Judiciary encourages accountability and promote rule of law

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Altaf Ahmed Bhat;

A State-sponsored Justice institution created terror in the name of Justice in Indian Occupied Kashmir. Judiciary and terrorism are two different terms with different scopes, as the former relates to justice and later symbolizes criminal activities and threat perception. But when the term is used together, it signifies something different, beyond the rule book. Judiciary has created a new scene in the promotion of terrorism as its main and chief role is to provide justice but in Kashmir, the situation is something else as for as Judiciary is concerned. Not entertaining the cases as they deserve to get entertained, prolonging the justice or even giving more opportunities to government-sponsored criminals has changed its maxim. Below is a brief introduction of both terms and then little information of some episodes which reveal how the Judiciary has created its terror and how judicial injustice is being witnessed in Kashmir Valley.

The Judiciary is the chief organ that protects and safeguards the rights and duties of all and sundry and above it, it makes everyone accountable for their duties. The courts play a backbone role in promoting and implementing the rule of law. But for the better implementation of rule of law, courts must be independent in nature. In other words, there must be independence from the Judiciary. It should work for protection not pretending to be protection. No other institution or gang of people should direct or control the judicial setup. Article 10 of the Universal Declaration of Human Rights (UDHR) and Article 14 of the International Covenant on Civil and Political Rights has fully articulated the competence, independence and impartiality of tribunal mechanism. There must be an independent, impartial, competent and above all honest Judiciary to uphold the rule of law.

Terrorism is varied of its nature. It is changeable as a different school of thought proclaim different structures of terrorism. But worst terrorism is state-sponsored terrorism. State through different agencies creates terrorism among masses as having had been witnessing in different parts of the world. People are forced to go for criminal activities by creating such an environment and then captivating them and pushing them behind bars can be witnessed globally. Though terrorism is commonly understood to refer to acts of violence that hamper the rights of others to achieve political and ideological aims. The Security Council, in its Resolution 1566 (2004), referred to terrorism to “Criminal acts, including against civilians committed with the intent to cause death or serious bodily injury, or taking of hostages with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act.”

The state can sponsor its aims and objectives through different institutions to achieve its short-term and long-term goals particularly when the course of action is to be dealt with in Kashmir Valley. One amongst state-sponsored institutions is the Judiciary or judicial setup of Kashmir which has created its terror. Judicial terrorism has created panic in the general public in Kashmir. The belief they used to have on Judiciary has vanished from the scene as the judiciary has forced people to keep their mouths shut and not allowed them to raise voices even in a polite manner. There are a number of cases that reveal judicial terrorism in Kashmir. People who became victims of state-sponsored terrorism in the valley have revealed their plight as how judicial setup has given free hand to men in uniform to deteriorate the life of people even not found guilty in false cases. They don’t even dare to ask the question of why they were presented to face the course of trials. Suing is a distant dream here as people celebrate getting freedom from court cases although they knew the fact that they had been innocent from the beginning. Judicial terrorism is galloping in nature through different tactics to make complete the suppression of oppressed people in the Kashmir Valley. Below mentioned cases are lingering for more than a decade to get justice as the judiciary seems to be a dependent organ that works in the direction of big wigs and state-sponsored gangs.

On June 11, 2010, Tufail Matto, was returning home from tuition when he was hit by a shell fired by a policeman near Gani Memorial College in Shaher-e-Khaas, killing him on the spot. Later Tufail’s family approached the court which directed the police to register the case and carry out an investigation, Reported by Greater Kashmir. The family is still waiting for justice as the judicial mechanism has provided an upper hand to investigating agencies to carry the task within the bonds of their own interests as the investigations haven’t favoured the cause as it was expected to. Crime Branch, an investigation agency has closed the case by declaring Tufail’s killers “untraced”.

Another case which reveals the injustice is of Wamiq Farooq a 13-year-old boy from Srinagar, killed in 2010 by policeman Mohammad Akram by the orders of ASI Abdul Khaliq, justified the action by police in the FIR (12/2010), the mild force was used such as tear smoke shells, as a result, thereof one shell hit a boy who was taken to hospital by some locals. As reported by The Wire, key eyewitnesses have contested the narrative, ” There was no mob or any incident of stone-pelting, even the nearby shops were open, everything was normal.” Though on August 22, 2013, The Chief Judicial Magistrate of Srinagar issued a non-bailable arrest warrant against two cops still both officials got bail after some time and are roaming freely.

On December 1, 2015, both the cops were produced before the court and they surrendered before the court. On found guilty of culpable homicide, were sent to the central jail. Meanwhile, they managed to get bail. After the bail, they filed two applications for transferring the case to Jammu Court from Srinagar Court. The wire had reported in the news that, the CJM suggested A. G.Mir, the then IGP Kashmir to form a Special Investigation Team (SIT) to look into the matter. However, the SIT produced the report claiming that the boy had “fallen from a wall, while jumping off, causing him major head injuries.” Firdousa, mother of Wamiq had told The Wire, ‘ The doctors were threatened by police and they gave us a false report, wherein the cause of death was mentioned as an injury caused in a motorbike incident.”

Judicial terrorism has been featured by another feather which may be termed as the last nail in the coffin of justice. Yes, that is the passing of the Unlawful Activities Prevention Amendment Bill. Bypassing this draconian law, judicial terrorism has been witnessed the most galloping pace in Kashmir. Several journalists have been booked under the draconian law Unlawful Activities Prevention Act (UAPA). If a person is booked under this draconian act, he has to prove himself innocent till that period of time he is considered guilty. This act is in addition to the existing laws and is over and above them, as lawmakers may have thought over existing laws, were not so harsh and they came up with UAPA. This law has changed the maxim of laws which used to be ‘ you are innocent till proven guilty. It changed its nature to ‘you are guilty till proven innocent ‘. It has shifted the burden of proof. The accused has to bear the burden of proof. Although there has had been another law Public Safety Act (PSA) in existence judicially UAPA is very harsh than that law. All is actually to create fear among people. Judicial terrorism has been more effective due to the addition of draconian laws. UAPA is a substantive law rather than preventive law. The Judiciary has been made freehanded for use of powers. If a person has been booked under UAPA, bail became a distant dream for him. Making bail very hard nut to crack, PSA is slapped on the accused to keep him under complete detention.

To quote here how draconian laws have created judicial terrorism here in Kashmir,

recently a journalist from Bandipora was booked under UAPA for keeping a WhatsApp Status for only less than half an hour, of a boat tragedy in which 21 children were killed in 2006 when a Navy boat carrying them capsized in the lake. The Status read ” The Walur Martyred 30th May 2006″ with pictures of children. On this WhatsApp status Sajid Raina, a journalist by profession was booked under different provisions of the Indian Penal code.

A sad note bring tears to my eyes when a sister wept for justice for a case of her brother, whose condition was deteriorated by men in uniform in custody and he breathed his last in ICU. Family termed it custodial killing. On 25 August 2010 Umer Farooq was arrested and later was severely beaten in custody which resulted in his bad condition and died in hospital ICU. The family rose up for justice. Surprisingly it took eight years to lodge an FIR. On 18 August 2018 FIR was lodged and to how extent terrorism has been created here copy wasn’t produced to the Family. After a harsh struggle, they managed to obtain an FIR copy on 9th September 2018. How strong is the justice system in Kashmir, can be clarified by this example. The charge sheet of FIR was supposed to be filled in 42 days after FIR but three years have passed, the family still struggles to file the charge sheet.

There are plenty of examples that reveal judicial terrorism as how judicial setup is supposed to work and how differently it works in Kashmir. People have lost belief and faith in Judiciary in Kashmir. Judiciary in Kashmir has left no stone unturned to make people more and more panic. Its terrorism has galloped to such an extent that people prefer to commit suicide or took arms rather than move to courts for attaining justice.

(The Writer is Chairman Jammu Kashmir Salvation Movement, a Philanthropist, Human Rights Activist and Kashmiri Freedom seeker leader.)