Every time streets are tense, people within and outside government revive memories of 2010 summer. But the families of youth whom civil unrest devoured are fighting an unending and unyielding battle for justice. From police stations to court rooms, their files now rest with a Commission that government thinks requires a rollback for the delay it has caused in delivering its findings, reports Masood Hussain
It was painfully hectic day for Mohammad Ashraf Mattoo on June 11, the sixth death anniversary of his only son Tufail. Separatists apart, hundreds of students visited Mattoos’ at their Saida Kadal residence to convey them the unforgotten memory of their only son, born after a series of miscarriages spanning 14 years.
Mattoo Jr, a tenth class student, was hit by a tear-smoke shell near Gani Memorial Stadium, on June 11, 2010. Doctors discovered a five rupees coin from his clinched fist on operation table, reinforcing the fact that instead of being part of any protest, the boy was on his way to bus stop, after his tuitions.
Mattoo in whose clinched fists, doctors discovered a five rupees coin was returning from his tuition classes. The only male child of his parents, he was born after a series of miscarriages after around 14 years of their marriage.
Initially, the police said it was a murder. They seized the car that had transported him to the hospital and arrested the driver too. The flash mass reaction, almost spontaneously, helped the driver walk home. Every time, the lawmakers discussed the issue in the state legislature, the government said the boy was killed because of a “tear smoke shell”. But it did not charge the police. The case has travelled many courts but the family is yet to establish that Mattoo Jr was killed by the shell. Even a Special Investigation Team (SIT) has concluded the same and the court has not rejected the outcome. Six years have gone into the battle to establish the crime and it has remained a failed exercise. So justice seemingly is a distant possibility.
Tufail murder led to Unrest 2010 that devoured 120 lives, destroyed the peak tourist summer, locked educational and business establishments and forced Kashmir’s survival in a dangerous strike-curfew cocktail. The slain had an average age of 25 years. Mere statistics of the season is staggering: 2600 civilians were injured by firearms, crowd retaliations led to injuries to hundreds of CRPF and police personnel; 78 police cases were registered; 161 people were detained under Public Safety Act; SKIMS alone reported 36 disabilities excluding 38 cases in which the people lost one or both eyes; during the unrest and soon after it police registered 1155 cases across Kashmir against 5417 persons including 1164 students.
With Srinagar inaccessible for most of the day (ambulances would drive casualties to SMHS and SKIMS during midnights), peripheral health set-up started working. Details accessed from the district and sub-district hospitals suggested the costs were huge as they treated more people than what government admitted in Srinagar. Pulwama hospital took care of 335 injured, Ganderbal to 119, Budgam to 108, Shopian to 80, Baramulla to 66, Kupwara to 55, Islamabad and Kulgam had 67 each and Tangmarg to 47. This was despite the Health Department losing five of its 400 ambulances to street fires and 90 surviving with serious damages.
For 15 weeks, no Friday prayers were offered in the Jamia Masjid. Railways remained suspended for 18 weeks. For most of the 110 days if serious crisis, Geelani was either detained at home or at Cheshma Shahi.
Tensions started easing after Delhi flew an All Party Delegation (APD) to Srinagar. Chief Minister was asked to engage his people. He initially flew from Gupkar to SKIMS, later drove his cabinet to Karnah for interactions and developmental assessments and in between had a protracted discussion with traders and prominent citizens in SKICC. In the quick follow-up, interlocutors were appointed and a couple of schemes (Udaan, PMSSS) were drafted to engage youth. The net outcome on streets, however, was limited: 18 bunkers were removed from Srinagar and blood money of Rs 5 lakh was offered to every bereaved family.
Briefing assembly on August 28, 2014, Omar Abdullah said the government had registered cases against 6563 persons but the cases were withdrawn against 1811 of them under the Amnesty Scheme he announced in 2011.
But the maze of justice took the long route in the governance labyrinth.
On July 29, 2010 the government announced a Commission on Inquiry and appointed two judges – Justices (retd) Syed Bashiuddin and Y P Nargotra. They were tasked to probe the circumstances in which 17 persons were killed since June 11, 2010 in different law and order situations and fix responsibilities. The commission was given three months time.
October 29, 2010, the terms of the commission expired. By then the deaths had already crossed 100. “The state government initiated the process of ordering denovo commission of Inquiry under the J&K Commission of Inquiries Act 1962,” the government responded to Ms Mehbooba Mufti, then an MLA in assembly on February 22, 2014. “However, upon examination, it was found that out of 78 FIRs registered regarding deaths, investigation in 76 cases was finalized and charge sheet submitted before the competent courts. In view of this, it was felt that there was no requirement for re-constituting the Commission of Inquiry.”
Well before that JKLF leader Yasin Malik had already gone to the High Court with a 30-page PIL on January 14, 2011. Before that he had personally visited almost all the family, expressed condolences and collected basic details of the events leading to killings. With noted lawyer Zafar Shah as his counsel, he pleaded for judicial supervision of police investigations in 117 civilian killings.
Since the “fugitive” was seeking justice from the law of the land, the government responded to the petition once the court admitted it. It sent a long dossier of its actions on every single FIR mentioning the progress. Then the case was lost in the maze of lists and averments.
In summer of 2014 when the Election Commission started the exercise of next elections, ruling NC has that “sinking feeling”. It did not want to jump the field without having some response to what happened in 2010 summer. It announced a Commission of Inquiry to probe the 2010 killings on June 19, 2014.
By then, in only two cases was there some forward movement. Firstly, in the case of four young men from Rafiabad who were lured to border, killed and dubbed as militants for rewards. After police successfully investigated it, arrests were made and eventually army also followed it up. Secondly, in the triple murder case in Anchdoora in Islamabad on June 29, 2010, the report by the local magistrate was accepted by the government. While SSP was held responsible, SHO was placed under suspension and murder case was registered against four cops.
By August 28, 2014 the One Man Commission led by Justice (retd) M L Koul was perfectly in place. With retired principal district judge Habibuallah Bhat, who earlier headed SHRC, as Commission’s Registrar, he was given three months to submit his findings. By 2015 summer the High Court observed in Malik’s PIL that given the existence of a Commission of Inquiry probing the same case is plain duplication of efforts. Without shifting the records to the Commission, it asked the complainants to approach the commission.
Justice (retd) Makhan Lal Koul is no stranger to Kashmir. He joined High Court in Srinagar on October 14, 1991 and was transferred to Punjab and Haryana High Court on November 1, 1994 where he superannuated on October 31, 1994. Since then, he is in Srinagar or Jammu.
His first post-retirement assignment was on November 22, 2000 as Chairman of Advisory Board of Public Safety Act (constituted vide SRO No 449 on November 17, 1989). Set up under PSA’s Rule 14, the Board has powers to review all the detention cases under PSA. After the constitution of the Board, he is the second judge who has held its leadership. The first was Justice (retired) I K Kotwal from November 17, 1989 to October 3, 2000. Then Koul took over and continued till November 30, 2012.
How the two judges managed the review of thousands of PSA-slapped people is not known? The last time when Koul made news was when he met Syed Ali Geelani on August 3, 2002 at Birsa Munda Central Jail near Ranchi. Then Koul was taking care of POTA review cases too. Koul’s continuation at the PSA Board for such a long time (he got three extensions in 2005, 2008 and 2011) became the subject matter or a fierce legislative debate when lawmakers even counted nearly 18 equally qualified judges who were deemed unfit to hold this position. It is now being headed by Justice (retd) Brij Lal Bhat. In 2013 the new Board revoked PSA charges on 16 of 121 cases.
While heading the PSA Board, situation fetched Koul many assignments. When tensions started ruling the streets in wake of fake encounters, Ghulam Nabi Azad government appointed him as head of the single-member commission on April 2, 2007. He was tasked to investigate the custodial killings of many civilians including that of carpenter Abdul Rehman Padder of Larnoo, Kokernag. By June he was handling five complaints. It failed completing its job by October. When it sought extension, the government took next six months processing the communication. It extended the term in April 2008 by two months. Its report did not reveal anything substantial and consequently it ceased to exist as police’s SIT took over and opened the cupboard of fake encounters partly.
Almost a year after Koul left the PSA Board, NC government appointed him as head of one man commission early October 2013 to probe the civilian killings in Shopian’s Gagren. Five persons were killed in CRPF firing on September 7 and 11 in two different incidents. His appointment was criticized. Excepting one, he faced non-cooperation from the families who had lost their children. Koul, however, said he had indicted two CRPF personnel Ashok Kumar Pathania and Santosh Kumar for killings three innocents in his report submitted to government in July 2014 but the government choose to look the other way.
By August 2014, Koul was back as head of another Commission, perhaps the most crucial assignment in his career. Koul is 82 already. His active career as judge spanned six years. Post-retirement, he has served the government for more than 16 years. Now his Commission’s last extension is ending by June 30.
In the last more than 20 months, the Commission has faced many situation in which the families appearing before it literally took on the streets accusing it of delaying its report. It has created a pressure within a section of policy making, within the government, which is against any more extensions. “A communication has gone to the commission that it must submit its findings by the end of this month,” Law Ministry sources said. “The government cannot wait for its outcome endlessly.”
Explaining the decision, one official said that the recommendations of a Commission of Inquiry, by law are not a binding on the government. “Normally, it will end up recommending two things – registration of police cases and paying the compensation,” the official said. “Both have been done.” He said that the constitution of the Commission was a political act and aimed more at elections than justice.
Another official said that the Commission is proving costly in absence of any outcome. Its revised allocations for the last fiscal (2015-16) were more than Rs 34 lakh.
If it goes ahead with its decision, the government may have to explain the abrupt rollback especially because the High Court has stopped trial of the PIL simply because a Commission was looking into the case. “The best they can do is to replace the presiding officer and not winding it up,” opined Zafar A Shah, the lawyer pleading the PIL.
But the men manning the Commission have their own story to tell.
“It is not a single incident or a single death as we were mandated to investigate more than 120 killings,” Habibullah Bhat, speaking for the Commission said. “These are different people who were killed in diverse situations at different places and it is a huge task.”
The Commission started operating from a room in ground floor of the secretariat and after spreading the word through mass media, Deputy Commissioners and the benches and bars of the district courts; it barely got 10-15 applications when the September 2014 floods inundated Srinagar including the civil secretariat. “Whatever we had done was lost,” Bhat said.
Once the Commission picked up the threads, there was no room. Finally a room was allotted in the second floor of the flood-soaked secretariat in November 2014. By January 30, 2015 the Commission, according to Bhat, resumed its activities. As Durbar moved back to Srinagar, Commission was out of secretariat, this time to Hamza Hotel in Dalgate where it operated till October 2015 when some room was granted by the Estates Department in the Special Tribunal complex in Samander Bagh on M A Road.
The first application the Commission received was on January 27, 2015. “Despite all our efforts, we could only receive 63 applications, the last was in April 2016 that a Deputy Commissioner had forgotten to forward us,” Bhat said.
Commission says despite the restrictions of resources, both human (they have two clerks, a peon and two cars with a limitation of burning 5 litres of fuel a day each) and technical, they have worked to the best of their capabilities. “Unlike police, CRPF, BSF, and Railway Police, the state government could not give us a lawyer to assist the Commission,” Bhat said. “We ensured to get all the witnesses from all the security agencies and some of them were made to appear before the Commission from the places of posting as distant as Kerela, Rajashtan and North East.” Most of the battalions posted in 2010 had shifted out and locating the accused was a major time-consuming process, they said.
Bhat said they have completed their report in 58 cases. “We have five cases left and we also need to have spot visits at a number of places to complete our findings,” Bhat said. “We need to see if there was a blast in the police station at Khrew, for instances, how did five youth die at a distance of 200 meters?” He said five persons were killed and accused of damaging railway property which needs to be physically assessed. Commission members say they would require one full quarter to submit their findings insisting that they are not “parasites” but keen to “contribute to the society”.
The five cases that the Commission is still investigating are “controversial”. The complainants are asking the Commission to frame top guns in the then government. “There is anger and pain,” Bhat said, “There might be cases with police and compensation might have also been paid but what about the rehabilitation of the bereaved in some of the worst cases of killings?”
Among the “controversial” five cases is that of Tufail Mattoo. The Commission got an elderly couple from the locality that witnessed the act but did not know who was in the gypsy and where it disappeared, later. Even Commission is convinced that Mattoo Jr was killed by a tear smoke shell. But it is the question of establishing the murder that makes it pretty “controversial”.
Travesty of justice has scaled up the heights. God save the bench, long live the bar.