Army Has Always Objected To State Probes, Say Legal Experts
NASEER A GANAI
Srinagar, Mar 18: The Bomai killing is not the first incident where the Army has objected to the inquiry ordered by the state government. In several earlier cases, it had questioned the validity of such probes.
In Bomai case, a magisterial inquiry ordered by Omar Abdullah on February 22 blamed army personnel for not verifying the claims of their informers before shooting down the two men. The district magistrate had reportedly asked the army to present the troopers involved in the killing. But the army wrote back saying such an inquiry was invalid, sources said.
On September 22, 2006, the state government had ordered a probe vide its order No 3185-LD (A) of 2006 into the killing of four cricket playing boys allegedly by the army personnel. In its terms of reference, the inquiry officer had to find out the cause and circumstances leading to the killing, identify the persons who fired at the boys, fix responsibility and recommend the action against the personnel involved.
However, the army had filed an application challenging the jurisdiction of the state government to order the probe into the matter “regarding the armed forces deployed in Jammu and Kashmir.” The army argued the state of Jammu and Kashmir could not make any law with regard to the matters falling under the entry-2 and 2(a) of the list-1 and the matters which had been excluded in entry-1 of list III of the 7th schedule of Constitution of India. It sought withdrawal of the notices against army personnel.
The state government, through the then Advocate General, Altaf Husain Naik, and the High Court Bar Association, resisted the application. The HCBA president, Mian Abdul Qayoom, filed objection to the army’s application before the inquiry officer describing it as “illegally conceived that deserves to be dismissed.”
He argued that Article 246 of the Constitution applied to the state with certain exceptions. “Neither entry 2A of the Union List nor the State list or else the concurrent list is applicable to the State of Jammu and Kashmir,” he argued. That, he said, meant the legislative power of Jammu Kashmir extended to all matters including the one of appointing a Commission of Inquiry to conduct enquiry into any incident involving the army.
After 42th amendment, Qayoom argued, the legislative power of parliament in respect of deployment of armed forces in aide to civil power flew from the entry 2-A of the Union list. “As the 42th amendment itself is not applicable to Jammu and Kashmir, the application is legally untenable,” he said.
He said similar objections were raised by the army when the state government ordered an inquiry into an incident. The matter went to the Supreme Court which dismissed the army’s objections.
In his objections, the HCBA president cited the “Naga Peoples Movement for Human Rights versus Union of India” saying that the Apex Court had “authoritatively held that the Armed Forces (Special Powers) Act did confer arbitrary and unguided power to the army to do whatever they want in a disturbed area.” He said the Apex Court held it was necessary if any compliant accusing misuse or abuse of power conferred under the Act, should be thoroughly inquired into and if it is found that there is substance in the allegations, the victim should be suitably compensated and requisite sanction should be granted for prosecution and civil suit or other proceedings against the persons responsible for such violations.
Interestingly, after the objections filed by the state government and the Bar, the army withdrew the application. But at a later stage of the probe, it again raised similar contentions. The inquiry officer, Syed Tariq Ahmad Naqashbandi, who was then the district and sessions judge, observed that the army could not be allowed to approbate and reprobate at the same time and dismissed the application.
However, in Pathribal case, the army has filed a petition in the Supreme Court challenging the order of the Jammu and Kashmir High Court as well as the lower courts’ decision that the accused army personnel be tried in a civil court or made to face court-martial.
The case deals with the alleged abduction and murder of five unarmed civilians in Pathribal, Islamabad, in March 2000. The CBI indicted the army personnel in the case and produced challan against them in the court. The High Court, the sessions and lower courts had ruled that the personnel involved in Pathribal killings should be tried in a civil court or made to face court-martial.
However, the army said that its men named in the CBI charge-sheet were protected under para 7 of the Armed Forces (Special Powers) Act, 1990, and before challenging them, permission of the central government had to be sought.
The army had filed appeals in the additional sessions court on behalf of the five officials and GOC 15 Corps, challenging a lower court’s order asking the Army for its opinion on whether the accused should face court-martial or be tried in a civil court.
On November 30, 2006, the additional sessions court rejected the army’s plea that the accused couldn’t be tried before sanction to prosecution from the Home Ministry. Six months later, the J-K High Court too rejected the army’s petition, though it asked the chief judicial magistrate, Srinagar, to give the army fresh chance to file its opinion.
The additional solicitor general, Anil Bhan, told Greater Kashmir that the case was pending in the Supreme Court which had stayed the proceedings.