Opinion Officers mess
Why even the new evidence may count little in the Samba spy case.
Recently,one more damning piece of evidence has emerged to expose the flaws in the armys testimony in the Samba spy saga. The postmortem report of Havaldar Ram Swaroop in the Delhi government records has been finally traced after 32 years. It nails the armys lie that Swaroop,who died three days after being taken into custody by the Military Intelligence (MI) for interrogation,had died of a drug overdose. The report says the havaldar died while he was in a coma and that there were 39 fresh abrasions on his body.
Unfortunately,judging by past precedence,this fresh piece of evidence may count little in this case. It is now more than three decades since some 50 officers and jawans from the Samba Regiment posted in Jammu were falsely accused of spying for Pakistan,tortured,court-martialled and jailed for long terms. (The motive seems to have been three MI officers attempt to ingratiate themselves with their seniors and cover up their lapse in not alerting the authorities of minor spying activities of a gunner named Sarwan Das.) The fact that the convicted spy Sarwan Das,on whose testimony all the Samba arrests were made,has long since retracted his statement and confessed that he had been held in a torture chamber and coerced by the MI to implicate others,now seems to be of no consequence. The Intelligence Bureau that was asked to investigate the Samba case dubbed it a hoax. Former IB chief T.V. Rajeswar tried to take up the issue several times with the government,but could make no headway.
It is a sad reflection on the system that once a false case is registered in the name of national security,it is almost impossible to retract,even if facts cry out for a mea culpa. When national security is cited,institutions meant to administer justice seem to get paralysed into inaction and take shelter in endless circumvention and passing of the buck.
Despite an amendment to the Army Act 1950,and the introduction of the Special Armed Forces Tribunal in 2008,the army still fights tooth and nail to keep its disciplinary proceedings outside the purview of any appellate body. Consequently,the Samba petitioners have been fighting in the courts for decades without making any substantial progress. True,it was in the context of the Samba case that in 1994 a three-member bench of the Delhi high court headed by the late Justice Sunanda Bhandare ruled that Section 18 of the Army Act read with Article 310 of the Constitution invoking the doctrine of presidential pleasure makes army justice subject to judicial review and this landmark judgment was later held up by the Supreme Court in November 1994. Again,in 2000,there seemed light at the end of the tunnel when judges K. Ramamoorthy and Devinder Gupta of the Delhi high court called the Samba spy case a gross miscarriage of justice. They exonerated the two officers,Captain R.S. Rathaur and Captain A.K. Rana,who had filed appeals and set aside the court martial of seven other officers whose services had been unfairly terminated.
But subsequently,the petitioners found themselves hitting a brick wall. In 2006,an SC bench headed by Justice Arijit Pasayat directed the high court to re-examine the case of Rathaur and Rana on the principle of res judicata. In the light of the SC direction that finality in law is of foremost importance,the Delhi high court duly quashed the cases of the two petitioners in 2007. Ironically,judicial propriety demanded that Justice Pasayat should have recused himself from hearing the case in the SC. Eminent jurist Soli Sorabjee acknowledges that a well-established judicial norm is that a judge who had delivered a judgment cannot sit in appeal over that very judgment where it has been taken up in appeal. In March 2001,Justice Pasayat had dismissed the petition of Angoori Devi,the widow of Ram Swaroop,whose postmortem report has finally been traced,and this judgment was contradictory to the judgment by Gupta and Ramamoorthy. While Pasayat convicted Swaroops superior Major R.K. Mirdha,the latter judgment had acquitted Major Mirdha,whose services were terminated after he refused to testify against the havaldar found dead in mysterious circumstances.
In October 2001,Sarwan Das voluntarily confessed before a Mumbai magistrate that he had given false evidence against the Samba accused. Nevertheless,Dass affidavit was not included in the documentation before the SC,despite the magistrates order to do so.
Hopes were once again raised last year when the Samba cases were transferred from the courts to the Armed Forces Tribunal. But the tribunal now seems to have washed its hand of the matter on grounds of technicality. The accused are still running from pillar to post in the SC and the high court.
Share
