“AFSPA or no AFSPA, there will be impunity to armed forces,” is the message to people of Jammu and Kashmir. This was stated by Jammu Kashmir coalition of civil society while describing the that the experience of the people of Jammu and Kashmir with armed forces court-martials has been one of zero transparency, and a consistent obfuscation of the truth.
“The armed forces have routinely refused to share information on the court-martials, and have often shielded the guilty. Further, the process has been consistently difficult and abusive for the families of the victims,” JKCCC said in a statement on Sunday.
They were referring to case of Zahid Farooq, who was one among many killed by State forces in 2010 that led to widespread protests in Jammu and Kashmir.
“On 14 September 2013, the Chief Judicial Magistrate [CJM], Srinagar, allowed the BSF to carry out a court-martial of its men in the case of the extra-judicial killing of Zahid Farooq on 5 February 2010. The legal journey of this case resulted in a chargesheet, filed on 6 April 2010, against 68th Battalion BSF personnel, Commandant Randeer Kumar Birdi and Constable Lakhwinder Kumar. The question of the right to try the BSF personnel in a civilian court, as opposed to court-martial, was litigated up to the Supreme Court. The family of the victim submitted that the BSF men must be tried in a public, fair and transparent manner before a civilian court. On 25 April 2013, the Supreme Court passed judgment, allowed the BSF another opportunity before the lower court to seek transfer of the case to court-martial, and most unfortunately upheld that the actions of the accused were done while on “active duty”, they said in a statement.
While referring to the judgment, JKCCC said that, “the CJM’s judgment provides more than mere disappointment to the family of the victim, and the people of Jammu and Kashmir. It strengthens the understanding that the Indian State will not allow the processes of justice to function. Impunity for the armed forces will be ensured.”
They further added that,” as the forces continue to violate the rights of the people, from killings to harassment, the CJM failed in asserting his judicial will and ordering that the case continue in the civilian court. This despite even the Supreme Court stating in this case that “there is no connection, not even the remotest one, between their duty as members of the Force and the crime in question”. As per law [Section 81 of the BSF Act / Para 58 of the Supreme Court Pathribal judgment in relation to the Army Act], the CJM need not blindly acquiesce to the request of the BSF, as it appears to have done in its 14 September order.”
Expressing disappointment, JKCCC said that, “very few Jammu and Kashmir human rights related matters have gone to the Supreme Court. Despite this exhausting legal journey for the family of Zahid Farooq, the processes of justice have resulted in the armed forces ensuring control over the trial of its men. On 10 February 2010, Chief Minister Omar Abdullah stated that AFSPA would not come in the way of justice in this case. In fact, AFSPA has not as the case did not even reach the stage of sanction for prosecution being sought. What has come in the way is the will to ensure justice.