Officers of the Central Reserve Police Force, harassed by the State Government for the deaths of 17 protesters in the state between June 11 and July 11 last year, must be heaving a sigh of relief since January 15 when Justice Sunil Hali of the Jammu and Kashmir High Court issued an interim order directing the Commission of Inquiry to issue copies of the relevant records to the petitioners within two weeks so they could “submit their defence.” The interim order also directed the Commission of Inquiry “not to submit the final report without the permission of this court.”

The petitioner, Special Director General, CRPF, through counsel Bhupinder Singh Slathia and his team, had approached the High Court after being convinced that the Chairman of the Commission of Inquiry, Justice (retd) Bashir-ud-Din, would not do justice to the CRPF as the Commission was not even giving them certified copies of the records on the basis of which the Commission had issued notices to the petitioners. The petitioners pleaded that it was impossible for them to respond to the notices as they did not have copies of the relevant documents/depositions/affidavits etc. and that the Commission of Inquiry had virtually asked them to “face the probe without” perusing the material on the basis of which the Commission had issued notices to them.

The Commission of Enquiry was appointed on July 26, 2010, under provisions of the Jammu and Kashmir Commission of Inquiry Act, 1962, to examine the circumstances leading to the death of 17 protestors in Kashmir between June 11 and July 11. The Chairman of the State Human Rights Commission and retired Judge of the High Court, Bashir-ud-Din, was appointed Chairman of the Commission; former Judge of the State High Court Justice V.P. Nargotra was the other member.

CRPF officers were upset by the appointment of the Commission of Inquiry as, CRPF personnel had only discharged their duties to the best of their ability, maintaining utmost restraint despite grave provocation in order to maintain law and order when requisitioned and deployed by the civil administration in riot-affected areas in the Valley. The upshot of their argument was that they did not act on their own.

It therefore alarmed the CRPF personnel when Chairman of the Inquiry Commission, on July 30, 2010, told the Kashmir-based English daily Rising Kashmir that: “As the Chairman of State Human Rights Commission he condemns excessive use of force on the protestors (read unruly stone-throwing mobs and anti-national and anti-social elements). Opening bullets on unarmed protestors even if they are pelting stones is unjustified. His statement should come as the State Human Rights Commission” and not as Chairman of the Inquiry Commission.

Many officers felt that the Chairman of the Commission had delivered his verdict even before beginning a thorough probe into the circumstances responsible for CRPF personnel-unruly crowd clashes and the resultant deaths and injuries. It may be recalled that the onset of summer 2010 had seen the rise of stone-throwers in Kashmir with the objective of supplementing the protagonists of Kashmir’s separation from India.

According to none Chief Minister Omar Abdullah himself, not just Pakistan, even certain elements in the People’s Democratic Party were behind all that the stone-throwers and other anti-national elements did in Kashmir between June and September 2010. Union Home Secretary G.K. Pillai had dismissed the stone-pelters as “unruly elements” and defended the actions of the security forces.

It is relevant that the stone-throwers were highly indoctrinated. Their modus operandi was: Attack the security forces and their bunkers, pelt sharp-edged boulders on the security personnel to cause injuries and provoke them so that they retaliate and some civilians get killed. They did so at the behest of their masters and motivators in the belief that killing civilians would give a fillip to the separatist movement. Everything was well planned.

Believe it or not, but it is a fact that between June 11 and July 11, the unruly elements attacked CRPF personnel and their bunkers at least one hundred times and injured hundreds of security forces personnel. Besides, they attacked and burnt down nearly 15 police stations in the Kashmir Valley during the same period. Yet the personnel maintained cool to the extent possible and reacted only in self-defence.

It would be prudent to refer to the conduct of the Commission of Inquiry and the circumstances that forced the CRPF to approach the state High Court for justice. First, as mentioned, was the controversial statement made by the Chairman of the Commission of Inquiry on July 30, 2010, that made CRPF believe that it stood condemned unheard and that the Commission had given its verdict without even beginning its probe.

Second, from its very inception, the Commission of Inquiry had followed an approach that established that it wanted the petitioners (CRPF) and its counsels (Bhupinder Singh Slathia and his associates) to defend themselves without examining the relevant records on the basis of which the Commission had issued notices to the CRPF. (The notices were issued on Dec. 21, 2010.) The petitioners repeatedly approached the Commission and Standing Counsel of the Jammu & Kashmir Government and requested them for copies of the “relevant” records so that they could defend themselves or rebut charges leveled against them. But each time the petitioners failed to evoke a favourable response.

They approached the Commission with similar requests several times, but the latter refused to meet their legitimate demands, overlooking Section 10 of the Commission of Inquiry Act read with Rule 9 of the Commission of Inquiry Rules. (Section 10 and Rule 9 make it mandatory to provide requisite documents and copies of statements made by various witnesses and other evidence adduced before the Commission in the shape of affidavits.)

Instead, the Commission repeatedly asked the petitioners to “inspect the relevant papers.” It wanted the petitioners to “inspect” so many statements, affidavits, papers, oral and documentary evidence and other relevant material within two days (December 31, 2010 and January 1, 2011). Was it possible for the petitioners to formulate a rebuttal by adopting the method suggested by the Commission of Inquiry? Obviously not. 

The petitioners also approached the Standing Counsel a number of times and requested him to supply copies of the relevant records. His attitude was no different. Instead of providing them copies of the relevant documents, he would either say ‘nothing was available with him’ or would tell them that ‘all the records were available with the Commission’. He simply gave them copies of two status reports and not copies of the statements made by nearly 50 witnesses, something the petitioners needed most. The petitioners often approached the concerned officials of the Commission of Inquiry; they in turn responded that the documents were in Urdu; sometimes they would read out from a few documents certain portions and ask the petitioners to visit the office on Sunday! The petitioners would duly visit the office of the Commission on the said day, only to find the office closed.

Running in circles, the petitioners would again approach the Commission of Inquiry and demand not only certified copies of the relevant documents so that they could prepare their rebuttal, but also more time as they could not prepare their response in the absence of the material needed for the purpose. The Commission of Inquiry would grant them more time to prepare their replies, but would not issue them the certified copies of the relevant records.

The petitioners thus returned empty-handed on December 30, 2010 and January 6 and 11, 2011. Neither the Commission of Inquiry nor the Standing Counsel of Jammu & Kashmir Government cooperated with the petitioners. On the contrary, their attitude was arbitrary.

Under these circumstances, the petitioners approached the High Court, which upheld their plea and provided relief in the form of two definite directions. One, the Commission of Inquiry must supply the petitioners with copies of the documents they need. Secondly, the Commission of Inquiry shall not submit its final report without the permission of “this Court.” This interim direction from the High Court was a major relief to the CRPF.

One thing is now certain: The Commission of Inquiry cannot go against the directions of the High Court. It is now up to the petitioners and their counsels to make optimum use of the opportunity to expose those in the establishment whose single-point agenda is to paint the security forces black, demoralize them, and prepare ground that helps separatists achieve their sinister designs on India.

The timely intervention by the High Court has for now averted a major miscarriage of justice.

The author is former Chair Professor, Maharaja Gulab Singh Chair, University of Jammu, Jammu, & former member Indian Council of Historical Research