It is now a well-established fact that State Apparatus of India is lethargic and insensitive in cases of Human Rights violation. However, courts of law play an important role to push the State in right direction. In a welcome indictment of civil administration and military establishment, the Supreme Court of India has struck down the notion of blanket immunity considered legal right of armed personnel under Armed Forces Special Powers Act (AFSPA) even if crimes like murder and rape are committed.
Giving huge relief to the victims of reported “fake” encounters and offering moral boost to Human Rights Activists in certain parts of India, where AFSPA is enforced, the Supreme Court of India on Feb 3 questioned the extent to which the Army can claim blanket immunity under the AFSPA. The Apex Court declared that heinous crimes like rape and murder committed by armed personnel should be considered “normal crimes”, and that there is “no question of sanction” from the government prior to prosecution of offenders in such cases. Under AFSPA, prior approval is required before prosecution or any other legal action can be initiated against armed forces personnel operating in areas declared “disturbed” by the government.
The matter came before a bench of Justices B S Chauhan and Swatanter Kumar in the case of Pathribal Fake Encounters of March 2000, “You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted, and that is our stand,” a bench told Additional Solicitor General P P Malhotra, representing the Army.
Army personnel killed five locals on Mar 25, 2000 and identified them as Lashkar-e-Toiba mercenaries responsible for the gunning down of 36 Sikhs at Chattisinghpora in the same district on the intervening night of March 19-20, 2000. In a turn of events, it was found that the killed persons buried as LeT insurgents were poor locals from nearby villages of Brariangan, Halan and Anantnag. The Army also allegedly planted weapon on them and claimed that security forces had, after a gun fight, blown up the hut where the men were hiding, and had retrieved five bodies that had been charred beyond recognition. The bodies were buried separately without any post-mortem examination.
Local observers and human rights activists doubted the report as none of security force personnel was reported injured or killed in gun battle. After persistent protests bodies were exhumed on Mar 30 in the presence of public representatives and were identified by the villagers as locals. It was alleged that after Chattisinghpora incident up to 17 men “disappeared” between Mar 21 and 24. These persons were reportedly detained by security forces from different places. It was promised that action will be taken against irritant personnel but the army did not relent. It triggered wide spread protests in the valley and killing of a large number of people in security forces firings.
The Supreme Court has expressed its anguish for the denial of justice to victims as the Army was neither ready to prosecute errant persons under Army Act nor turning them in the custody of civil authorities to be tried in civil court where a case is already pending. The proceedings in a trial court were stayed by the Supreme Court in 2007 on a plea by the Army that its personnel can’t be prosecuted without permission from the Centre. Ironically, the Centre did not relent to grant permission.
Additional Solicitor General P P Malhotra, on behalf of the Centre, had denied that locals were killed in fake encounters in the specific cases pertaining to J&K and Assam pending before the Apex Court. However, another Additional Solicitor General Harin Rawal, appearing for CBI, insisted that they were “fake encounters.”
CBI counsel Ashok Bhan had also presented a confidential file to the judges and told the court that the issue is very sensitive in the Valley.
The CBI, which probed the encounter and filed a charge-sheet against eight Army officials including a Brigadier, wants the stay vacated so that the trial in local civil court may be concluded.
The Supreme Court on Feb 3 maintained that AFSPA gives “very limited protection” confined to action in “discharge of duty”. In arguments in the Supreme Court, the CBI accused the Army of trying to “bury” the case.
The court observation is another indication for the Government to take a pragmatic view in the case. As officials involved in killings of civilians are being persistently protected by the Government, it may be adduced that the killings took place as a perverted tactic to control civil strife by creating a sense of insecurity and fear psychosis among local population. Killing and rape has been an old age tactic of feudal era; however deployment of the same in the democratic world is highly deplorable.
In a recent report, Human Rights Watch has noted that custodial killings, police abuse including torture, and failure to implement policies aimed at protecting vulnerable communities marred India’s record in 2011.
The global report released on Jan 23 pointed out that in areas where AFSPA is in force immunity for abuses like murder and rape committed by security forces also continued.
“India, the world’s most populous democracy, continues to have a vibrant media, an active civil society, a respected judiciary, and significant human rights problems,” the report said.
The report noted, “The Indian defence establishment resisted attempts to repeal or revise the Armed Forces Special Powers Act (AFSPA), a law that provides soldiers in disturbed areas widespread police powers,” it said.
The report says that thousands of Kashmiris have allegedly disappeared – victims of “enforced disappearance” – during the last two decades of conflict in the region, their whereabouts unknown. A police investigation in 2011 by the Jammu and Kashmir State Human Rights Commission (SHRC) found 2,730 bodies dumped into unmarked graves at 38 sites in North Kashmir. At least 574 were identified as the bodies of local Kashmiris.
The government had previously said that the graves held ‘unidentified militants’, most of them Pakistanis whose bodies had been handed over to village authorities for burial. Many Kashmiris believe that some graves contain the bodies of victims of “enforced disappearances.”
It may be hoped that after the Supreme Court’s strong view against misuse of AFSPA to protect fake encounters, killings in custody, enforced disappearance of people in disturbed areas and rape cases, the situation will improve. There is no denying the need that armed forces should continue to get genuine protection while dealing with in harsh conditions but it does not mean that life and dignity of locals may be compromised in any way.