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AFSPA Row: J&K WAKES UP, BUT LATE, by Sant Kumar Sharma, 15 Feb, 2012 Print E-mail

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New Delhi, 15 February 2012



By Sant Kumar Sharma

Nagging uncertainty lingers over the revocation of the Armed Forces Special Powers Act (AFSPA) in Jammu & Kashmir. While the Centre chooses to be vague even over the demand for a partial removal, the State leadership has decided to make the ‘right’ noises, even if it means breaking a long silence.

Recently, National Conference President and Union Minister for New and Renewable Energy Dr Farooq Abdullah chose to declare publicly that the Pathribal incident in Jammu & Kashmir was a “fake encounter” and those responsible should be punished. The question doing the rounds is why now, over a decade later?   

Let’s rewind to the year 2000 when the incident took place. Five persons were gunned down by the Army on 25 March, at Pathribal, South Kashmir and were branded as Lashker-e-Taiba men, who were behind the killing of 36 Sikhs at Chittisingpura in the same district on the night of March 19-20, 2000.

Remember, Dr Abdullah was then the Chief Minister and Home Minister. Incidentally there is a long and uninterrupted tradition in the State of the CM keeping the home portfolio and the present incumbent, Omar Abdullah, is faithfully following it. The advantage being that all information (or intelligence) comes to the incumbent first and foremost. In case of crisis, or a major incident, the CM gets to hear the news, first hand, from the intelligence establishment.

The question then arises is that Doctor Saheb had access to all the information, reports or inputs from the district police, the special branch, CID etc relating to the Pathribal killings. Given so, it would not have been difficult for him to have formed a fair idea that the encounter was indeed, fake. But, he didn’t say so then. He maintained silence, either by choice, or under duress. Was he under pressure from some quarters i.e. security forces, or some component of the security forces, for the same? Did he choose to be economical with truth and maintained a pregnant silence all these years because he was waiting for an opportune time? Is it now?

Apparently, what made things difficult for the State government then were the killing of nine more civilians when the CRPF personnel fired at protestors at Brakpora, on April 3, a week after the Pathribal killings. The protestors were demanding that those responsible for Pathribal be brought to book. Today, almost after 12 years later, Dr Abdullah appears to be supporting their demand.   

However, at that time, to quell the people’s anger the State government had appointed a commission of inquiry headed by Justice S R Pandian into the Brakpora killings. It was given three months, till July-end to submit its report but it got delayed and was accepted by the State Cabinet only on October 31.  

Acting on the Pandian report, Dr Abdullah ordered the suspension of some policemen, including a SP and two Deputy SPs. “We are going to register an FIR and a team of investigators will be constituted which will prove the case in the court,” he had then stated at press conference. There is nothing on record to suggest anything like this happened. On the contrary, since the Brakpora case was virtually filed and forgotten, it essentially meant that those who died in the April 3 firing were treated as “collateral damage.”

Odd as it may sound, no judicial probe was conducted in the Pathribal killings, which had triggered the Brakpora deaths. This despite, the State Government dropping enough hints initially that it wanted Justice Pandian to inquire into the Pathribal case too.

This line of action was dropped by the Abdullah government later, for reasons best known to it. Yet, under intense public pressure, the Government had ordered DNA tests on the bodies exhumed in Pathribal. Later, it was found that these samples had been tampered with and the bodies had to be exhumed again for fresh samples.

The DNA samples were examined at two laboratories, one located in Hyderabad and another at Kolkata. The State Government chose to remain silent on the reports, until the report from Hyderabad got leaked to the media. And, it was much later that the Pathribal case was handed over to the CBI.

The CBI indicted several men of the 7 Rashtriya Rifles (7 RR), including the then Commanding Officer Colonel Ajay Saxena, presently a Major General. It charged the accused under various sections including 302 (murder), 120-B (criminal conspiracy), under which conviction lead to maximum penalty or a life of incarceration.

After meandering through courts at different levels, the case has fortunately come under sharper focus thanks to the recent comments of judges hearing it in the Supreme Court. Angered by the submissions of the Army counsel, the court asked how killings of “innocent persons” could be treated as bona fide action taken in the line of duty by Army personnel.

The court has also asked the counsel whether the Army wanted its men to stand trial in a military court. The implied meaning was that either they be tried in civil courts as per the CBI chargesheet, or face a trial for the same charges in a military court. Not facing trial in either courts on a technicality was not something that is likely to happen. The counsel will have to argue his client’s case before the apex court in the near future, again.

Incidentally, the Army has, all these years, maintained that the 7 RR personnel, accused by the CBI of having killed five innocent civilians in Pathribal ``fake encounter’’, could not be prosecuted because prior sanction of the Central government had not been taken. The clause pertaining to prior sanction of the government exists in the AFSPA).

With Chief Minister Omar Abdullah keen on lifting it from select areas, the Supreme Court comments have come in handy for him. He has already gone on record saying the manner in which the AFSPA is being used as a shield by the Army to protect the killers of innocent people is reason why this law needs to be reviewed.

Incidentally, a special investigation team (SIT) of Anantnag district police constituted under the orders of the Chief Judicial Magistrate to probe the Panchalthan “encounter” in which the security forces claimed to have killed “five mercenaries,” had also investigated the case in 2000. This team worked under the supervision of then DIG south Kashmir Javid Makhdoomi, who later also worked as IG of Kashmir and is presently a member of the Public Service Commission (PSC).

It is unfortunate that 12 years after the Pathribal incident happened, the slow judicial process has led to a situation wherein a final decision has not been delivered on it yet. The tortoise-like movement of the case has not enhanced the reputation of the State government, the CBI which investigated the case or the Army.

Long ago, Martin Luther King, Jr., speaking about justice had stated: Justice denied anywhere diminishes justice everywhere. This applies well and truly in the present case. Will the State leaderships’ rumblings on AFSPA change anything around? Let’s wait and watch.  –INFA

(Copyright, India News and Feature Alliance)



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