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#2210, 17 February 2007
'Zero Tolerance' for Fake Encounters: A Reality Check in J&K
Priyashree Andley
Research Officer, IPCS
e-mail: priya@ipcs.org

In early February 2007, the J&K state authorities exhumed the body of a carpenter killed in an alleged 'fake' encounter. This was followed by massive street protests in Sumbal (Baramulla district) demanding a judicial probe into the killing. The exhumed body was identified as that of Abdul Rehman Paddar, killed by the Special Operations Group (SOG) in December 2006. The police claimed he was Abu Hafiz, a Pakistani militant killed during joint operations with the Central Reserve Police Force. Two other exhumed bodies, branded as 'foreign militants,' killed in February and March 2006, were identified as civilians named Nazir Ahmad Deka and Ghulam Nabi Wani.

These killings add to a long list of custodial killings in the state. Will the perpetrators of these acts be prosecuted fairly despite the impunity provisions available to security personnel under Indian law? Are such human rights violations hampering counter insurgency operations in the state? Will the Padder case prompt the government to change its course? Or will political pressures continue to motivate political parties' to take up these issues only at the time of state elections or assembly sessions?

Manmohan Singh has repeatedly assured the state that the central government will adopt a 'zero-tolerance' approach towards custodial killings. The inquiry into these killings ordered by Ghulam Nabi Azad, Chief Minister of J&K, is a step in this direction. However, there are three main factors preventing the situation from improving. Firstly, the law makes it compulsory to obtain permission from the central government to initiate criminal proceedings against army personnel involved in human rights violation; but permission is seldom given. The best example is the Pathribal case in 2002, involving the killing of five innocent civilians by five army officers. They are yet to face trial even after years of investigation and a CBI charge sheet filed against them for murder and destruction of evidence pertaining to the case.

Coupled with these legal provisions is the political stand of the state government. Azad clarified to the Opposition and People's Democratic Party (PDP) that the ground situation was not stable enough for the Army and security forces to be sent back to the barracks as demanded by them. His candid statement that the PDP should first give him in writing its willingness to withdraw its own security backs his stand. The PDP had demanded that the police take over the situation whereas Azad held that the police would have to also then start fighting militancy. Apart from these two different perspectives, one needs to mull over the fact that, with multiple responsibilities like, restraining drug abuse, the narcotics trade, fake currency rackets, theft, money laundering, and other criminal acts, will the local police force be willing and in a position (logistically and psychologically) to control the militancy? Hence, Azad held that there was no need to replace the army when the police and army were both performing different tasks.

Secondly, though the SOG (established under the National Conference-led government in 1996) was disbanded after the PDP-led coalition government came to power, it continues to exist. Whether it operates under the district police, and to whom is it accountable, are questions that remain unanswered. SOG functioning and operations are not transparent and this incident clearly reveals its irresponsible nature. Moreover, the danger arises that it can continue its operations even without AFSPA. Eleven members of the SOG were detained in this case, and their interrogations revealed the deliberate killing of an innocent civilian on the grounds that he was a militant. The internal security scenario has become more complex with sections of the police also involved in rights violations and fake encounters, allegedly for rewards and benefits. This will hamper the government's counter insurgency policy in the state. Moreover, how will civilians distinguish between the perpetrators of criminal acts and the state's team of investigators?

Finally, there is no consensus between the government and human rights authorities on the number of custodial killings in the state and the number of disappearances since 1989. The evidence is not accessible and investigations have become more difficult. The Ganderbal families were fortunate to have an investigation made after mass protests and rallies. What about thousands of persons who are still missing from the state, and innumerable applications that are pending with the State Human Rights Commission? The effectiveness and financial resources of the Commission have been declining over the past few years making it less active. Its recommendations are also not taken seriously by the state.

Given this background, if the Ganderbal killings can become a rallying point for those demanding an investigation into their missing family members, it will certainly put pressure on the state government to take up this issue seriously and not just during assembly sessions. This could give substance to empty slogans like 'zero tolerance' for human rights violations and fake encounters in the state. It will act as a reality check for such slogans.

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