No Immunity in Rape and Murder Cases Under AFSPA: SC
By Syyed Mansoor Agha
Updated Sunday, 05 February 2012 12:02:10 - IST (UTC +5:30)
Giving huge relief to the victims of murdered citizens in “fake” encounters by security forces and moral boost to Human Rights Activists in certain parts of India, where AFSPA is enforced, the Supreme Court of India on Friday, (Feb 3) has questioned the extent to which the Army can claim blanket immunity under the AFSPA. The Hon Court declared that heinous crimes like rape and murder committed by Armed personnel should be considered a “normal crime”, and that there is “no question of sanction” from the government before prosecution of offenders in such cases. Under AFSPA, prior approval is required before prosecution. No 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,” the bench told to Additional Solicitor General P P Malhotra, representing the Army.
Army personals killed five locals on March 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 killed persons buried as LeT insurgents were poor locals from nearby villages of Brariangan, Halan and Anantnag. Army also 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 postmortem 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 30 March in the presence of public representatives and were identified by the villagers as locals. It was alleged that after Chattissinhpura incident up to 17 men "disappeared" between 21–24 March. These persons were reportedly detained by security forces from different places. It was promised that action will be taken against errant personals but army did not relent. It triggered wide spread protests in the valley and killing of 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 authorizes to be tried in civil court where a case is already pending. The proceedings in 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 center did not relent to grant permission.
Additional Solicitor General P P Malhotra, on behalf of 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 trial in local civil court may be concluded.
The Supreme Court maintained on Friday that AFSPA gave “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 by adduced that killings took place as a perverted tactic to control civil strife by creating sense of insecurity and fear psychosis in the local populations. Killing and rape has been old age tactic of feudal era, however deployment of the same in democratic world is highly deplorable.
In a recent report Human Rights Watch World 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 Monday, 23rd January 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 defense 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 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 Supreme Court’s strong view against misuse of AFSPA to protect fake encounters, killings in custody, enforced disappearance of people in disturbed area and rape cases, situation will improve. There is no denial of the need that armed forces should continue to get genuine protection while dealing in harsh conditions but it does not means that life and dignity of locals may be compromised in any way.(in pic: A mass graveyard in a Kashmir village)
(syyedagha@hotmail.com)
Tags: Syyed Mansoor Agha AFSPA, rape, murder, forced dis-appearance, Kashmir, Assam, NE, fake encounter
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