Why do allegations against Indian army go unattended in Kashmir

It’s a bright, sunny and disappointingly warm July morning in Kashmir. But as the car clears the knot of traffic and pulls out of Sringar enroute to Kupwara in the north, it’s difficult to feel cheated by the weather for long. The view from the car window – rows of apple trees against the backdrop of the mountains – is every bit as beautiful as portrayed by the many Bollywood films shot or set in the Valley – Roja, Mission Kashmir and the more recent Rockstar and Bajrangi Bhaijaan. Paradise on earth is not a tag wasted on the state. It’s a land worth fighting for, worth protecting, as the silent armed men in uniform scattered along the route have been doing for years. No matter where you go in Kashmir, you are never far from their watchful eyes. For an outsider, the sense of being watched brings with it a sense of relief tinged with unease. But years of living with the defence forces in their backyards seem to have made the Kashmiris immune to their presence. Locals point out army cantonments as casually as they show you tourist draws. “Indians come and pose with the soldiers. They thank them for providing protection,” says Khurram Parvez, a civil rights activist in Kashmir. It takes a little digging to reach the angst and fear that most Kashmiris harbour against the faujis. “The Army is here to protect Kashmir. But what of the Kashmiris?” he asks.

Victims of the alleged gangrape in Kunan Poshpora demonstrate for justice in Srinagar in 2013.

Trouble started in ‘paradise’ roughly 25 years ago with insurgency and the exodus, under threat, of the Kashmiri pandits in January 1990. The state was brought under Armed Forces Special Powers Act (AFSPA) in July 1990. On July 1 this year, four days before the twenty-fifth anniversary of AFSPA in Kashmir, Amnesty International came out with a report that documented the obstacles to justice faced in several cases of human rights violations believed to have been perpetrated by Indian security force personnel in Jammu and Kashmir. The report came less than a month before the celebration of Vijay Diwas marking the 15th anniversary of the Indian Army’s victory in Kargil. That the armed forces have done exemplary work in protecting India against both formal attacks such as in Kargil, and the more difficult-to-contain militancy, has never been a matter of debate. What civil rights activists have been protesting against, however, is that the army’s good work is being used to excuse alleged human rights violations – torture, false encounter deaths, disappearances, and in the case of women, rape. “Sexual violence is common in conflict situations where rule of law breaks down,” says Meenakshi Ganguly South-Asia director of Human Rights Watch. “We have heard various allegations against security forces that included sexually lewd comments, inappropriate groping during search operations, rape or coerced sex.”

According to Parvez, while the number of such crimes “was alarming in the 1990s”, similar incidents do still occasionally occur. “In remote areas where militarisation is alarming we have found that there are hundreds of cases where women have acknowledged being raped, but don’t wish to make it public,” he says. Victims who have complained allege a combination of police inaction and threats and attempts at bribery by the armed forces. “For several years, the army has ensured that the police does not file complaints against them. Whenever the police lodged an FIR against the army or started an investigation, the concerned police officers were transferred to allow the cover up,” alleges Parvez.  HT mailed questions to DGP, Jammu and Kashmir police, Rajendra Kumar on the whether the prevalence of AFSPA in the state makes it difficult for the police to investigate such cases but received no response.

AFSPA ensures that “no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.” The list of special powers does not include rape.  Rather, “no rape, no molestation”, is a in the Chief of Army Staff Commandment meant for soldiers.

According to a source in the Ministry of Defence, “there have been 1013 allegations of human rights violations by army officials in Jammu and Kashmir between 1994 and 2014. After enquiry, only 61 of these cases were found to have any truth in them and in these cases, action was taken against the guilty. The number of incidents of sexual assault would be a miniscule percentage of these 61 cases.” Under standard army procedures, any allegation of human rights violation results in a Court Of Inquiry. “If the inquiry finds any truth in the allegation, a court martial follows. Punishment ranges from rigorous imprisonment in the army, to dismissal and life imprisonment in civil jail.”

Human rights activists are not convinced. “These inquiries are never transparent. How can these claims be considered credible?” asks Ganguly. In 2004, a woman and her minor daughter were allegedly raped by an officer of Rashtriya Rifles in the state’s Badra Payeen area. There was a court martial. “We identified the officer, but never got to know whether he received any punishment,” says the minor victim, who is now 19 years old. Says Parvez, “We got to know from an RTI response that he was dismissed from service after being charged with rape, but we read in a newspaper report that he was tried by a general court martial which absolved him of rape. He was, however, found ‘guilty of using criminal force with the intent of outraging the modesty’ of the 10-year-old girl and dismissed from service and that he challenged the decision in court and returned to service.” No transparency means victims can’t challenge any relief given by court to the victim. The years of awaiting justice here is in sharp contrast to the prompt action that the army took after a recent UN report accused three officers of the Indian Peace Keeping Force of sexual abuse and misconduct in two African countries. All three have been punished. “Our effort is to be prompt in all cases. But in the case of UN it is easier to arrive at a decision because clear details of the case are available. In Kashmir, it is difficult to sift through the information and arrive at truth. One must also remember that militants in Kashmir want the army to withdraw and they feel the easiest way to do it is by inciting people to bring in such allegations against the soldiers,” says the Defence source. The withdrawal of the forces or AFSPA from Kashmir is the subject of another debate. But while there is no arguing against the zero tolerance of attacks on India’s sovereignty, there can be no excuses to condone rape as collateral damage either – even of women related to militants.

NO JUSTICE: Rapes by soldiers went unpunished
‘The army offered me Rs 10 lakhs’
Mattan, November (2004)
I was 20-years-old when it happened. My cousin was a militant. One day, the army came to my husband’s house in pursuit of him. There was firing. They broke the television, all the utensils that my parents had given me when I got married. They also tore my wedding clothes,” says Pakheeza (name changed), adding, “After the others escaped, they raped me. There were two of them.” When the HT team had requested a meeting with Pakheeza, a male relative had said she was not at home, having moved to the higher altitudes for the summer. The next day, however, she called the team, using her relative’s number and shared her experiences. Speaking in a mix of Urdu and Kashmiri, she says,  “It was such a long time back, I have forgotten some of the details of the case, but when I think of it I am still angry. I still want them punished.” Pakheeza says after the assault, she had to be hospitalised for four days. “I had lost consciousness and don’t know what happened after that. We lodged a police complaint after I regained consciousness. I was called by the army and identified them too. The Army had offered me Rs 10 lakhs to not pursue the case. I didn’t want the money, but I am not sure whether my husband’s family took it. The accused identified by Pakheeza were from the Rashtriya Rifles. “When I refused to withdraw the case, my husband divorced me,” she says. Her travails, says Pakheeza, were far from over, however:” Once I moved to my father’s house, a former militant who was now working with the army started threatening us to withdraw the case. He said the army would kill my father. We were scared. My father said that we can’t fight the army. He wrote a letter to withdraw the case, I don’t know what happened to those two after that.” Pakheeza has since remarried and is a mother of three. No documents of this case are available since the case was withdrawn.

‘Passed out after I was raper by ten soldiers’
Kunan Poshpora, February (1991)
It was the intervening night of February 23-24. “It was around 11pm; we were sleeping. My husband, two children and my sister, who was visiting us. She couldn’t have been more than 15 years old at the time,” recalls Fatima Begum (name changed). She herself was about 20-years-old. “The Army broke the door and came in. The major rapped my husband on the forehead and told him to get up. They started dragging my husband out. When I ran after them, one officer told me they will bring him back and that they won’t do anything to him. There were many soldiers outside. I was scared. My sister and I tried to pile some boxes against the door to shut it, but they broke it open and came back,” says Fatima. What followed, she alleges, was a night of torture. “They started drinking and broke everything in the house, the light, all the window panes. Then they raped us,” she says flatly. “There were so many of them, one would go and another come in. I lost consciousness after I was raped by the tenth one. My sister was raped too, but we didn’t mention her name in the FIR. She was so young, it would have been difficult to marry her off if word of it had come out,” says Fatima.

According to the villagers, Fatima’s is not the only case. “There were about 100 homes in the village. The army came at 10.30 pm and started rounding up all the men for interrogation. The men were beaten up and tortured all night. When we returned home, we found what they had done to the women. Thirty-two women confessed to having been raped but there were more. We didn’t mention any of the unmarried girls in the FIR,” says a 65-year-old villager.

Following a police complaint, an Army investigation into the actions of the accused members of ‘4 Raj Rif’ in March 1991 termed the allegations as “baseless, unfounded, mischievous and motivated” and levelled to “defame the army”, “prevent further search and cordon to prevent inconvenience” and “prevent search to provide protection to some suspected ANEs (anti-national elements)”.

Human Rights activists, however, have been campaigning for the alleged victims for years. “On 18 June 2013, the case was reopened by the lower court and  investigations began again. But the army got a stay from the High Court on these investigations in January 2015. Meanwhile, the state government has challenged the High Court decision [in an ongoing petition that the victims had filed] in the Supreme Court on the issue of compensation that the High Court ordered them to pay,” says Parvez.

‘I thought it would be a routine check’
Manzgam, January (1997)
It was about 8.45pm on January 3. Asiya (name changed) was at home with her parents, her younger sister, and her two young children – a son and a daughter. “There was a sound of scratching on the front door. I thought it was a dog and opened the door to feed it. But it was the major and his men,” recalls Asiya, adding, “I knew him well. He used to come thrice every day to search the house and interrogate us. But this was the first time that he had come so late. My husband was a militant those days. He later surrendered. When I found out, I left him and came back to my parents’ house. But the army didn’t believe when I said that I knew nothing of his whereabouts. That night, I thought it was going to be another routine check.” The presence of the senior officer had reassured her a little, she recalls. “The major said they were taking my father for questioning to the camp. I said we were alone at home and that I would bring him to the camp myself the next morning. The major slapped me. Then they broke all the bulbs in the house. It was so dark, I don’t know how they dragged my father out. After taking him out the major and some of his men came back. It was then that he raped me and my sister,” she says, adding, “That night, I saw my father for the last time.” In her complaint to the police, Asiya says she only mentioned about her father’s disappearance and her sister’s rape. “I had no hope of getting justice for myself,” she says, adding, “I identified the major (an officer of Rashtriya Rifles) when the police came here. He threatened me with dire consequences; we ran away and only returned after three years. I had told the human rights commission also about the incident and after seven years, I got `1 lakh compensation for my father’s disappearance. As far as I know the major was never punished for rape.” In a letter dated April 21, 2010, the central government declined sanction to the J&K government to prosecute the accused, “having examined all the material available on record”. The letter also points out that one of the alleged rape victims was, at the time, the wife of a dreaded terrorist and says: “it is apparent anti national elements/vested interest forced the lady to lodge a false allegation”.

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