Over To The Judiciary

In 1996, four civilians were kidnapped in Bhaderwah, allegedly in a police truck. Three, including a father-son duo, were murdered but the fourth escaped. The police probe gave a clean chit to all “involved” but the trial court found “strange” the way the prosecution handled the case. A separate Crime Branch (CB) probe accused an SPO and his two accomplices for the murder, and also indicted the then DIG, now DGP, Kuldeep Khoda in the case.

The report was never submitted in the trial court. Based on the recently surfaced CB report the families have moved the court. Prashant Bhushan, noted Supreme Court lawyer, who pleaded a fresh petition on behalf of the victims’ families in the state High Court spoke exclusively to Kashmir Life about the case and human rights scenario in Kashmir.

Prashant Bhushan
Prashant Bhushan

Kashmir Life: Was there anything particularly compelling for you to come and plead this case?

Prashant Bhushan: I felt it was a serious case of human rights violation. Of course there have been many other serious cases of serious human rights violations in Kashmir, but in this case fortuitously because of the crime branch investigation ordered by the (then) DGP at the insistence of NHRC, there was a report which unfortunately had been buried and had gone unnoticed, as a result of which there was already evidence of senior police officials being involved in these killings. Unfortunately none of that had been taken into consideration in the charge sheet or in the trial. Therefore, I felt this was a case which needed to be reinvestigated. As a human rights activist I felt if I could do anything to assist in this process, I should.

KL: You said in your press conference here that this case should be investigated either by an independent Special Investigating Team (SIT) or by CBI. But given the history of cases like Shopian rape and murder where CBI appeared to give a clean chit to government forces, there’s mistrust against such investigation agencies to deliver justice and bring the culprits to book.

PB: You are right. The CBI has often acted as a tool for the central government and has not been able to function independently. So, in those cases where central government also has some interest in suppressing the human rights violations in Kashmir, the CBI would not be seen as a credible independent agency. I think the best thing would be to get a completely independent agency or a special investigating team appointed either by the court or appointed by NHRC, though today even the NHRC doesn’t inspire much confidence. The CBI would certainly be a fall back option which would be better than any agency under the state government.

KL: What are your hopes that this case can reach a stage where justice can be delivered?

PB: Justice can be delivered only if there is a credible, independent reinvestigation into this case.  And that would have to be by an agency or by a team of officers who are completely independent of the state government, and preferably also independent of the central government.

KL: Kashmir is a place where allegations of human rights abuses, although there have not been many convictions. In the legal realm, what are the best approaches to deal with such kinds of human rights abuses?

PB: I think there needs to be a very high powered commission of enquiry headed by one very credible former chief justice of the Supreme Court. In my view it would be better if there is an international commission of enquiry consisting of some very credible international people, who must go into some of these major cases of human rights abuses which have gone uninvestigated and unpunished. And the perpetrators of those atrocities must be brought to book. Unless that happens, this climate of impunity, which we are seeing in Kashmir and which is leading to repeated human rights violations, will not stop.

KL: Given the climate the Kashmir political issue generates all the time in India and internationally, do you think that kind of step in the current climate is imaginable?

PB: I think all the authorities, including the Indian government and the J&K government would be well advised to do that because this present situation, which is leading to continued, repeated human rights violations, is not inuring to anyone’s benefit. Of course, besides causing huge injustice to the people of Kashmir, it is alienating more and more people of Kashmir from India. And it is not benefitting India in any manner. Therefore these human rights abuses must be stopped. And the only way of stopping them is to firstly remove impunity and hold some persons accountable. That is the only way of stopping these human rights abuses. I think it is in every body’s interest to do that.

KL: From your experience of how the judicial system has been functioning, particularly in Kashmir, some people believe it may be inadequate to provide justice in human rights abuses. Do you agree with that skepticism?

PB: I think the judicial system in the whole country and especially in Kashmir is very, very weak to deal with the

kind of injustices that we are seeing and especially with the kind of large scale injustices that we are seeing in Kashmir. The judiciary in Kashmir seems to be especially weak and ineffective to handle such scale of human rights abuses. I think judiciary needs to be enormously strengthened in all kinds of ways, including in the system of appointments and increasing the strength of judiciary, and in having robust systems of accountability for the judiciary.

KL: The language of maintaining law and order is used to strengthen statist arguments about the political situation in Kashmir.  The majority of people as also many mainstream political parties are saying that laws like AFSPA and PSA must go, while as the same laws are being used by the establishment to maintain what they call law and order. Do you see a contradiction in terms of what keeping law and order and using these draconian laws in Kashmir means?

PB: Maintenance of law and order does not mean providing impunity, which is what really the AFSPA in practice is proving to the security forces here. It only eventually weakens law and order because they allow human rights abuses to increase. And with increasing human rights abuses, the law and order is bound to deteriorate, apart from the injustices that would be caused. If you allow a situation which leads to increasing human rights abuses, increasing injustice, then eventually that is bound to cause a breakdown of law and order and in fact increase of terrorism as well. And eventually if it goes on, you will see the kind of suicide terrorism that you are seeing in places like Iraq and Afghanistan today.

KL: Do you see a connection between laws like AFSPA or PSA and the phenomenon of unmarked graves that has began to unravel in Kashmir.

PB: There’s an obvious connection because all these unmarked graves and all the stories of disappeared persons that can clearly be matched. And that is what I suspect DNA identification will show. And that will establish what people here have been saying for a long time that people have been indiscriminately picked up by the security forces and by the police and later killed, dumped and buried. And such things have been happening because of the impunity provided by laws like AFSPA.

KL: Now that the issue of unmarked graves is staring at the face of governments both in Srinagar and in New Delhi, the Chief Minister of J&K has been repeatedly suggesting, as a way of resolving this issue, the setting up of Truth and Reconciliation Commission. Do you think that is the way to resolve this issue?

PB: Firstly, the Truth and Reconciliation commission can be effective in civil war and communal war type of situation after the event, where you have this sort of festering feeling among two different warring communities. It is not that useful in a situation where some security forces or persons in authority have committed serious human rights violations or atrocities and who have not been held accountable. It is not a very useful way of dealing with that kind of a situation. In any case for a truth and reconciliation commission, you first need to get to the truth. And in this case unless you get to the truth of who are these people in these unmarked graves and then who is responsible for their killing, there is no question of truth and reconciliation. It is misplaced in the present situation. It could be a useful tool for reconciling the Kashmiri Pandits who have left or forced to leave the valley in the 90s. And in order to bring them back to the valley, it could be a useful tool, but not for dealing with such serious human rights abuses which have taken place here.


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