Following the massive outrage over the killing of three civilians in an alleged Hyderpora gunfight on 15 November, Lieutenant-Governor (L-G) Manoj Sinha-led administration swung into action and ordered a magisterial probe into the killings on an immediate basis.
This was not the first time that a probe was ordered to bring justice to victims killed by security forces. In the past, hundreds of such cases have been reported in the region, but the probes, according to legal experts have not been “result-oriented”.
The Killing of Three Alleged Militants
For instance, in July 2020, days before then-Governor Girish Chandra Murmu's resignation, the Army had claimed to have gunned down three hardcore militants in combat in Ashimpora village in South Kashmir’s Shopian district on 18 July.
However, on August 11, four days after his successor Sinha took oath as governor of Jammu & Kashmir, a probe was ordered into the killings of three alleged militants after their families claimed that the trio were labourers from the frontier Rajouri district, who had arrived in the area a day before to earn their living.
The families of the three young boys – Imtiaz Ahmed (18), Abrar Ahmed Khan (21), and Abrar Yusuf (26) – had filed an FIR that their kin were missing since 17 July.
“Though the investigation has revealed that the trio was murdered by an Army officer after abducting them from their rented accommodation, the culprits are yet to be convicted, raising questions about the credibility of the probes,” says a legal expert.
‘Lack of political will'
Shafqat Nazir, an advocate at the High Court of Jammu and Kashmir, said the probes don’t yield any result in Kashmir. In many cases, inquiry committees submitted the recommendations, but the results were not made public. “So, these probes are not result-oriented, to say the least,” he said.
He believes that even if the Armed Forces Special Powers Act (AFSPA) and the Disturbed Area Act (DAA) are there, magisterial probes can still be taken to their logical conclusion. “Though AFSPA has its own disadvantages, it doesn’t stop one from carrying out a magisterial probe in any case,” he said, adding “It is just lack of political will.”
Another human rights activist and chairman of the International Forum for Justice, Ahsan Untoo, said the probes have proved to be a mere eyewash and are a way to quell public anger.
Untoo says in 2018, the forum had filed a petition before the State Human Rights Commission seeking details about magisterial inquiries ordered since 1990 – when the armed struggle began in Kashmir.
The Commission in its response had said that around 506 magisterial inquiries have been ordered since the beginning of the conflict in the Valley, of which only one inquiry was completed, and “ironically”, the report was never submitted. He said:
In recent years, successive governments and administrations have ordered 108 such inquiries into various incidents of violence in the Valley. In many cases, the culprits were identified. However, there has not been any conviction following these probes.
Uprisings and Probes Thereof
Since 2008, the Kashmir valley has witnessed a number of public uprisings. The infamous uprisings began following the Shri Amaranth Ji land row on 26 May 2008 after the then government agreed to give forest land to build temporary shelters and facilities for Hindu pilgrims in Kashmir.
The move evoked widespread protests across the Valley.
During the clashes between security forces and protesters, over 50 people were killed by security forces either by firing bullets or by resorting to tear smoke shelling. Subsequently, the government ordered eight magisterial inquiries ... But what happened to those probes, nobody knows.Ahsan Untoo, Human Rights Activist
Similarly, in 2010, the valley witnessed another mass uprising after three civilians were killed in a “staged encounter” in Sona Pindi by Army personnel. The Army claimed that it had killed three infiltrators during combat, but their claim was contested by local eyewitnesses.
“According to eyewitnesses, security forces took three young men from the Nadihal village in the Baramulla district and killed them in cold-blooded murder,” Untoo said.
Subsequently, people hit the streets demanding justice. “During the months-long uprising, 112 people were shot dead by security forces,” he said, adding that the government constituted various investigation teams and ordered at least 14 magisterial probes. However, like earlier probes, no one has been convicted so far."
Likewise, in 2011, 2012, 2013, 2014, and 2015, the government ordered 11, eight, seven, seven, and 10 inquires, respectively, to probe the killings and firing incidents.
In 2016, eight probes were ordered by the then-Chief Minister Mehbooba Mufti following the massive public unrest after the killing of popular militant commander Burhan Muzaffer Wani. However, the probes were not result-oriented.
In 2017, seven inquiries, and in 2018, eight inquires were ordered. But the results of the inquires were not made public even in a single probe.
‘Enquiries Die Their Own Death'
Shafqat said the government can’t withhold inquiry. “Once they [the government] order inquiry in terms of the inquiry commission act or any other section of the law, they have to take them to a logical conclusion. They have to complete the probe. Name culprits and take legal action against them,” he said.
Though the Commissions of Inquiry Act says that the government is not bound to accept the recommendations of probe pursuing committees, it has to give reason nonetheless about its rejection of magisterial inquires or commission of inquires, says Shafqat.
“Rejection of magisterial inquiries needs a reason. But in J&K, there is neither any reason given behind rejections or acceptance. The inquires die their own death.”Shafqat Nazir, Advocate, J&K High Court
There are some probes where the culprits were indicted but the result of those probes was never made public.
For example, in 2014, Omar Abdullah, former Chief Minister of Jammu and Kashmir, announced the CoL commission (Commission of Inquiry) to probe the killing of four persons by CRPF in the Gagran area of south Kashmir.
“The commission then came up with a 300 to 400-page inquiry report, but it was never made public,” Shafqat said, adding, “We filed a petition in the High Court to make public the recommendations and implement those, but government contested it.”
“They [the government] said whatever was required to be done has been done,” he adds.
When asked the reasons why the recommendations were not made public, he said, “The recommendations were against the government and police officers and magistrates were indicted. The responsibilities were fixed and then government was asked to put the erring policeman and the other culprits to task”.
“Magisterial probes are ordered only if there is a doubt raised against the genuineness of the encounter or killing,” he adds.
On 15 November, security forces killed three civilians in an alleged gunfight in the Hyderpora area of Srinagar. Following the killings, the family of slain Altaf Ahmad Bhat, a businessman, and Dr Mudasir Gull, a dentist-turned-real estate-entrepreneur, contested police claims that their kin were militants or their associates.
They staged massive protests at the Press Enclave, accusing the police of using their kin as human shields. The protests came to an end when the police arrested and bundled the family members in the dead of night in a vehicle and released them later.
On the next day, Manoj Sinha ordered a probe into the killings on an immediate basis. However, the family members have termed the probe sceptical and a mere eyewash.
Culprits Identified but Not Convicted
Dr. Sheikh Showkat, a retired professor of law from the Central University of Kashmir and a political commentator in Srinagar, says that the probes have turned to be a farce.
“Kashmir has seen so many probes, like the one in Chatisinghpora and subsequent events, but we have seldom seen a person is found guilty because the persons who pursue a probe are ordinary human beings,” he said.
“They feel scared in the security environment to probe without any fear. And even after the probe, if they recommend something, it still depends upon state whether to accept it, enforce it or not.”
He said in most of the cases, culprits were identified but not convicted after being found guilty because of some laws that immunise their guilt in Jammu and Kashmir.
“There are a lot of laws which shield perpetrators. Besides, conflict and security reasons come as a justification for so many actions,” he said, adding, “The fact that for penalising a security man or a policeman you need the permission of the state is in itself problematic – and those permissions seldom come.”
That is why, he said, it’s the rarest of rare cases where the culprits have been penalised because they have been shielded by laws like the AFSPA and the Disturbed Areas Act.
(Ishfaq Reshi is an independent journalist based in Kashmir. He tweets @IshfaqReshi_)