196

CHAPTER V

VIOLATIONS OF HUMAN RIGHTS: BY SECURITY

FORCES

Mahatma Gandhi

Sixty six years since the birth of independent India, torture, disappearances and killings

sanctioned by the State remain prevalent. Brutal methods are deployed by police and

experiences in Punjab, Kashmir, the Northeast, and the so called Naxal-affected areas

sanction arbitrary powers and draconian laws as a tool of suppression in the pursuit of law

and order and the perceived threat to national security. The courts, the criminal justice

system, and commissions have consistently failed to deliver justice and strengthen the

human rights and constitutional safeguards of victims. Conversely, the legislative

provisions have strengthened the protections from prosecution afforded to the security

forces through the enactment of provisions such as the Armed Forces (Special Powers) Act

1958, the Terrorist and Disruptive Activities Act 1984 and the Prevention of Terrorism Act

2002. The failures of the system, perhaps in some part explain the inevitable reactions and

frustrations of the people. The ma

some form of armed conflict or insurrection.1

This chapter examines the Sikh Separatist movement for independence in Punjab in the

mid- - Powers Act of

1958(AFSPA) in Northeast and in Kashmir Valley. Victims and witnesses have been

1

bureau of democracy, Human Rights, and labour, 25 February, 2009, available at

http://www.state.gov/g/drl/rls/hrrpt/2008/sca// , accessed on 18 july,2013.

197

subjected to torture, extra-judicial killings and forced disappearances at the hands of police

and armed forces in these areas. Given enormous powers by the Central Government in

these areas, the States forces use violence to put down any suspected activity against the

State.

The events from Punjab, Manipur and Kashmir are each grounded in the context of their

struggles for self determination against the Indian State. Each context has radically

different origins and demands, yet the Indian State has responded with remarkably similar

response to each of these struggles are:

(i) The dehumanization of the population in the popular consciousness by labeling

(ii) The justification of violence against the population as responsive to a security

threat;

(iii) The deplo

(iv) The erosion of the rule of law;

(v) The enactment of repressive legislation that:

Gives enormous powers to the police, armed and security forces for actions committed

under these laws; provides immunity to the police, armed and security forces for actions

committed under these laws; dilutes ordinary principles of criminal law, such as the

presumption against bail and allowing a confession given in custody to be admissible

against an accused; and opts out of constitutional standards and the rule of law.

The laws which governed these regions are Armed Forces Special Powers Act (AFSPA),

Terrorist and Disruptive Activities Act (TADA),Armed Forces Jammu and Kashmir

Special Powers Act(AF(J&K)SPA) and Jammu and Kashmir Disturbed Area Act,

empower the armed forces to use violence and force against the local population to

-national

198

reas, the police and armed forces are often rewarded for their

Police and Security forces are shielded from prosecution for atrocities committed in the

pursuit of law and order by a blanket of immunity legislation that makes their prosecution

subject to the express permission of Central or State Government-permission which is

rarely given. The Indian Government is reluctant to implement methods to increase

accountability of the security forces because it claims that this would affect the morale of

forces operating in difficult circumstances.2

The rule of the law is being steadily eroded in regions governed by anti-terrorism and

security laws. The legal protection available under domestic law and constitution to protect

citizens from state sponsored atrocities are often emptied of practical meaning in these

contexts.

Victims and Witnesses from Punjab and Kashmir have experienced lot of hardships to

attain justice for relatives that have been murdered or have disappeared. In addition to the

complete breakdown of the practical legal guarantees afforded by the Constitution to

protect citizens from state- sponsored atrocities, the legal system itself has also proved

unwilling to enforce the constitutional rights of victims of atrocities. The courts are

very few high ranking officers and a negligible number of low ranking officers have been

prosecuted for human rights violations taking place during counter-insurgency operations.

Many thousands of families and victims have been unable to attain justice for the losses

they have suffered.

As long as the Indian State remains committed to the use of top down oppression and

for self-determination, human rights violations in India will continue unabated. This will

2 Gautam Sen , Conceptualizing Security for India in the 21

st century, Atlantic Publishers and

Distributers, New Delhi,2007,p.321.

199

serve only to push the oppressed to increasingly violent means, there by perpetuating the

cycle of violence.3

5.1 Punjab in the 1980s and 1990s

Successive Indian Government have trampled on the fundamental constitutional rights of

their citizens in the name of state security and have perpetrated systematic human rights

abuses against those they deem anti-national or disruptive. This is nowhere more apparent

in the State of Punjab, which was subjected to a decade of torture, extra-judicial killings

and forced disappearances at the hands of police and military forces between 1984 and

1995. The Sikh Separatist movement grew to prominence in Punjab in the early 1980s. The

conflict was caused due to a number of reasons ranging from the future of Chandigarh,

territorial adjustments with neighbouring states, river water allocations, protection as well

as promotion of Sikhism, reducing landholdings over the past few decades which resulted

in the progeny of marginal farmers being converted into owners of economically unviable

land holdings, and unemployment reaching a new peak in the early 1980s, which gave rise

to disgruntled youth who took to militancy.4

The Sikh militant movement in Punjab escalated after the Indian Army raided the

Harmandir Sahib (Golden Temple) complex in Amritsar, Punjab the center of Sikh

religious and political life on June 4, 1984, along with 41 other gurdwaras in

Punjab.5Indira Gandhi deployed over 100,000 Indian Army troops across Punjab to

conduct the attack, code named Operation Blue star, during one of the most celebrated

religiou

Guru.6The troops stationed outside the Harmandir Sahib complex prevented thousands of

3 Gautam Sen , Conceptualizing Security for India in the 21

st century, Atlantic Publishers and

Distributers, New Delhi,2007, p.321. 4 Gurpreet Singh, Terrori , Sehgal Book Distributors, New Delhi,

1996,p.35. 5 South Asia Forum

for Human Rights, Kathmandu,Vol.1,May 2003, p.35. 6 Ram Narayan Kumar, Terror in Punjab: Narratives, Knowledge and Truth, Shipra publications,

New Delhi, 2007, p. 116.

200

civilians who had gathered for the religious celebrations from escaping the violent

exchanges between militants inside the temple complex and the Indian Army forces. The

attack continued for four days.7 During the exchange of firing with the ensconced militants

after troops entered the complex, and the subsequent executions by the Army, thousands

were believed to have been killed, the majority of them Sikh pilgrims. The indiscriminate

use of force led to heavy damages to the Harmandir Sahib complex which caused

tremendous outrage among Sikhs, many of whom did not support the militant campaign for

a separate Khalistan.8On October 31, 1984, two Sikh members of Prime Minister Indira

and police officers orchestrated pogroms of Sikhs in various cities across India, killing at

least 2,733 Sikhs in Delhi alone. Gangs of assailants burned Sikhs alive, raped women, and

destroyed their gurdwaras and properties. The killings of Sikhs were carried out in form of

different massacres that were part of a wider plan of genocide of Sikhs. Government of

India has been practicing impunity towards the perpetrators of 1984 Sikh Genocide.9 The

Congress leaders including Sajjan Kumar, Kamal Nath and Tytler who organized and

perpetrated the Genocide of Sikhs are being protected by the Government.

Spurred on by the intens

acts, including bombings, murder, torture, and extortion. From May 1987 until February

1992, the Indian government dismissed the elected government in Punjab and imposed

direct governance by the center. Political commentators observed that militant violence was

at its peak between 1989 and 1992, and especially pervasive in the three districts bordering

Pakistan: Amritsar, Gurdaspur, and Ferozepur.10

7

smspublications/pdf (accessed on July 15, 2013), pp. 15 16. 8 Ram , Sikh Review,48(6),

Calcutta, June 2000,pp.30-36. 9 - http://news.bbc.co.uk ,accessed on

July 15, 2013. 10

US State Department, Bureau of Democracy, Human Rights, and Labour, Country Reports on

Human Rights Practices -1992: India, p. 1133.

201

rights violations and shielded security forces from accountability for these violations. The

National Security Act was amended to allow for detention without trial for up to two years in

Punjab for acts prejudicial to the security or defense of India. The Terrorist and Disruptive

Activities (Prevention) Act of 1987 (TADA), provided the police with powers of search,

seizure, and arrest. Under Section 15, a confession allegedly voluntarily made before a police

officer, not lower in rank than a superintendent of police, was admissible in court against an

accused (or co- accused, abettor or conspirator) for an offense under this Act. There were

widespread allegations that police routinely used torture to obtain confessions from detainees

and/or planted evidence as a means of detaining them under TADA. The Terrorist Affected

Areas (Special Courts) Act of 1984 provided for special in-

The Armed Forces (Punjab and Chandigarh) Special Powers Act of 1983 empowered

security forces to search premises and arrest people without warrant. Section 4 of the

Special Powers Act allowed security forces to shoot to kill suspected terrorists, and Section

7 extended prosecutorial immunity to any action taken pursuant to the Act. TADA, too,

11

thousands of Sikhs in counterinsurgency operations. In the early 1990s, Director General of

Police (DGP) KPS Gill expanded upon a system of rewards and incentives for police to

executions of civilians and militants alike. However, the vast majority of these

1995 have received promotions and currently occupy senior positions in the Punjab police.

Their ongoing tenure and the impunity granted to almost all perpetrators have created a

11

US State Department, Bureau of Democracy, Human Rights, and Labor,

Human Rights Practices 1989: India

202

system that continues to facilitate custodial abuses, in particular illegal detention and

torture.12

5.1.1

Modalities of State Violence in Punjab

The human rights narrative describing political violence during the counterinsurgency

terms and places them in the context of the political violence in Punjab in the 1980s and

1990s.

5.1.1.1 Enforced Disappearances

vel or

hut, in a city or in a village, anywhere. They come at any time of the day or night, usually

in plain clothes, sometimes in uniform, always carrying weapons. Giving no reasons,

producing no arrest warrant, frequently without saying who they are or on whose authority

they are acting, they drag of one or more members of the family towards a car, using

.13

The above scenario describes an enforced disappearance from the perspective of a family

member. According to the International Covenant for the Protection of All Persons from

Enforced Disappearances:

detention, abduction, or any other form of deprivation of liberty by

agents of the State or by persons or groups of persons acting with

12

http://web.amnesty.org/library/Index/,accessed on July 16, 2013. 13

United Nations Working Group on Enforced and Involuntary Disappea

/FactSheet6rev.2en.pdf /accessed on July 16,2013.

203

the authorization, support or acquiescence of the State, followed by

a refusal to acknowledge the deprivation of liberty or by

concealment of the whereabouts of the disappeared person, which

place such a person outside the protec

The Declaration on the Protection of All Persons from Enforced Disappearance, adopted by

the United Nations General Assembly on 18 December 1992, states in its preamble:

society committed to respect for the rule of law, human rights and

fundamental freedoms---the systematic practice of such acts is of the

violation of the human rights and

fundamental freedoms proclaimed in the Universal Declaration of

Human Rights. Such act of enforced disappearance places the

persons subjected thereto outside the protection of the law and

inflicts severe suffering on them and their families. It constitutes a

violation of the rules of international law guaranteeing, inter alia,

the right to recognition as a person before the law, the right to

liberty and security of the person and the right not to be subjected to

torture and other cruel, inhuman or degrading treatment or

punishment. It also violates or constitutes a grave threat to the right

14

These rights are guaranteed in Articles 16, 9, 7 and 6 of the International Covenant on Civil

and Political Rights (ICCPR), to which India is a party and therefore bound to uphold.

14

et No. 6

/FactSheet6rev.2en.pdf /accessed on July 16,2013.

204

Enforced disappearances in Punjab often began with illegal detention. In the majority of the

cases, security forces abducted the victims in front of witnesses, often family members.

Indian security forces did not officially acknowledge detentions, provide family members

with information regarding the illegal detention or enforced disappearance of the victims,

or present detainees before magistrate within 24 hours, as required by Indian law.

In many cases, security officials, extra judicially executed victims and disposed of their

bodies without acknowledging the deaths or informing family members of the whereabouts

of the remains. With the channels of information controlled by government authorities,

families were discouraged from seeking legal remedies, and human rights organizations

were hindered in their attempts to document the full scale of the enforced disappearances.

Security forces further obstructed justice by intimidating witnesses and lawyers, detaining

and torturing family members, and ignoring court orders.15

There have been thousands of cases of disappearances in Punjab like Kuljit Singh Dhatt,

Sarpanch of Village Ambala Jattan in district Hoshiarpur, who was a relative of Shaheed

Bhagat Singh, the famous martyr of India was arrested in July, 1989 on murder charges by

the then Superintendent of Police, S.P.S. Basra on the orders of S.S.P. Ajit Singh Sandhu,

because Dhatt's father-in-law Dharam Singh, Superintendent of Police, was resisting police

excesses. This made Ajit Singh Sandhu furious and he targetted Kuljit Singh Dhatt. Dhatt

was shown to have escaped from police custody on July 25, 1989. But the CBI inquiry

indicted both Basra and Ajit Singh Sandhu for eliminating Dhatt. While an inquiry report

was submitted in 1993, a case, pertaining to his death, was registered only in 1996. The

trial, on the other hand, began at the start of 2012.Five cops were held responsible for his

elimination. The case is still pending.16

15

Harvard

Human Rights Journal, 2009,p.269. 16 - Express news service : Jallandhar, Tue, Nov

27 2012, 03:31 hrs,http://www.indianexpress.com/news/dhatt-elimination-five-more-cops-made-

coaccused/ accessed on July 17, 2013.

205

In another case, Preetpal Singh Virk, SP (Detective) Sangrur along with the other cops,

had picked up Tejinder Singh, his father Budh Singh and their servant Joga Singh from

father was kept allegedly in illegal police custody till May 28. Tejinder Singh was allegedly

tortured before being released on June 6. After this, his family sent him to Calcutta where

they ran a dairy business. Virk and the other accused cops then allegedly picked up

Tejinder from Calcutta and brutally tortured him to the extent that many of his bones were

dislocated. Tejinder later went missing, even as the police kept denying interrogating him

and bringing him from Kolkata. The police did not even register an FIR, despite Budh

complainant in the case, Budh Singh, moved Punjab and Haryana High Court alleging that

whereabouts of Tejinder Singh were not known after police allegedly picked him up and

kept him in wrongful confinement and tortured him. It is notable that on the directions of

the Punjab and Haryana High Court, then district and sessions judge (Vigilance) R C

Kathuria conducted a probe into the matter. Judge Kathuria submitted his report in this

Despite the fact that the probe report had expressed apprehensions regarding the murder of

Tejinder Singh, the CBI filed a chargesheet against the six cops in April 2000 under

sections 364, 365, 342 and 120-B of the IPC relating to illegal confinement, abduction and

conspiracy and not for murder. CBI court in Patiala sentenced a SSP Virk, besides five

others for 10 years jail on March 11, 2013.17

Many Sikhs, including women, were subjected to enforced disappearances by Punjab

police or other Indian security forces. In a case on disappearance Punjab and Harayana

High Court and Association v. State of Punjab,the court reprimanded the Punjab police

for the abduction, disappearance and killing of an advocate Kulwant singh,his wife and 18

months old child. On January 25,1993 a young lawyer Kulwant Singh practicing in District

Courts, Ropar along with his wife and two years old child were allegedly detained in the

17

Ravinder Vasudeva - Hindustan Times, Patiala,

March 11, 2013,p.1.

206

Ropar police station, where they had gone to secure the release of a woman and her son

from police custody. But they were abducted and killed by Ropar Police. Police denied

having arrested the couple and falsely implicated one Harpreet Singh Lucky and held him

responsible for the killing and throwing the dead bodies of the trio in the Sirhind Canal.

Lawyer fraternity all over the region protested against this murder of the lawyer, his wife

and two years old son and belied the police story. A related petition was filed by a litigant

against the lawyers strike. The High Court Bar Association also intervened to be impleaded

as a party and it was vehemently demanded that an independent inquiry may be ordered in

the kidnapping and murder of the lawyer family. But the five-judge constitutional bench of

the High Court dismissed the plea of the lawyers leaving them high and dry. The Bar

Association filed an appeal in the Supreme Court which ultimately ordered a CBI inquiry

into the gruesome murder of the lawyer and his family. The CBI report revealed that

Harpreet singh was falsely implicated by the police officers. Four police officials were

charged for kidnapping and murder. A special CBI court on December 1,2012, acquitted all

the four Punjab Police officials by awarding benefit of doubt. 18

Similarly, Gurdev Singh Kaunke, former acting head priest of the Akal Takht, was arrested

on 25 December 1992 ,from his home in Kaunke village under Jagraon subdivision of

Ludhiana district. The police authorities later claimed that Gurdev Singh Kaunke escaped

from their custody on 2 January 1993 whereas his family alleged that the cops had killed

him. The case was being pursued by his son and an enquiry was ordered and in 1988 the

enquiry found the police guilty but six years later another enquiry acquitted all the police

officials.19

In another case, Father, Uncle and friend of Professor Devender Pal Singh Bhullar, a Sikh

political prisoner facing death sentence in India for car bomb attack on then Youth

Congress leader Maninderjit Singh Bitta in 1993 were picked up by then SSP of

Chandigarh, in 1991 and they were brutally tortured in custody. Later at the directions of

SSP they were moved to Qadian police station and since then there are no known

18

Indian Express, December 2,2012,p.1. 19

Hindustan times, 2007,p.3.

207

whereabouts of trio as they were exterminated in police custody by SSP and others. Even

when the CBI found enough evidence against SSP in Bullar family extermination case, in

a thorough inquiry conducted after the orders of Punjab and Haryana High Court, the

Supreme Court of India stayed the case after registration of FIR and later quashed whole

proceedings on technical grounds. SCI judges deliberately failed to take notice of facts

brought into light by CBI inquiry or themselves order a fresh inquiry into the allegations of

serious human rights violations against SSP in Dec 2011. 20

5.1.1.2 Fake Encounters

According to evidence collected by human rights groups, Indian security forces reported

many extrajudicial executions, custodial deaths, and enforced disappearances as

example, in February 2006 then Director General of Punjab Police admitted that the Punjab

Police had faked the encounter deaths of over 300 militants-turned-informers, cremating

others in their place, who remains unidenti21

Further, in an examination of 838 reported

enforced disappearances, the Committee for Coordination on Disappearances in Punjab

found that 467 of the cases were reported in newspapers as encounters or escapes, though

22

The US State Department described the practice of fake encounter killings in Punjab in

1993:

In the typical scenario, police take into custody a suspected militant or militant supporter

an arrest report. If the detainee dies during interrogation or is executed,

officials deny he was ever in custody and claim he died during an armed encounter with

police or security forces. Alternatively, police may claim to have been ambushed by

20

Times of India,15 March,2012,p.1. 21

US State Department, Bureau of Democracy, Huma

Rights Practices -

hrp report/93hrp report sasia/India.html ,accessed on 16 July,2013 22

(Chandigarh), February 20, 2006, http://www.

tribuneindia.com/2006/, accessed on July 16,2013.

208

militants

23

Alleged encounters were often reported in local newspapers with little information other

than the number of alleged militants killed in a given encounter and the village where the

encounter supposedly took place. These reports have thus been difficult to systematically

scrutinize against claims of enforced disappearances and extrajudicial executions.

A number of terrorists and other persons(relatives, supporters etc) were killed in encounters

of which several did not actually take place. In Pritam Singh v. State of Punjab,District

and Session Judge, Jallandhar conducted an inquiry that whether Santokh Singh had

escaped from police custody or was eliminated in the stage managed encounter. As to the

facts of the case, a case was registered against Santokh Singh under section 25 of the Arms

Act and section 3,4 and 5 of the TADA. According to police version, he escaped from

police custody during an armed ambush by militants on the police party. The inquiry report

disclosed that it was a prima facie case of fake encounter and held one inspector liable. The

Punjab and Harayana High Court, therefore directed to pay compensation of Rs.3 lacs to

wife and children of deceased.24

Likewise in another case, Karnail Singh and others v. State of Punjab and others

relating to kidnapping and subsequent killing of Harpal Singh in a fake encounter by

Kapurthala police,the CBI found an ASI and other police officials responsible for his

killing and a case under section 364 read with section 120-B IPC was made against

them.The state government subsequently issued necessary sanction to prosecute ASI and a

compensation of Rs.three lacs to the family of the deceased.25

23

Ensaaf & Human Rights Watch. "Protecting the Killers: A Policy of Impunity in Punjab, India." Vol.

19, no. 14(C). October, 2007, http//www.ensaaf.org/publications /reports/protectingthekillers/

reportswcover.pdf,accessed on July 16,2013. 24

(2001) 3 RCR (Criminal) 569. 25

(2005) 1 RCR (Criminal) 581.

209

Sarabjeet Singh alias Surjit Singh, a young boy of Village Valtoha in Amritsar district was

picked up by a police party on 30th October, 1993 from his house. He was badly tortured in

there after shot, illegal custody and his condition became serious. The policemen thought

him dead. They brought him to Civil Hospital, Patti, district Amritsar at about 9 P.M.on

30.10.1993 for a postmortem examination. But the doctors found him alive at the

postmortem table. He was immediately administered glucose and he gained consciousness.

His parents at Valtoha were informed about his well being by the doctors. But as soon as

the news reached the police officers who had brought him, who rushed back to the hospital,

forcibly took away Surjit Singh and after few minutes brought his dead body for the post

mortem. Incidently, two lawyers of Amritsar, Mahabir Singh Gill and Surinder Pal Singh

Ghariala witnessed the whole event and reported the matter to Satya Pal Dang, a veteran

CPI leader who brought this matter in the press. On the orders of the Supreme Court, the

CBI brought the four police officers to trial for abduction, torture and murder of Surjit

Singh in the Court of Additional Sessions Judge, Amritsar. Additional Sessions Judge,

Amritsar after trying the four policemen for more than four years, held only one S.I. guilty

of kidnapping and murder of the deceased and sentenced him to 10 years rigorous

imprisonment and a fine of Rs.2000. His three gunmen were however, acquitted of the

charge.26

Dalbir Kaur, a resident of village Kala Afghana in Gurdaspur and her father-in-law Jagir

Singh have approached the High Court for a probe to look into the fake encounter of

terrorist Gurnam Singh Bandala alias Neela Tara who had been caught alive. Neela Tara

was earlier shown as killed in an encounter in 1994. The petitioner stated that the

information gathered by them revealed that in 1994, instead of killing Neela Tara, the

police team headed by the DSP, killed her husband in an encounter. On August 13, 1994 3-

4 policemen took away Sukhpal singh, husband of Dalbir Kaur on pretext of investigation

in a case in Majitha. Sukhpal never returned, His family tried to locate him but failed in

locating him. Few days later, newspaper reports revealed that Gurnam Singh Bandala had

been killed in an encounter with police in Ropar by a team headed by the DSP . In 2007, a

26

Lawyers for human rights International, Case history of custodial death of Sarabjeet Singh alias

Surjit Singh of Valtoha, Distt. Amritsar, www.lfhri.org/index.php, accessed on July 16 2013.

210

newspaper report revealed that Bandala had been caught alive by Punjab police. The family

then approached higher police authorities, seeking probe to look into the fake encounter.

Later, DGP, NPS Aulakh ordered a probe. J S Birdi initiated a probe and retired in 2010,

but the status of inquiry was not ascertained. In 2012, authorities were again approached

but no positive response was received. Petitioner approached the Punjab State Human

Rights Commission, but the application was disposed off with directions from the police to

dispose of the complaint in accordance to the law. After exhausting all possible resources,

the petitioners have finally approached the High Court. The bench has directed the DSP,

the Punjab government and the CBI to file their response.27

SI Surjeet Singh has disclosed that he was part of mass human rights abuses in Punjab

during early-mid-1990s and killed 83 innocent Sikhs at the orders of his superior who is

now posted at Ludhiana as police commissioner.In his petition Surjeet Singh had given a

list of 16 fake encounters that he carried at the orders of his superior police officer. In his

petition, Surjit Singh SI claimed that he was being threatened by his superior officer and his

actively participated in four encounters first. In these encounters Sheetal Singh Mattewal,

Deputy Chief of Dashmesh Regiment of Khalistan and seven others were killed.

picked up and killed extra judiciously, the petitioner stated. He has also given a list of 16

other encounters, which according to his petition were fake and several persons were killed

under the supervision of the then Senior Superintendent of Police, Amritsar, who has been

promoted to the post of Inspector General of Police and is presently posted as

Commissioner of Police, Ludhiana. He approached Punjab and Haryana High Court

anticipating a threat to his life but Punjab and Haryana High Court has dismissed the

petition of suspended Sub-Inspector (SI) Surjeet Singh. The court strangely concluded that

SI Surjeet Singh had not exhausted other options and he should have contacted police

department in this matter . 28

27

accessed on July

17, 2013. 28

Times of India, July 5,2013.p.1.

211

A Punjab police constable, Satwant Singh Manak, who had joined the police force in early

1990s, witnessed about 15 fake encounters by police officers. He decided to blow a whistle

against this unlawful practice; so he quitted the police force and filed a petition in the

Punjab and Haryana High Court in 1994, informing the cold blood murders by the Punjab

police that were witnessed by him. But the High Court took 14 years to hold a hearing on

this petition and an order for CBI inquiry was passed by the court in 2008. But the Punjab

government went in appeal against this decision and two judges bench of the High Court

installed a stay on the order of inquiry. Even after five years the appeal is not yet decided

by the High Court.29

5.1.1.3 Illegal Cremations

In early 1995, human rights activists Jaswant Singh Khalra and Jaspal Singh Dhillon, of the

Akali Dal political party, used government crematoria records to expose over 3,000 secret

cremations by the police in just one of then 13 districts in Punjab. They focused their

investigations on illegal cremations, putting aside other possible ends of the victims

bodies, such as dismemberment or dumping in canals. Jaswant Singh Khalra described how

issue further, and our son is still

ht to ten everyday. Some said there was

no way to keep account; sometimes a truck full of bodies came, and sometimes two to four

30

29

, Times of India, July 19, 2013, p.1. 30

uary 2007,

www.ensaf.org/mass cremations, accessed on July 19 ,2013.

212

As Khalra began collecting information from the municipal records which gave the number

of dead bodies brought by specific police officers and the amount of firewood purchased to

burn the bodies, he also began to receive threats from the security forces. He had collected

clear evidence that in the district of Amritsar alone, there were as many as 3000 such cases

of young men, who were cremated as 'unidentified terrorists' without any information given

to their families. He was in the process of unearthing more facts and figures and making

similar revelations regarding other districts as well. He had also collected evidence that

around 2000 policemen in Punjab had been killed by the police itself for not co-operating

in counter-terror operations. He had found that the police had burnt more than 1400 bodies

in the cremation grounds of Amritsar, Patti and Taran Taran in the year 1992 only by

stating that they were unclaimed or unidentified. He also disclosed in a press release that

during the period Ist June, 1984 to the end of 1994 about 2000 bodies had been cremated as

unclaimed in the cremation ground near Durgiana Mandir in Amritsar alone,700 at Taran

note contained investigations of the killings of 3100 men whose bodies were labeled as

unidentified and cremated in three crematorias of Amritsar,Taran Taran and Majitha in

Amritsar District. On the basis of his investigations, Khalra firstly approached Punjab &

Haryana High Court by way of a Public Interest Litigation seeking independent inquiry into

the allegations of Cremation of un-identified bodies by Punjab police. The High Court in its

usual fashion challenged his locus standi and dismissed the petition as being too vague. He

then decided to approach the Supreme Court. At the same time, a human rights

organisation, Committee for Information and Initiative on Punjab(CIIP) filed a Public

Interest Litigation in the Supreme Court alleging large-scale disappearances in Punjab

during the militancy period. On their petition, the court issued notice to the State of Punjab.

Khalra was assisting this organisation and continued with his investigations in other parts

of the State. During this time, he had been receiving direct and indirect threats from the

police officials of Amritsar district, particularly from Tarn Taran's Senior Superintendent of

Police Ajit Singh Sandhu. The latter had warned that unless he stopped his activities, he

would also become an 'unidentified body'. But Khalra refused to take to flight, and stuck

with his human rights work in his native region. Eventually, the Punjab police abducted

Jaswant Singh Khalra on September 6, 1995, secretly detained and tortured him for almost

213

two months, and murdered him in late October 1995. His body was dumped in a canal. Six

police officers were convicted of charges relating to his murder and abduction in November

2005. Later on conviction of four were enhanced to life imprisonment in 2007.Motivated

later, the Supreme Court ordered

the Central Bureau of Investigation (CBI) to investigate the cremations. The CBI limited its

investigation to three crematoria in Amritsar district, acknowledging 2,097 secret

cremations. In its fifth and final report to the Supreme Court submitted on December 9,

powers under Article 32 of the Constitution, asking the NHRC to probe further.31

Human rights groups have used survivor and witness testimony to demonstrate that victims

enforced disappearances and fake encounters. In contrast, the NHRC has limited itself to

determining the identity of the cremation victims based on security forces con

fundamental rights violations and of institutional and individual responsibility. The NHRC

original petition.

In over 10 years of proceedings, however, the NHRC has failed to properly address civil

liability and accountability issues by refusing to independently investigate a single abuse or

allow a single victim family to testify. Instead, the Commission has based its findings on

information provided by the Punjab police, the perpetrators of the cremations. Furthermore,

the Commission has limited its inquiry to 2,097 cremations in three crematoria in one

district of Punjab and has refused to consider mass cremations, extrajudicial executions,

were perpetrated. In all, out of, 2097 bodies, 1513 were identified. These include 195 cases

where the victims were in deemed police custody and 1,318 others whose bodies were

cremated by the police. A total of 532 bodies remained unidentified despite efforts by the

31

khalravideo.php accessed on July 19, 2013.

214

NHRC from the date of remittance in December 1996.The Commission held that for the

violation of human rights of a total of 194 victims admittedly in police custody

immediately prior to their death and their cremation, their kin were entitled to monetary

compensation of Rs 2.5 lakh each. For the remaining cases, the families were paid Rs.1.75

lakh each. Thus NHRC has awarded Rs 27.40 crore as a monetary compensation to the

families of 1513 who were killed and cremated during militancy period in Punjab (1984-

1994).32

In an October 9, 2006 order, which effectively closed all of the major issues in the Punjab

mass cremations case, the NHRC appointed a commissioner of inquiry in Amritsar, retired

High Court judge K.S. Bhalla, to identify the remaining cremation victims from those

acknowledged by the government, if possible, within eight months. Though the Bhalla

Commission received a limited mandate, it could have devised an independent

methodology for identifying victims, conducted its own investigations, and allowed for

more evidence from victim families. Instead, it continued the NHRC practice of relying on

the Punjab police for identifications or confirmations of victims of illegal cremations. In all,

the commission could identify only 143 out of 800 unidentified deceased persons could not

be established for want of evidence.

There have been serious failure on the part of the Central and State governments, the

NHRC, the Police and the Courts to bring justice to thousands of families who have

devoted their lives in attaining justice for the atrocities carried out in Punjab. Like the

courts, the NHRC has shown itself unwillingness to address the liability of state forces for

the atrocities they committed in Punjab against the sikh population. Many perpetrators of

the abuses from 1984 to1995 have received promotions and currently occupy senior

positions in the Punjab Police. Their ongoing presence in the police force and the impunity

granted to almost all the perpetrators have created a system that continues to facilitate

custodial abuses, in particular illegal detention and torture.

32

t, 2006, http://www.ensaaf.org/ docs/

khalravideo.php accessed on July 19, 2013.

215

The Indian Government has implicitly encouraged or been complicit in widespread human

rights violations against its citizens. The lack of political will to prosecute, at the highest

level, those responsible for the terrible atrocities committed against thousands of Sikhs

suggests a bleak future for attaining justice for the victim.33

5.2 Living under AFSPA in Northeast

The Northeast region of India has been subject to internal armed conflict which dates back

prior to Independence. State policies, poverty, ethnicity, inequality and injustice are among

the root cause of violence in the area. Under the British, the northeast regions were

neglected in terms of economic development and opportunities, and little has done to

address the disaffection of the population in the Northeast since Independence.

Following Independence in 1947, ethinic groups who advocated for independence from the

Indian state came into the conflict with the Indian Government, who strongly opposed their

independence. In order to control civil unrest in the region, the Indian Government

deployed large numbers of troops to Nagaland in the 1950s. From this period onwards, the

population of the Northeast have been subjected to ongoing human rights violations and

brutal treatment at the hands of the military.

Independent India hangs on to many cruel measures created by the Colonial rulers. In order

ordinance, 1942. In 1953 the Government of Assam promulgated the Assam Maintenance

of public order (Autonomous Districts) Act in Naga and Tunsang hills, declaring

emergency in those areas. The Assam (Disturbed Area) Act was passed in 1955. This was

followed by the promulgation of Armed forces (Assam Manipur) (special powers)

ordinance in May 1958. In September 1958, after a year the Parliament converted it into the

33

India: Breaking the cycle of Impunity, Amnesty International, 2003, http//asiapacific.amnesty.

org/library/print/ENGASA, accessed on July 20,2013.

216

Armed Forces (Assam Manipur) special power Act. In 1972 the Act was extended to all

the seven States in the North-Eastern region of India. They are Assam, Tripura, Meghalaya,

Arunachal Pradesh, Manipur, Mizoram and Nagaland. Enacted to combat tension

originating from demands of self determination by the Naga people, AFSPA gave wide

ranging powers to the armed forces in the region. It remains in force in much of the

Northeast today. Now whole the NE region is under effective martial rule and region is

under effecting martial rule and occupation. People see army men with guns pointed at the

ready standing position at street corners, regular cordon and search operation, frisking

curfews, school being shut, occasional sound of gunfire are all part of every day

experience. AFSPA has resulted in innumerable incident of arbitrary detention, torture,

rape and looking by security personal. The region has truly become a killing field. Such

incidence has affected many innocent lives and fight for justice is becoming extremely

difficult for the traumatized families who have to live through the horrific experience over

and over again. Recourse to Légal help is near impossible, because the act has given such

power to the armed forces personal that no body can lodge any complaint against them in

the police station.34

The Constitutional Rights of the citizens of the northeast are extinguished in the face of the

laws that condone and even encourage methods of State terror against the population.

AFSPA contravenes constitutional law and international standards, legitimizes state terror

and attempts to justify torture, extrajudicial killings and disappearances. AFSPA is a law

contrary to constitutional and international law. Under AFSPA, extra judicial killing is

legitimized and immunity is granted to perpetrators of torture and violence.

The rational for AFSPA is that t

activity in the region and to control independence movements. In practice however, the

police and military force use the power and immunity that AFSPA grants to deal with

34

S. Baruah, Durable Disorder Understanding the Politics of Northeast India, Oxford University

Press, New Delhi, 2009, p.11.

217

ordinary matters of criminal justice. This highlights that increased powers given to state

actors result in increased violence against civilians, fuelling a mutual distrust.

The experience of AFSPA in the Northeast contains the lesson that violence by military

personnel breeds violence by the oppressed population. AFSPA has not helped to combat

militancy in the Northeast; it has in fact, helped fuel militancy in the region. In 1980, there

were only four armed opposition groups in Manipur; today there are over two dozen.

5.2.1 Application of the AFSP Act in practice, and responses

The provisions of the Act have been, and reportedly continue to be, routinely applied in

practice. The overall practical effect of the Act has been the de facto militarisation of

Manipur and other northeastern states of India. Even the proponents of the Act have

acknowledged that the general administration in Manipur is wholly dependent on the

security forces.

More than half a century of imposition of the Armed Forces (Special Powers) Act of 1958

(AFSPA) has on the one hand escalated discontentment and on the other institutionalized

impunity and militarism in Manipur. The AFSPA grants extraordinary powers to the armed

n

offence(s) or is suspected of having committed offence(s); enter and search any premise(s)

in order to make such arrests. No legal action can be taken up against the armed forces

unless prior sanction is obtained from the Union government.

Action taken pursuant to the Act reportedly led to 260 killings in 2009 alone. The military

has also widely used its powers to detain persons. As held in a number of judgments, those

arrested pursuant to the Act remained in military custody without being brought before a

judge for prolonged periods of time, such as five days or even two weeks. In several cases,

218

courts found that persons who had been arrested by the military under the Act disappeared

subsequently, which suggests that they have become victims of enforced disappearances.

The application of the Act has over the years led to numerous violations. The act has been

violating human rights of North-east India in many areas. Among these rape,

disappearance, arbitrary killing, custodial death, etc are the major areas. First, reported rape

case in Manipur by the security forces was that of Ms. Ross in 1974 before AFSPA was

imposed on the state. An officer of the Border Security Force repeatedly raped her. Ross

committed suicide out of shame while the perpetrator went scot-free, due to lack of

sufficient evidence. In the year 1996 at Ahanjaba, two Army personnel raped a married

woman in front of her 12-years old son. On July 19,2000 M. Mercy, a 25 years woman

was, gang raped by the personnel of 112 Battalion, Central Reserve Police Force (CRPF).

The family lodged the complaint immediately, but even after three months no identification

parade was conducted and not a single person was arrested.35

Some of the glaring examples

of arbitrary killing were also available like:

Heirangoithong massacre: March 14, 1984

Thousands were watching a volley ball match at the Heirangoithong Volley Ball Ground in

Imphal. Some extremists tried to snatch weapons from the CRPF personnel there which

resulted in the CRPF beginning to firing killing five people. The injured extremists soon

fled. The CRPF at that spot then began to shoot indiscriminately at the crowd, and more

joined the team from the nearby CRPF camp. Thirteen people were killed and 31 injured in

the firing that went on for half an hour. Mr Y Ibotombi Singh, District Judge, was

appointed as Enquiry Commissioner vide Manipur Government Notification No 1/1/

(45)/84-H dated June 25, 1984. The Commissioner reported that there was no cross-firing

and that two constables fired at the crowd even after the extremists had fled away, killing

and wounding them. It found that the Platoon commander instigated to fire more instead of

controlling the situation. It also reportedly accused the Platoon commander of being little

35

, IISS comments, Vol. 10, issue.6, July

2004,available at:www.iiss.org/stratcom, accessed on July 25, 2013.

219

conscious and completely forgetting his duty. A compensation of a mere Rs 10,000 each

was given to the next of kin of those killed and those injured were given Rs 4000.

Operation Blue Bird at Oinam: July 10, 1987

Insurgents raided the Assam Rifles post at Oinam village and looted the armoury. Nine

Assam Rifle personnel were also killed in the attack which triggered the Operation Blue

Bird. The armed forces retaliated by perpetuating atrocities on the village people of Oinam.

The Amnesty International report found that more than 300 villagers claimed they were

beaten, "some torture victims were left for dead ... others were reportedly subjected to other

forms of torture including inserting chili powder into sensitive parts of the body, being

given electric shocks by means of a hand operated dynamo ... or being buried up to the

neck in apparent mock executions." Fourteen civilians were shot dead and several others

died of hunger, starvation and torture in the concentration camps, out of the shock of

witnessing the torture of dear ones, etc, in an infamous incident of the operation, a woman

was forced to deliver her child in public view in an open field, as the troops jeered.

Tera Bazar Massacre: March 25, 1993

Unidentified youth shot at CRPF personnel at Tera Keithel, Imphal which killed 2 CRPF

men. Thereafter, the CRPF personnel rushed out and fired indiscriminately. Five civilians

were killed and many others received bullet injuries. However, no enquiry has been

instituted till date.36

Ukhrul Massacre, May 9,1994

When two Majors of the Assam Rifles were killed by alleged NSCN activists near the

Ukhrul town post on the 9th

of May, the Assam Rifles bombarded Ukhrul town with 2 Inch

mortar bombs. Firing into the houses with SLR and AK-47 continued non-stop for two

36

A.A. Begum, AFSPA and Unsolved Massacre in Manipur, Milli Gazatte, Online Publication,

November, 2010, p. 14.

220

hours. The Security personnel went berserk, searched houses, destroyed anything that came

their way, and beat up many people including women and children. In the end, the town

was left with miraculously just 3 (three) deaths, many damaged houses, broken furniture,

utensils, and over hundred bleeding men and women, out of which 75 were admitted with

broken limbs and other serious injuries. The National Human Rights Commission,

however, recommended in its proceedings of 9 February 1995, that compensation of Rs.

50,000/- be paid to the next of kin of each of the 3 civilians killed in the cross-firing.The

Ministry of Defence issued instructions on 31 March 1995 for the payment of the

compensation, as recommended by the Commission.

RMC Massacre: January 7, 1995

On the morning of January 7, 1995, the Central Reserve Police Force (CRPF) personnel

shot dead nine innocent persons at the Regional Medical College (RMC), Imphal, in

retaliation for the attacks on them by the members of an armed opposition group. The

victims were Moni Riba, a student of RMC, Laimayum Pradeep Sharma (Guard),

Wangkhem Upendra Singh, driver, Mohammed Jakir, rikshaw puller, and autorikshaws

drivers Saikhom Premchand Singh, Hijam Khogen, R K Khogen Singh, Angom Debendra

Singh and Koijam Rajendra Singh. Shri.D.M Sen, retired Judge, Calcutta High Court,

conducted an inquiry and confirmed the arbitrary and intentional shootings by the CRPF

personnel. The enquiry commission found that one member of an insurgent group had fired

who were injured in Bishenpur district on January 1, 1995. However, the injury of (their

colleague) Mr. Yadav provoked the CRPF personnel of the 199th

Battalion and they were

angry when they were fired. As soon as the firing took place, the CRPF personnel

medical staffs, the CRPF personnel came near the gate of the RMC and shouted at the

rikshaw pullers and started firing at them. A rikshaw puller Mohammed Zakir cried out

Zakir fell down and died on the spot. Five rickshaw pullers were killed.

221

Compensation paid by the state to the next kin of those killed was Rs 25,000 and the

injured received compensation of Rs. 5, 000. On March 17, 2008, the Adhoc Additional

Sessions Judge, Fast Track Court, Guwahati, convicted four CRPF personnel for killing the

nine civilians. A statement issued by the Central Bureau of Investigation from New Delhi

on March 26, 2008, said that the four CRPF personnel were handed life terms in an order

issued on March 17, 2008, and named the convicted men as Head Constable Ram Dayal

Sah, Constables Shiv Kumar Pandey and Puttu Lal and Naik Md Razak. The four were also

fined Rs 5000 each, failing which their prison terms would be extended by three more

months.37

Kohima Incidence, March 5, 1995

On the 5th

of March, a convoy of 16th

Rashtriya Rifles was going from Bishnupur in

Manipur to Dimapur in Nagaland. The convoy had 63 vehicles with 5 officers, 15 JCOs

and 400 jawans, and stretched over 5 kilometers. They were halting at Kohima when a tyre

immediately thinking that they were being attacked. They fired automatic weapons and

shelled the civilian areas with 2 Inch mortars. They were soon joined by the CRPF and

Assam Rifles posted at Kohima. Together they conducted combing operations and fired

indiscriminately at various parts of Kohima. In the operation that lasted 2 hours, 7 (seven)

persons including 2 (two) minor girls of three and a half years old and an 8 year old were

killed, 22 (twenty two) persons injured by shrapnel and bullets, 15 (fifteen) persons

physically assaulted and 26 (twenty six) persons arrested and tortured by the Security

Forces in their camps. The firing included 1,207 rounds of gunfire and 5 rounds of mortar

shells. Doctors were prevented from attending to the injured and the generator of the only

hospital in the town was switched off, forcing the doctors to operate with candles and

torches.38

37

http//www.thesangaiexpress.com/,accessed on 25 July, 2013. 38

http//www.Sanhati.com/, accessed on July 26, 2013.

222

Malom Massacre: November 2, 2000

Assam Rifles convoy was attacked near Malom, Manipur, by insurgents. In retaliation, the

troops shot at civilians at a nearby bus-stop leaving 10 civilians dead, including a 60 year

old woman and a boy who had been awarded the bravery award by the former Prime

Minister R -to-death

began in the aftermath of this incident. .

writer is demanding repeal of the Armed Forces (Special Powers). She is leading an

unprecedented and extraordinary struggle, in a true Gandhian (non-violent) way. She

started her fast after gruesome Malom massacre. Her legendary struggle for human rights

has become an important symbol of the resistance of the Manipuri people who are

resiliently undergoing their present-day suffering at the hands of the policy makers. The

entire nation should be ashamed of the unpardonable negligence shown towards the

conditions that prevail in the culturally-rich north east, particularly in the tiny state of

Manipur. She has been on hunger strike since 2000 demanding the repeal of the Act, which

she blames for violence in Manipur and other localities in the northeastern part of India.

Sharmila has been repeatedly arrested on charges of attempt to commit suicide under

section 309 of the Indian Penal Code, and forcibly fed by her prison wardens. Her protest is

39

Tabanglong Massacre, December 28, 2000

Suspected militants attacked a patrol party of the 15th

Jat Regiment near Tabanglong bus

stand killing one army personnel and injuring four. After the attack, the army stopped all

the day Imphal bound buses at the attack site and forced all the passengers of one bus to get

down from the bus and beat up all the male passengers and detained them at the attack site.

Dingam Newmai, the driver of the Deputy Commissioner, Tamenglong, was hospitalized

39

Deepti Priya Mehrotra, Burning Bright: Irom Sharmila and the struggle for peace in Manipur,

Penguin Books India ltd, New Delhi, 2009 p.15.

223

after receiving head injury. Then the army forced the same bus to carry the dead body of

the army personnel and the other four injured to the battalion Head quarter of 15th

Jat

Regiment stationed at Tamenglong. While doing this, the army used women and children

passengers as human shields by forcing them to sit in the bus along with them.

The same day, 15th

Jat Regiment personnel came to Tabanglong village and forced all the

twelve males present at that time to gather at the village volleyball court and beat them up

one after the other. Then they shot dead eight of them including two Meitei chilly traders.

One survived with bullet injuries while another escaped by jumping and running to the

bushes nearby. The other two took shelter with the womenfolk and children, who were,

before and during the killings, kept in groups in different houses and not allowed to come

out. After the killings, they were taken to the church and detained there for the rest of the

day. Then at dusk, six villagers, including four women were forced to carry the dead bodies

of the two Meitei chilly traders to the Tabanglong bus stand while the other six bodies were

kept in the village itself.40

Monarma Devi Case

On 11 July 200 the 32-year-old MsThangjam Manorama Devi, was arrested under the Act

at her house in Manipur by the Assam Rifles(part of the Indian armed forces). Three hours

later her badly mutilated and bullet-ridden body, who was brutally raped and murdered

allegedly by Assam Rifles personnel,was found by the roadside nearby.

body was found, it bore scratch marks and a gashing wound on her right thigh, probably

made by a knife. There were also gunshot wounds to the genitals, which lent credence to

the theory that she was raped before being shot dead.There was a widespread eruption of

civil society groups

called a 48-hour protest strike. Tires were burnt and marchers carried placards demanding

elderly and respectable women gathered in front of the 17th

Assam Rifles headquarters and

40

July,2013.

224

then stripped their clothes off, calling the army to come rape them as Manorama had been

raped

to investigate it, led to large-scale

protests throughout Manipur, prompting the Prime Minister of India to visit the state. The

Government of Manipur established a commission of inquiry headed by Justice C.

Upendra, a former sessions judge, but the Assam Rifles challenged that decision before the

courts claiming that the state government had no competence to investigate their actions.

The ensuing prolonged litigation came to an end only in 2010 when the challenge was

rejected. However, at no point during this period and thereafter have the authorities taken

death and to identify those responsible. The enquiry report itself has not been made

available to the public. Man

the report. The Court agreed, however, the union government at the time filed a special

leave petition against the order and the case is still pending before the court.41

Another reported case of arbitrary killing by the military acting under the Act concerned

Mr. Rengtuiwan, a 75-year-old retired school teacher, and his disabled wife, who were

killed and injured, respectively, on 16 November 2004 when they were fired at by the

Assam Rifles in Bungte Chiru village, Manipur. Twenty or thirty Assam Rifles were

searching for rebels in the village and reportedly considered the elderly couple as being part

Rengtuiwan went in through his chest and exited through his bottom. The pathway of the

shot implies firing at a close range and that the person must have been in a kneel-down

position as the shot must have been fired from above his head at a share angle or more than

60 -blooded execution rather than

firing at a suspicious target.42

41

Manorama Devi rape and murder: Assam Rifles in in NDTV, 11 September 2010,

http://www.ndtv.com/article/india/manorama-devi-rape-and-murder-assam-rifles-indicted-

51249,accessed on July28,2013. 42

Amnesty In ing on the Armed

http://www.amnesty.org/en/library/asset, accessed on July 28,2013.

225

Fake encounters

On 23 July, 2009, Manipur police and security forces shot dead a 27-year-old unarmed

former militant, Chungkam Sanjit, and a pregnant woman bystander in the main market of

Manipur along with injuries to five persons. Manipur chief minister, Ibobi Singh, has

ordered a judicial inquiry into the 23 July killings and suspended six policemen.

Fake encounter in Andro sanapat in November 1st 2009 where, 7 youth has been gunned

down by 28th

Assam Rifles troops in suspicion of militants. The people of Northeast India

have witnessed three major military operations as part of counter insurgency operations.

They are (1) Operation Bazrang, (2) Operation Rhino and (3) Operation Blue Bird. These

three operations had also violated large scale human rights in that region.43

5.2.2 Steps taken against the AFSPA

Some members of the Meira Paibis, women activists, stripped in front of the Kangla Fort,

then headquarter of the Assam Rifles on 15 July 2004, followed by an equally

unprecedented civil disobedience movement by the Apunba Lup, in Manipur never seen in

independent India against the alleged extrajudicial execution of Ms Thangjam Manorama

Devi on the night of 11 July 2004 by the Assam Rifles personnel and the withdrawal of the

AFSPA. The Union Ministry of Home Affairs set up a committee chaired by a retired

justice of the Supreme Court B. P. Jeevan Reddy with the remit to review the provisions of

the Act and report to the government on whether amendment or replacement of the Act

would be advisable. Having conducted extensive studies and consultations, the committee

so mention the

impression gathered by it during the course of its work that the Act, for whatever reason,

43

H.W. Jeong , Understanding Conflict and Conflict analysis, Sage Publication, Los Angeles,

2008,p.40.

226

has become a symbol of oppression, an object of hate and an instrument of discrimination

and high- d out and the report itself

was not officially made public.44

In addition to the Jeevan Reddy Committee, the Second Administrative Reforms

Commission in its fifth Report of 2007 also recommended the repeal of the AFSP Act. The

considering the views of various stakeholders it came to the

45

Successive civil society actors, international bodies and NGOs have requested that the

Government of India repeal this draconian law. Worthy of note is recommendation in

February 2007 by the United Nations Committee on the Elimination of Racial

Discrimination that the Indian Government immediately repeal AFSPA.

A report entitled

collated and later, submitted by the Civil Society Coalition on Human Rights

in Manipur and the UN to the UN Special Rapporteur on Extrajudicial Summary or

Arbitrary Executions, Christ of Heyns during his visit to India in 2012 mentioned that

altogether 1528 people, including 31 women and 98 children were killed in fake encounters

by security forces in Manipur between 1979 and May, 2012. Of these, 419 were killed by

the Assam Rifles, while 481 were killed by combined teams of Manipur Police and central

security forces, according to the report.

The PIL to the Supreme Court, filed jointly by Extra-

Association Manipur (EEVFAM), a body of widows and mothers of those killed by police

and security forces and Human Rights Alert pleaded for investigations into 63 cases of

alleged extra-judicial killings between 2007 and 2012 and another 1,528 cases documented

44

Government of India, Ministry of Home Affairs, Report of the Committee to review the Armed

Forces (Special Powers) Act, 1958, 2005, available at www.hindu.com/nic/afa/ p.74, accessed on

July 28,2013. 45

Second Administrative Reforms Commission Report, Report 5 - Public Order ,June 2007, available

at darp.gov.in/darpgwebsite_cms/Documents/file , p. 239, accessed on July

29,2013.

227

by the Civil Society Coalition on Human Rights in Manipur and the United Nations is just

the beginning of efforts from various civil society groups and Human Rights defenders to

put the spotlight on the excesses committed under the Act. Following the PIL, the Supreme

Court constituted a three member enquiry commission with former Supreme Court judge,

Justice N. Santosh Hegde, as the Chairman in January 2013, which in its report to the Apex

Court has already made its observation that the 6 cases it was given to hear out, were all

fake. The Supreme Court had given the Manipur State Government a duration of four

weeks to make its responses following the report of the Inquiry Commission and with the

date coming nearer, it will be yet another step towards the long wait for justice and yet

another strong validation of just how much the Act impacts the lives of countless women

and children in the state.46

For the citizens of Northeast to realize and enforce their constitutional rights, AFSPA must

be repealed unconditionally and its draconian provisions must not be incorporated into new

legislation. Repeal of AFSPA will create favourable condition of dialogue with militant

groups in Northeast India. Dialogue must be a way forward and repeal of AFSPA will

enable militant group to come forward for dialogue with the government. Repeal of the Act

from the region will definitely create a good atmosphere for the solution of the insurgency

problem.47

5.3 Kashmir: State terror in the valley

Following armed hostilities in 1947-1949 between India and Pakistan and intervention by

the international community, the region once known as the Princely State of Jammu and

Kashmir was divided. Commencing no later than October 1947, the Kashmir dispute has

proved the most protracted territorial dispute in the United Nations era. An implacable,

territory of

Kashmir, where Indian military and Para-military forces are trying to crush forces seeking

46

Mainstream, Vol LI, No.10; February 23, 2013;

pp.11-12. 47

J. Parrat , Wounded Land Political and Identity in Modern Manipur, Mittal Publication, New

Delhi,2005,p.107.

228

independence or union with Pakistan. Continuous conflict between India and Pakistan over

Kashmir is leading to violation of human rights, birth of rebels and destruction of peace in

the name of unity and integrity of India.

-continent on August 15,

1947. During British rule over India, the state of Jammu and Kashmir was one of more than

50 autonomous princely states owing allegiance to Britain. At the time of independence,

the rulers were advised to join, by means of an instrument of accession, either of the two

al position and

the religion of their inhabitants. Kashmir was a muslim majority state ruled by a Hindu

Maharaja who refused to accede to either country, preferring Kashmir to be independent.

Pakistan, taking the view that division of the territory at Partition was unfair, backed an

invasion of Kashmir by Pakistani fighters. The Maharaja of Kashmir unable to defend his

kingdom, turned to India for military assistance and acceded to the Indian state in October

1947. War between India and Pakistan broke out. At its end in 1949, a defacto border

through the State of Kashmir was agreed upon between military representatives from both

sides. About one third of the territory is under Pakistani control, and two third- the State of

Jammu and Kashmir- falls under Indian authority. This border, with minor alterations,

remains intact today and is commonly known as Line of control(LOC).48

The UN Security Council Resolution 47, adopted on 21st April 1948, supported by both

India and Pakistan, stated that the Kashmiris should be given the choice to accede to either

India and Pakistan in a fair plebiscite. This plebiscite has never taken place. Indian and

Pakistani forces have continuously confronted each other over this tense cease-fire line,

with their bitter rivalry exploding into wars in 1965,1971 and 2001 (Kargil war)

respectively. Peace negotiations and the subsequent Simla Agreement in 1972 then led to

the establishment of the Line of Control separating Indian- and Pakistani-administered

Kashmir. However, despite the painstaking process of demarcation field commanders

48

http//www.sikhsiyasat.net/, accessed on July 29, 2013.

229

exchanged more than 20 maps over five months before its final course was agreed upon

troops on the ground have fought over differences in interpretation ever since.

Kashmir is the only state with its own constitution. In theory, it is an autonomous state,

except for matters of defense, communications and foreign policy under Article 370 of the

Constitution of India. In practice however it is governed directly from New Delhi. The

discontent of the Kashmiri population with Indian rule has grown out of its opposition to

Indian Government has ignored the demands of the Kashmiri people for (azadi) freedom

from Indian rule, h

within its borders.

The State elections of 1987 and their aftermath marked a further deterioration in relation

between Kashmir and India. The Muslim United Front(MUF), which included a number of

Islamic and secessionist parties, had gathered considered support from Kashmiri population

and were seen as viable alternative to the ruling Congress party. The elections, dogged with

controversies over vote- rigging and corruption, led to incumbent Congress party remaining

in power. This produced deep dissatisfaction with the political process among the Kashmiri

population. In addition, the Indian Government installed a Governor in the state and sent

more Indian troops to the already heavily militarized region. Emergency rule was

introduced in 1990, and the AFSPA was extended to this state.49

Today more than half a million Indian troops occupy the region. Since1990 approximately

More than 15,000 women have become widows and approximately 1,000 women are living

is yet to be known. It is

estimated that 6,000 people are the victims of enforced or involuntary disappearances.

More than 25,000 children have been orphaned.

49

Civil and

Military Law Journal, Vol.1,1995, p.221.

230

Although both sides contributed in spreading violence in Kashmir, but the violence caused

by Ind - military forces allied with them, is even more destructive

and abhorrent. Unlike any other great democracy, Indian soldiers are not held to any higher

state of conduct. In Kashmir, poorly trained military troops are torturing civilians by extra

judicial killings, murders and rapes which is leading to spread of lawless state terrorism.

te, and officially

sanctioned. India has never prosecuted even one of its 700,000 military and paramilitary

personnel there for human right abuses, and its laws grant legal immunity for any actions

aimed at suppressing Kashmiri dissent or support for self-determination. Information

compiled by various human rights organizations like London based Amnesty International,

New York-based Asia Watch and other humanitarian organizations establishes that a

massive complain of brutal oppression has been launched by the Indian army since January

1990. Various estimates are given of the death toll of civilians so far. Making due

allowance for unintended exaggerations, the figure into tens of thousands. Countless

individuals had been maimed and thousands of women molested and assaulted.50

Three Indian security forces operate in Jammu and Kashmir: the army and the paramilitary

Border Security Forces (BSF) and the Central Reserve Police Force (CRPF).Thousands of

security force personnel are deployed in the state. Allegations of human rights violations

have implicated all three forces, but most concern the BSF. The local police are suspected

by officials of sympathizing with secessionist groups.

The overwhelming presence of Indian military and paramilitary forces in Kashmir reminds

Kashmiris that they are not free and are being enslaved by Indian forces. This feeling of

being slave leads to the birth of rebels in the valley. These rebellions are no other than

common people who are victim of continuous torture and abuse by the military and

paramilitary forces of Indian government. These people are killed ruthlessly as the

50

Lt-

The Tribune, May 2, 2013, p.5.

231

government recognizes them as terrorists, but government never wants to accept that it

natural that after tolerating

continuous violation of human rights, one raises his voice to achieve his basic freedom.

Usually targets of military shots are common people (shopkeepers, children, women,

school going students, etc.) who had not even touched any weapon or something that would

spread terror or any kind of violence. They are being shot and then left for bleeding, after

their death, they are being recognized as terrorists by the so-called democratic nation.51

5.3.1 Draconian Laws

As with the Punjab in 1980s and 1990s and in Northeast since 1958, the Indian

Government has sought to tackle the unrest in Kashmir through the enactment of repressive

laws such as Armed Forces( Jammu & Kashmir) Special Powers Act of 1990

AF(J&K)SPA, the Jammu and Kashmir Disturbed Areas Act of 1990(JKDAS) and the

Public Safety Act. These laws give wide ranging powers to the police and security forces to

commit human rights atrocities against the civilian population.

AF(J&K)SPA empowers officers including non-commissioned officers, to fire upon or

otherwise use force to even cause death of any person who is acting in contravention of any

law or order for the time being in force in the disturbed area; arrest without a warrant and

with the use of necessary force to anyone who has committed certain offences or is

suspected of having done so; and to enter and search any premises in order to make such

arrests. Army officers have legal immunity for their actions. There can be no prosecution,

suit or any other legal proceedings against anyone acting under this law.

The immunity provisions contained in these Acts are used most often in Kashmir Valley to

prevent civilians from prosecuting soldiers. When the State Government asks the Central

Government for permission to prosecute those found guilty after police or magisterial

inquiries, that permission is seldom given.

51

st feburary

2010, available at http// www.countercurrents.org/ipt210.htm// accessed on 1 august 2013.

232

The extraordinary powers given to the Indian armed forces operating in the Kashmir Valley

under AF(J&K)SPA are responsible for the wide spread occurrence of torture, forced

disappearances and extra-judicial killings committed by state security agencies.52

The Armed Forces (J&K) Special Powers Act is linked to the Disturbed Areas Act. It

authorizes the state government to declare the whole or any part of the district of Jammu

not below the rank of sub-inspector or head constable if he is of the opinion that it is

necessary so to do for the maintenance of public order, after giving due warning. Both

Jammu and Kashmir Disturbed Areas Act and Armed Forces Special Powers Act provide

immunity to those exercising powers under the respective Acts.53

The other Act which is resorted to silence all protest and dissent is the Jammu and Kashmir

Public Safety Act, 1978. This law is especially draconian in nature, falling far short of

meeting international human rights standards, and has become notorious for its rampant

misuse at the hands of the armed forces. Under this Act, the maximum period of detention

better judgement of the

arresting agency or official, thereby giving sweeping powers to the security forces to arrest

and detain at their pleasure.

Prisons in Jammu and Kashmir and beyond are full of detainees booked under the infamous

PSA, with reports suggesting that even minors have been arrested and detained under this

law on a number of occasions. Furthermore, very often the PSA is slapped on a person

again and again, at the end of successive periods of two years, thereby making the actual

period of detention much longer. Farooq Ahmed Dar, one such detainee, had to spend

sixteen years in prison before he was finally released in 2006. In December 2012, the

authorities acknowledged that 219 people were detained under PSA, including 120 foreign

52

The Hindu, April 3, 2006, p.3. 53

Parveen Sw The Hindu, April 3, 2006, p.5.

233

nationals, and seven whose detention order had already been quashed by the courts. There

have been various instances where political leaders and common people have been slapped

with successive detention orders despite the fact that Courts keep on quashing them. This is

done only with a purpose and intention not to release the detenue.54

Despite repeated calls from human rights organization for the Indian Government to carry

out a credible and independent investigation into all disappearances and encounter killings

in Kashmir since the conflict began in1989, no steps have been taken in this regard. In

February 2007, India signed the United Nations International Convention for the Protection

of All Persons from Enforced Disappearances(2006). Despite this positive move, the Indian

State has yet to ratify the convention or take meaningful steps to investigate human rights

atrocities in the region.

5.3.2 Civilian killings in firings

The insurgency that began in 1989 in the Valley involved hundreds of thousands of

Kashmiris marching on the streets of Srinagar between January and May 1990. Under

Jagmohan's regime, India's response to the protests was brutal with indiscriminate firings at

unarmed protesters. The atrocities committed by Indian forces has been acknowledged by

senior Indian officials including the Prime Ministers Rajiv Gandhi, Chandrashekhar and

P.V. Narasimha Rao during their tenure and the State Governor Girish Saxena.55

Gawakadal massacre, 1990

The Gawakadal massacre was named after the Gawakadal bridge in Srinagar, Kashmir,

where, on January 20, 1990, the Indian paramilitary troops of the Central Reserve Police

Force opened fire on a group of Kashmiri protesters in what has been described by some

authors as "the worst massacre in Kashmiri history."At least 35 people were killed. The

54

Omkar Razdan, The Trauma of Kashmir: The Untold Reality, Vikas Publishing House Ltd, New

Delhi, 1999, p.78. 55

Omkar Razdan, The Trauma of Kashmir: The Untold Reality, Vikas Publishing House Ltd, New

Delhi, 1999, p.37.

234

number of casualty later rose to 50 (according to survivors, the actual death toll may have

been as high as 280 The massacre happened just a day after the Government of India

appointed Jagmohan as the Governor. In a bid to control the mass protests by Kashmiris, on

January 19, 1990, the night Jagmohan was appointed as Governor, Indian security forces

conducted extensive, warrant-less, and therefore illegal house-to-house searches in

Srinagar, in an effort to find illegal weapons and root out any hidden militants. Hundreds of

people were arrested.

As word of the raids spread the next morning (January 20, 1990), thousands of Kashmiris

took to the streets in protest, demanding independence. Jagmohan responded by putting the

city under curfew. That evening, a large group of protesters shouting pro-independence

slogans, reached Srinagar's wooden Gawakadal Bridge over the Jhelum River. According

to the J & K police, on approaching the wooden bridge a large crowd of demonstrators

started pelting stones, after which the security forces fired on the crowd, leading to the

death of several protestors.56

Zakoora and Tengpora massacre,1990

Zakoora and Tengpora massacre was the killing of protesters calling for the

implementation of a United Nations resolution regarding a plebiscite in Kashmir at

Zakoora Crossing and Tengpora Bypass Road in Srinagar on 1 March 1990,in which 33

people were killed and 47 injured. It led Amnesty International to issue an appeal for urgent

action on Kashmir. The police charged a number of soldiers with murder and attempted

murder, but the charges were later dropped in favour of an internal army investigation.

Lal Chowk fire,1993

The 1993 Lal Chowk fire (literally Red Square) refers to the arson attack on the main

commercial center of downtown Srinagar, Kashmir that took place on 10 April 1993. The

56

Civil and

Military Law Journal, Vol.31, 1995, p.223.

235

fire is alleged by government officials to be started by a crowd incited by militants, while

civilians and police officials interviewed by Human Rights Watch and other organisations

allege that the Indian Border Security Forces (BSF) set fire to the locality, apparently in

retaliation for the burning of an abandoned BSF building by local residents. Over 125

civilians were killed in the conflagration and the ensuing firing by BSF troops.57

Bijbehara Massacre,1993

The Bijbehara Massacre refers to a disputed incident between Kashmiri rebels and the Indian

Army in the Indian state of Kashmir on October 22, 1993. The Indian Army was accused of

arbitrarily firing on a crowd and killing 37 civilians in Bijbehara after protests erupted over

the siege of the mosque in Hazratbal. In October, 1993, the Indian army surrounded the

Hazratbal Shrine, claiming that Kashmiri rebels, likely supported by Pakistan, were armed

and occupying the shrine complex and had changed the locks. India's official version of

events was that its army acted in self-defence when fired upon by militants

The Indian government conducted two official enquiries and the National Human Rights

Commission of India (NHRC) conducted a third. In March 1994 the government indicted

the Border Security Force (BSF) for firing into the crowd "without provocation" and

charged 13 BSF officers with murder. A non public General Security Force Court trial

conducted in 1996 led to their acquittal. When the NHRC sought to examine the transcripts

of the trials in order to satisfy itself that the BSF had made a genuine attempt to secure

convictions, the Vajpayee government refused. The NHRC then moved the Supreme Court

for a review. In September 2000, the Supreme Court dismissed the case.

On September 10, 2007 the Jammu and Kashmir High Court ordered the state government

to pay restitution to the victims' families.58

57

Economic and Political Weekly, Vol.37, January-March,

2002, p.1081. 58

p.92.

236

The Sopore Massacre,1993

The Sopore massacre refers to the alleged killing of 55 Kashmiri civilians in revenge by the

Indian Border Security Force (BSF) after militants ambushed a BSF patrol, in the town of

Sopore in Kashmir on 6 January 1993. On the morning of 6 January 1993, when a group of

7 8 armed JKLF militants attacked a platoon of Border Security Force soldiers at Baba

Yousuf Lane near Sopore and killing at least one. It was alleged that after this the Indian

troops fired at local residents and set fire to local homes and business. BSF personnel also

attacked a public coach coming from Bandipora and killed around 42 civilians. Some

residents were burnt alive as Indian troops set fire to their homes and businesses. In all,

officially Indian Government reports state that 250 shops and 50 homes were burnt down

although Kashmiri sources claim as many as 450 buildings were burnt down. The Indian

government initially claimed that the high civilian casualties were the result of an intense

gun battle between the BSF soldiers and militants in which an explosives cache belonging

to the militants exploded and spread the fire to nearby buildings. However, the government

was later prompted to initiate a judicial inquiry into the matter and was also forced to

suspend several BSF officers due to the widespread publicity that the incident had

generated.59

Chattisinghpora Massacre

On the evening of 20 March 2000, 15 17 unidentified gunmen, dressed in Indian army

fatigues, entered the village of Chattisinghpora, located in Anantnag district. They ordered all

of the Sikh men and boys to assemble at the village gurdwara, and systematically shot and

killed 34 of them. The attackers wore military uniforms, and were led by a man they

addressed as 'Commanding Officer.' As they withdrew, they allegedly shouted Hindu

slogans, and left behind bottles of liquor. This was the first time in the Kashmir conflict that

Sikhs had ever been targeted. The massacre, which took place on the eve of U.S. President

59

Journal of National Human Rights Commission of

India, New Delhi, Vol.4, 2005, p.22

237

Bill Clinton's visit to the Subcontinent, was widely condemned by both the Indian and

Pakistani governments, as well as the leaders of the Kashmiri separatist movement

The Pathribal killings, 2000

On 25 March 2000, Indian military forces killed five men in Pathribal village of Anantnag

district, claiming that the victims were the "foreign militants" responsible for the killing of

Sikhs in the Chittisingpora massacre in December 2000. Official reports claimed that

security forces had, after a gun fight, blown up the hut where the men were hiding, and had

retrieved five bodies that had been charred beyond recognition. The bodies were buried

separately without any postmortem examination. Local observers and political activists

doubted the Indian government's official reports however, pointing out that if there had

been a gunfight, some of the security force personnel would have sustained injuries but

none were injured. Over the following days, local villagers began to protest, claiming that

the men were ordinary civilians who had been killed in a fake encounter, not "foreign

militants."But Special Operations Group of the Jammu and Kashmir Police fired on

apparently unarmed demonstrators in Anantnag. Their actions led to the death of seven

protestors and the serious injury of at least six others. The protestors were calling for the

return of the bodies of five alleged militants who had earlier been killed by security forces.

Protestors were also called for the disclosure of the whereabouts of 12 other youth who

have reportedly been arrested in recent days as part of investigations into the deaths of 35

Sikhs in the nearby village of Chattisingpura on 20 March".60

On 30 March, local

authorities in Anantnag relented to growing public pressure, and agreed to exhume the

bodies and conduct an investigation into the deaths. When the bodies were finally

exhumed, they were discovered to have been burnt and defaced, but curiously dressed in

brand new army fatigues. They were identified by the relatives as the local villagers who

went missing. Initial attempts in DNA testing of the exhumed bodies were compromised by

fudging of the DNA samples in a cover-up attempt by the authorities. Later results

indicated that the five persons killed by the Indian forces were indeed civilians and that

60

- The Kashmir Times, June22, 2006, p.1.

238

Indian forces engaged in a deliberate subterfuge to portray them as "foreign" militants

responsible for the Sikh massacre.

When the CBI filed a challan, the accused army personnel, Major Saksena, Major D.P.

Singh, Company Commander S. Sharma and Captain Amit Saksena of 7 Rashtriya Rifles

(RR) contested the charge sheet on the plea that sanction has not been granted by the

appropriate authority as required under the Armed Forces Special Powers Act. This plea was

rejected at the district level by the court of CJM by pointing out that commission of crime

cannot be treated as an act committed in the course of duty and therefore does not require

sanction of the appropriate authority. A revision petition filed by the accused / army officials

in the district court was also rejected. At the J&K High Court also, their plea was thrown out.

On 19 March 2012,The CBI (Central Bureau of Investigation) told the Supreme Court of

India that the fake encounter at Pathribal were cold-blooded murders and the accused

officials deserve to be meted out exemplary punishment. In June 2012, the Army conveyed

its readiness to a Srinagar court to try the accused personnel in the military court.61

Doodhipora killing, 2006

The Doodhipora killing refers to an incident on February 22, 2006 where four residents of

Doodhipora Village, Kupwara district, Jammu and Kashmir were killed by troops from the

33rd

Rashtriya Rifles of the Indian Armed Forces. On the afternoon of February 22, 2006,

the Rashtriya Rifles counter-insurgency armed forces of the Indian army received reports

of a militant Lashkar-e-Taiba presence in the village of Doodhipora. A patrol team led by

Captain Nitin Dutta began a search operation. Local resident Abdul Samad Mir (age 24)

was detained as a militant guide. He had previously been incarcerated and was released on

the accusation of being a covert Lashkar operative. At 12:50, the militants opened fire on

the troops who then returned fire. Two army personnel were injured in the exchange of fire,

but Abdul Samad Mir and three residents of Doodhipura who had been playing cricket in a

nearby field were shot in the crossfire. Mir, Ghulam Hassan Bhat (age 18) and Shakir

61

Mainstream, New

Delhi, February 9, 2013, p.12.

239

Ahmed Wani (age 8) died instantly. Amir Ahmad Hajan (age 9) died later from his injuries

on the way to the hospital.

The following day, February 23, large demonstrations were held in Handwara. Police

opened fire and used "burst" smoke shells and a lathi charge to disperse the demonstrators.

Over 15 people were injured. Police had arrested senior separatist leaders Mohammad

Yasin Malik, Chairman of the Jammu Kashmir Liberation Front (JKLF), and Shabir

Ahmad Shah, Chairman of the Democratic Freedom Party (DFP) while on their way to

Doodhipora.62

Shortly after the incident, Chief Minister Ghulam Nabi Azad ordered a

judicial probe and assured the public that the killers would be brought to justice. Judicial

enquiry is pending

The Amarnath land transfer controversy,2008

On 26 May 2008, the Government of India and the state government of Jammu and

Kashmir reached an agreement to transfer 100 acres (0.40 km2) of forest land to the Shri

Amarnathji Shrine Board (SASB)to set up temporary shelters and facilities for Hindu

pilgrims. Kashmiri separatists opposed the move citing reasons that it will jeopardize the

article 370 that gives separate identity to the people of Jammu and Kashmir and prevents

any Indian citizen to settle in Kashmir. People in Kashmir staged widespread protests

against this decision by government of India.

Due to the protests, the J&K State

government relented and reversed the decision to transfer land. During the Amarnath land

transfer controversy more than 40 unarmed protesters were killed by the personnels of

Central Reserve Police Force. At least 300 were detained under Public Safety Act,

including teenagers. Security Forces used tear gas and opened fire using live ammunition

as well as rubber bullets to control protesters.

62

Noor Mohammad B

Kashmir University Law Journal, Vol.16, No.16, 2009, p.76.

240

Bomai Incident, 2009

The Bomai Incident refers to the deaths of two people caught in the cross fire between

unknown assailants and soldiers of the 22nd

Battalion of the Rashtriya Rifles of the Indian

Army. The gun fight occurred at a security checkpoint during a religious celebration in

Bomai, Tujar Shaief, Sopore, in the Baramulla district of Kashmir, India, on 21 February

2009.63

Almost four years after the shocking Bomai-Sopore twin killings, it is finally official that

army personnel were involved in the cold blooded murders that forced month long peaceful

protests and campaign by the residents of the village. The magisterial inquiry report,

prepared within months of the incident but kept a secret all along, has ruled out any cross

firing as was claimed by the army.

Interestingly, the report also points out that army refused to depose before the inquiry

commission, stating in its objections that as per Armed Forces Special Powers Act,

sanction needed to be sought by the government for even initiating an inquiry commission

against its personnel.

It may be recalled that on the evening of February 21, 2009, two youth Mohammad Amin

Tantray and Javid Ahmad Dar were killed while they were walking on main road in Bomai

and the third youth Firdous Ahmad was critically injured.

Kashmir unrest (Machil killing), 2010

On April 30, 2010, the Indian Army claimed to have foiled an infiltration bid from across

the Line of Control, at Machil Sector in Kupwara district of Jammu and Kashmir by killing

three armed militants from Pakistan. However, it was subsequently established that the

encounter had been staged and that the three alleged militants were in fact civilians of

63

Kashmir University Law Journal, Vol.16, No.16, 2009, p.87.

241

Rafiabad area, who had been lured to the army camp by promising t

for the Army, and then shot in cold blood, in order to claim a cash award.

On June 11, there were protests against these killings in the downtown area of Srinagar.

Police used massive force to disperse the protesting youth during which a teargas bullet

killed a seventeen-year-old Tufail Ahmad Mattoo who was playing cricket in Gani

memorial Stadium. Several protest marches were organized across the Valley in response

to the killings which turned violent. Thereafter a vicious circle was set, killing of a boy was

followed by protest demonstrations and clashes with police and CRPF in which another

boy was killed which led to another protest by the boys till several youth lost their lives.

Stone-throwing emerged as the most common method employed by teen protesters. From

June to September, protesters defied curfew and marched through the streets, burning buses

and hurling stones at police and security stations. Police and security forces retaliated by

firing tear gas and rubber bullets. Official figures reveal around 120 people have lost their

lives and 537 civilians were injured during stone-pelting incidents from May to September

21, 2010. Around 1,274 CRPF men and 2,747 police personnel were injured during the

same period across the valley. A tentative calm settled in November brought on by a

combination of rebel arrests, strict curfews, removal of security forces, release of protesters

and the appointment of three interlocutors.64

Killings in 2012

On 27th July 2012, four women tourists were killed in a grenade blast at Bijbehara,

Anantnag. The government lied to the media that it was a gas cylinder blast, while as the

injured and the eye witnesses made it clear that it was a grenade attack by the army men on

the militants.

Hilal Ahmed Dar, 20, was killed in July, 2012 in Ashtengoo-Naar area of Bandipora, 55

km from Srinagar. The family and neighbours of Dar said he was "taken away by army

64

Economic and Political Weekly,

Vol.XLV, No.37, September 2010, pp 13-14.

242

personnel" when he was returning home after offering late evening prayers at the mosque.

Dar, who was working in a cement factory in Srinagar, was visiting home during Ramzan.

Army stated that he was killed in genuine encounter.

Altaf Ahmad Sood, a 21 year old boy allegedly shot dead by paramilitary Central Industrial

Security Forces (CISF) when they opened fire upon protesters demonstrating against non-

The armed forces continues to kill civilians with the impunity provided under Armed

Forces Special Powers Act (AFSPA) and so far in none of these cases as well as any

meaningful investigations has been carried out, which could have led to the prosecution of

the armed forces personnel.65

Ramban firing incident 2013

Ramban firing incident refers to firing on a Kashmiri protesting crowd by Border Security

Force (BSF) officers of India on 18 July 2013 at Ramban, Jammu & Kashmir, killing

seven and injuring thirty people. The incident happened in Gool, 230 kilometres south of

the main city of Srinagar. The violence flared after demonstrators took to the streets in

Dharam, 140 miles south of Srinagar, to protest, after an alleged incident at a nearby

Islamic school, in which Indian border troops were accused of tearing out pages from the

Quran. The BSF said a mob had attacked its camp, indulged in firing and tried to storm

their storehouse of arms and ammunition around 6.30am.66

According to locals, the protests erupted because BSF personnel had roughed up a religious

-night

prayers during Ramzan.

65

Meenakshi Mohan Banerjee, On Social Justice and Human Rights in India, Promilla and Company ,

Daryaganj, Delhi, 2012, p.106. 66

on 2 october 2013.

243

5.3.3 Rapes in Kashmir

In Kashmir there lies the sealed fate of the cases of rapes and molestation at the hands of

security forces and the untold stories of the similar harassment, buried behind the stigma

and ostracisation or lack of access to institutions of justice as also the shoddy legitimization

-

impunity for acts that cannot be justifiably defended. From the infamous gang rape of

murders, and the

equally shocking cover-up by the official investigating agencies, two decades of insurgency

and counter-insurgency period in J&K are littered with cases that exemplify the

victimization and vulnerability of women in a militarised conflict.67

Kunan Poshpora incident 1991

The Kunan Poshspora incident occurred on February 23, 1991, when units of the Indian

army launched a search and interrogation operation in the village of Kunan Poshpora,

located in Kashmir's remote Kupwara District. At least 53 women including minors and the

elderly (between 13 to 80 years), the pregnant and disabled were raped in Kunan Poshpara,

Kupwara by the 4th

Rajputana Rifles, during a search operation. However, Human Rights

organizations including Human Rights Watch have reported that the number of raped

women could be as high as 100. The Press Council of India investigated the incident. The

investigative team visited Kunan Poshpora in June, more than three months after the

alleged attacks. Upon interviewing a number of the alleged victims, the team claimed that

contradictions in their testimony rendered their allegations of rape "baseless. The Press

Council's dismissal of all the Kunan Poshpora allegation, and the manner in which it

carried out its investigation were widely criticized.

67

Economic and political weekly, Vol.XLVIII, No.8.,

Feb 23, 2013, p.14.

244

Following the release of the Press Council's report, Indian authorities dismissed all

allegations of mass rape as groundless. No further investigations were conducted. In

October 2011 The State Human Rights Commission asked the government to reinvestigate

the mass rape case and compensate the victims. They also called for proceedings to be

taken against the then Director of Prosecutions who had sought closure of the mass rape

case and not investigation. Meanwhile, social stigma generated out of this incident has

resulted in women of this area facing difficulties in getting married even today.68

More than

a year has passed the Jammu and Kashmir government has not implemented the SHRC

recommendation to re-open the Kunan Poshpora mass rape case.

Shopian rape and murder case, 2009

Shopian rape and murder case refers to the alleged abduction, rape and murder of two young

women in mysterious circumstances between 29th and 30

th May 2009 at Bongam,Shopian

district of Jammu and Kashmir, India. Two women who were sisters-in-law went missing

from their orchard on the way home on 29th June 2009. Next day morning their bodies were

found both one kilometer apart. The villagers alleged that both were raped and murdered by

the security forces. Protest called up by a separatist leader turned violent and the

administration declared a curfew like situation lasted for over 47 days. The Forensic Science

Lab report has confirmed gang rape of the duo. The Special Investigating Team of Jammu

and Kashmir Police had filed an FIR against the officers alleging their involvement in

destroying evidence in the case of death of two women -- Neelofar and Asiya. The four

senior police officers arrested in the Shopian case have been given a clean chit by the Central

Bureau of Investigation after nothing adverse was found against them in the lie detector test,

matching of DNA profiles and examination of their call records.69

On 15th August 2012, Altaf Ahmed Khan presently a S.P ranking officer in Jammu and

Kashmir Police was awarded Gallantry Award by the President of India. Altaf Ahmed

Khan is an accused in a rape and torture case of 2004, when he was posted in Handwara

68

The Hindu, OP-Ed page, February 12, 2013. 69

Raj Mohan Pal, Human Rights Issues and other Radical Essays, Aakar Books, Delhi, 2010, p.45.

245

area. In November 2008, SHRC in its judgment recommended investigation and

prosecution against Altaf Ahmed Khan. So far Police has neither carried out any

investigation nor have they registered a case against Altaf Ahmed Khan, instead he was

ward in 2012 followed by that on 26th January 2012,

the General Officer Commanding of the 15 Corps Army awarded Altaf Ahmed Khan for

70

Thus in a negligible number of cases, prosecution takes place. In none of them has justice

been delivered. The case is either simply hushed up or even if there is a magisterial probe,

or an inquiry by a retired judge or a court martial proceedings-all in a bid to respond to

public anger-they end up as an eyewash. The case where the armed forces claim to have

taken action in the courts of inquiry remain a poor joke, all at the expense of the trauma of

the victim and her further ostracisation from society.

5.3.4 Mass graves

Association of Parents of D

for Human Rights and Justice in Kashmir has identified 6217 unmarked graves and mass

graves in 5 districts; Kupwara, Baramulla, Bandipora, Poonch and Rajouri, believed to

contain bodies of thousands of Kashmiris of enforced disappearances. While as the SHRC

has acknowledged existence of 2156 unmarked graves and mass graves in Kupwara,

Baramulla and Bandipora. State Human Rights Commission inquiry confirmed there are

thousands of bullet-ridden bodies buried in unmarked graves in Jammu and Kashmir. Out

of 2156 bodies discovered, 574 bodies were identified as missing locals in contrast to the

Indian governments insistence that all the graves belong to foreign militants. State human

rights Commission has asked the Government of Jammu and Kashmir to carry out DNA

tests and investigations into the unmarked graves and mass graves of North Kashmir. On

13th

August 2012, the Jammu and Kashmir government submitted the Action Taken

Report to the SHRC, wherein it is mentioned that the government would not carry out any

70

Economic and political weekly, Vol.XLVIII, No.8.,

Feb 23, 2013, p.15..

246

DNA investigations of the unmarked graves and mass graves, as according to them it is an

71

In this Action Taken Report submitted by the government to the SHRC while keeping the

option available for the families of enforced disappearance to carry out DNA tests, the

government has laid out the procedure for the families to approach for DNA tests, the

Superintendent of Police of Human Rights Cell of CID, who has been made the nodal

officer for the DNA tests. The family members of the disappeared have been asked to

identify the graveyard and the particular grave in which they suspect that their loved ones

have been buried and only then the nodal officer would proceed with the procedures of

getting the DNA tests of the specific grave to be matched with the family claiming that to

be their relative. It is an unfortunate statement by the government. How would the family

members of the disappeared know whether their relatives are dead or alive and also if they

are dead, where they have been buried?

The British parliament commented on the recent discovery and expressed its sadness and

regret of over 6,000 unmarked graves. Christ of Heyns, a special rapporteur on extrajudicial

executions

72

Thus if the silence persists, there would be only this explanation that a Kashmiri life is

viewed as less worthy than other lives. Indian government has given complete rights to its

military forces to kill or abuse people in Kashmir in whatever way they want to in order to

suppress the movement for freedom. After killing the ordinary people, government states

them as terrorists and there is nobody to investigate the causes and effects of conditions

caused in Kashmir. As long as India continues to isolate Kashmir from the rest of the

world, it will never end violent acts on that unfortunate land and restore the rights and

71

Kashmir Coalition of Civil Society, http//www.kafila.org/, accessed on 1 October 2013. 72

Mainstream, Vol.LI, No.10, February 23, 2013,

p.34.

247

freedom of the people of Kashmir. The following questions are on mind of every Kashmiri

person: For how many years will children in Kashmir grow up in fear and shadow of guns

of the security forces? When will they be allowed to play in kinder gardens freely as the

normal children do? How many Kashmiri girls are still to be raped or molested before

achieving freedom? What number of women is required to be widowed before living a

peaceful life in Kashmir? Is there anybody who can answer the above questions? The

Indian government seriously needs to think about the answer of above questions. The

solution of these sufferings is both urgent and vital. It is far more serious area than any

other area in the world. For finding a right solution of problem, three parties need to

interact with each other and create an environment of understanding among them. These

three parties are the Government of India, the Government of Pakistan and the Government

of Kashmir. Although, the most important party is the people of Kashmir as their decision

will be a right decision for humanity and human freedom. The only thing that governments

of India and Pakistan need to forget is their self interests and try to make the life of people

of Kashmir beautiful by giving them their fundamental rights and freedom for life.73

5.4 Naxalite movement in India with special reference to Chhattisgarh

development programmes, foreign development programmes and dam building activities

have had serious adverse consequence for many citizens particularly, Tribals. Economic

development in India has caused large scale displacement of tribal communities in Madhya

Pradesh, Andhra Pradesh, Jharkhand, Orissa and Chhattisgarh. In India, Central and

Eastern belt, has vast iron-ore and coal reserves. The global steel boom, which must be fed

by intensive iron mining, has led to an intense focus on the States of Jharkhand, Orissa and

Chhattisgarh, which together account for 70% of total iron-ore reserves in India.

Hydroelectric energy plants, minings, deforestation and industrialization in these States

have had serious consequence for the tribals population.

73

Kamal Mitra Chenoy, Human Rights Violations in Jammu and Kashmir- A Report, in Mahendra

New Delhi, 2003, p.11o.

248

An agrarian movement that originated in an unknown village of Naxalbari in West Bengal

landlords as well as forest officials, it boomeranged into a major movement engulfing the

entire tribal belt of Chhatisgarh, Jharkhand, Andhra Pradesh and Odisha. Requirement of

forest land for the purpose of railway, roads, dams and other development projects

uprooted the tribals living in these forests for generations. They were neither rehabilitated

properly nor compensated adequately by the government. They lost both their rights and

livelihood.74

Denial of economic and social justice provided the motivation for revolt. It was a tribal

movement but encouraged and led by communists that came to be known variously as

Naxalism, Maoism and lately, Left-wing extremism after the amalgamation of various

smaller groups. The armed movement by Maoist groups often called Naxalites spans four

decades and 13 states in India. They purport to defend the rights of the poor, especially the

landless, dalits (so-

attacks across a growing geographical area led Prime Minister Manmohan Singh in 2006 to

challenge ever

which the government armed forces frequently conduct arrests, use torture and killings to

suppress opposition to its policies.

gy to combat Naxalism- combined with its vision of these states as

being ripe for industrialisation- has been one of the reason for violence and oppression.

of troops in areas of civil unrest such as Northeast, Kashmir and Punjab. The State is also

invoking legal provisions to suppress dissent to its economic development programmes and

to push through land acquisition. Charges of unlawful assembly, rioting, public nuisance

74

V.R Raghavan, The Naxal Threat: Causes, State Responses and Consequences, Vij Books Ltd,

Daryaganj, Delhi, 2011, p.76.

249

and disruption of peace are other common grounds for the arrest of outspoken opponents to

the land acquisition.75

The Indian Government also uses anti-terrorist legislation to suppress civil dissent at all

costs and forces through policies despite democratic consensus against them. The Andhra

Pradesh Suppression of Disturbances Act of 1967 was adopted by state government to

combat Naxalite movement. It enabled the state government to notify tribal areas as

e including the right to shoot to kill.

Prior to repeal of 2004 of Prevention of terrorist Activities Act of 2002, 3000 people in

Jharkhand alone, including children and elderly people,were jailed under its provisions.

The majority of those detained were tribals. The Government expressly outlawed maoist

group in the Unlawful Activities(Prevention) Amendment Act of 2004, setting the stage for

further legislation. The 2004 act so far as to criminalize displays of opposition to

government policies to acquire land under the Land Acquisition Act of 1894 and allows the

state to evict the people for mining, special economic zones and industrialization projects.

The State Government of Chhattisgarh has enacted Chhattisgarh Special Public Security

Act of 2005, which came into force on March 2006. This act was introduced with the

express aim of combating the growing threat from Naxalism. In reality, however, it is

another example of legislation designed to suppress political dissent in the long tradition

dating back to colonial period. Couched in the language of protection and security, it has

culminated in the increased repression of the citizens of Chhattisgarh and suppression of

their Constitutional rights. The Chhattisgarh Special Public Security Act, authorizes the

police to detain a person for 3 years for committing acts, which among other things, show

and provides that any

persons whose actions will be

considered This provision effectively criminalises any protest against the

authorities. This act has even further eroded the rule of law in India, giving wide ranging

powers to the police and paramilitary forces to detain any citizen who dares to raise his

75

Udhay Kumar, Defeating Naxalite: Ways and Means to Defeat Naxalism, Raj Publishing House,

Jaipur, 2012, p.23.

250

voice in opposition to the state sponsored human rights violations that are committed daily

in Chhattisgarh. This act also provides the District Magistrate unconditional powers to

notify places which he thinks are being used for unlawful activities without any prior

notification. There is no requirement of production of anything as evidence to prove that

the said place is being used for unlawful activities. It is just a violation of principles of

natural justice as the aggrieved parties don't even get a fair hearing. This act also provides

that any revision application has to be filed with the High court only, challenging the

validity of the order of the government. This petition has to be filed within 30 days and that

no court has the jurisdiction against any decision of the court. Any kind of application or

form of revision or injunction by a court or officer except for the High court and the

Supreme Court regarding any action to be taken as a follow up to the order of the

government has been barred in this Bill. So it can be said that this act was totally uncalled

for and has only be brought to act as a blandishment to the people.76

5.4.1 Situation in Chhattisgarh

Until 2000 Chhattisgarh was part of Madhya Pradesh State in Central India. The area that

and about 79 percent of the population in Dantewada and Bijapur districts in southern

Chhattisgarh. Forests cover approximately 44% of Chhattisgarh and the state is rich in

ironore, coal, limestone and bauxite. In Chhattisgarh, as in many other states across the

of compensation and

loss of livelihood have been supported by armed left-wing groups including Naxalites, who

have retaliated with violence to government use of force. The state armed forces in these

areas frequently conduct arrests and use torture and killings to suppress opposition to

government policies.

In Chhattisgarh, a dramatic escalation of a little-known conflict since June 2005 has

destroyed hundreds of villages and uprooted tens of thousands of people from their homes.

76

Parkash Singh, The Naxalite Movement in India, Rupa & Co., New Delhi, 1999, p.101.

251

Caught in a deadly tug-of-war between an armed Maoist movement on one side, and

government security forces and a vigilante group called Salwa Judum on the other,

civilians have suffered a host of human rights abuses, including killings, torture, and forced

displacement.77

In June 2005 popular protests against Naxalites in Bijapur district in southern Chhattisgarh

sparked the creation of Salwa Judum, a state-supported vigilante group aimed at

Bijapur and Dantewada districts in southern Chhattisgarh. With the active support of

government security forces, Salwa Judum members conducted violent raids on hundreds of

villages suspected of being pro-Naxalite, forcibly recruited civilians for its vigilante

activities, and relocated tens of thousands of people to government-run Salwa Judum

camps. They attacked villagers who refused to participate in Salwa Judum or left the

camps. This arming of tribals under the Salwa Judum took a serious turn with various acts

of violence committed by its members. The group not only created fear among the tribals

but also among shopkeepers, traders and even journalists. All those who did not join the

group were branded as Maoists or Maoist sympathizers and were severely punished.An

important point to be noted here is that while acts of violence committed by the Maoists

were reported, similar acts of violence by the Salwa Judum went unreported and

unrecognized by the police or the paramilitary forces.

These ongoing human rights abuses have resulted in a massive internal displacement crisis

that is yet to be addressed by the Indian Central or concerned State Governments. By

December 2007 around 49,000 villagers had been relocated to at least 24 camps in Bijapur

and Dantewada districts, while many others had fled to safer parts of Chhattisgarh. An

estimated 65,000 villagers had fled to adjoining states of Maharashtra, Orissa, and Andhra

Pradesh to escape the conflict. Roughly 30,000-50,000 have settled in Andhra Pradesh. In

its 2005-2006 Annual Report, the Ministry of Home Affairs stated that many of the

77

P.V. Ramana, The Naxal Challenge: Causes, Linkages and Policy Options, Pearson Education India,

Noida, U.P, 2008, p.170.

252

displaced were joining the naxalite movement, which was leading to violent conflict in

several states.78

Police arbitrarily detain individuals as suspected Naxalites, interrogate them, and in some

cases, subject them to torture. Chhattisgarh police have recruited camp residents including

children as special police officers (SPOs), an auxiliary police force, and deploy them with

other paramilitary police on joint anti-Naxalite combing operations. This has exposed

underage SPOs to life-threatening dangers, including armed attacks by Naxalites,

explosions due to landmines and improvised explosive devices (IEDs), and Naxalite

reprisal killings.

Even though some officials acknowledge tha

the violence, resulting in loss of civilian life and property, the Indian Central and

Chhattisgarh State Governments have failed to prevent or stop these abuses or hold those

responsible accountable. In April 2008, a writ Petition was filed by Nandini Sundar,

Ramchandra Guha and EAS Sharma in the Supreme Court against the grave Human

Rights violations in the region by the Salwa Judum, an independent inquiry into acts of

violence by security forces, Salwa Judum or Naxalites. Another Writ Petition (Criminal),

Kartam Joga and others Vs State of Chhattisgarh, mentioned names of close to 500

persons allegedly killed by the Salwa Judum. It also highlighted the miserable living

conditions of the tribals in the camps.The Supreme Court directed the National Human

Rights Commission (NHRC) to submit a report in this regard within eight weeks the

Supreme Court of India ordered the National Human Rights Commission (NHRC) to

investigate complaints of abuse. But NHRC dismisses most of the allegations of human

rights abuses made by the petitioners in the apex court, including widely reported use of

minors by Salwa Judum. Instead, the report is harsh on Naxalites for human rights abuses

and sees action by Salwa Judum activists from the prism of necessary retaliation.79

78

P.V. Ramana, The Naxal Challenge: Causes, Linkages and Policy Options, Pearson Education India,

Noida, U.P, 2008, p. 231. 79

Udhay Kumar, Defeating Naxalite: Ways and Means to Defeat Naxalism, Raj Publishing House,

Jaipur, 2012, p.28.

253

5.4.2 Incidents of violation of human rights by Salwa Judum

On 1 July 2005, hundreds of police, paramilitary forces and Salwa Judum activists under

the leadership of Inspector General of Police Ansari, Bijapur Superintendent of Police

Manhar and MLA Mahendra Karma reportedly raided the Kotrapal village in retaliation

against the killing of three Salwa Judum activists by the villagers when they had attacked

the village on 18 June 2005. Most of the villagers had fled to the forest prior to the attack.

The mob allegedly burnt down 8 houses and killed and looted all the chicken, pigs, and

animals of the villagers. Two elderly villagers who were returning to the village were

allegedly brutally killed by the Central Reserve Police Force personnel, who also shot at

and seriously injured an old woman.

The police, paramilitary personnel and Salwa Judum activists reportedly carried out similar

attacks at Pondum and Pallayvaya villages on 20 July 2005; at Munder village on 22 July

2005; Phulgatta village on 25 July 2005; Karrebodli village on 29 July 2005.

On 8 August 2005, the Salwa Judum cadres accompanied by the police and paramilitary

forces allegedly attacked Kotrapal village and killed three innocent peasants and raped four

women.

On 26 August 2005, the forces of Indian Reserve Battalion (Naga Battallion) reportedly

attacked Pottnar village but they had to repel when ambushed by the PLGA forces. While

fleeing from Pottnar village, the Naga forces met four Adivasis, who were grazing cattle.

They allegedly shot dead all the four including a 12-year-old boy.

On 28 August 2005, personnel of the Indian Reserve Battalion (NagaBattallion) and Salwa

Judum cadres allegedly attacked Aakva village and killed one 12-year-old boy after he was

found hiding in the village.80

80

//www.academia.edu/ accessed on 6 October

2013.

254

On 1 September 2005, the police and paramilitary personnel allegedly arrested 10 unarmed

villagers, including a 12-year-old boy, and killed all of them in cold blood at Haryal village

situated just two kms from the Mirtul Police Station in West Bastar. The security personnel

reportedly raided the village upon complaint by the village Mukhiya, Doru Magu (who was

a leader of the Salwa Judum) that the villagers were planning to attack the police station.

The security forces later announced that they had killed 10 Naxalites. The bodies of the

deceased were allegedly not handed over to their family members but were secretly burnt

down by the security forces in the forest.

In September 2005, around 50 houses were allegedly burnt in Mankeli village, 15 kms

On 31 March 2007, seven tribalsu from Ponjer village and former Special Police Officer

(SPO) from Santoshpur village were allegedly picked up by Chhattisgarh Armed Police

and Salwa Judum members and then killed at Santoshpur village near Bijapur in

Chhattisgarh. The police claimed that they were Sangham members (Naxalite

sympathizers) and were killed in encounter. But the villagers of Ponjer village claimed that

the tribals were picked up and taken to nearby Santoshpur where they were killed. At least

four of the victims were allegedly hacked to death using axes and machetes and the rest

were shot dead. On 4 May 2007, then Director General of Police, Mr O P Rathor ordered a

departmental probe in the alleged fake encounter.On 7 May 2007, bodies of four victims

were exhumed from Ponjer village by doctors of Dantewara district hospital in the presence

of family members of the victims and senior administrative and police officials.The post-

mortem report prepared by doctors from Dantewada District Hospital, reportedly found

gunshot wounds and deep gashes caused by sharp-edged weapons like axes or machetes.On

8 May 2007, the bodies of two other victims were also exhumed and sent for post

mortem.However, in an attempt to shield the accused security personnel, the Chhattisgarh

police registered a First Information Report with Bijapur police station against some

255

men were

security forces or Naxalites.81

Killings in 2012

In March, more than 300 police and Salwa Judum personnel involved in anti-Maoist

operations attacked Morpalli, Timmapuram and Tadmetla villages in Chhattisgarh state,

killing three villagers, sexually assaulting three women and burning down 295 houses

Bijapur Massacre

On the night of 28 June 2012 when the adivasi peasants of Sarkeguda, Kottaguda and

Rajpenta (Bijapur district of south Chhattisgarh) gathered to plan the performance of the

traditional festival Beej Pandum (seed festival), they were surrounded by hundreds of

Police and Para-military forces of the Indian state. The armed forces resorted to

indiscriminate firing killing 17 adivasis (including 6 minors) cold-blooded. Two other

villagers were likewise killed near Jagargunda village of Sukma district in the same night,

t

June 27-28 in a joint anti-Maoist operation by the CRPF and state police.82

Thus the main reason for the spread of Naxalism is the exploitation of poor and scheduled

castes. The main thing which has to be done is to enforce land ceiling laws, utilization of

the funds provided to government to the maximum and political expediency. Use of police

forces should be to enforce the land ceiling laws, evict landlords and ensure land to the

farmers for cultivation. They should be provided with police protection, and proper

81

accessed on 7 October 2013. 82

on 6 October

2013.

256

rehabilitation for the people who have been displaced should be ensured. Security as well

as development has to run hand in hand to counter the Naxal problem.

The government has to instil faith in the people that they will be governed in a better

manner than by the Naxals. The government should include laws in the forest act that only

forest dwelling tribes and scheduled castes should be allowed to use the produce of the

forest. Proper guarding of financial institutions sanctioning loans to these tribes should be

ensured which will help these tribes to realize that the government is with them. Using

force against the tribals to deter them from joining the Naxals has and will backfire against

the government. The government should ensure peace in these areas so that these people

don't suffer more than they already have and this can be done only if the government takes

proactive measures so as to ensure social justice and inclusive growth for the benefit of the

marginalized sections.83

5.5 Conclusion

The State is the legal guardian of all its citizens, it is the state who had solemnly promised

and which had been bestowed the authority under the Constitution to protect and preserve

the inalienable human rights and fundamental freedoms of its citizens. For this reason

alone, extrajudicial executions committed by the security forces deserve not only the

strongest condemnation but also concentrated action against them. The arbitrary killings by

security forces, committed with impunity provided by the uniform and authority, activates

not only public anger and protest but also revulsion towards the state.

Impunity remains a serious problem, particularly for abuses committed by security forces

in Jammu and Kashmir, the northeast, and areas in central and eastern India facing a Maoist

insurgency. Impunity for human rights offenders seriously undermines the rule of law, and

also widens the gap between those close to the power structures and others who are

vulnerable to human rights abuses. The acts like Armed Forces Special Powers act in

83

P.V. Ramana, The Naxal Challenge: Causes, Linkages and Policy Options, Pearson Education India,

Noida, U.P, 2008, p.175.

257

Northeast and in Kashmir give enormous powers to the armed and security forces. It also

shields state actors from prosecution for the torture, enforced disappearances and extra

judicial killings. The provisions of the act are contrary to the rule of law, and it is

imperative that the act is repealed without reservation.84

By giving powers to the security forces, the state governments have absolved themselves of

their responsibility to ensure that the fundamental constitutional rights of their citizens are

upheld. Instead they silently stand by and watch as security forces take part in the torture,

rape and murder of innocent people in the name of law and order, legitimized by legal

-down,

law and order approach to combat insurgency by introducing increasing number of security

forces into the affected areas is This knee jerk response of violence

and State repression to stamp out dissent only serves to increase hostilities and compound

feelings of injustice.

The response/strategy of the state to counter the activities of the varied insurgent outfits in

Jammu and Kashmir, the North-East and naxalite areas, over the years has been to use

excessive force to deal with the rebels. Such a strategy has proved to be counter productive

as it has further alienated the people of the region from the mainland. It has also resulted in

decades of violation of the human rights of the people living in these areas. A major

Human Rights question has always raised i.e Against whom are the guns trained? Against

ones own people?. While the security forces are performing very difficult task in the

region, the excessive and over-bearing powers conferred to them, in the form of special

powers has led to a plethora of cases of violation of the rights of the people in these

states.85

There is no doubt that the armed forces operate in difficult and unpredictable circumstances

in the areas afflicted by internal armed conflicts. It is in these situations that the supremacy

84

Indian Bar Review, 39(2),

April-June, 2012, p.32. 85

Justice A.S.Anand and A.V.A Fonso, Human Rights in India: Theory and Practice, Indian Institute

of Advance Study, Shimla, 2011, p.313.

258

of the judiciary and the primacy of the rule of law need to be upheld. However, if the law

enforcement personnel stoop to the same level as the non-State actors and perpetrate the

same unlawful acts, there will be no difference between the law enforcement personnel and

the non-

human life and liberty in the last 55 years under the AFPSA has been counter-productive

and caused alienation of the people in the disturbed areas. There is no doubt that a large

number of armed opposition groups operate in these areas and that they have been

responsible for gross human rights abuses. Yet, unlawful law enforcement only begets

contempt for the rule of law and contributes to a vicious cycle of violence. To break this

cycle of violence, the Indian Government must address the dissatisfaction and desires of its

citizens in the political forum rather than treating their demands as law and order problem

to be dealt with by force.

The only way to guarantee that the human rights abuses perpetrated by the armed forces

cease is to both repeal the AFSPA and remove the military from playing a civil role in

these area. Indeed with 50% of the military forces in India acting in a domestic role,

through internal security duties, there is a serious question as to whether the civil

authority's role is being usurped. As long as the local police are not relied on they will not

be able to assume their proper role in law enforcement. The continued presence of the

military forces prevents the police force from carrying out its functions. This also

perpetuates the justification for the AFSPA. Moreover the security forces should be

protection under these black laws. As the J.S Verma committee (2013) also recommended

that rape and sexual assault by security forces in conflict areas shouldn't be able to take

cover under the AFSPA and the security forces should be tried under the ordinary criminal

law.