FIR no. 29/97 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. In another application for prosecution sanction under AFSPA against Major Avtar Singh under FIR no. 139/96 in the Baramulla police station, where he killed Imitiyaz Ahmed Wani in custody. According to the Ministry of Defense, the case is under consideration for prosecution sanction under AFSPA. Even when there is aInterPol warrant against Avtar Singh, he continues to live a seemingly comfortable life in the United States. The Ministry of Defense is apparently not concerned in helping the processes of justice, and say that they have not received the case in the Ministry of Defense.
Parvez, the JKCC Spokesperson says, “The contradiction between the state government and the Ministry of Defense exhibits both inefficiency and the 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,” he added.
The confusion in official circles does not remain confined to the debate on the fate of the Armed Forces Special Powers Act. Even when it comes to statistics regarding the sanction for prosecution under Armed Forces Special Powers Act (AFSPA), the state government and the ministry of defence cannot seem to agree.
Parvez adds, “This contradiction between the state government and the Ministry of Defense exhibits both inefficiency and lack of any sense of accountability. And the lack of accountability persists due to legal, political and moral impunity which exists due to the policy of institutionalized and systematic violence”.
NHRC Chairperson, Justice K G Balakrishnan while addressing the National Consultation for Universal Periodic Review 2012 said, “The Commission would consider looking into repealing of AFSPA and also how much time more this needs to continue”. He also stressed upon the need to classify the offences which could be considered as violation of human rights so that it is easy for the people to file complaints in the human rights courts which should be setup by all the states as per the Protection of Human Rights Act.
The State Human Rights Commission (SHRC) is all set with its final judgment into the case of unmarked graves in North Kashmir. They have prepared a 50-page report. Meanwhile, the Commission has asked respondents in Poonch and Rajouri to file their responses till November 28.
Earlier, SHRC were reported to have retained interim recommendations that the investigation will be done by an independent representative structured body. And the bench comprising of SHRC chairperson Justice (Retd) Syed Bashiruddin Ahmad and member Javaid Ahmad Kawoos had stated that the recommendations are interim in nature and the final judgement would be announced later on.
The interim orders of SHRC had come following a probe by the investigative wing of the Commission wherein it had been reported that more than 2,000 unmarked graves existed ‘beyond doubt’ at 38 sites across North Kashmir.
SHRC has given time to State government and other respondents in a response filed by Association of Parents of Disappeared Persons, which claimed existence of over 3,844 unmarked graves at 208 sites in Poonch and Rajouri districts of Jammu region.
The bench in its interim order on September 16 had sought DNA profiling, dental examination, distinctive medical characteristics, finger prints, carbon dating and forensic pathology so that even the identity of dead, in these unmarked graves is possible with the claimed disappeared persons.
The Chief Minister Omar Abdullah has accepted the presence of unmarked graves, but categorically denied that there are any mass graves in the state. He says, “Since the establishment of such a commission needs the involvement of powers across the line of control (LOC), it is not feasible for the state human rights commission to go into it at the moment. All unmarked graves in the rural areas do not mean those killed by the security forces are buried there”.
Responding to the prosecution’s plea, Rajeev Gupta, the Chief Judicial Magistrate of the city court directed the IG Police of Kashmir to implement its order with regard to setting up of a special investigation team (SIT) to probe WamiqFarooq’s death. The report is asked to be submitted within one month. The court has also ordered IGP to appear personally in the court.
WamiqFarooq, a 7th class student who was barely 13-years-old, was hit by a tear smoke shell in RajouriKadal in January 2010. His death triggered anger in youth, and it took government forces more than six months to normalize conditions across Kashmir. Keeping this in mind, the judge has said in his February 5 order that he wants to make this case an example. He says he had asked them to constitute a SIT comprising of three officers of known professional competence and integrity, headed by a Superintendent of Police to get effective results–but till now nothing of that sort has come up.