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Can Mehbooba Mufti build on the Justice Nazki compensation order?

To bind a person to a jeep and parade him over a distance to make an example out of him for deterring stone-pelters violates Article 147 and would constitute a grave breach of the Geneva Convention.

Written by Ravi Nair |
July 14, 2017 12:15:10 am
amarnath yatra attack, Justice Bilal Nazki, farooq ahmad dar, jammu kashmir human shield dar, state human rights commission, shrc, rights body,Major Nitin Leetul Gogoi, kashmir stone pelters, indian army mehbooba mufti Farooq Ahmad Dar, the Kashmiri who was tied to the jeep as a human shield. (Source: Express Photo)

The horrific attack on the Amarnath Yatra earlier this week has rightly stunned both Jammu & Kashmir as well as the entire country. But on the same day, July 10, 2017, Justice Bilal Nazki, Chairperson of the Jammu & Kashmir State Human Rights Commission (SHRC) delivered a reasoned order relating to the case of Mr Farooq Ahmad Dar, who was used as a human shield by Major Nitin Leetul Gogoi of the Army. The order is of great import.

Ordering compensation of Rs 10 lakh to be paid to Mr Dar for the “mental and physical injuries and scars”, Justice Nazki relied on Prem Shankar Shukla v. Delhi Administration and Article 21 of the Indian Constitution. (Indian Express, June 17, 2017).

Justice Nazki retired as Chief Justice of Odisha in 2009. In the early 1990s, in the face of militant threats he worked as the advocate general of Jammu and Kashmir. He later became a judge of the Jammu and Kashmir High Court. Transferred to the Andhra Pradesh High Court in 1997, he went on to the Bombay High Court in January 2008.

In 1991, when he was an advocate practising in the J& K High Court, Mr. Nazki was kidnapped by militants. The militants shot him while he was trying to escape. Despite five bullet injuries, Mr. Nazki ran six kms and survived to tell the tale. Unlike other J& K judges who had whispering campaigns initiated against them, he can hardly be accused of any sympathy with Kashmiri militants. His fierce adherence to the rule of law underlies his judicial performance.

In the present case, Justice Nazki steered away from issuing notice to the Army. It would have been futile, anyway, for the Army routinely ignores such notices.

The first two Chairpersons of the National Human Rights Commission, Justice Ranganath Misra and Justice M. N. Venkatachalliah, were conscious of fostering accountability for rights violations committed by armed forces personnel.

The NHRC determined in its 1996-97 Annual Report that an amendment to the Protection of Human Rights Act (PHRA) was required with respect to enquiries into allegations of rights violations by armed forces personnel. Section 19 of the PHRA requires that in cases of alleged abuses by armed forces personnel, the NHRC must make a recommendation to the Central Government whether or not to proceed with an enquiry into the complaint.

Section 19 of the PHRA requires only that the Central Government provide a report to the NHRC on the action taken on its recommendation and that the NHRC must publish it. As the NHRC then correctly indicated, the protected status afforded to the armed forces by the PHRA diminishes the credibility of the NHRC and its goal of protecting and promoting human rights.

The ball is now in the State Government’s court. It has to comply with the J&K SHRC order within six weeks.

In view of the serious allegations made against the armed forces in this case, the initiative by the J&K police in filing the FIR is welcome but must be pursued so as to ensure accountability of the armed forces to civilian authority.

Past experience has shown that the efforts of the police in such cases have been stymied by the armed forces. In the present case, with the inquiry still pending, the Army Chief stated that the Major would face no action even if found guilty and even awarded him with the Chief of Army Staff’s commendation card.

There is, however, an alternative. The State Government can file charges against the accused under Section 3 of the Geneva Conventions Act, 1960, in addition to those already filed.

Section 3 provides that“[i]f any person within or without India commits or attempts to commit, or abets or procures the commission by any other person of, a grave breach of any of the Conventions he shall be punished,—

(a) Where the offence involves the wilful killing of a person protected by any of the Conventions,
with death or with imprisonment for life; and

(b) in any other case, with imprisonment for a term which may extend to fourteen years….

(c) For the purposes of this Section,—…..

(d) a grave breach of the Fourth Convention is a breach of that Convention involving an act referred to in article 147 of that Convention committed against persons or property protected by that Convention.”

According to Article 147, grave breaches, among other things, include ‘inhuman treatment’, ‘wilfully causing great suffering’ and ‘unlawful confinement of a protected person.’ To bind a person to a jeep and parade him over a distance to make an example out of him for deterring stone pelters violates Article 147 and would constitute a grave breach of the Geneva Convention.

Section 17 of the Geneva Conventions Act, which confers upon the government the authority to make a complaint in case of an offence under the Act, provides that “[n]o court shall take cognizance of any offence under this Act except on complaint by the Government or of such officer of the Government as the Central Government may, by notification in the Official Gazette, specify.”

While the Geneva Conventions Act itself does not define ‘government,’ both the Army Act, 1950, as well as the Code of Criminal Procedure, 1973, provide that ‘words and expressions used but not defined’ therein and defined in the Indian Penal Code, 1860, shall be deemed to have the meanings assigned to them in that Code. Section 17 of the Indian Penal Code states: “The word Government denotes the Central Government or the Government of a State.”

It would appear from the statements made by ministers in the Central Government that the Central Government does not intend to investigate these grave breaches of the Geneva Convention; rather, it approves of them. A complaint by the State Government in this respect would have a salutary effect in ensuring that functionaries are held accountable to the elected authority of the State. The Union Government’s specious reasoning against the application of humanitarian law domestically would be rightly shown the door.

Kashmiris of all hues stood up against the terrorists who carried out the Amarnath Yatra attack. Let us now stand up with the Kashmiris.

Ravi Nair is the Executive Director of the South Asia Human Rights Documentation Centre.

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