Chattisinghpora Pathribal and Brakpora: 15 Years Later

March 21, 2015

Jammu Kashmir Coalition of Civil Society (JKCCS) Press release and Briefing Note

20 March 2015
Press Release

20 March 2000: thirty six Sikh civilians killed at Chattisinghpora, Anantnag District, by unidentified gunmen in army uniform. 25 March 2000: five civilians – supposedly militants responsible for Chattisinghpora – killed by Indian army and Jammu and Kashmir Police in the forests of Pathribal, Anantnag District. This is later found to be a fake encounter. 3 April 2000: eight civilians protesting the Pathribal fake encounter killed in CRPF and police firing in Brakpora, Anantnag District. 15 days and 49 civilians killed.

Pathribal fake encounter was the first and immediate State reaction to the Chattisinghpora massacre. The second was a trial of two Pakistani national – termed as militants responsible for the Chattisinghpora massacre. They were ultimately acquitted by the Supreme Court. In the Pathribal case, the CBI exonerated the local police and indicted five army personnel. The Supreme Court effectively ruled that sanction was necessary in all cases, and gave the army the option of the court-martial. The army held that the evidence did not warrant a court-martial and shut the case down. In the Brakpora case, the Pandian Commission of Inquiry and the Jammu and Kashmir Police investigations indicted the Special Operations Group (SOG) and CRPF personnel, but it is reported that ultimately the Ministry of Home Affairs declined sanction for prosecution of the CRPF personnel and the indicted policeman have not been prosecuted either.

To date, there has been no proper or fair investigation or prosecution in the Chattisinghpora case. Instead, the State has ensured, through non-cooperation, obfuscation, and ultimately outright denial through the institutions, NO justice for the victims of Pathribal and Brakpora. Army, police and CRPF are all protected. At the beginning of this crime and impunity lies Chattisinghpora. The unwillingness of the State to fairly investigate Chattisinghpora massacre appears connected to its deep and consistent investment in shielding the perpetrators of Pathribal and Brakpora. It is clear that only a comprehensive and overarching investigation of all three crimes together can lead to an understanding of what actually happened over those 13 days.

Until then, the State stands indicted for all three crimes.

Spokesperson
Jammu Kashmir Coalition of Civil Society

Briefing Note

On the 20th of March 2000, at around 8:00 pm male members of the Sikh community in Chattisinghpora, a village in the Anantnag district of Kashmir, were forced by large number of uniformed gunmen carrying sophisticated firearms to come out of their residence and gather at the Gurudwara. The villagers were taken to an open space and thirty six were shot dead at point blank range in a cold blooded massacre. The massacre of Sikhs at Chattisinghpora took place while then US President, Bill Clinton, was on a tour of India the first visit by a United States President to India in 22 years.

Five days later, on the 25th of March, 2000 the Senior Superintendent of Police [SSP] Anantnag, Farooq Khan, in the presence of then Union Home Minister L.K. Advani held a televised press conference announcing that five foreign militants responsible for the massacre at Chattisinghpora had been killed in a “joint operation” mounted by the 7 Rashtriya Rifles [RR] and the SOG of the Jammu and Kashmir Police in the forests near Pathribal, also in the Anantnag district of Kashmir. A Central Bureau of Investigation [CBI] chargesheet into the encounter later revealed that Major Bragendra Pratap, Colonel Ajay Saxena and Major Sourabh Sharma planned and led operation “Swift” based on information obtained from the interrogation of a Mohammad Yaqoob/Yousuf Wagay, arrested by JKP on the 21st of March, 2000 and interrogated by Inspector Mukesh Kumar of SOG Anantnag in addition to the ‘local police, army and other security forces’. Reportedly, Mohmamad Yaqoob Wagay, was a local milkman who was picked up by the police on the day after the Chattisinghpora massacre for ‘guiding’ the killers to the village.[1] A “Situation Report” prepared by the General Staff Officer of 1 Sector RR recommended that Colonel Ajay Saxena and Major Bragendra Pratap Singh receive commendation for their role in the operation.

The next day, Movli Qasim Ali, a villager from Pathribal who had seen the dead bodies sent news to his relative Abdul Rashid Khan in Brari Angan that he had recognized the dead body of one of the persons killed and claimed to be a foreign militant to be of Abdul Rashid’s father, Jumma Khan, a fifty year old member of the Gojar community. It emerged that two persons, both named Jumma Khan had been abducted from their homes in Brari Angan, a village around ten kilometers from Pathribal, in the presence of their family members and subsequently, that all five persons killed in the encounter at Pathribal were civilians from Brari Angan, Anantnag and Halan. All five had been abducted by either the armed forces or the police, in the presence of eye-witnesses, in the intervening night of the 23rd /24th of March, 2000, taken into a Kotah (wooden and mud hut), atop a small hillock known as Zoontengri in Wuskah, Pathribal where they were shot dead and then burnt or dismembered to obfuscate their identity in the early hours of the 25th of March, 2000. Following this, their dead bodies were dressed in “chitra wardi” (army fatigues) and buried in different locations within two to three kilometers of the spot of their killing. The family Bashir Ahmad Bhat came to know of his fate through photographs of the ‘’foreign militants” published in the newspaper Hind Samachar. A few days later, four other civilians were picked up by the army for another fake encounter, only to be released following pressure from the villagers of Brari Angan.

On the 3rd of April 2000, at around 2:00 pm, around two thousand civilians – men, children and seniors from the villages of Brari Angan and Utrasoo, including the family members of those killed in what came to be known as the Pathribal fake encounter were en route to the office of the Deputy Commissioner [DC] at Anantnag in a peaceful procession. They raised slogans demanding justice for those killed and the return of their dead bodies to the victim families. Upon reaching Bulbul Nowgam at Brakpora Chowk, four personnel of the CRPF and three of the SOG of the Camp stationed at Brakpora opened fire on the crowd without any provocation and killed eight civilians, injuring thirty-five others.

Under public and political pressure to take action, the police arrested Pakistani nationals Mohammad Suhail Mailk and Wasim Ahmad on the 2nd of September 2000 claiming them to be militants responsible for the Chattisinghpora massacre on the basis of confessions obtained from them while they were in custody under a different FIR. On the 29th of May 2012, the Delhi High Court confirmed their lower court acquittal noting that “there was no legal evidence at all” as to the involvement of the two and gave directions for them to be deported to Pakistan. This was confirmed by the Supreme Court on 11th January 2013. In the High Court judgment, there is a reference to a witness who deposed before the trial court, testifying to seeing unknown gunmen in army uniform at the time of the massacre and a specific reference to a “Commanding Officer”. Obviously, as the State never did proper investigations, this evidence was never clarified or properly investigated.

In the Pathribal fake encounter the Government of Jammu and Kashmir set up a Special Investigation Team [SIT] led by then SSP Farooq Khan, despite his involvement in the incident. The investigation was later handed over to the CBI. In the Brakpora killings, a one-man Commission of Inquiry was instituted on the 17th of April 2000 to be led by a retired Justice of the Supreme Court – S.R. Pandian.

The CBI presented a report in the Court of the Chief Judicial Magistrate [CJM] on the 14th of February 2003, having gathered evidence from seventy-one persons, including the families of the victims and held that the encounter at Pathribal “was not a genuine encounter”. The CBI chargesheeted five officers of the armed forces with entering into a criminal conspiracy during the 21st of March 2000 and the 25th of March 2000 to abduct civilians, kill them and then try to project them as responsible for the massacre at Chittisingpora. The investigations showed that the seizure memo showing recovery of arms and ammunitions from the ‘foreign militants’ was falsified [and this seizure memo later contradicted with the army’s “issue voucher”, when arms/ammunition purportedly obtained from the militants were actually handed over to the police]. Moreover, two civilian witnesses were forced to “witness” the preparation of a seizure memo of arms/ammunitions. These two later stated that no seizure memo was prepared before them and they were forced to sign on blank papers.

Despite the fact that the families of those killed in Pathribal had identified them at the time of the exhumation on the 6th and the 7th of April, 2000 in the presence of the District Magistrate and other senior officials and politicians, blood samples taken were fudged twice and it was only after the scientific officers from the concerned laboratory in Kolkata visited Anantnag and started the entire process of sample collection and exhumation afresh that results fixing the identities of the victims to their relatives were gathered. The Kuchai Commission of Inquiry, set up to inquire into the issue of fudging, submitted its report to the Government, indicted persons including the police, but the report was never made public. In addition to the actual fake encounter, where there has been no justice, the issue of fudging has also not led to any legal action.

While the CBI accepts that other personnel of 7 RR were involved, only five personnel of the 7 RR were chargesheeted. A mere reading of the chargesheet suggests that at least two columns of troops of the Pethadayalgam and Chatragul companies of the 7 RR were involved, directly or indirectly in operation ‘Swift’. Other army officers whose role in the ‘fake encounter’ is clear from the report but who are not chargesheeted are: Captain S.S. Pathania, who signed the “issue voucher” that accompanied the arms/ammunition handed over to the police, Captain Puneet Dutta, who sent a “situation report” on the encounter to Victor Force GS (Ops.), and Brigadier Deepak Bajaj, who SSP Farooq Khan states was the person who informed him of the encounter. The CBI, however, has limited the case to only five army officials citing the non-cooperation of the 7RR/ Army.

Yet, the CBI, ultimately, did not chargesheet the police, whether Inspector Mukesh Kumar, or SSP Farooq Khan, almost entirely on the denial of these police personnel of their involvement in the incident. Nazir Ahmad Dalal, uncle of Zahoor Ahmad Dalal killed in the Pathribal ‘fake encouter’ holds that according to eyewitnesses Zahoor was abducted by Assistant Sub Inspector [ASI] Bashir Ahmad [earlier working with the state-sponsored Ikhwan] and a ‘Sardar’ Deputy Superintendent of Police [DSP] clearly pointing to the involvement of the police apparatus in the criminal conspiracy leading to the ‘fake counter’. The army has consistently used the role of the police in the abduction at Pathribal as a shield. News reports in 2000 also referred to the police arresting five persons prior to the encounter.

In 2012, in the Pathribal case; the Supreme Court ruled that no court, under Section 7 of the Armed Forces (Special Powers) Act [AFSPA], may take cognizance of a crime committed by the armed forces without seeking sanction of the government. This effectively removed all control over proceedings from the courts and made the obtaining of sanction binding across all cases, even in ones where there can be no question of the armed forces acting in relation to official duties. The Supreme Court then allowed the army the option of a court-martial, which the CJM chose not to resist.

The Indian army then carried out a Summary of Evidence and held that there was no need for a court-martial. This conclusion was placed before the CJM. The Indian army sought that the entire proceedings should end as they have carried out “effectual proceedings”. Based on the record before it, the CJM, as per Section 7 (ii) of the Jammu and Kashmir Criminal Courts and Court-Martial Rules, 1983, should have been persuaded to hold that in this case there have been no effectual proceedings. The matter would then be referred to the “State Government” which “may, in consultation with the Central Government” take appropriate steps against the accused in accordance with law. Independently, the Central Government may under Section 127 of the Army Act order a fresh civilian trial, regardless of the past army legal action. Instead, the CJM accepted the closure of the case and even rejected an application from a family member of a victim for the entire record of the summary of evidence. Therefore, the army shut down of the case has been justified with no obligation to even disclose the proceedings they carried out.

Despite the gravity of the Pathribal case, the summary of evidence pertaining to the proceedings of the army court has not been made public in the spirit of transparency effectively rendering any proceedings in the army court completely opaque to public view. The proceedings of the army court itself are closed to the public despite, for example, Rule 80-A of the Army Rules 1954 that mandates open courts in general.

While a large part of the Statist political discourse revolves around Armed Forces (Special Powers) Act, the court-martial system, part of the army and para-military acts and rules, ensures impunity when the armed forces are pushed – by public pressure or other political reasons – to take action. These proceedings do not always result in an actual court-martial, such as in the Pathribal case where the army carried out a summary of evidence and then found that there was no requirement for a court-martial.

In Brakpora, the Pandian Commission gathered testimonies of fifty-one persons including at least eleven people who had participated in the procession, five shopkeepers at Brakpora Chowk who were eyewitnesses to the firing, one person who was purchasing kerosene from the co-operative society nearby and also an eyewitness to the firing, four doctors, two scientific officers and ten police officers including then SSP Farooq Khan, ASI Bashir Ahmad and DSP Tejinder Singh. In addition to this, the commission received the affidavits of sixty-nine civilians including thirty-nine civilians who had participated in the protests, seventeen shopkeepers at Brakpora Chowk who were eyewitnesses to the event. Five SOG personnel and ten of the CRPF also submitted their affidavits before the commission. Consistent with the Pathribal case, neither the SOG nor the CRPF cooperated with the commission and did not depose before it despite being summoned to do so.

The commission opined that the ASI of the SOG, Ashok Kumar and Commander R.P Roy of the CRPF deliberately came out of the camp with fully loaded militarized weapons and indiscriminately fired on a procession that included, children and seniors, that had already passed through four army check posts on route to Brakpora and was being monitored closely by policemen, who were tailing the procession. Moreover, of the eight persons killed, four were shot in the head, three in the chest and one in the abdomen suggesting that the CRPF/SOG fired at them with the intention of killing them in stark contrast to the ”accidental firing” defense mounted by the SOG/CRPF.

While the Pandian Commission acknowledges that the firing at Brakpora by four CRPF and three SOG personnel of the Brakpora Camp was a “butchery” in which eight people were killed, its recommendations pertain mostly to the granting of ex-gratia relief in varying amounts to those killed and injured in addition to instructions as to how the state may “manage” such processions in the future. The Pandian report was not made public. Reportedly, in the Brakpora case, neither the four personnel of the CRPF nor the three members of the SOG were arrested or detained for questioning. It is also reported that the Ministry of Home Affairs denied permission for prosecution of CRPF personnel who fired on the protesters and the indicted policemen were never prosecuted. [2]

Therefore, 15 years later, the families of victims of Chattisinghpora, Pathribal and Brakpora have received no justice. This is the context in which the rare indictments carried out by the armed forces against their own personnel must be viewed: impunity is the rule, and punishments (albeit through opaque court-martials only) the exception and invariably under compulsion.

Notes

[1] http://expressindia.indianexpress.com/news/fullstory.php?newsid=66736.

[2] http://www.thehindu.com/news/national/new-delhi-kills-probe-into-killings-of-kashmir-protesters/article5635876.ece.