The role of the judiciary in a conflict zone is a vital and, often, the only hope available for ensuring justice
It is important to understand the role of the Judiciary in strengthening impunity in J&K .The rights of detained persons are systematically ignored in Kashmir. It is alleged that the Government disregards its own standards governing detention, refuses to honor Court orders quashing detention, and exploits procedural impediments to avoid presenting detainees in Court. The Court system is slow to process detainees’ claims, and judges routinely fail to question the Government’s authority to detain. They also fail to issue contempt citations to Government actors who ignore orders to release detainees. Investigations of alleged human rights abuses are not limited to cases in which victims have brought an affirmative claim against security forces. In fact, Courts can, on their own initiative, order inquiries into human rights violations. Research conducted for this report revealed that Courts rarely exercise this power. When they do, it tends to be in high-profile cases. There are two primary types of inquiries:
The first type is a statutory inquiry that can be called under the Commission of Inquiry Act of 1962.The second type is a judicial inquiry called by the High Court and conducted as an independent investigation by a District Judge or Chief Judicial Magistrate outside of his official capacity as a judge. The scope of the inquiry power is limited, however, the District Judge or Chief Judicial Magistrate that is assigned to oversee the inquiry has the power only to solicit testimony and report findings, not to recommend action.
Both human rights lawyers and members of the Bar Association expressed the view that the inquiries, whose recommendations are not binding, are used to pacify the public by giving the impression that the Government is taking decisive action. Human rights lawyers identified two factors that impede convictions:
First, the security forces do not cooperate in handing over its member for prosecution in some cases; the security forces have taken active steps to prevent prosecution.
Second, the failure of Courts to hold trials and hearings in a timely fashion enables defendants to remain free for long periods pending a resumption of the legal process.
In adjudicating human rights claims against members of the security forces, the judiciary in Kashmir often grants procedural and substantive leniency to the Government. The Courts in Kashmir have accepted frivolous motions and justifications for procedural failures presented by the Government and Security forces. They have effectively created procedural double standards for claimants and the security force. The role of the judiciary in a conflict zone is a vital and, often, the only hope available for ensuring justice. It must serve as an effective check on the executive and be vigilant in ensuring that the human rights of individuals are not violated. The general experience in the state of Jammu and Kashmir has been that judicial and quasi-judicial authorities such as the State Human Rights Commission have allowed themselves to be conscious of the power and the will of the executive, thereby rendering them subservient to the State. The impunity fostered by the judicial processes has been compounded by the existence of draconian laws. In the absence of any institutional or political will to take the evidence to its natural conclusion a trial where the crime and the guilt of a perpetrator can be proven beyond reasonable doubt the Government’s stand is indicted. Protected by draconian laws, accused personnel either refuse to appear before the civil inquiries and at times, even threaten the witnesses with direct circumstances. The security forces enjoy considerable immunity. The political and moral impunity created is compounded by the lack of prosecutions against groups that have played pivotal roles in human rights violations in Jammu and Kashmir. The judiciary has to be ever alert to repel all attacks, gross and subtle against human rights and how to guard against the danger of allowing themselves to be persuaded to attenuate or construct human rights out of the misconceived concern for state interest or concealed political preferences.
(Author is Research Scholar, Dept of Law, KU)