Come clean on AFSPA: Apex Court to Centre

Come clean on AFSPA: Apex Court to Centre

PRESS TRUST OF INDIA

New Delhi, June 16: Irked by the Centre’s diametrically diverse views on Army and paramilitary forces’ immunity from criminal prosecution in fake encounter killings, the Supreme Court on Thursday asked the government to spell out its position on the controversial Armed Forces Special Power Act (AFSPA) and other laws.


“You cannot say that an Army man can enter any home commit a rape and say he enjoys immunity as it has been done in discharge of official duties,” the apex court remarked. The apex court made the remarks after senior counsel Ashok Bhan, appearing for the Centre, voiced divergent views on two separate encounter killings involving military personnel in Jammu and Kashmir and Assam.“How can you adopt diametrically different views?” the Bench said, to which Bhan admitted it was “compulsions of his professional duties.”In the aftermath of 2000 Chattisinghpora massacre in Jammu and Kashmir, when five youth were killed in an alleged fake encounter by Rashtriya Rifles personnel at Pathribal in Anantnag, Bhan sought prosecution of the armymen whereas in a similar alleged fake encounter by CRPF men in Assam, the counsel said they enjoyed immunity.


He urged the court to de-link the two issues and deal with them separately.However, the Bench said since “the issue involved vital questions of law relating to public”, the matter would be taken up for a detailed hearing immediately after vacation. The court asked the government to clearly spell out its stand on two issues: whether army and paramilitary personnel enjoy immunity from criminal prosecution for any penal offence committed in discharge of their official duties including fake encounters and rapes vis-a-vis AFSPA, Section 197 CrPC and Section 17 of the CRPF Act.Should the investigating agency like CBI conduct a preliminary inquiry into such killings before registering an FIR against accused army and paramilitary personnel.

BACKGROUND


On the evening of 20 March 2000, unidentified gunmen entered Chattisinghpora village in Anantnag district killing 35 members of Sikh community there.Five days after the Chattisinghpora massacre army and Special Operations Group (SOG) of police killed five men at Pathribal, claiming that the victims were “foreign militants” responsible for the massacre of Sikhs. The bodies were buried separately without any post-mortem examination.Local observers and political activists doubted the government’s official reports, pointing out that if there had been a gunfight, some of troops would have sustained injuries - but none were injured. Over the following days, locals began to protest, claiming that the slain men were ordinary civilians who had been killed in a fake encounter.According to them, up to 17 men had been detained by the police and “disappeared” between March 21 and 24. On March 30, local authorities in Islamabad relented to the growing public pressure and agreed to exhume the bodies and conduct an investigation into the deaths.With no action being taken with regard to the promised investigation into the Pathribal deaths, the local population grew increasingly restless. On 3 April 2000, an estimated 4000 to 5000 protesters started marching to the Islamabad town, where they intended to present a memorandum to the Deputy Commissioner demanding exhumation of bodies. When they reached Brakpora village, 3 KMs from Islamabad, the paramilitary CRPF men posted in a nearby camp and SOG personnel opened fire on the protesters killing seven and injuring at least 15 more, of whom two later succumbed to injuries.


On 5 April 2000, then Chief Minister Farooq Abdullah ordered exhumation of bodies from Pathribal killings, which began the next day. DNA samples were collected from the five bodies as well as 15 relatives of the missing young men, and were submitted to forensic laboratories in Kolkata and Hyderabad. However, in March 2002 it was discovered that the DNA samples allegedly taken from the bodies of the Pathribal victims (all of whom were men) had been tampered with, when, according to a report from the Times of India, lab workers found that samples had in fact been collected from females. Fresh samples were collected in April 2002, which, upon testing, conclusively proved that the victims were innocent local civilians, and not foreign militants as government had been claiming for the past two years.


Meanwhile, the government headed by Dr Farooq Abdullah ordered a judicial enquiry into Pathribal fake encounter case and Brakpora firing under Justice S R Pandian. What happened to the enquiry isn’t known till date.Later on, the Pathribal case was handed over to the CBI. In 2006, CBI found five army personnel guilty. The case is pending disposal in the Supreme Court.