The Army Take On Pathribal And Machil In Kashmir

Syed Ata Hasnain

Seema Mustafa’s article ‘Army plays politics with fake encounters in Kashmir, is likely to upset many soldiers and rightly so.

Firstly, it is a commentary, like many others doing the rounds, without trying to understand the military justice system. These are all based on the recent decision of the Army not to pursue the infamous Pathribal case any longer but pursue the Machil fake encounter case with convening of a general court martial (GCM). Secondly, it once again rakes up a dead issue, the tiff between the former Army Chief, Gen VK Singh and his successor, the current Army Chief, Gen Bikram Singh; going to the extent that the decision to prosecute the alleged perpetrators of Machil and not to do so in the Pathribal case is linked to the standoff between the Generals.

As one who has served both the Chiefs and having reasonable knowledge of the two incidents being referred I am duty bound to clear the air, although it may have been better for the Army to officially do so.

The only linkages that the two Chiefs have to these cases are purely co-incidental. Gen VK Singh was the Colonel of the Rajput Regiment right through his tenure as ‘Chief’; Machil was allegedly perpetrated by 4 Rajput, one of his many units, during the early part of his tenure. However, no Chief comes in the way of military justice and a description of the events will explain why and how. The Machil incident occurred in mid 2010 and came to fruition as a legal case to be tried by a GCM only in Dec 2013. Neither of the two Chiefs was handling the case at any stage; it was being handled at Srinagar with advice from Udhampur and Delhi; although overall responsibility of anything related to the Army is obviously the Chief’s.

From all perceptions Machil was like an open and shut case and the Army had no hesitation to apply to the Chief Judicial Magistrate and thereafter to the Sessions Judge to take over the case, since it was one of dual jurisdiction (meaning it could be progressed through civil or military justice with first call resting with the military). Both courts denied the Army taking over the case.

The Army pursued the case in the J&K High Court where it awaited a verdict for almost two years and secured a favorable one. That led to the recording of Summary of Evidence(S of E) to support the charges and with application of mind by the competent authority to the evidence, to the decision to convene a GCM. Obviously the evidence on record substantiated the assumption that the case could be taken to a logical conclusion. It may be recalled that ten years ago the Army similarly prosecuted an officer on charges of alleged rape, found him guilty of attempted molestation, dismissed him from service only to have a higher court find fault with the quantum and quality of evidence and set aside the judgment.

In the military justice system evidence to support the charges is given great importance even before the case formally comes up before a court martial. General VK Singh did not attempt to influence the flow of justice and the current Chief probably never gave it a second look considering how much evidence was available. The decision was purely on merit.

Any Chief will carry out witch hunting of his predecessor’s regiment at the cost of his personal reputation. In fact, the record shows the opposite. A large number of deserving officers of the Rajput Regiment have been promoted or approved for senior ranks and prestigious appointments during the tenure of the current Chief; the Army Commander Northern Command is a Rajput Regiment officer; the Commandant (another Rajput Regiment officer) of the Training Team in Bhutan appointed by Gen VK Singh has gone on to complete time beyond his tenure; a very fine unit of the Rajput Regiment is doing yeoman service in the United Nations. Speculation about the Army’s decisions based on issues other than merit thus needs to be rested.

Now, the Pathribal case. The first erroneous impression needs to be dispelled. There has been no court martial. As explained earlier, the military justice system is based on collection of sufficient evidence to support charges before the concerned empowered authority applies his mind to decide whether the case should be tried by a court martial. The Pathribal case has only came to the S of E stage. Before that it went through an elaborate tug of war regarding jurisdiction almost something like the Machil case.

It was the Supreme Court of India which finally gave the Army the choice of taking over the case or trying it through civil justice system (as in case of all dual jurisdiction). To pursue through civil justice it was presumed that Central Government approval would be required under AFSPA-90; the Army went ahead and decided to follow military justice. An S of E was convened and the charges were the same as drawn up by the CBI. The CBI deposed before the officer deputed to record the evidence, as did approximately 55 others. When problems were posed by the relatives of the deceased the officer deputed to record, moved to the Valley to facilitate recording in an environment where the witnesses would not feel constrained and intimidated.

The intent here is not to comment on the emotive aspects of Pathribal but readers need to possibly be aware why this case has come to be mired in so much controversy. Four events took place in quick succession in Mar and early Apr 2000. First, the unfortunate killing of 36 innocents at Chattisinghpura on night 19/20 Mar; second, the alleged encounter on 24 Mar in which five alleged terrorists were killed in a joint operation of 7 RR and JK Police and weapons allegedly recovered; third, the killing of seven protestors (protesting the alleged fake encounter) by the Police at Brakpura, near Anantnag on 2 Apr 2000; and finally the alleged fudging of the DNA samples and records taken for establishing the identity of those killed at Pathribal. The JK Police later denied its involvement in the joint operation and the CBI gave it a clean chit when it completed its investigation six years later. The Army’s stand all along was that it had been led into the operation by the Police and conducted it jointly. Public perception was accentuated by the quick series of events and the controversy only kept multiplying without any clarity at any stage.

Finally, it has reached the current stage where the Army says that it has insufficient evidence to convene and proceed with a court martial. The CJM Srinagar has apparently asked for a detailed report on the analysis of evidence. What the future course will be is difficult to predict as legal luminaries will probably examine the aspects of dual jurisdiction and the scope for re-investigation. What is suffice to know at this juncture is that the decision of the Army not to proceed further with the case is probably based on legal advice and previous experience. It has nothing to do with personalities; the Army cannot afford to have its legal cases proceeded upon on the basis of personal interests and bias. That would be sacrilege for an institution known for fair play and transparency.

(Lt General Syed Ata Hasnain retired as the Military Secretary of the Indian Army. Prior to that he commanded the XV Army Corps in Kashmir) This article was first published in The Citizen.

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