Budgam weaver verses AFSPA-shielded Army Major: Will SHRC help Kashmir’s ‘traumatised’ human shield?

Farooq Ahmad Dar was tied to bonnet of any Indian army jeep by Major Nitin Leetul Gogoi on April 09, 2017 and paraded through 17 villages.

Budgam’s Farooq Ahmad Dar became a media spectacle after he was used as human shield by Indian army major who went on to receive award for his war crime, leaving the traumatised weaver at mercy of State Human Rights Commission for justice. But given the track record of the rights body, will Dar get his due?

Nearly two months after the world witnessed the first documented evidence of the human shield—the pronounced war crime—used by Indian army in Kashmir, Budgam’s Farooq Dar is expecting a miracle.

The 26-year-old ‘traumatised’ weaver from a non-decrepit Chill hamlet in Kashmir’s Budgam province has already beckoned the doors of State Human Rights Commission (SHRC) for justice. But given the number of erring soldiers (involved in rights violations in Jammu and Kashmir) punished by Delhi on SHRC’s recommendations, Dar’s case perfectly qualifies for the ‘delay it, till deny it’ legal quandary.

In fact, Kashmir media and citizenry have long spoken about the “toothless” nature of the commission, which they reckon was established to keep the victim busy believing that s/he will get the justice that never gets served to him/her. What makes it even more popular—credible—assumption is the commission’s track record to handle the cases against the army.

That Dar is going to be stuck in the vicious circle of procedures is one of the obvious inferences now.

Farooq Ahmad Dar

The cycle starts when the crime is committed and the victim approaches the SHRC to seek justice. The body orders investigation and the victim is recommended for getting some kind of compensation. If the victim seeks justice by wanting to get the army punished, the case is referred to the state government, which because of the draconian laws like Armed Forces Special Powers Act (AFSPA) cannot even touch any soldier.

AFSPA is a collective name of several acts passed by Indian parliament for providing special powers to the Indian armed forces and to provide army legal immunity for their actions in disturbed areas. So, the case is referred to the Government of India (GoI), which saves the accused by not presenting any opinion on the case, thus bringing the victim back to square one.

On 9th April 2017, Dar was tied to bonnet of the jeep by army major Leetul Gogoi and driven on a five-hour journey through the 17 villages on the day of polling in Srinagar Lok Sabha Constituency.

Despite castigated by local HR bodies, Amnesty International, Kashmir’s resistance leadership and few retired Indian army generals, the incumbent Indian army chief, Gen Bipin Rawat, gave Gogoi a ‘Commendation Card’ for his “sustained distinguished service” in counter-insurgency operations in Kashmir.

This, however, hasn’t come as a ride shock to many in Kashmir.

In fact, a top SHRC official said, around 99 percent rights violation cases in Kashmir involve Indian army.

“Many cases have been decided but most of the decided cases had compensation as their operative part,” the official said. “All the cases of human rights violations are against the Army/ BSF/CRPF. If there are 1 lakh HR violations in Kashmir, 99 percent of them are committed by the army.”

The cases demanding compensation are given their due, but those seeking justice by getting army punished are referred to GoI.

“In case, justice is demanded, an enquiry is carried out,” the official said. “Almost 7.5 thousand cases have been registered here out of which 2000 have been recommended for compensation. But, no action against the army has so far been taken. All such cases have been sent to the Home Ministry/ National Human Rights Commission/ Union of India because it’s a matter of defence and does not come under SHRC’s jurisdiction.”

However, when the video of the incident went viral on social media, Dar had a visitor.

He was approached by chairman of International Forum for Justice and Human Rights-Jammu and Kashmir (IFJHRJK), Muhammad Ahsan Untoo, on April 12, who eventually took him to the SHRC where he filed a petition (No. 115 SHRC/ 2017 filed on 17th April 2017) in his name.

Untoo hailing from Kashmir’s front-line province has been pleading the rights violations cases for many years now in J&K’s summer capital.

He is often being spotted at Kashmir’s Press Enclave where he keeps discussing his works with scribes.

The man has his share of rattle strategy, too. On a given day coinciding with some anniversary, he turns up in the Enclave to register his protest, albeit in a novel way.

His mannerism makes him a departure from usual rights defender.

At Untoo’s behest, Dar even agreed to take his case to High or Supreme Courts in case SHRC refers his case to GoI, which seems inevitable as the case against army is out of the SHRC’s jurisdiction.

“I went to his place and got him here,” Untoo said. “After that, I filed a petition at SHRC. This was done on 17th April.”

On the same day, he said, a notice was sent to SSP Budgam and DG J&K Police to investigate the matter and submit a factual report to the SHRC.

On 27th April, Untoo said that the police submitted a report before the SHRC with statements of seven witnesses presented in the written form.

Major Nitin Leetul Gogoi

“They had written that Farooq Ahmad Dar isn’t a stone pelter,” he said. “At 9:30am, he was out to cast vote. He was then going to his relative’s place when he was caught by the soldiers and used as a human shield. He was driven through various villages.”

On the same day, Dar also recorded his statement before the SHRC.

According to Untoo, Dar had expressed his trauma in front of Justice Bilal Nazki, the head of the commission. “I still feel like I am being tied to the vehicle,” Untoo quoting Dar as having said.

“He was traumatised and was immediately referred to SMHS Hospital where he was admitted for about three days,” said Untoo. “He was subsequently taken to the Mental and B&J hospitals. Finally, his medical report came, noting that the poor guy has been psychologically affected by the incident.”

In between, police lodged a FIR No. 38/ 2017, mentioning many offences and started the investigation. Army on its part also initiated a court of enquiry report of which is still pending.

But the manner Delhi-based news channels reported the entire incident appeared to Untoo—as if they were toeing a line of South Block. They presented the victim as a “ring-master” besides a “stone pelter”.

“India Today, Times Now and Republic TV started running the propaganda when the police clearly said that he wasn’t a stone pelter,” Untoo said. “Will a stone pelter cast a vote? He was a simple voter having a voter slip No. 612 registered at polling booth number 90.”

With the result, on 24th April, Dar filed two more petitions: one (File No. 174 SHRC/ 2017) against the three news channels (Times Now, Republic TV and India Today) for defamation; and the other (File No. 173 SHRC/ 2017) against the award given to Gogoi, despite the case still being on.

Untoo questioned the rationale of the arguments voiced by retired military vets, politicians, anchors and commentators in Delhi’s news studies—calling the major Gogoi’s move as “innovative” cum “life-saving”.

Gen Bipin Rawat

“If Dar was indeed used as a human shield to save lives, then why did forces still kill eight people that day?” asked Untoo, holding Major Gogoi responsible for the incidents that happened that day.

While batting for SHRC, Untoo said, the commission was formed as per the constitution of Jammu and Kashmir and according to that, Major Gogoi, Chief of Army staff, Chief Minister of Jammu and Kashmir and even the Prime Minister of India is answerable for this incident.

Dar will receive an ex-gratia and Gogoi will face the law, if everything goes right, he said. “It’s up to the government whether it will be able to serve justice to the people.”

But the legal consultants don’t seem to be much hopeful, saying that the SHRC has “no relevance” in Kashmir.

“Even if you lodge FIR 302 and the Union government does not approve, you cannot do anything,” said Advocate Zafar Qureshi, former president of Jammu Kashmir High Court Bar Association. “SHRC can only recommend the case to the state government which in turn recommends the case to the Union government as under AFSPA it cannot take any decision of its own.”

Till date, he said, no such decision (against the army) has been taken by the GoI.

SHRC being a recommendatory body can at most recommend for a victim’s compensation, he said. “Give him money and all that. Nothing more! It has got no penal consequences.”

If tomorrow, he said, J&K police find that the case goes against Major Gogoi, they have to refer it to the GoI under the AFSPA.

Even if the SSP sends the report, it will be referred to the Home Department, Qureshi said. “And the state government will be asked to pay the compensation. It comes under the ‘in-aid’ category. As per the High Court, whosoever falls in that category, the state government has to bear the brunt and give him his/her due compensation.”

But so far, the army has filed a writ at the High Court, pleading that its activities don’t come under SHRC’s jurisdiction, he said.

“But that case is still pending in the High Court,” Qureshi said. “Till the writ is not decided by the High Court, there is no stay on it and SHRC can look into the matter.”

The lawyer recommends Dar to wait for his hearing and if things don’t go well, he should file a writ petition at the High Court against Gogoi’s award because the court has a jurisdiction over the army.

The injured Farooq Ahmad Dar

“To get the penal consequences, a writ in the High Court is to be filed to expedite the investigation so that the case is taken to the Home Department,” he said. “After that, we have a right to ask the Union government to give it the sanction.”

Moreover, it is a violation of human rights, Qureshi said. “The Human Rights Commission can help in providing the compensation.”

The National Human Rights Commission (NHRC) has already sought a report from the Union Defence Ministry seeking details of the action taken on it.

Ahsan Untoo during his signature protest in Press Enclave Srinagar.

But Home Minister Rajnath Singh has already made the BJP-led NDA government’s position on the matter clear, “We have concrete strategy for permanent solution in Kashmir. We will remove all obstructions in the way to bring peace in Kashmir.”

But what is to be seen is if Dar’s case will make any difference or will just be an addition to the pile of the existent files at quasi-judicial bodies like SHRC.

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