Jaibans Singh
“This again
calls into question the entire debate of Armed Forces Special Powers Act
(AFSPA) and the way in which it is implemented or the way it is used,” said
Omar Abdullah, Chief Minister of Jammu and Kashmir while referring to the
Pathribal operation case, which is presently being heard in the country’s
Supreme Court. National Conference President Farooq Abdullah, during whose
tenure as Chief Minister this incident took place, states his position as
follows “.”Yes, it was a fake encounter… All those who are responsible for
having killed innocent people must be charge sheeted, whether they are in the
Army or they are civilians …..”
It is quite
obvious that an attempt is being made to fire the gun from the shoulder of the
Supreme Court for political reasons with complete disregard to the fact that
the case being sub-judice cannot be commented upon by involved parties. One
wonders whether this is being done to influence the proceedings of the Court or
to gain political mileage.
“It was a
fake encounter with a motive…it can’t be termed as discharge of duty by the
army and these army officials should not be protected by AFSPA,” says senior
advocate Ashok Bhan while appearing for the CBI. First and foremost, one
wonders at the motive of the CBI in appointing a Kashmiri Pundit as their
senior counsel in the case. The country offers many others who have the
requisite talent, expertise and legal reputation for this job, why than has
this particular counsel been chosen? Is it because some lobbies in Kashmir
which wish to remain outside the ambit of the proceedings can influence a
resident of the State towards being more considerate to their requirements? Why
is the learned counsel so insistent in naming only Indian Army personnel as
perpetrators of the purported crime when irrefutable evidence has established
that the joint operation was undertaken by the Army after receipt of specific
information from the Police; a Police party accompanied the Army patrol and
pointed out the house where the terrorists were hiding after which the attack
was launched and the terrorists killed. The JK Police was quite forthcoming in
taking the credit till such time that reports of civilians having been abducted
and killed came up. It then staged the proverbial disappearing act and left the
Army to face the flak. Why is a sustained effort being made to put this
evidence under the carpet? Secondly, how is it that the fudging of the DNA
samples is not being referred to by the CBI in its case at all? Once again,
there is enough evidence to substantiate that it was the ineptitude of the
Farooq government which led to the initial fudging of the DNA samples of those
killed in the encounter. Not much is known about the report of the second
sample that was taken after a protracted public outcry. The Army had no means
of influencing the fudging of DNA samples, therefore, it can be logically
deduced that the attempt was made by such local lobbies who wanted to hide
certain facts.
As a matter
of fact, one wonders as to why the CBI had to approach the Court at all for
taking sanction to prosecute those who it believes were involved in a “fake
encounter”? All parties in the case are government servants, some working for
the centre, others for the State. Surely, the matter could and should have been
resolved departmentally. The CBI merely had to place its findings before the
government which had appointed it to conduct the investigations and then left
the course of action to the higher authorities within the government. Where was
the reason for it to get proactive and go out knocking the doors of the
judiciary?
During the
hearing on March, 26, 2012, the Centre told the Supreme Court that it needs
four months to decide on sanction for producing the army officials charged. The
Centre has also committed that it would pass appropriate and judicious order on
sanction for prosecution of eight army personnel involved in the case. One can
only hope that the “appropriateness and judiciousness” will include taking a
holistic view of the entire episode as also the evidence which is in the public
domain.
During the
April, 02, 2012, hearing of the same case the Supreme Court has directed the
Centre to lay out facts about the number of times a sanction for prosecution
has been given in cases where immunity to Army under Section 6 of the Armed
Forces Special Powers Act (AFSPA), had been “misused”. The Army has been
expeditious in dispensing punishment, under the Army Act, to all those who have
been found to be guilty of human rights violations while serving under
protection of the AFSPA. During the last two decades —– numbers of Army
personnel have been prosecuted and punished for various human rights violations
in Jammu and Kashmir. Interestingly, not many such cases of punishment to
Police personnel are available in the public domain. When any such incident
involving the Police takes place, the person is suspended and an enquiry is
instituted. Beyond that the notoriety of the Jammu and Kashmir government in
putting enquiries under the carpet invariably takes over and nothing is heard
of the case ever again.
No one can
question the probity of the country’s apex Court in ensuring that justice is
dispensed in all cases that come under its purview. It is politicisation of the
Pathribal case and its motivated presentation to the apex Court which is giving
a reason for concern. Let the law take its course, but the facts laid out
before the Court need to be absolutely correct, especially so, when a
government body has been entrusted with the responsibility to present them.
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