I believe that the law as has been applied particularly in the valley of Kashmir has extensively been abused. There have been many instances where the armed personnel seek protection, rather immunity from prosecution under the said law. When it has proved on investigation that the act of armed personnel was not a lawful act, upon such investigation and conclusions the central government was approached for accord of sanction but the sanction for prosecution has never been forthcoming.
In fact I recall that in some of the cases where we approached the High Court challenging the order declining grant of sanction, it was interesting to note that the executive authority would pinpoint holes in the investigation and on some unconvincing grounds would reject the accord of sanction. We read purely the state interest being involved in such matters. In Kashmir, the state at any cost will protect this armed personnel even the in-house mechanism provided by the Army Act or the BSF Act or the CRPF Act or any other law governing the armed personnel provide their own internal mechanism for setting up court and prosecuting an armed personnel.
But the people generally do not have faith on these in-house procedures. It is quite obvious to even for those courts (court martial) that evidence is required. The court martial proceedings are extremely formal proceeding conducted inside the headquarters of particular battalion or in some remote areas. It is not possible for a witness, ordinary simpleton to attend the sessions nor will he ever know that he has to depose before that court. The atmosphere of those courts is different from the regular civil court. Therefore, even if an in-house procedure is prescribed they become unworkable in a situation where people are reluctant in approaching those courts or in deposing or getting their statements recorded before these courts. Therefore, even if these courts exist, in the absence of any credibility, and in the face of the reluctance of the witnesses who have to depose, I feel that these courts are totally unworkable in present situation in the valley.
Similarly, if those courts do not choose to proceed with the trial, now we understand that as per the decision of the Supreme Court that the central government required to accord sanction before the accused is put up for trail.
On the one hand the in-house procedures are not adequate or effective and are unworkable having regard to the circumstances prevailing in the valley and on the other hand central government’s permission is required before the prosecution which permission has never been granted as the past experience would demonstrate. I feel that in real practical terms it is extremely difficult for the victims of injustice to seek justice and I believe that the decision of the court, being what the law is, I feel that it would be very difficult that for the people who have suffered at the hands of the armed personnel to seek justice.
We thought that there would be a ray of hope in the sense that at least in gruesome offenses, in extremely serious offences, no protection should be available to the armed personnel and that such offence should be trialed in the regular civil courts. The regular civil courts are also the courts created by the state. There is no doubt that these civil courts day in and day out deal with such matters but at the same time people have confidence in these courts and feel free to depose and get statements recorded before the civil courts. I see no reason as to why the army personnel should not be subjected to regular civil court if for them the atmosphere in the courts during the trails would not be suitable.
Similarly, for the person who belongs to the valley and who has suffered at the hands of armed personnel the environment of the court martial or any other court would not be adequate and suitable for a free deposition. I think that the best course in such situation is that the court decision has further reinforced that the laws like AFSPA should be scrapped as early as possible otherwise there is no way to seek justice for the people who have suffered at the hands of armed personnel. They would feel they can do anything with impunity and the people of the state are left without any remedial measures in the practical sense.
Implications of this trial on other fake encounter trials
It will surely have an impact on other trails. Its impact is this that in all such cases which are reported in the Valley and whose trials are pending or are pending on trial, will now have to follow the same procedures that Supreme Court decided for this case. The law would be that the judges, the civil courts cannot proceed without these procedures as have been declared by the apex court. These procedures need to be followed that is the first option is to be given to the army personnel now and further proceedings will depend on the decision taken by the army authorities, till the law AFSPA exists.
