Pathribal: Force Dictates the Course of Justice

BY CHRISTINE MEHTA

Abdul Rasheed is the son of Juma Khan, one of the five Kashmiri villagers killed in the infamous fake encounter at Pathribal in 2000. Beside him sits Shakoor Khan, also the son of one of the victims.

“The night they took my father, I was sleeping upstairs. I remember hearing the Army barge in and ask for someone to show them the way through the fields. My father was not very well, so I ran downstairs and offered to show them. I remember them saying, ‘No, don’t take him, the children are too young. Take the father,’” Abdul Rasheed said.

The next morning, Abdul Rasheed followed the footprints of the army boots to an Army camp nearby.  On his way, Abdul Rasheed saw someone he knew, Shakoor Khan. “My father was picked up by the Army last night,” he said. “Yes, so was mine,” Shakoor replied.

The two neighbours did not suspect that the incident would become one of the most infamous examples of serious human rights violations by the Army in India. They also did not suspect that the Army would go to extraordinary lengths to ensure that its personnel could evade prosecution for the deaths of their fathers, as well as three more civilians, Zahoor Ahmad Dalal, Bashir Ahmad Bhat, and Mohammad Yousuf Malik.

On March 25, 2000, five persons, alleged to be “terrorists,” were killed near Pathribal village by personnel of the 7 Rashtriya Rifles in an “encounter.” The Army buried the bodies in the forest near the village.

The CBI, which initially investigated the killings, said the incident was ‘cold-blooded murder’ and charged the five soldiers with offences including criminal conspiracy, murder and kidnapping in 2006. The CBI’s charges did not immediately lead to prosecution. The Army instead blocked prosecution citing section 7 of the Armed Forces Special Powers Act, 1990, a provision which provides immunity from prosecution to members of security forces unless permission to prosecute in a civilian court is sought from the central government.

In May 2012, the Supreme Court gave the Army the option to hand over the accused Army personnel to the civilian courts, or to try them by court-martial. The Army chose to institute a military court. Eighteen months later, on 24 January 2014, the Army announced that it had closed the case stating, “lack of evidence” to establish a case against its personnel. Despite the Supreme Court orders, the Army never conducted a trial. It closed the case after the “summary of evidence,” a pre-trial procedure under military law.

The Supreme Court judgment in this case, issued 1 May 2012 clearly stated that “in case the option is made to try the case by a court-martial, the said proceedings would commence immediately and would be concluded strictly in accordance with law expeditiously.”

In the Pathribal case, the Army has brazenly dismissed well-established charges from an independent investigation conducted by the CBI.  Given the authorities’ track record, they will not stand up to the Army first to ensure accountability for wrongdoing. Civilian authorities should be wary. The Army’s closure of the Pathribal case, without even disclosing the grounds for dismissal, demonstrates the limited sense of accountability the Army in J&K feels towards other institutions.

It is inexplicable that the Army felt the need to summon the witnesses yet again, after those same witnesses had already deposed before the CBI, only to conclude that there is no case. Furthermore, the Army managed to delay for yet another 18 months, as it took them that period of time to recall all the witnesses.

However, the Army has remained immune from being held accountable for several human rights violations since 1989. It has little reason to fear action from the central government to address this particular case.

The pursuit of justice in J&K has always been fraught with complications. Families of victims, lawyers and activists in J&K have known for years that impunity is entrenched, by both the state and central governments, and will take serious commitment and political will at the state and Centre to combat.

And the issue is not just the Armed Forces Special Powers Act (AFSPA), which has for some, become a political flashpoint that can serve to mask other, just as insidious, issues that perpetuate impunity. Impunity for the armed forces is also the result of factors not directly related to the AFSPA. Take the killings at the Brakpora protest in 2000, for example.

Seven days after the firing at Pathribal, unrest at Brakpora, a neighbouring village, broke out, as hundreds, including the Pathribal families, turned out to protest the killings. They demanded that the police exhume the informal graves and allow the bodies to be identified. Eight protesters were killed that day in firing by security forces, and 14 were injured.

Like the Pathribal case, accountability for the killings at Brakpora has also remained unaddressed. On 31 January 2014, The Hindu reported that the J&K police had conducted investigations into the firings, and found four CRPF men and three J&K police personnel responsible for “murder by unwarranted firing.”

None of the men were ever arrested. The Ministry of Home Affairs denied permission to prosecute the four CRPF personnel in a civilian court, and no information is available as to whether the CRPF took disciplinary action against the personnel. The police inquiry recommended the three policemen, who had been suspended from service for 13 years, should be treated with “a lenient view” and reinstated. Not only have authorities at the state and central level clearly failed to ensure justice for the victims and their families, they have ensured that men accused of serious human rights violations have not even been brought to trial.

As for Pathribal, it is likely that activists will attempt to appeal the courts to reopen case and try it in a civil court. But will the same cycle start again? Will the Army insist on the requirement for sanction again? Something has to give.

An Army which speaks of ‘zero tolerance for human rights violations’ should have no reason to shy away from proving their personnel’s innocence or guilt in a fair trial. Accountability is the first and most important step to ensure that human rights violations do not happen.

The Army needs to start backing up its talk with action.

-the writer is currently a researcher for Amnesty International India

-courtesy: DNA