Comment

In the more-than-a-decade-old Pathribal fake encounter case, the apex court has pulled up the army for obfuscating the delivery of justice: “The matter is pending for the past 10 years. How do you expect the citizens of India to wait? You [the army] create a situation where no one is able to take a decision. You can’t play around with the court.”

Usually courts are bit circumspect in dealing with issues relating to the armed forces. But that seems to be changing with the strong observations made by Justice BS Chauhan and Justice Swatanter Kumar during the hearing of two similar encounter cases in Assam and J&K, clubbed together.

The bone of contention is whether army personnel under the infamous Armed Forces (Special Powers) Act (AFSPA) enjoy complete immunity from prosecution even when they have, prima facie, exceeded the law with mala fide intention to cause injury. The Pathribal fake encounter is unique in the sense that one state institution is pitched against another; the CBI is pressing for prosecution of the accused. The army, using a plea under AFSPA — “CBI cannot prosecute them without the central government’s permission” — as interim relief was able to secure a stay from the apex court.

Solicitor general Harin Rawal, appearing for the CBI and pressing for the stay to be vacated, made a scathing remark: “They [the army] want to bury the case.”What infuriated the court was the stonewalling by the additional solicitor general defending the army.Pointedly asked by the court if the army was prepared to initiate court-martial proceedings against the accused officers, the additional solicitor general insisted that even for court martial proceedings prior permission was required. “If that is the case, no army personnel can be prosecuted,” the judges retorted. “Give us even one instance of the army seeking prior sanction of the central government for court martial proceedings.”

The strong censure by the Supreme Court has brought the focus back on the AFSPA debate. Chief minister Omar Abdullah, evidently peeved by the army’s resistance to the repeal of AFSPA from select areas of the state where the army is not operating, remarked, “Unfortunately, there is more resistance than I would have liked from the army for reasons I don’t understand.”

Undeniably, the army’s resistance invokes sharp reactions from victims of grave human rights violations. Habitually, the army tries to condemn any criticism of the glaring instances of rights violations as Pakistan-sponsored propaganda to defame it. Irrespective of any separatist agenda, numerous incidents can be cited wherein security personnel overreacted or committed blatant excesses against the civilian population. The army is not prepared to undo the wrongs. Moreover, despite the situation improving considerably, it is not inclined to reduce its imprint. The army wears a typical aura of patriotism on its sleeve. What is more, it believes that it is (still) untouched by corrupt practices prevalent in society. The moral fabric of society is experiencing tremendous duress; how can the army claim to remain unaffected?In comparison to other state institutions, the army is a disciplined force. To maintain its fighting edge, it has to act professionally. Otherwise it may turn out to be a slack force resembling the Home Guards.

People belonging to the valley might be accused of harbouring anti-army feelings for a variety of reasons. Yet, an objective reading of the army’s behaviour in the valley provides enough evidence that it has developed a strong interest to remain relevant to the situation.

The Supreme Court’s reprimand needs to be analysed along with other two serious developments: the concocted security threat in the wake of the recent Rushdie controversy and Parliament’s public accounts committee indicating “glaring deficiencies” and “deep-rooted and widespread malpractices” in the supply chain management of the army.

The potential of the security apparatus to fabricate an imaginary threat is beyond any doubt.Corruption in the army may not be as rampant as in the rest of society, but the army, too, is plagued by the menace. The security threat in the valley is certainly real. Whether this warrants the army’s endless interference is a moot point.

In view of the army’s continued insistence, let AFSPA stay wherever the army wants. Meanwhile, the government should at least withdraw hundred of crores granted to the army for Sadhbhavana operations. It has proved a big drain on the exchequer. The resistance to the repeal of AFSPA will fade in proportion to the termination of the Sadhbhavana operation.

firdoussyed@yahoo.com