Might is right

Supreme Court’s much awaited interpretation of certain key operational provisions of the Armed Forces Special Powers Act (AFSPA), on Tuesday, is disappointing, to say the least. Over 12,000 word ruling, delivered in relation to the 10-year old infamous Pathribal fake encounter case in Kashmir, in effect sharpens the draconian face of the AFSPA, even as there is near-unanimity across the democratic divide on the desirability of its immediate termination from J&K and North-East India. The apex court has rejected the CBI’s plea that prima facie cases of ‘cold blooded murder’, like the Pathribal fake encounter, involving armed forces personnel do not need the central government’s prior sanction for prosecution of the accused in uniform.

As a result, the CBI stands ousted as prosecutor of the case lock, stock and barrel. The ball is back into the Army’s court which has the option of putting up the accused for trial by court-martial or passing the case on to a civil criminal court. The question of seeking central government’s permission for prosecution comes only after the military has exercised its option. Since the AFSPA provides immunity from prosecution to the armed forces as well as para-military personnel, it is up to the defence ministry and/or the union home ministry to accord sanction for civil prosecution.
Going by the past experience, seeking any such permission is like asking for the moon. It never comes forth. Supreme Court’s ruling empowering the military with the first option practically means adding one more hurdle to cross. It is not difficult to visualise unending procedural wrangling after this ruling, on the ground where dozens of cases duly investigated by the concerned agencies of the government, state and central, are stuck for want of prescribed prior permission for prosecution. Immediate reading of the apex court’s ruling means that all these pending cases would have to re-start from the beginning.

It is now for the Army, BSF and CRPF to decide whether these cases should continue to be tried by the concerned civil courts or be recalled for trial by respective service court-martial. Army has eight weeks to decide in the Pathribal fake encounter case and if it is unwilling for a court-martial trial of the accused then the union government has three months to decide on whether to give -or refuse–sanction for prosecution of the accused in a civil court. The CBI’s role in the Pathribal case has been terminated at the investigation stage and its jurisdiction as a prosecution agency stands extinguished. This is a severe blow to justice which has already been delayed.

Another undesirable feature of the AFSPA upheld by the apex court relates to differentiating between personnel on-duty and off-duty in respect of their immunity under the AFSPA. The prosecuting agencies of the state and central governments had so far been taking the position, in civil court proceedings, that the off-duty personnel were not entitled to any such immunity. The Supreme Court has virtually undone this differentiation and effectively provided blanket immunity to the armed forces personnel so long as they are posted in areas covered under the AFSPA. The apex court says that it was not for the courts to decide whether the accused soldier was on-duty or off-duty. ‘Only the competent authority’ will decide it. Plainly it means that the concerned formation (unit) would determine that issue.

The fate of the Wamiq Farooq killing case pending in a local civil court hinges on this crucial factor. An off-duty BSF officer is alleged to have shot dead the boy near Srinagar. Similarly, by asserting that a wrongful act committed by the personnel on the basis of mistaken identity or incorrect (intelligence) information would not automatically attract prosecution, the Supreme Court has overturned the logic applied to comparable extra-judicial laws like TADA and POTA in which the onus of proof (of innocence) lies with the accused. In the case of the AFSPA the burden of proof has been shifted to the opposite side. If and when applied to cases pending in various civil courts in the state, the new ruling is likely to sound death knell for most of them. Unless proved otherwise beyond any shadow of doubt, the accused soldier would legally be deemed to have acted with bona fide intention. The new ruling shifts the burden of proof on the investigation/prosecution agencies.

At the end of it all, fears of misuse of AFSPA with impunity are likely to increase, rather than decreasing, as a result of the apex court’s latest ruling. There have been a large number of proven cases where armed forces and para-military personnel have committed murder of innocent civilians to earn awards, rewards and promotion. Fake encounters have been reported even from Siachen where, mercifully, tomato ketchup was used to show blood on bodies. The AFSPA has now acquired a more draconian face and chances of its misuse have also increased.