Peoples Union for Democratic Rights is outraged at the brazen claim advanced by the Indian Army that let alone sanction for prosecution, no civil administration can even register a FIR against army personnel without sanction of the Central government. During the hearing on CBI’s complaint against the army for shielding their personnel accused of fake encounter (following the Chattisinghpora massacre of thirty-six Sikhs on 19-20 March 2000), the Supreme Court questioned the army about it. The Court asked why the Army neither let the civil court prosecute seven officers and jawans accused of killing five locals of Pathribal nor court martial them. In response, the counsel for the army reportedly said, ‘We cannot take over the case. The armed forces are bound to protect their men.’ Thus, twelve years after the crime was committed, the apex court is deciding whether or not the army is correct in shielding killers.
The Pathribal killing of 25 March 2000 has had a chequered history, not the least because the army fought to prevent CBI from prosecuting its personnel. Nine days later, on 3 April 2000, people protesting Pathribal killings were fired at by the CRPF at Barakpora, killing seven and injuring fifteen persons. Two days later, the National Conference government ordered an enquiry and DNA samples were taken. In March 2002, it was found that the samples had been tampered with. By April 2002, it became clear that the five killed were not ‘foreigners’, let alone militants, but only five out of seventeen local villagers picked up between 21-24 March 2000 by the army in the name of tracking the culprits of the Chattisinghpora massacre of Sikhs. It was only in November 2002 that the Justice GA Kuchay Commission was constituted to enquire into the entire incident and, following its report in December 2002, the state government asked CBI in January 2003 to take up the investigation. CBI submitted its finding accusing five army personnel of seven Rashtriya Rifles including one Braigadier, a Lt Colonel and two Majors, apart from a Subedar, of the heinous crime. Once CBI filed a charge-sheet and prosecution was to begin in the sessions court, the Army challenged it on the grounds that the Central government’s sanction had not been obtained for prosecuting its personnel. And it is this matter which is being heard by the apex court twelve years after the incident.
This case once again brings focus on the critical issue of impunity provided by the Armed Forces Special Powers Act. A debate has been raging around whether to withdraw AFSPA from four out of the twenty-two districts where it is in force. On 21 October 2011, the chief minister of Jammu and Kashmir had famously said that ‘within the next few days’, AFSPA and Disturbed Area Act would be revoked from four districts. He also claimed that once the council of ministers advise the state Governor to revoke AFSPA and DAA, he is obliged to follow that advice. However, the union law ministry held otherwise, that the Governor of J&K is empowered to overrule any decision on this matter offered by the council of ministers and that on his/her discretion the Governor can take a decision about whether to remove AFSPA and DAA. This has also lifted the veil of autonomy which J&K allegedly enjoys under Article 370.
With even partial lifting of AFSPA and DAA ruled out and with the army pitching for immunity from investigation of its role in an incident by a civilian agency, the issue of impunity as well as de-militarisation of J&K, i.e., rollback of extraordinary laws and reduction as well as withdrawal of Armed Force of the Union from so called ‘internal security’ duties has been pushed into a distant future.
PUDR is aware that mere withdrawal of AFSPA will in itself not end the state of impunity. The regime of impunity covers the state police force whose senior most officer implicated in custodial killing escapes prosecution because no magistrate dares order registration of the crime naming him. The same force also claim that there is ‘social sanction’ for extra-judicial killings such as that of human rights activist Jalil Andrabi. They also believe in ‘brain draining’ Kashmiri youth of any idea of ‘Azaadi’. This highlights that ‘the more things change, the more they remain the same’. Neither is there any movement to resolve the J&K dispute nor is there any relaxation in the tight control the authorities maintain where freedom of expression, assembly and association are concerned. The obtrusive security force presence still maintains surveillance of public and private lives of people.
PUDR, therefore, expresses its deep concern at the policy of drift that has taken over and apathy of the authorities when it comes to a crackdown on acts of brutal crime committed by security forces. This has come to define India’s policy on J&K where even the elected representatives or the representative government are powerless to bring the perpetrators of heinous crimes to justice and helpless to end the state of impunity. This brings out how a colonial approach seems to prevail where J&K is concerned, one where constitutional propriety and political wisdom are given a go-by in order, as the army’s counter-insurgency doctrine suggests, in order to ‘transform the will and attitude’ of the people.
Paramjeet Singh and Preeti Chauhan