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Journalism of Courage
The Supreme Court has given the Army eight weeks to declare what kind of a trial it wants for the officers accused of the Pathribal killing. What the Army gets back with is anybodys guess given the way it has treated the officers chargesheeted by the CBI.
The then Commanding Officer of 7 Rashtriya Rifles,Ajay Saxena,who led the alleged encounter,has risen to the rank of Major General. There have been promotions also for then Majors Brajendra Pratap Singh and Sourabh Sharma,who allegedly participated in the fake encounter,and for then Major Amit Saxena who allegedly prepared a false memo showing the recovery of arms and ammunition and gave a false complaint to the police for registration of the case.
Indeed,the fact that these officers had been chargesheeted by the CBI was never considered a factor by the Army authorities during promotions and postings,matters in which the Army otherwise follows a strict procedure. The Army represented and defended the officers as an institution,not only providing them legal support but making the General Officer Commanding the main appellant in the case before the Supreme Court.
Incidentally,Tuesdays Supreme Court order does not mark the first time that the Army has been given the option of a court-martial for the accused officers. In 2006,after the CBI submitted its chargesheet,the chief judicial magistrate,Srinagar,granted opportunity to the Army to exercise the option as to whether the competent military authority would prefer to try the case by way of court-martial by taking over the case under the provisions of Section 125 of the Army Act,1950.
The Army instead asked the court on May 24,2006,to close the proceedings by returning the chargesheet to the CBI because no prosecution could be instituted except with the previous sanction of the central government in view of the provisions of Section 7 of the Act 1990 [Armed Forces (Special Powers) Act.
Tuesdays order has turned the wheel full circle. In essence,all that the Supreme Court has said is that the question of sanction does not arise if the Army decides to proceed with a court-martial. On sanction for prosecution,the court has observed 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.
The ruling did not end the ambiguity in the definition of acts purported to be done in good faith a clause in the AFSPA is often used by the Army to defend personnel involved in alleged fake encounters in Jammu and Kashmir. The court maintained that an act which may appear to be wrong or a decision which may appear to be incorrect is not necessarily a malicious act or decision. The presumption of good faith,therefore,can be dislodged only by cogent and clinching material and so long as such a conclusion is not drawn,a duty in good faith should be presumed to have been done or purported to have been done in exercise of the powers conferred under the statute.
