Army has received a rap on the knuckles from the Central Information Commission (CIC) for providing a “misleading” reply to an RTI applicant in an attempt to withhold disclosure of records in the infamous Pathribal fake encounter in Jammu and Kashmir in 2000. In its response to Venkatesh Nayak of Commonwealth Human Rights Initiative, Army had claimed that records related to Pathribal encounter cannot be given citing section 8(1)(h) of the RTI Act, which exempts disclosure of information which would impede the process of investigation or apprehension or prosecution of offenders.
The claims, however, were exposed during a hearing in the CIC, when the representative of Army admitted that no Court of Inquiry has been conducted in Pathribal encounter case, in which five civilians were killed. He claimed that since there was no Court of Inquiry (CoI) in the matter, there were no records to show. The matter was taken up seriously by Information Commissioner Divya Prakash Sinha who cautioned Army to refrain from such “misleading response”.
“Commission takes a very serious view of the fact that the CPIO gave a misleading response with respect to query no 5 of the RTI Application regarding Pathribal encounter vide his reply dated March 11, 2015. He should have ascertained and verified the factual position completely before replying to the RTI Application,” Sinha said in his order.
Nayak had also sought records related to Macchil encounter in which five army personnel were convicted. In Macchil fake encounter issue, Army had withheld the information saying even though conviction of its men has taken place and there is no ongoing investigation in the matter, prosecution cannot be said to be complete as confirmation was pending to be received from army authorities at the time the RTI application was filed.
“Commission observes from the further submissions of the CPIO that there are no tenable grounds for invoking Section 8(1)(h)…,” Sinha said as he ordered disclosure of all records sought by Nayak related to Macchil encounter. In Pathribal encounter, CBI in 2006 had indicted five Army personnel for staging the fake encounter while giving a clean chit to state police.
Eight years later, the Army had closed the Pathribal fake encounter case, in which five civilians were killed, saying that the evidence recorded could not establish prime facie charges against any of the accused persons. In 2010 Macchil encounter, three civilians Shahzad Ahmad Khan, Mohammad Shafi Lone and Riyaz Ahmad Lone, hired for working as porters by the Army, were later found dead with the force claiming to have killed them labelling them as foreign militants.