Several years ago the Indian Constitution granted right to life to the citizens of the Republic. The recent Supreme Court verdict on Pathribal fake encounter killings has altered the very meaning of a right that lies at the core of constitution (as also observed by the apex court in its verdict on salwa judum and SPOs of Chattisgarh). The citizen’s right to live is now replaced by the armed forces’ right to kill, at least as far as the Armed Forces Special Powers Act goes, and be under no obligation to face any punishment under the law of the country. The executive laws and official denials have finally got an endorsement from the courts. The ruling on Pathribal has far more dangerous repercussions than the simpler question of despair for victims’ families and those who were campaigning for justice in this case. The court has not only set a bad precedence, the verdict and the observations have ensured that all security men accused of human rights abuse can here and henceforth are let off the hook without much ado.
The families of the victims of brutal killings by men in uniform, who are expected to be responsible agents of the State, have been denied any form of justice. The observations of the court in its verdict that in discharge of duty, armed forces should be assumed to have killed in ‘good faith’ (according to their sense of judgement and intelligence inputs) unless it is proved otherwise, putting the entire onus of proving that it was a pre-meditated killing on the investigators. In Pathribal fake encounter, much like many other such killings, there is ample evidence to show that the five men killed were picked up and then done to death. Can kidnapping and then killing a person be qualified as a case of acting in ‘good faith’. While such observations evade logic, the articulation in words like ‘good faith’ sounds very harsh. Such an observation has reversed the apex court’s own judgement, not very long ago, on custodial killings in which it was observed that killings by men in uniform are a far more heinous crime than ordinary killings.
The court also brings to centre-stage the question of whether off-duty security men fall within the ambit of Armed Forces Special Powers Act and then answers it in the affirmative, making it a case of blanket impunity for the army and other para-military forces operating in conflict ridden areas. They are to be protected and given a free hand for all times to come – on duty, off duty – without making them accountable for their deeds and without even asking them to give an explanation for any act of human rights abuse.
In pursuit of its ultimate rescue of the armed personnel caught in allegations of such violations, the court has equated the civil court and court martial proceedings, while offering to the army in the Pathribal case, the option of choosing between either of the two trials. That court martial trials by army and other forces have seen more convictions than civil court proceedings is something that has been harped about by the armed forces and also in courts in several of the cases where security personnel are facing criminal charges. The effectiveness of court martials cannot simply be judged on basis of comparative statistics of convictions. It’s also about transparency. It’s also about the quantum of punishment which may or may not be equal to what a civil court would prescribe in the given circumstances. While many of the court martial proceedings and their outcomes remain unknown to the public, defying the basic principle of justice, which not only needs to be done but also needs to be seen to be done, in the known cases, the culprits have got away with not even a fraction of what they could have faced in the civil courts. In the Handwara-Badar Payein mother and daughter rape case of 2004, the accused army officer was got away with simple dismissal and remarks ‘guilty of misconduct’. In the Mubina Gani case of 1990, a BSF Staff court of inquiry that held the men guilty, suspended seven men. Normally, a person convicted for rape could get upto ten years in prison if the normal Indian legal procedures are followed. Conviction or no conviction, court martials cannot replace the civil courts in cases which are nothing but cold blooded murders and brutal rapes. And, yet, here is a case being made out to equate the two processes of legal justice.
The Pathribal judgement has caused a great deal of harm to the cause of struggle against injustice in Kashmir or any other conflict zone in the country. Already, in less than a week’s time, it is becoming a base-line for deciding on the case of Zahid Farooq, a teenager who was killed by an off duty BSF personnel.
The government, both at the centre and in the state, has been trying for a long time to project Jammu and Kashmir as a normal and happy state and painfully co-opting intellectuals and media to labour with the argument that everything is alright and that it is neither the political aspirations nor human rights that occupy centre-stage but only issues of unemployment, development and roti, bijli, sadak. The court has only put a legal stamp to such an effort. Should we accept that armed forces can do no wrong, that every killing of whether an innocent or a militant can be justified and that even if deemed wrong can be settled by the armed forces themselves.’ This is nothing but travesty of justice. Should we accept that justice will be done if court martial proceedings will deal with the men in uniform who’ve gone awry, should we believe that a ‘Happy Valley’ exists out there. And, that is where all the happiness lies – in the lap of blissful ignorance, evinced by no less than executive head of Jammu and Kashmir, Omar Abdullah, whose only response to such a verdict was a tweet: ‘Now let’s wait and watch what the army chooses – trial by court martial or by civil courts!’ Happy or unhappy Valley, did one even have a doubt about that!