Accused soldiers can’t get AFSPA immunity: SHRC

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Srinagar: The Jammu and Kashmir State Human Rights Commission (SHRC) has maintained that Army personnel accused of committing human rights violations can’t get immunity under umbrella of laws including the Armed Forces Special Powers Act (AFSPA) and must face trial.
The judgment was pronounced by SHRC member Javaid Kawoos in a case of alleged custodial killing of a civilian of south Kashmir’s Islamabad district by Army personnel in 1994. Pertinently, Chief Minister Omar Abdullah, who has been pitching for partial revocation of AFSPA in the State, had recently stated that the statute was not aimed at protecting acts of crime by the armed forces.
In his four-page judgment, Javaid Kawoos has passed strictures against the accused armed forces for “undermining the authority of law and exceeding their powers” and recommend to the senior Army officers to impart training on protection of human rights among its personnel.
“In our democratic set-up, no one can assume and assemble in himself power of arrest, investigation, trial and execution. And if anyone imagines or even tries to do so, he is violating the very basic tenants and spirit of the Constitution. Even dreaded terrorist like Ajmal Qasab is being provided a fair chance of trial but quite contrary in the instant case, the subject after having been taken into custody is now presumably dead that too under custodial torture,” Kawoos states in the judgment.
“The framers of the Constitution have pleaded that there must be Rule of Law in the country but quite contrary in the present case makes a mockery of the same. This is highly painful and illegal and for such illegal acts, no immunity can be claimed because by no stretch of imagination the custodial disappearance of the subject can be termed as an act done in furtherance of duties of the accused officials,” Kawoos further states.
In her complaint to the Commission, Zaina Begum of Dabruna Islamabad had accused the 2 Rashtriya Rifles of killing her son Reyaz Ahmad Gilkar on April 25, 1994. She states that on the fateful day, the soldiers of 2 RR led by Col KS Khetri cordoned Ashajipora area to flush out militants.
“The crackdown was actually carried out under the active control and supervision of Captain SS Chouhan who with the help of a local unidentifiable source picked up her innocent son Reyaz Ahmad Gilkar never to be seen or heard of thereafter. The complainant has not left any stone unturned to locate whereabouts of her son but has failed in her attempts,” the Commission states in the judgment.
In 2009, the complainant approached the Chief Minister who forwarded her complaint to the SHRC. Taking cognizance of the complaint, the Commission sought report into the matter from police.
“From the reports submitted by the Police Chief of the State and SHO concerned, it is admitted beyond any reasonable doubt that on April 25, 1994, the Army personnel of 2nd RR had taken the subject Reyaz Ahmad Gilkar alongwith some other persons into their custody and though the other persons were later on released but the fate and the whereabouts of the subject are not know till date,” the member observes.
He states that both the officers have affirmed that Army personnel of 2nd RR have not till date released the subject from their custody which has by now prolonged to 18 long years. “And as such under section 108 of law of evidence, it can safely be presumed that the subject is dead in the custody of Army 2nd RR.”
The member observes that the Police Chief of the State has lastly tried to bring the antecedents of the subject under cloud by submitting he was a close associate of Javid Bhat, a commander of HuM. “But the SHO Anantnag has been fair enough to admit that though by coincidence the subject was a friend of Javid Bhat, the HuM commander, however personally the subject was not at all directly or indirectly connected with any banned organization or outfit. He was simply a student of BA IInd year who in addition to his studies, was dedicated to a noble cause of imparting religions teachings to small kids which perhaps in all probabilities cost him his life,” the judgment states.
The members castigated the 2nd RR for “remaining defiant, callous and resisting all pressures to disclose the fate and whereabouts of the detainee who is now presumed to be dead under illegal custody.”
The member states that the SHO has admitted in his report that though by virtue of number of communications, the matter of missing subject was taken up with the officers of the accused RR battalion. “But they have not responded to any communication till date, Thereby the police is also facing hurdles and feeling helpless in tracing out the whereabouts of the missing subject or locate the identity of the culprits who have been responsible for the presumed custodial killing of Reyaz.”
“The case is an example where the Army officers/officials feel safe and free despite having killed four persons in cordon and one being now presumably dead by virtue of an umbrella of laws protecting them from being answerable regarding their misadventures,” the member observes.
However, the member maintains that “nobody questions the authority and the power of the armed forces to combat any external invasion of flush out anti-national elements in order to restore peace and tranquility in the State.”
“But at the same time if any Army personnel has not adhered to the Standard Procedural Rules or has exceeded due use of power which has resulted in some sort of misadventure like the one in the present case, the concerned officer must show the courtesy to respond to the communications addressed to him by the police officer concerned who is just performing part of his duty.”
The member states that by remaining defiant and not honoring the communication shows that, “the concerned officer/officials undermine the authority of law enforcing agency which affects the high reputation earned by our patriotic force who have laid their lives at the altar of eradicating militancy from the affected areas.”
“The behavior of the concerned officers/officials also shows that they little honour and perhaps are ignorant about the human rights of the citizens. The better course of action for the high ups is that such type of officers/officials must be imparted training courses regarding human rights. Sooner the better,” the member states.
The Commission has directed the DGP to take up the matter with the commanding officer of 2nd RR, so that the investigation of FIR 147/1994 registered in Police Station Islamabad (Anantnag) is taken to its logical end.
The Commission also recommended an ex-gratia relief of Rs 1 lakh to the next of kin of the victim and benefit of SRO-43.

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