A Kashmir-based human rights body, the Jammu Kashmir Coalition of Civil Society (JKCCS), on Monday described the Supreme Court order to stay “coercive action” against Major Aditya Kumar under first information in the Shopian police station as a favour to the accused, at the cost of the victims.
“It provides yet another opportunity to appreciate the reality of questions of human rights and justice in Jammu and Kashmir. Scuttling of legal processes against the armed forces is only strengthening the belief that there can be no expectation of justice from the Indian State and its institutions,” the rights body said.
It said the order was neither surprising nor a serious setback to the extent that the impunity for the armed forces in Jammu and Kashmir is entrenched.
“While the police rarely file FIRs against the armed forces, it is even rarer for them to carry out any proper or fair investigations resulting in the filing of a chargesheet,” it said.
The Supreme Court on Monday stayed “coercive action” against Major Aditya of the 10 Garhwal Rifles, under first information (FIR) no. 26/2018, after hearing a petition seeking to quash of the proceedings.
The Jammu and Kashmir and central governments have been given the notice to reply to the petition within two weeks. The notice has also been issued on a separate petition seeking inquiry before registration of FIR’s against armed forces personnel.
The FIR was filed on January 27, after the villagers accused the Army of firing on the civilians in Ganawpora hamlet of Shopian district in South Kashmir. Three youths were killed in the army firing.
The JKCCS said the stay of investigations against Major Aditya is irregular and against the established norms of criminal procedure.
“Courts rarely interfere in ongoing investigations. The FIR is a recording of information of a cognizable offence (for example murder and other serious offences). When in receipt of such information, the police are duty bound to lodge the FIR and begin investigations. 'Self-defence', and other such justifications for action, cannot be considered at the stage of registration of FIR and certainly cannot be a basis to quash the FIR (as the petition in the Supreme Court seeks),” it said.
It added: “That is a question for investigations, and more importantly, trial. The army is entitled to its rival version of events (including in the form of a counter-FIR) but the claims of the army cannot be used to prevent the registration of a FIR at this stage and investigations on the version of the victims or other persons that the army firing was an act of murder."
“Further, even when investigations indict the armed forces, either sanction for prosecution under AFSPA is declined or the armed forces successfully transfer the cases to the opaque court-martial process that often result in acquittals,” the JKCCS said.
It said the Supreme Court’s own past record in Kashmir-related cases -- such as the 2000 Pathribal fake encounter and 2010 killing of Zahid Farooq -- has appeared to favour the armed forces.
“The Supreme Court through its past judgments restricted the powers of the lower judiciary, and in this case, it appears even the powers of the police are to be curtailed vis-à-vis the armed forces,” the JKCCS alleged.
“It should be understood that the legal impunity for the armed forces is a consequence of a larger moral and political impunity for their actions in Jammu and Kashmir. It is this wider culture of impunity that influences the legal processes,” the human rights body said.
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