J&K Judiciary can’t shut eyes to Army chief’s slur

Bar chief Qayoom’s being ‘rabidly anti-India’ doesn’t mean courts have no credibility in J&K

Ahmed Ali Fayyaz

SRINAGAR, Jan 17: In the middle of 2006, Central Bureau of Investigation (CBI) completed investigation in the infamous Pathribal fake encounter of March 2000. The Challan produced in the court of Chief Judicial Magistrate (CJM) Srinagar, that happens to be designated court of CBI cases in Kashmir, established that men from a unit of Rashtriya Rifles 7^th Bn had kidnapped five innocent civilians from their respective localities in Anantnag district and subsequently killed them all with the label of “foreign terrorists responsible for massacre of 35 Sikhs at Chittisinghpura on March 20, 2000”.

It was probably for the first time that an “Indian” institution had established its credibility in 16 years of the conflict in the Valley. Those found guilty of killing innocent civilians included five officers. One of them, who headed the unit as a Major in 2000, had reached the rank of Brigadier and was posted somewhere in Maharashtra.

Even as CBI contested that special powers could not be misused to protect the personnel committing crime when not on duty, defence lawyers insisted that in any circumstances no soldiers posted in J&K could be tried as normal murderers. They argued that J&K Armed Forces Special Powers Act would serve as immunity to any soldier whether on duty or otherwise. Within days, Army provided institutional support to the accused when one organization of  the Government of India went to fight another organization of the union government (CBI).

Years later, when the Machhil fake encounter surfaced in May 2010, Army sought to make it clear through a host of statements that justice would be done without providing institutional support to the soldiers in any found involved. All the three “unidentified terrorists” were found as none other than the civilians of a Rafiabad village hired as porters. Living witnesses revealed that the innocent civilians had been “bought” for Rs 50,000 each and eliminated as “infiltrators” so as to claim reward money and higher ranks.

Army might have reasons to be disappointed with the way Sopore Police handled the accused. It might have found stimulants of displeasure during proceedings at a civil court in Sopore. But, soon the angry institution, like in Pathribal, delivered its ‘judgment’---of supporting the accused in all circumstances---when it approached far higher judicial forums, while claiming that the soldiers should enjoy immunity under provisions of AFSPA.

Even as both matters were sub judice, Army Chief, Gen V K Singh, delivered his own ‘judgment’ in New Delhi on January 14^th---not on AFSPA but on credibility of entire judiciary in Jammu & Kashmir.

"I don't know how much you are aware of the legal system in the valley. There are various pressures out there. You are aware of Mian Qayoom Khan, who was President of the Bar Association and now he is in detention and he has been rabidly anti-India. Now, with that kind of a situation, what kind of a justice we would expect and legal provisions would be followed, leaves a question mark," he told a press conference. Gen Singh was responding to a journalist’s question on the Machhil ‘fake encounter’.

Commenting on the inquiry in the case, he said, the probe was delayed initially "because of the local courts putting a ban on the witnesses being available to the Army and after that, there were lot of legal wrangles in trying to get the issue sorted out."

Tolerating “rabidly anti-Indian” elements has been unmistakably a weakness of the Indian democratic system for which J&K judiciary can not be singularly abused. Citizens from Arundhati Roy to Syed Ali Shah Geelani to Mian Abdul Qayoom are pretty aware of that. Who doesn’t know, Srinagar-based High Court Bar Association of Mr Qayoom served as a constituent of the separatist umbrella, All Parties Hurriyat Conference? Who doesn’t know, Qayoom was appointed as head of the Valley’s first secessionist amalgam, Tehreek-e-Hurriyat, as early as in 1990? Who doesn’t know he has been pleading for Kashmir’s separation from India everywhere, be that a judge’s chamber or a street in Srinagar? Who doesn’t know he told a High Court judge on record that he didn’t consider himself as an Indian citizen?

But, does this infinite tolerance of the Indian democratic system discredit entire judiciary in J&K? Gen Singh perhaps needs to learn that all judges of High Courts, who control the subordinate judiciary, are appointed on warrants of the President of India---Supreme Commander of all Indian defence forces. If, according to him, all judges are susceptible to “various pressures” from the “rabidly anti-Indian” legal practitioners, he is clearly questioning competence of not only the country’s agencies certifying integrity of would-be judges but also that of the Supreme Commander of all defence forces.

Chief Justice is far away in Gowahati and his colleagues on the month-long winter vacation. But a many eyes seem to be inquisitive whether custodians of the sanctity and credibility of judiciary would persist with the tradition of “tolerance” or assert to make it clear whether the Indian Army chief was right or wrong in declaring the J&K judiciary as subservient to “various pressures” from “rabidly anti-Indian” elements. Days to come may make it clear whether the instrument of “suo motto cognizance” was restricted to only “sex scandals” or free enough to the courtyard of the executive’s strongest arm.

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