The government on Tuesday informed the High Court that it would not make public report of Koul Commission on 2010 unrest killings.
The court sought the report in a sealed cover.
A division bench of acting Chief Justice Ramalingam Sudhakar and Justice Sanjeev Kumar directed the government to produce in sealed cover the inquiry of Justice (retd) M L Koul into the killings during 2010 mass unrest.
In its objections to a Public Interest Litigation filed by a social organization Jammu & Kashmir Peoples' Forum through its general secretary M M Shuja, the government has said that "in keeping with the sensitivities involved in the matter and the security concerns related to the case, the government cannot make public the recommendations."
Defending the government response to the PIL, senior Additional Advocate General B A Dar told that court that the Commission's recommendations have been implemented. Dar told the court that any proceeding before the Commission is deemed to be a judicial proceeding within the meaning of sections of 193 and 228 of the J&K Ranbir Penal Code and cannot be made Public.
In response to this submission, Advocate Shafqat Nazir representing the petitioner said the Commissions' proceedings being judicial in nature are bound to be made public. "Judicial Proceedings cannot be concealed," he said.
The government said that certain issues raised in the petition have already been considered and adjudicated by a division bench in OWP no 19/2011 titled Imtiyaz Ahmad Sofi advocate vs state of Jammu and Kashmir. "Any recommendation made by a Commission is not binding on the government and the government has the prerogative to take an informed view on the recommendations after considering all the factual and legal aspects involved in the matter," Dar said. He said the government has already taken appropriate action in the matter and in case any further action is required, the same shall be taken as per existing rules.
The court was informed that the government considered several confidence building measures, which included sanction of special ex-gratia relief of Rs 5 lakh by the government of India, besides state government's one lakh compensation for each family of deceased who was killed during mass unrest from 11 June to 25 September in 2010.
The special ex-gratia relief of Rs 5 lakh, the government said, was in favor of 105 cases, and out of these the families of two victims refused to accept the compensation. It said in one case the deceased had committed suicide and was not entitled for the special ex-gratia relief.
In response to this contention, Advocate Shafaqat said ex gratia relief is not all about the victims of 2010 mass unrest. "No one knows what the recommendations are made by Koul Commiission. If these are not made public it will be a violation of court directions," he said.
Referring the directions of the High Court in a related petition disposed of earlier, Advocate Shafaqat pleaded that "once the recommendations are made, the state government is to act on these recommendations". He said the Koul Commission was tasked with many an important things to suggest and mere paying of ex-gratia relief does not mean that the recommendations have been implemented.
The government vide SRO no 176 dated 20 June 2014 constituted one man Koul Commission of Inquiry to probe the circumstances leading to the deaths by firing in Kashmir during 2010 mass unrest.
While The Commission had to inquire into the adequacy or otherwise of the force used, it had to fix responsibility wherever excessive force had been used resulting in fatalities and where due care was not taken to avoid such fatalities.
The Commission was asked to suggest measures to avert the recurrence of such incidents in the future and recommend action against persons and authorities found responsible in such incidents.
Advocate Shafaqat said the court in the earlier order has said that the "respondents have admittedly registered 37 cases regarding 117 killings." "Why the government is now mentioning only 107 killings in its objections," he pleaded.
The government also informed the court that during 2010 mass unrest one police man was killed while 1806 CRPF personnel were injured. The government also said 242 government buildings were damaged and of the 22 structures of police which were set ablaze, 14 structures were damaged.
Earlier the government had told the court that the Koul Commission report was placed before the cabinet for its consideration.
A social organization, Jammu & Kashmir Peoples' Forum sought directions for making public the findings of the Koul Commission in 2010 unrest, killings and monitoring of follow up action by the court after the report is made public. The Forum has also sought directions for implementing the recommendations of Koul Commission on grant of compensation to the victim families.
Constituted under the J & K Commission of Enquiry Act, 1962, the government had constituted the one man commission headed by Justice (retd) ML Koul to probe the 2010 unrest killings.
As per reports, the Commission in its findings has indicted government forces for firing upon demonstrators without magisterial orders and use of disproportionate force on protesters. While the Commission has reportedly said that both administration and police were "inactive" and "indolent" in tackling the law and order situation, it has also recommended a CBI probe into the killing of a teenager Tufail Matto and registration of a murder case against police personnel involved in "torturing" Umar Qayoom of Soura to death. Tufail's death, on 11 June 2010, by a teargas shell led to widespread protests and triggered an unrest in which more than 120 people were killed.