This is not zero tolerance, Mr. Prime Minister

The Central government's professed commitment to human rights is worth nothing so long as it won't allow the soldiers indicted for murdering innocent civilians in Kashmir to be prosecuted for their crimes...

4 June 2010
The Hindu

This is not zero tolerance, Mr. Prime Minister

Siddharth Varadarajan

I asked Prime Minister Manmohan Singh an unfair question during his big press conference last month. How could he speak of zero tolerance for human rights violations in Kashmir when his government would not allow the prosecution of army officers and jawans charge-sheeted by the Central Bureau of Investigation for the murder of five innocent civilians at Pathribal in Kashmir in 2000? The question was unfair because there was no reason to expect India's chief executive to be aware of the status of an individual case, no matter how gruesome. Or to know why one branch of his government had made out a case for murder against a group of soldiers only to have another branch, the Ministry of Defence, do its utmost to ensure that the indicted men never stand trial.

Like many other questions that day, therefore, mine also went unanswered. I wasn't surprised or disappointed because the reason I asked it was to extract a commitment from the Prime Minister. You see, 10 years ago, I visited a woman named Raja Begum in Anantnag. She was the mother of Zahoor Dalal, one of the five men murdered in Pathribal. Throughout the time I spent in her house, she wept quietly in one corner and didn't say a word. All the talking was done by another relative. As I left, I made one last attempt, asking her whether there was anything she wanted to tell the people of the country. “Zahoor can't come back but those who did this should be punished before my eyes,” she replied. “Why did they pick up an innocent man and murder him? If there is a government, if there is justice, the people who did this must be punished.”

I wrote about Pathribal and its aftermath countless times but wanted to make another push for justice in this case. My question to Dr. Singh, then, was really Raja Begum's, the partial discharge of a debt journalists accumulate as they run from story to story. And as expected, the Prime Minister promised to look into the matter. I have no idea what enquiries or exertions he has made on the case since then but the facts themselves are quite simple. And, in the context of the recent exposé of fake encounters in Machhil in Kupwara, they reveal a pattern of impunity that ordinary Kashmiris will be condemned to endure until India gets a Prime Minister brave enough to put a stop to it.

A group of terrorists, most probably from the Lashkar-e-Taiba, arrived at the Chattisinghpora village in Anantnag district in the dead of night on March 20, 2000. They made all the Sikh men assemble and gunned them down in cold blood. Five days later, L.K. Advani, who was Union Home Minister at the time, told a nation still recovering from shock that the heinous crime had been solved with the killing of five “foreign militants.” In an FIR filed on March 25, officers from the Rashtriya Rifles and the Special Operations Group of the State police said they had managed to corner and kill the five terrorists in a fierce encounter at Pathribal-Panchalthan. The bodies of the men, which had been burned beyond recognition, were buried in a common grave.

Unfortunately for the army, the five men killed were not terrorists or foreign nationals. They were civilians who had been picked up in and around Anantnag on March 24. Apart from young Zahoor, the others named were Bashir Ahmad Bhat, Mohammed Malik, Juma Khan and Juma Khan. Such was the randomness of the operation that it had actually netted two men of the same name from different villages. As the families of the five men searched frantically for their missing relatives, suspicions grew that the “terrorists” buried in the common grave may not be whom the authorities claimed them to be. Protests were held demanding exhumation of the bodies. The demand was rejected, leading to an ugly incident in Brakpora on April 3 where the Central Reserve Police Force opened fire on unarmed protesters, killing nine.

The bodies were eventually exhumed and positively identified by the families of the five missing men. But the government baulked at the implications and insisted on DNA matching. Blood samples were collected, which all turned negative. This was because the police and local doctors, acting on whose instructions it is still not known, switched the samples. When the tampering was exposed in March 2002, fresh samples were collected which conclusively established that the five “terrorists” killed in that so-called joint operation by the Rashtriya Rifles and the police on May 25, 2000 were none other than Zahoor and the others who had been abducted by the security forces the night before.

The State government then ordered a CBI investigation into the killings. The agency took four years to come to the conclusion that the five men had indeed been murdered. It filed a charge-sheet in the court of the Chief Judicial Magistrate, Srinagar, against Brigadier Ajay Saxena, Lt. Col. Brijendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena and Subedar I Khan of 7th Rashtriya Rifles, accusing them of murder under Section 302 of the Ranbir Penal Code. That was in July 2006. Four years on, the trial has yet to begin.

With the full backing of the Army brass, the Ministry of Defence and the Government of India, the five soldiers challenged their indictment on the grounds that the government had not granted sanction to prosecute them. The CBI took the view that the requirement of prior sanction mentioned in Section 7 of the Armed Forces (Jammu & Kashmir) Special Powers Act 1990 was only for protection of persons acting in good faith and that abducting and murdering innocent civilians could by no stretch of imagination be considered something “done or purported to be done in exercise of the powers conferred by this Act.” The Principal District and Sessions judge in Srinagar before whom the case was committed offered the Army the option of trying the soldiers in a court martial. But the Army refused, and the matter went to the High Court which ruled in favour of the CBI in July 2007 that prior sanction was not required. At this stage, the Army (represented by the General Officer Commanding, 15th Corps) moved the Supreme Court, which admitted the appeal in September 2007 and stayed further proceedings before the trial court. Since then, the matter has not moved at all. For some reason, notice to the Jammu and Kashmir government, listed as a co-respondent to the CBI in the GOC's petition, was only served in December 2009.

If the Central government was really serious about ensuring justice, it could have done one of two things at any stage after 2006. It could have granted sanction to prosecute the five army men, ending the legal wrangling over the CBI's indictment there and then. Or it could have gone along with the CBI's rational argument that the protections contained in the Armed Forces Act (and indeed in Section 197 of the Criminal Procedure Code) cannot be extended to cover blatant criminal acts like the murder of innocent civilians. But, no, none of this was done, for the promise of “zero tolerance” of human rights violations is just an empty slogan.

If the Prime Minister feels I am being unfair, let him end the sickening litigation that is preventing Raja Begum and countless other mothers and fathers and sons and daughters of people wrongly killed by the security forces from getting justice. But ending impunity is not just about righting the wrongs of the past. It is also about deterring future criminals. If the men responsible for murdering Zahoor Dalal and four others at Panchalthan had been tried, convicted and punished, I am certain the soldiers who kidnapped and murdered three young Kashmiri men in Kupwara on April 29 in order to claim cash rewards for bravely killing three “terrorists” would not have so easily done what they did. A case against the army officers has now been filed but if Pathribal is any guide, that too will not go anywhere.

The Prime Minister is going to Kashmir next week. When he is asked questions about these cases, he will have to do more than simply promise to look into them.