Article: Why magisterial inquiries into encounter killings in Kashmir invariably run aground

Muhammad Raafi

Even as the Jammu and Kashmir administration has ordered a magisterial inquiry into a recent “shootout” that led to the killings of civilians, legal experts in the Valley believe that such magisterial inquiries are turning out to be a farce.

Hundreds of magisterial and SIT (special investigation team) inquiries have been conducted in Jammu and Kashmir for the past three decades, but the reports of a majority of them have never been made public.

Since 2008, various governments and administrations have ordered 108 such inquiries into various incidents of violence in the Valley, including custodial killings, beatings, rape and molestation, ransacking of houses, harassments, human shields, pellet injuries and fake encounters, a representative of Jammu Kashmir Coalition of Civil Society, a local human rights group, said. However, there has not been any conviction following these probes.

Another local human rights group, International Forum for Justice and Human Rights filed a petition before the State Human Rights Commission in 2018 seeking details about magisterial inquiries ordered since 1990.

“The Commission in its response said that over 500 magisterial inquiries have been ordered, of which only one inquiry was completed and the report was never submitted,” Muhammad Ahsan Untoo, the chairman of the Forum said.

Futility of inquiries

The Kashmir region witnessed three public unrests in 2008, 2010 and 2016.

In 2008, Kashmir was ruled by a coalition of Jammu and Kashmir Peoples Democratic Party and Congress. The erstwhile state was ruled by a coalition of the Jammu and Kashmir National Conference and Congress in 2010. In 2016, a coalition of Jammu and Kashmir Peoples Democratic Party and Bharatiya Janata Party ruled Jammu and Kashmir.

On May 26, 2008, the Indian government and the state administration of Jammu and Kashmir agreed to give 99 acres (0.40 sq km) of forest land in the Kashmir Valley to the Shri Amarnath Shrine Board (SASB) to build temporary shelters and facilities for Hindu pilgrims. This sparked a debate with protesters in the Kashmir Valley opposing the land transfer, and protests in the Jammu region in support. Over 50 people were killed in various incidents of firing and tear smoke shelling by the local police and paramilitary forces. The government ordered eight magisterial inquiries. However, no one had been convicted, Untoo said.

In 2010, protests were witnessed in Kashmir for around four months, after the Indian Army claimed to have killed three “Pakistani infiltrators” in a “staged encounter” at Sona Pindi. According to eyewitnesses, a territorial army soldier, a counter-insurgent and a former special police officer took three young men from Nadihal village in the Baramulla district and killed them.

The local police and Indian paramilitary forces used tear gas, rubber bullets and fired live bullets killing 112 people, including numerous teenagers and a 11-year-old kid.

The government ordered at least 14 magisterial probes, constituted special investigation teams of police to probe the various incidents of killings and firing incidents. However, no one has been convicted.

Starting from 11 inquires in 2011, eight in 2012, seven each in 2013 and 2014, 10 inquires in 2015 were ordered by the government.

In 2016, Kashmir witnessed another massive public unrest after the killing of popular militant commander Burhan Muzaffar Wani. Over a hundred civilians were killed mostly in south Kashmir when the police and paramilitary forces used force to quell the protests.

The coalition government of the Peoples Democratic Party and Bharatiya Janata Party led by Mehbooba Mufti ordered eight probes. Again, there have been no convictions. Seven inquiries in 2017 and eight inquiries in 2018 were ordered.

“These inquiries do not inspire much public confidence because of the track record of the state here. The forces enjoy impunity under various laws. In the past, we had seen inquiry reports indicting forces, but they were never not acted upon,” Habeel Iqbal, a Kashmir-based lawyer, said.

In 2014, former Jammu and Kashmir chief minister Omar Abdullah announced the CoI (Commission of Inquiry) ahead of the assembly elections in November and December of that year.

The Commission was announced after four civilians were killed by CRPF personnel in the Gagran area of South Kashmir’s Shopian district in September 2013 while renowned music conductor Zubin Mehta was performing in the famed Mughal Gardens of the Srinagar city.

Omar’s announcement was seen as an attempt to reclaim the lost ground following the public outrage over security forces’ excesses during the 2010 carnage in the region.

Iqbal said although the commission indicted the CRPF and the report was sent to the home department, it was never made public. “The victims’ families sought the copy of the report from the home department but were never given one.”

According to Iqbal, one of the reasons why these inquires “fail” is because some laws come in support of culprits. Citing an example, he pointed out that in the case of Amshipora fake encounter, the inquiry had indicted the army personnel, however, the Armed Forces Special Powers Act came to their rescue.

The Amshipora fake encounter took place on July 18, 2020 in Amshipora village of Shopian district when three Kashmiri labourers, one of whom was a minor, were killed by the Indian army.

Retired Justice Hasnain Masoodi, a former judge of the Jammu and Kashmir high court and the sitting parliamentarian of the National Conference from Anantnag constituency, said that the victims were “skeptical” of magisterial inquiries and were “doubtful” of their outcome.

Lack of trust

Magisterial inquiries fail because they are not open inquiries like judicial inquiries.

“It is essentially the question of trust. The magistrate who conducts the inquiry is part of the government, the system. However, the fact of the matter is these grievances are against the government,” he said. “That is why, such inquiries,” Masoodi added, “do not instill confidence among victims.”

Masoodi pointed out that anywhere in the country, whenever such issues happened (referring to the Hyderpora “encounter”), even if an investigation was ordered, civil society members insisted on a judicial probe so that inquiries were carried out impartially.

The Jammu and Kashmir government on November 18 ordered a magisterial inquiry into a controversial gunfight in which three civilians were killed. The lieutenant governor’s administration said that a magisterial inquiry would be conducted by an officer of additional district magistrate’s rank and the government would take “suitable action” as soon as the report is submitted in a time-bound manner.

The family of one of the civilians killed in the “Hyderpora shootout” Muhammad Altaf Bhat rejected the magisterial inquiry and asserted that a judicial probe should be ordered to ascertain the facts of the ‘military operation’ and convict those responsible for the killings.

Iqbal and Masoodi said that the law on encounter killings has long been laid down by the Supreme Court in PUCL vs. State of Maharashtra. “It has made a magisterial inquiry mandatory in all cases of encounter killings. It is a travesty that the families have to ask for something which the law obligated the authorities to do,” Iqbal told The Wire.

The slain Bhat’s niece Saima Bhat, who is also a senior journalist, told The Wire that the family wanted an independent investigation to be conducted to determine the facts of the “operation”. Saima lamented that many magisterial inquiries were ordered until now, but there had been no convictions.

To bring out the truth, Masoodi said that it was necessary that someone who is impartial, at least perceived to be, must conduct the inquiry. “Because justice should not only be done, it should also appear to have been done,” he added. Courtesy The Wire

Muhammad Raafi is a journalist based in Kashmir and tweets @MohammadRaafi.