dna edit: Failure to deliver meaningful resolution in Pathribal fake encounter case shows AFSPA has undermined state and society

The army’s decision to close the investigation against its personnel accused of killing five civilians in the Pathribal fake encounter case in 2000 comes as no surprise. That is one of the incident’s many tragedies. After 14 years of army stonewalling and inadequate government action, the odds were always against a meaningful resolution — something reflected in the cynicism with which the people of Jammu & Kashmir perceived the inquiry. That cynicism has its roots, as well, in the wearying succession of human rights violations that have gone unpunished over the past two decades and more. Pathribal is now added to that list, further testament to the manner in which the Armed Forces Special Powers Act (AFSPA) has undermined the foundations of society and the state in the valley.

The Pathribal incident is a textbook example of how not to deliver justice. From the beginning, army culpability for the killing of the five civilians — claimed by security forces to be the foreign militants responsible for the murder of over 30 Sikhs in Chattisinghpora village a few days earlier — was rarely in doubt. But at every step of the investigation, the facts of the matter were obfuscated. First, the bodies, were burnt and buried in a common grave; then, the authorities refused to let them be exhumed for further investigations. And when they did, it was discovered that the DNA samples sent for identity matching had been switched.

What came next was even more problematic — and it highlights the dangers of allowing AFSPA to empower the armed forces in a manner that the constitutionality of their actions becomes a moot point. When the CBI launched an investigation at the state government’s directive and concluded in 2006 that the civilians had been murdered, it filed a chargesheet against five members of 7th Rashtriya Rifles. But the army and the central government did not grant sanction for the prosecution of the accused, and shot down the CBI’s argument that the ASPA afforded protection only to army personnel executing their duties in good faith, clearly not the case in Pathribal.

The government has thus, over the course of the Pathribal case, managed to increase the scope of the damage caused by AFSPA. In essence, it has pushed the point of view that the legislation is not just meant to protect army personnel from civilian oversight with regard to fulfilling their duties — dangerous enough in itself — but to shield them from the consequences of any action, no matter how blatant the criminality or ill intent. Little wonder the human rights situation in the state is as dire as it is. Pathribal, after all, comes on the heels of 163 probes between 2003 and 2012, of which none have managed to deliver justice. And repeated RTI enquiries have failed to elicit any information from the authorities about the processes of justice.

When the army decided in December to court martial six of its men for their involvement in the Machchil fake encounter case, it had been proffered as proof of the army policing its own. At the time, Lt Gen Gurmit Singh, commander of 15 Corps of the army’s Northern Command had said: “I don’t want any such person in the Indian Army who is found guilty of rights violation and any such official, whosoever he may be, will be prosecuted.” The Pathribal verdict shows just how vast the gulf between such sentiments and the reality is.