The new Amnesty International report, “Denied: Failures in accountability for human rights violations by security force personnel in Jammu and Kashmir (J&K)” (click HERE to download), has created flutter across India. Trailing civilian deaths, allegedly caused by the security forces, the report has found “hundreds of cases of extrajudicial executions and enforced disappearances from 1989 to 2013”. It believes, one of the primary facilitators for this has been “the existence of provisions like Section 7 of the Armed Forces Special Act (AFSPA), 1990, under which members of the security forces are protected from prosecution for alleged human rights violations.” It also takes objection to similar clauses which in a number of other Indian laws, which require “prior executive permission from the central or state authorities for the prosecution of members of the security forces”. Excerpts from the 70-page report:
The requirement of sanction for prosecution is a colonial-era provision designed to protect then-largely British public servants from unnecessary and frivolous litigation. In practice it has led to impunity for serious human rights violations. While acknowledging that “civilians” have been killed by security forces, the Army has been known to publicly dismiss complaints of human rights violations and label the families and human rights activists who have brought them as “vested” or “motivated” by anti-national interests. Authorities maintain that sanction provisions are necessary to prevent the filing of false cases against security force personnel by militant or terrorist groups.
This refusal to acknowledge the legitimacy of complaints against the security forces is also reflected in the government’s blanket denial of sanction for members of the security forces to be prosecuted in civilian courts. Information made available to Amnesty International India indicates that since 1990, the Ministry of Defence (MoD) has denied, or kept pending, all applications seeking sanction to prosecute army personnel for alleged human rights violations in civilian courts.
Due to the lack of transparency around the process of seeking sanction, there is some confusion as to the exact number of cases in which the MoD has received applications seeking sanction. According to a MoD response dated 18 April 2012 to an application filed under the Right to Information Act, 2005 by activists in J&K, the MoD had received 44 applications seeking sanction to prosecute army personnel for criminal offences committed in J&K since 1990. The document indicated that sanction had been denied in 35 cases as of 3 April 2012 (it said that in one case, a court-martial had been conducted leading to conviction, dismissal from service and a sentence of rigorous imprisonment), while nine cases remained under consideration.
Amnesty International India filed another application on 20 June 2013 requesting updated information on sanction applications to the MoD under the RTI Act. The MoD stated in its response that it had received 44 applications seeking sanction to prosecute, but declined to release the details of those cases, or the status of the applications.In a separate RTI response dated 10 January 2012, the MoD provided information on the reason for denial of sanction in 19 cases. In one case relating to a request to prosecute a member of the army for the alleged rape and sexual assault of two women in Anantnag district in 1997, the MoD stated, “there were a number of inconsistencies in the statements of witnesses. The allegation was lodged by the wife of a dreaded Hizbul Mujahideen militant. The lady was forced to lodge a false allegation by ANE‘s [anti-national elements] army.”
This is one example of the MoD summarily dismissing a criminal investigation carried out by the police into a complaint of human rights violations in J&K. This approach – utilising legal protections for members of the security forces to deny criminal prosecution in civilian courts and either dismissing the allegations outright or conducting its own “court of inquiry” – almost invariably results in the ultimate dismissal of the allegations and violates the right to justice and equality before the law.
Neither the Armed Forces Special Powers Act nor the Code of Criminal Procedure prescribes a specific process for government authorities to follow to seek sanction for prosecution. Letters from Amnesty International India to the Ministry of Home Affairs and MoD, as well as official requests for meetings to seek further information on the sanction process at the central level, went unanswered. However, officials at the J&K State Human Rights Commission and in the J&K Law Department described the process to Amnesty International India during interviews conducted in the state in 2013.
The sanction application process works slightly differently for members of the army and internal security forces, and the J&K state police. When investigations into a criminal complaint against a member of the police or security forces are complete, the investigating authority, usually a member of the J&K state police, is responsible for forwarding the established charges and any supplementary information to the Director General of Police, J&K.
The case is reviewed at the police headquarters by the Director Prosecution, and confirmed by the Director General of Police before being forwarded to the J&K Home Department. The Director Prosecution has the prerogative to send the case back to the investigating officer if they feel the report is incomplete, or requires clarification. If the accused is a member of the Army or internal security forces, the J&K Home Department forwards the case to the central government for sanction (MoD for the Army and Ministry of Home Affairs for the internal security forces). If the accused is a member of the J&K State Police, the J&K Home Department itself decides on whether sanction should be granted.
According to information made available through the Right to Information Act, the MoD has taken anywhere from a few months to almost ten years to deny sanction to prosecute. In an affidavit filed by the MoD in the J&K High Court in 2008, the Joint Secretary for Defence replied to questions posed by the court regarding cases being processed for sanction, including the causes of delay in disposing of cases, and the estimated time the MoD would take to issue decisions in pending cases. In its affidavit, the MoD justified delays in evaluating sanction applications by pointing to the often long delay in criminal investigations by state police, in some cases of “up to 14-15 years for the police to conclude the investigation and seek permission from the central government to prosecute.”
The MoD stated that records, including police case diaries, forwarded in the sanction applications were often incomplete and/or illegible causing delay for officials attempting to fill incomplete details in a case with “proper application of mind.” Further, the MoD stated that by the time such applications for sanction were received by the central government, often the individuals and units involved in the alleged incidents were “moved/posted out long back making the process of identifying the individuals and records cumbersome and time consuming.”
Lack of transparency
Not a single family interviewed by Amnesty International India for this report had been directly informed by the authorities of the status or outcome of a sanction request in relation to their case. As the procedure for deciding on whether sanction should be granted is not prescribed in law, there are no specific legal requirements to ensure that victims or their families are informed of the status or decision on sanction to prosecute in their cases. The majority of victims’ family members interviewed by Amnesty International India in J&K were unaware even of the requirement for sanction under the AFSPA and the ordinary criminal law, and whether their relative’s case had even been forwarded for sanction. Often, families mistakenly believed that the criminal case had been closed.
All of the 58 families interviewed by Amnesty International India said they had little or no faith that those responsible for human rights violations will be brought to justice, given the lack of accountability for security forces in J&K over the past two decades. Due to the secrecy surrounding the sanction decision process, families are rarely, if ever, informed of sanction decisions issued by the authorities, and therefore are unable to challenge sanction denials.
However, in a few cases, families have been able to challenge the denial of sanction. Their hope, they said, is that justice in their cases will help prevent others from becoming victims of human rights violations in the future. Three families have directly challenged the decision of the MoD to deny sanction for prosecution in recent years: that of Manzoor Ahmad Mir, who was subjected to an enforced disappearance in 2003 and believed to have been extrajudicially executed; Ashiq Hussain Ganai, who was allegedly tortured to death in custody in 1993; and Javaid Ahmad Magray, who was allegedly extrajudicially executed in 2003 (case discussed in Chapter 1).
Challenges to sanction
In 2011, the family of Manzoor Ahmad Mir filed a petition in the J&K High Court challenging the MoD’s decision to deny sanction to prosecute a Captain in the Army for Manzoor’s abduction and apparent murder in September 2003. The MoD’s decision was challenged on the grounds that it was arbitrary and a violation of Article 14 of the Indian Constitution (equality and equal protection before the law). To date, the Union of India has failed to file a response to the petition in the High Court. On 23 June 2015 the family’s lawyer informed Amnesty International India that the case had not been listed for hearing before the High Court for several months.
In 2003, the police filed charges of murder, kidnapping, evidence tampering and common intent against a Captain in the 23rd Rashtriya Rifles and two local informers, following an investigation into the disappearance of Manzoor Ahmad Mir. In a letter dated 9 May 2013, the Deputy Commissioner in Baramulla wrote to the Principal Secretary, Home Department, seeking permission to declare Manzoor Ahmad Mir “dead” and for benefits to be issued to his surviving family. He stated in the letter that: “The investigation indicates that the subject [Manzoor Ahmad Mir] was picked up by the above mentioned accused Army officer and his associates who killed him during interrogation and destroyed his dead body to save their skin for which section 201 of RPC (evidence tampering) was added.
The report of the Inspector General of Police CID J&K reveals that on 7 September 2003, the accused Army officer along with two civilian informers, resident of Delina, Baramulla, searched his house, picked up the victim and since then his whereabouts are not known.” The Army claimed protection for the accused Army Captain under Section 7 of the AFSPA stating that “no proceedings can take place against the accused till necessary prosecution sanction is obtained” from the MoD. Based on this statement, the local judicial magistrate in Baramulla refused to take cognizance of the charges on 31 August 2005 until the Central Government granted sanction in the case.
Manzoor Ahmad Mir’s family filed a petition challenging the order of the judicial magistrate before the J&K High Court. On 21 April 2007, the High Court stated that the Magistrate “should not have acted on the application of the Army, as the Army was not a party before the court at all.” The MoD denied sanction in the case on 23 February 2009, justifying its decision on the grounds that “the allegation was motivated by vested interests to malign the image of security forces. Neither any operation was carried by any unit in the area nor was any person arrested as alleged.”
In an interview with Amnesty International India, Bashir Ahmad Mir, Manzoor Ahmad Mir’s brother said, “The whole system is corrupt. We are fighting for the guilty to be put behind bars, but it is impossible… The main aim is that the guilty should be punished so that no one else has to suffer this.”
In the case of Ashiq Hussain Ganai, who was allegedly tortured and killed by the army in 1993, the MoD denied sanction to prosecute in 1997 without providing any reasons for their denial. On 14 May 1999, the family filed a writ petition before the J&K High Court challenging the denial of sanction to prosecute the two army personnel identified by the police investigation. Multiple court adjournments followed, and the J&K High Court granted further time to the central government to respond. The most recent court order available is dated 20 November 2006, in which the High Court granted further time to the Union of India to submit a response to the challenge. No further action is known to have been taken.