Unpunishable By Law


It is a case where established murderers-men in uniform-of five innocent civilians of Islamabad area has remained un-punishable because of AFSPA, a law that grants the federal Indian forces deployed in Kashmir sweeping powers to the extent neutralizing right to life.  Senior advocate ZAFFAR A SHAH reflects on the recent Supreme Court judgment in the Pathribal faked encounter case which upheld that in order to try the guilty government’s permission is necessary.

The recent judgment of the Supreme Court (regarding the Pathribal case) reported in press has come at a time when the expectations of the people of the state were all together different than what has finally been ruled by the apex court. During the course of proceedings it was given out by the newspapers that the apex court was seriously considering the question as to whether ‘gruesome murder’ committed by the armed personnel would require prior sanction from the competent authority for their prosecution.

The people believed that the court might take the view that it is only in the cases where armed personnel are on active duty and in exercise of their right of self defense they retaliate which results in the serious injury or death of any civilian that the sanction for prosecution is required. But in a case where upon investigation by a credible investigation agency it was established that the death was not the outcome of any self-defense but was cold blooded [murders], and innocent persons had been eliminated. In such a fact situation it was generally believed that the protection of the law providing for sanction of prosecution should not extended to the armed personnel. It is in this perspective that when the newspaper reported the decision of the court that the people were disheartened.

Zaffar Shah

At the same time, I believe that the analysis of the court’s conclusion demonstrates that the court has relied on a law which provides option for obtaining sanction for the prosecution of any armed personnel who is on duty.

The Supreme Court would have diluted the rigors of law by judicial order. If the Supreme Court would have said that the protection is not possible, as the CBI had put their argument in the court, that this protection is not available to the armed personnel who committed the cold blooded murder. The Supreme Court could have found the way but they did not. They took the course of law; they preferred to go with other interpretations of the law.

The court felt itself bound with the law, its language, its purpose and its text and may be the national interest also.

Some newspaper also reported that the intention of the army personnel would also be checked, that if he fired with an intention of committing it or in bona fide. That makes the observation of the apex court more difficult that if an army personnel shoots at somebody, an innocent person, it is still to be ascertained in the court that whether that the army personnel thought he is not an innocent and is likely to cause some damage or disturb the public order that he shot at him. A mistaken belief we may call it.

The court made it a bit difficult. But the court proceeded in the way of the law and this law [AFSPA] is coming in everywhere.

I believe that the fault lies with the law which needs to be scrapped and the court needs not to be blamed. The apex court was involved with the interpretation of the statutory provisions like AFSPA, and may be the provisions of code of criminal procedure and upon their interpretation the court seems to have arrived at the conclusion that the sanction for prosecution was necessary in every such situation where an armed personnel was involved who was on duty in an area where AFSPA was applicable.

I therefore hold the view that AFSPA should go not only because it is abused but as a law also it is bad, draconian, and anti democratic. It deprives one of life and liberty.

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