The Indian Army has not covered itself with glory by closing the cases against the officers involved in the infamous Pathribal fake encounter in Jammu and Kashmir in which five civilians were killed. Taking over the investigation of the case after an uproar over the 2000 incident, the Central Bureau of Investigation concluded that a Brigadier, a Lieutenant Colonel, two Majors, and a Subedar of 7 Rashtriya Rifles had staged the encounter, picking up civilians from the Anantnag area and killing them in cold blood. They lied to the police that the five were foreign militants who had carried out the massacre of Sikhs in Chattisinghpora a few days earlier. Backed by the Ministry of Defence and the Army top brass, the officers named contested the CBI charge sheet, making the argument that under the Armed Forces Special Powers Act, prior sanction was required to prosecute them. When the legal battle reached its portals, the Supreme Court upheld the officers’ case. It also directed the Army to either sanction the prosecution of the officers or court-martial them. The Army was offered the same options back in 2001, but chose to prolong the legal battle. This time, its back to the wall, it chose the latter option. The Army court has egregiously concluded that “the evidence recorded could not establish a prima facie case against any of the accused.” The finding flies in the face of the CBI investigation, but that was only to be expected. The last hope the families of the dead had that justice might be done, lies buried.
It was only in December 2013 that the Army was patting itself on the back for ordering the court martial of three officers involved in the Machchil fake encounter case, citing that as evidence of its willingness to improve its human rights record. But the Pathribal case, through all its legal twists and turns, ending in the exoneration of the accused officers, sends exactly the opposite message. It is a textbook illustration of why the AFSPA is flawed, and strengthens the case to do away with the provision that requires “previous sanction” from the Central government for prosecution, if not to repeal the law itself. The Army’s whitewash job can only increase resentment against the military in Kashmir, and feed into the sense of alienation. Chief Minister Omar Abdullah, who understands this well, has rightly said Pathribal “can’t be closed or wished away”. The leader of the National Conference, already criticised as a Congress “stooge”, will have to face the political backlash from the exoneration. If the Centre is serious about winning hearts and minds in Kashmir, it should step in to undo the damage, and find a legal way to reopen the case and pave the way for a civilian trial.