The Pathribal tragedy
With the dismissal of charges by the Army's 15 Corps against four senior officers, a retired Major General, two Colonels, a Lt Colonel and a Subedar, belonging to 7 Rashtriya Rifles, the nearly fifteen-year struggle to bring the perpetrators of this heinous crime to justice has come to a grinding halt.
On 20th March 2000, unidentified gunmen massacred 36 Sikhs at Chittisinghpora in Anantnag district. Few days later, on 25th March 2000, five persons from three villages in Pancehalthan were abducted and then killed in an alleged encounter. The FIR filed by the Army maintained that they had killed five "foreign militants" who had massacred the Sikhs. On 3rd April 2000, nearly 5000 people including the kith and kin of the victims of Pathribal killing and other villagers, held a protest in Barakpora and were marching towards Anantnag town to submit their plea for justice when they were fired upon by the CRPF and SOG resulting in killing of eight persons.
Following this bloodletting the Chief Judicial Magistrate ordered an inquiry headed by the Deputy SP. His report concluded that people killed were local civilians and not "foreign militants". And that it was a fake encounter. Complaint of the villagers was then registered. In 2003 the case was transferred to the CBI. Three years later, having exposed the attempt to fudge DNA samples by the then Head of Department of Forensic Medicine, Government Medical College, Srinagar, and other attempts by the Army to delay joining the investigation, CBI filed its charge-sheet contending that from "facts and circumstances of the case, it is established that these five innocent civilians were picked up by the personnel of 7RR ... (and) eliminated in a fake encounter..." It charged five army personnel under S.120 B (Punishment of Criminal Conspiracy) read with S.342 (Wrongful Confinement), 364 (Kidnapping for Murder), 302 (Murder) and 201 (Causing disappearance of evidence or giving false information to screen offenders) of the IPC.
In 2006, Army moved the apex court claiming that the criminal court has no jurisdiction to try its personnel. Six years later, in May 2012, the Supreme Court pronounced its judgement. The Court rejected the Army claim that investigation can be undertaken only after sanction is obtained from the Central government. But it upheld the Army claim that after the filing of a chargesheet; sanction is required before the trial can begin. Thus, though S.126 of the Army Act confers power on the criminal court to try personnel of the armed forces, a judge cannot take cognizance of the case unless the Central Government provides sanction. Citing the provision of under S. 125 of the Army Act, the court ruled that it would be the decision of the Army to either opt for trial of its personnel before the criminal court or the army's own Courts Martial.
That provisions of the Army Act violate basic tenets of the Constitution was reason enough for such provisions to be struck down. But the Supreme Court of India decided instead to overturn every single tenet of the Constitution meant to protect the citizen against the abuse of power: it decided against the right to life; against fairness; against the right to equality before law; against the right to Constitutional remedies. It was therefore only another step in that direction that it supervised the overturning of the foremost principle of law by empowering the accused agency to investigate, prosecute and judge its own crimes.
Then, in a brazen subversion of justice the Army chose to order a Court of Inquiry instead of proceeding with trial under the Courts Martial. This, when more than 14 years had elapsed since the crime was committed and the crime had been investigated by the state police and the CBI had filed a charge-sheet after 3 years of investigation. For Army to rubbish all this and declare that "in conformity with the due process of law...(they) dismissed the charges" against its personnel shows the opaqueness of the Army's general courts martial proceedings. Going by the response of the kith and kin of the victims, which has appeared in media in Kashmir, the main query posed to them by the Court of Inquiry was whether they could identify the perpetrators. Failing to do so was proof enough for the Army to dismiss the evidence gathered by the CBI. It should be noted that abductions had taken place the night before and the fake encounter took place in the early hours of 25th March 2000 with only uniformed persons to witness the crime. Also by placing the onus on the police and claiming it was a joint operation, something the CBI had rejected, Army is clearly shielding its own personnel.
This only brings the opaqueness of the Courts Martial into full view. The very same force which is accused of commission of crime can scarcely prosecute its own personnel. Especially, when it also offered them incentives for 'kills'! Besides, in a Courts Martial, victims have few rights whereas the accused enjoy full protection as armed forces personnel, more so when the accused are senior officers and not a soldier. The victim has neither the right to be represented by a lawyer nor can they move the higher courts to challenge Courts Martial judgments. Army Act provides this option only to the accused.
PUDR wishes to draw attention to the fact that Pathribal case was a rarity. Few cases of security force excesses are investigated, let alone reach the stage of a charge-sheet. It was an opportunity to send a clear message that criminal acts of the army would not be condoned; that constitutional rights are inalienable and that courts exist for their protection. This opportunity is lost.
D Manjit, Ashish Gupta,
Vol. 46, No. 38, Ma r30 - Apr 5, 2014