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Journalism of Courage
Nearly four years after the CBI prosecution of five Army officers involved in the Pathribal encounter in Kashmir was stayed by the Supreme Court,the government has moved the apex court for day-to-day expeditious hearing of the case which will bring into question the limits of the Armed Forces (Special Powers) Act.
It is learnt that both CBI and Defence Ministry are on the same page on expediting hearings. This has been conveyed to the Supreme Court a little over a month ago. The decision was taken after efforts to resolve differences between the armed forces and CBI could not make much headway though both sides recognised the need to resolve the matter soon.
The Home Ministry took the lead when the J&K government highlighted this case as not just an impediment in bridging the trust deficit between people in the Valley and the government,but also as an example of how the AFSPA is misused. The Home Ministry took up the matter with the Defence Ministry,asking why it could not give CBI the sanction to prosecute the five accused.
The Defence Ministry said the CBI had never officially sought sanction and if it were to do so,the request would be given objective consideration.
The entire case,in fact,rests on that question. The CBI informed the Home Ministry that it cannot make such a request because that was the legal position it took right at the start.
The case dates back to March 2000 when five youths were allegedly shot dead by the Army in an encounter in Pathribal and then declared foreign terrorists. Following local complaints and protests,the bodies were exhumed and DNA samples taken. Tests confirmed that the youths killed were not terrorists but locals who had allegedly been picked by security forces.
The state government then asked for a CBI probe. After four years of investigation,the CBI framed charges against five Army officers including a Brigadier. The Army challenged the CBI move,citing Section 7 of AFSPA which provides protection to officials acting in good faith and states that prosecution is permitted only after sanction of the Central government. Section 4 of AFSPA allows the military to carry out arrests and searches without warrant,and to use force even to the extent of causing death.
Reading both sections together,the Army argued that the CBI could not possibly indict its officers without prior Central sanction which,in this case,should come from the Defence Ministry. The CBI,however,took the line that the section would have applied only if officials had acted in good faith but in this case,they had overstepped and the AFSPA did not provide protection from murder.
While the CBI got favourable rulings from lower courts and the J&K High Court,the Supreme Court stayed the prosecution. In this backdrop,the CBI felt it could not go against the legal position it had taken until now and seek sanction from Defence Ministry. Each side felt it had a strong case. Given this situation,the government instructed the two departments to move for expeditious hearing of the case. So for the first time,the limits of AFSPA and what can constitute good faith will come under sharp focus.
