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Supreme Court judgment on Pathribal case a lost opportunity: Warisha Farasat

May 8, 2012

Guest post by WARISHA FARASAT

The recent Supreme Court judgment on the Pathribal case is a lost opportunity. In the Pathribal encounter killing, five innocent civilians were picked up and killed in a staged encounter by the 7th Rashtriya Rifle of the army. At the time, the then Union Home Minister L.K. Advani had gone on record to say that five Lashkar militants who were responsible for the Chittisinghpora massacre of the Sikhs in the Kashmir Valley had been killed in an encounter. After investigation by the CBI, a chargesheet was filed before the Chief judicial Magistrate, Srinagar, implicating army personnel of the 7th Rashtriya Rifle. In 2006, the army was given the option by the CJM to choose the forum of trial, and to either face court martial or be tried by a regular criminal court. Showing contempt for the CJM, the army personnel refused to face any trial, and asked the CJM to return the chargesheet back to the CBI.

Under the Armed Forces Special Powers Act, 1990, compulsory sanction by the Central government is required before prosecuting any personnel of the armed forces. The Supreme Court has now ruled that the competent authority in the Army shall take a decision within a period of eight week as to whether the trial would be held by the criminal court or by a court-martial, and if they choose court martial then sanction from the Central government is not required.  Given that there has been an unequivocal demand of the repeal of the AFSPA, the judgment could have set the tone for greater accountability for the armed forces that have been operating with impunity in conflict areas. But, unfortunately, it leaves little to celebrate.

The Court narrowly limited itself to the question of whether or not sanction is necessary for court martial. Other than that the court has not added anything significant. While the Apex Court has previously upheld the validity of the immunity clause of the AFSPA, more recently, in 2005, the B P Jeevan Reddy Committee has recommended that the AFSPA should be repealed. Yes, the issue before the Court was primarily whether sanction was needed or not but in its judgment the court has opined upon other issues of good faith and discharge of official duty. In deciding the legal issues at hand, the Court could have leaned towards promoting accountability of the security forces for fake encounters but it has failed to do so.

Foremost, the ruling promotes an unquestioning acceptance of Military tribunals even in cases of fake encounters where these acts were clearly not carried out in discharge of official duty. Can it ever be said that crimes such as rapes or fake encounters are carried out in discharge of official duty? Aren’t these acts guided by perverse incentives of quick promotions and awards?  Given that the Pathribal encounter had been investigated and chargesheeted by the Central Bureau of Investigation, and there was clear evidence of serious transgression by the army officials, there was an opportunity on part of the Apex Court to start unpacking some of these difficult questions. Should these persons continue to enjoy the legal immunities when they have exceeded their brief as army officers? Even though the Army Act provides the option for army officers to be tried by court martial, for cases of fake encounters and such like, we must fall back on the fundamental legal principle of natural justice, nemo iudex in causa sua which means that no person can be a judge in their own cause.

Furthermore, the Court has gone into a confusing discussion on what constitutes good faith. When it delves into the question of what constitutes good faith, it again comes out favouring the armed forces rather than victims of grievous violations. The legal immunity under Section 7 of the AFSPA is circumscribed by the requirement that the act must have been done in good faith. Instead of reading the provision strictly to exclude acts such as fake encounter that are definitely not done in good faith, the Court has given a wide interpretation to the definition of good faith. It opines that “the protection and immunity granted to an official particularly in provisions of the Act 1990 or like Acts has to be widely construed in order to assess the act complained of. This would also include the assessment of cases like mistaken identities or an act performed on the basis of a genuine suspicion. We are therefore of the view that such immunity clauses have to be interpreted with wide discretionary powers to the sanctioning authority in order to uphold the official discharge of duties in good faith.” In effect, the Court has gone into a long and circuitous discussion of what constitutes good faith but failed to interpret it in a manner that would discourage army or security forces to commit human rights violations. The biggest letdown of the judgment is that it lacks any vision or lucidity on the complex legal issues at hand. If in a case involving investigation and filing of chargesheet by the CBI itself, the Court failed to recognise the seriousness of the human rights violation, its position would be even more diluted when victim families or human rights groups would bring allegations against the armed forces.

Finally, it has excluded the judicial review of any decision of the Central government granting or refusing sanction, claiming that their opinion would be absolute. The Court said that “the Legislature has conferred “absolute power” on the statutory authority to accord sanction or withhold the same and the court has no role in this subject.” By explicitly excluding any form of scrutiny of the decision of the Central government, the chances of sanction being granted have become slimmer.

In a sense, the Supreme Court has rendered meaningless the question of accountability for armed forces. Because the most significant point of the Supreme Court judgment is that it gives the option to the army officers involved in the fake encounter the opportunity to be tried either by court martial or the regular court- and if they choose to be tried by the civilian court then the sanction has to be granted or refused by the Central government within three months-perhaps the families of the victims of the fake encounters could have done without this decision. Only because we know that most certainly the errant officers are yet again going to hide behind the court martial proceedings, and justice may never be done.

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