Is this yet another instance of lack of sensitivity towards continued human rights violations in the Valley?

Parvez Imroz

Searing wound A man offers his prayers to the deceased Pathribal and Brakpora victims near a graveyard in Brarangan

Photo: Sajad Muniwari

On 1 May 2012, the Supreme Court of India issued its final judgment in the case referred to as the Pathribal case. In the context of the killing of 36 Sikhs on 20 March 2000, personnel of the 7 Rashtriya Rifles (RR) were found by the Central Bureau of Investigation (CBI) to have killed five persons in a fake encounter on 25 March 2000. A chargesheet was produced before the Chief Judicial Magistrate-cum Special Magistrate (CJM), CBI on 9 May 2006. The CJM granted an opportunity to the Indian Army to exercise the option of a court-martial.

The Army stated that in light of Section 7 of the Armed Forces Jammu and Kashmir (Special Powers) Act, (AFSPA) 1990, the chargesheet could not have been produced before the CJM without obtaining sanction for prosecution from the Central government. The matter was litigated up to the SC and by the judgment of 1 May 2012, the SC has found that as per Section 7 of AFSPA, while a chargesheet may be presented before a court, no cognizance may be taken.

Further, that the competent Army authorities has to exercise discretion on whether a court-martial is to be instituted after the filing of a chargesheet before a court. Section 7 of AFSPA states “no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act”. The fundamental issue before the SC was relating to the point at which sanction needed to be sought i.e. before the filing of the chargesheet, or after the filing of a chargesheet but before cognizance by a court.

Fake encounters, along with various other human rights violations, have been a reality for the people of Jammu and Kashmir over the last 22 years. In 2008, SC Justices Aftab Alam and GS Singhvi made oral observations in court, it was reported, in relation to the practice of fake encounters for rewards in Jammu and Kashmir. With about 8000 persons disappeared, 70,000 persons killed, numerous cases of torture, rape and other human rights violations, Jammu and Kashmir has seen little in the form of justice over the last 22 years.

Based on the above, the SC judgment in the Pathribal case was keenly awaited by activists, lawyers, and most importantly, families of victims of the conflict in Jammu and Kashmir. The 1 May 2012 judgment has unfortunately failed to address the legal issues within the reality of the ongoing conflict in the area, and has further strengthened the impunity that exists for human rights violations, particularly for security forces.

First, while the apex court states in its judgment at Para 23 that “the question as to whether the sanction is required or not under a statute has to be considered at the time of taking cognizance of the offence…”, it concludes, in Para 66 (i) by stating that cognizance may not be taken by a court without prior sanction. The effect of this conclusion might well be a complete negation of the qualifying portion of Section 7, AFSPA that limits the need for seeking sanction only “in respect of anything done or purported to be done in exercise of the powers conferred by this Act”. This qualification can only be brought alive if a competent court were to be allowed to take cognizance of a case i.e. apply its judicial mind to the chargesheet and decide whether the qualification applies. Further, in Para 66 (iii), the SC states that “facts of this case require sanction of the Central government to proceed with the criminal prosecution/trial” (emphasis added). Therefore, it appears that on the one hand the SC has effectively barred a court from taking cognizance of a case, but through this judgment, the SC has itself appreciated the facts of the Pathribal case and found that sanction would be required to be sought. This seeming contradiction between the conclusions of the SC would require further clarification in the future, and perhaps is a pointer to the need to allow competent courts the opportunity to fully appreciate the specifics of a case before a request for sanction is necessitated.

Second, in Para 58, the SC, while addressing the issue of court-martials, states that Section 126 of the Army Act, 1950 (hereinafter “Army Act”), allows a criminal court to seek to prosecute an army personnel despite the Army also exercising the option of a court-martial. Section 126 of the Army Act provides the procedure to be followed when a criminal court is “of opinion” that proceedings shall be instituted before itself. For a criminal court to form such an “opinion”, it would necessarily have to apply its judicial mind to material before it i.e. it would have to take cognizance of the matter before it.

Therefore, by denying the right of a court to take note of a matter, and decide whether sanction for prosecution need be sought, the SC appears to have rendered the qualification in Section 7, AFSPA, meaningless, the power of the court under Section 126, Army Act, redundant, and further strengthened impunity in areas governed by AFSPA. While recognising, in Para 55 that the process of sanction seeks to protect persons acting in good faith, the judgment of the apex court effectively provides a blanket of impunity to the security forces.

This impunity has to be understood within the context of Jammu and Kashmir, and the actions of the Central government over the last 22 years. The following information received through responses to Right to Information (RTI) applications is striking. The government of Jammu and Kashmir, on 23 February 2012, stated in writing that no sanction for prosecutions had ever been granted in Jammu and Kashmir between 1990 and 2011. Not a single case. The Ministry of Defence, on 18 April 2012, stated in writing that out of a total of 44 cases received for the purpose of grant of sanction, 35 have been denied, and nine are under consideration. Further, that of these cases only one case was processed by the court-martial proceedings. Therefore, the reality of Jammu and Kashmir has been total and absolute impunity.

The Pathribal case was an opportunity for the SC to earn the respect of the people of the Valley, particularly in light of earlier criticised judgments of the apex court in matters related to human rights. But, the judgment further emboldens the security forces, which may result in further irresponsible actions by the security forces and strengthen a process that has appeared to never favour the victims of human rights violations, but only the accused.

People will continue to view this fall out as a continued disappointment with the institution of the Judiciary, and a recognition that further impunity for human rights violations awaits.

(Author is the president of Coalition of Civil Society, a civil rights group), Tehelka

  1. […] Pathribal judgment: The victory of impunity Categories […]

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