Has Army ignored NHRC on Farooq Dar order?https://indianexpress.com/article/opinion/columns/has-army-ignored-nhrc-on-farooq-dar-order/

Has Army ignored NHRC on Farooq Dar order?

It is not merely the J&K SHRC or its Chair, Justice Nazki that are being thwarted. If the promise of the Fundamental Rights chapter of the Indian Constitution has to have any meaning for the average Kashmiri, the state government in addition to complying with the SHRC, should also order prosecution of Major Gogoi under Section 3 of the Geneva Conventions Act, 1960

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We are poor people, what will we complain: Farooq Ahmed Dar, his mother at their home in Chil, Budgam. (Photo: Shuaib Masoodi)

The Jammu & Kashmir government has failed to comply with the State Human Rights Commission’s well-reasoned order of July 10 which requires the state government to pay the sum of Rs 10 lakh to Mr Farooq Ahmed Dar, as compensation for the trauma he had suffered when he was tied to the front of Major Leetul Gogoi (of 53 Rashtriya Rifles of the Indian army)’s jeep and paraded around several villages on April 9.

In late October, the J&K government rejected the State Human Rights Commission order on two grounds. First, that Major Gogoi is an Army officer, not someone from the J&K police, and canot be indicted because the Army is not subject to the state government’s orders. And second, the Jammu & Kashmir police which filed the FIR was still investigating the case.

The Police

This is specious reasoning because the J&K police filed its FIR within four days of the incident occurring, on April 13, 2017. (The Ranbir Penal code, analogous to the Indian Penal Code in that state, requires that chargesheets are filed in a court of law within 90 days of the filing of the FIR.) The offences that were registered were all cognizable, relating to wrongful confinement, abduction, kidnapping and criminal intimidation.  The video clip of Farooq Dar hogtied in front of the army vehicle  went viral only a few hours after the incident took place.

According to media reports the Senior Superintendent of Police, Budgam gave his report to the state Director General of Police in August itself. The report is believed to have stated that Farooq Dar was tied to an Army vehicle, wrongfully confined and paraded from village to village. But as late as October, the State Human Rights Commission was told that the investigation was ongoing, in what seems like an obvious delaying tactic.

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Even in the past, the J&K police has filed requests for sanction for prosecution of armed forces personnel. It is another matter that the sanction has not been forthcoming from New Delhi.

The Army

The Army top brass did itself no credit by giving the Major a Commendation although it has been said that the Army is holding an internal inquiry. The report is yet to see the light of day in perennially smog-filled Raisina Hill.

The Army top brass could have taken salutary action under several sections of the Army Act. For example, Section 50 of the Army Act, 1950 relates specifically to, “Irregularity in connection with arrest or confinement…”The detailed section clearly applies to Major Gogoi and his unit. It provides for imprisonment for a term which may extend to two years or such less punishment.

The State Human Rights Commission

The State Human Rights Commission, in theory, has the same powers as the National Human Rights Commission (NHRC). But all SHRCS in the states are poor country cousins. In the past, there have been cases where the NHRC, on its preliminary findings, has directed the Defence Ministry or the Home Ministry to comply with its orders on compensation. In this particular case, there is no news on whether the NHRC ever got a reply to its notice in June 2017 to the Ministry of Defence.

Clearly, Kashmir continues to be a no-go as far as accountability and the rule of law is concerned. The United Nations recognised Sub Committee on Accreditation of national human rights institutions in its hearing on November 15 in Geneva on the matter of reaccrediting the NHRC may find this to be of some interest.

International Scrutiny

The international human rights and humanitarian law community has been concerned by the complete immunity and impunity enjoyed by the Indian armed forces in Kashmir. Already there are loud whispers in Geneva and New York regarding petitions to the United Nations Department of Peace Keeping Operations to scrutinise the human rights record of Indian personnel and units prior to their being allowed to don the blue beret.

The stakes

It is not merely the J&K SHRC or its Chair, Justice Nazki that are being thwarted. If the promise of the Fundamental Rights chapter of the Indian Constitution has to have any meaning for the average Kashmiri, the state government in addition to complying with the SHRC, should also order prosecution of Major Gogoi under Section 3 of the Geneva Conventions Act, 1960, in addition to those already filed.

This failure to comply with the SHRC order has major political implications for public perception. The new interlocutor for J&K, Dineshwar Sharma, should use compliance with this order to illustrate Indian adherence to the rule of law.