While the encounter murders in Pathribal and their cover up are yet another blot on India’s record in Kashmir, the legal issues they raise on accountability to the law affect the entire country. They touch the very core of the rule of law that is recognised as a part of the unamendable basic structure of India’s Constitution.
The eminent jurist, A.V. Dicey, wrote of Britain over a century ago: “With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The [Law] Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority.” He cited instances: “A colonial governor, a Secretary of State, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private or unofficial person.”
Section 197 of CrPC
But in extending their jurisprudence to India, the British discarded this fundamental precept in order to protect their officials. Section 197 of the Criminal Procedure Code, 1898 (CrPC) provided that where any public servant is accused of any offence alleged to have been committed by him “while acting or purporting to act in the discharge of his official duty”, no court shall take cognisance of such offence except with the previous sanction of any government, Central or State, that employed him. It effectively made the state a judge in its own cause.
This protection survived the CrPC’s revision in 1973 and was reproduced in a host of laws thereafter; to wit, the Prevention of Corruption Act, 1988, the Terrorist and Disruptive Activities (Prevention) Act, the Prevention of Terrorism Act and the Armed Forces (Special Powers) Act.
On January 30, 2013, Justice (retd.) J.S. Verma said: “For anyone to think that sexual assault could in any way be associated with the performance of any official task, well needs to think again.” He added “What we [his Committee] have said is only that in a case like this, there should be no need for a prior sanction” for the court to take cognisance.
Does not this principle apply also to a cold blooded murder, which is what a fake encounter really is? The Additional Secretary (Home) admitted, in reply to a Right to Information application, that in Kashmir no sanction has been granted in the last 20 years under AFSPA either by the Home or the Defence Ministry. No wonder a culture of impunity prevails in Kashmir — “Murderers in Olive Green” as The Hindu editorially characterised the offenders on June 14, 2010.
It is an apt description of those who staged the Pathribal encounter. The facts are gross. In Chattisinghpura, Anantnag district, Jammu and Kashmir, 36 Sikhs were killed on March 20, 2000, on the eve of President Bill Clinton’s visit to India. The entire area was searched, and five persons, alleged to be “terrorists,” were killed in Pathribal village in Anantnag by 7 Rashtriya Rifles personnel on March 25, 2000 in an “encounter.” An FIR was filed and a seizure memo prepared by Major Amit Saxena, showing seizure of arms and ammunition from all five. They included AK-47 rifles and ammunition.
However, the local police insisted that the army failed to hand over the arms and ammunition allegedly recovered from the killed “terrorists,” which is tantamount to causing the disappearance of evidence, an offence in law.
The incident caused an uproar, after which the CBI investigated the same and filed a charge sheet in a sessions court alleging it was a fake encounter — the outcome of a criminal conspiracy hatched by Col. Ajay Saxena, Major Brajendra Pratap Singh, Major Sourabh Sharma, Subedar Idrees Khan and some members of the troops of 7 RR to kill innocent persons. Major Amit Saxena (Adjutant) had prepared a false seizure memo and also gave a false complaint to the police station for registration of the case against the five civilians showing some of them as foreign militants, and offered false information to the senior officers.
Predictably, the officers argued that no case could be instituted except with the prior sanction of the Central government under Section 7 of the Armed Forces (Jammu & Kashmir) Special Powers Act, 1990 (an adaptation of AFSPA, 1958) which is similar to Section 197 of the CrPC. The matter reached the Supreme Court which ruled that “Section 7 must be construed liberally”; that is, widely in favour of the officials.
‘Official duty’
Section 197 seeks “to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them. […] This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing an objectionable act. Use of the expression ‘official duty’ implies that the act or omission must have been done by the public servant in the course of his service and that it should have been done in discharge of his duty.” Can a fake encounter, a deliberate murder, ever meet this test — a reasonable connection with “official duty”?
In the century and more since the CrPC came into effect, a daunting corpus of case law has developed with no gain to clarity or consistency. The Supreme Court, with its passion for judicial activism, had two clear options. One was to strike down Section 197, and its replicas in AFSPA and others as being violative of the rule of law and the fundamental rights to equality (Article 14) and to personal liberty (Article 19). The other was to restrict its meaning.
In London, the Privy Council ruled, apologetically, in 1949: “Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials, cannot accede to the view that the relevant words have the scope that has in some cases been given to them. Public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. […]Thus, a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.”
Sixty years later, can the Supreme Court of India certify that the “circumstances” of colonial times still exist? In 1959, a bench of five judges held that “some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty … acceptance of a bribe … is one of them.”
The test here is excess in the discharge of duty, which entails a wrong — not a crime committed in itself such as rape, murder or bribery. But retreat began and contradictory rulings followed. In 1994, the Supreme Court did rule, “It was no part of the duty under the Code, or any other law for the time being in force, conferring power on police to beat and torture the appellant when he presented himself before the respondent in response to the summons. By no stretch of reasoning can it be said that the respondent’s action of torturing the appellant was in discharge of any duty.” The next year, a contrary ruling followed in the case concerning Kerala’s former minister R. Balakrishna Pillai.
Surely an ‘official’ act must be one over which the state is entitled to oversee the official’s work. The Supreme Court did not analyse the facts of the Pathribal case to show why sanction was necessary in this case. It mechanically cited rulings to conclude that the case fell within the ratio of two earlier cases and held, with “no hesitation,” that sanction was a pre-requisite for criminal prosecution but not for a trial by Court-Martial.
The Army opted for a Court-Martial and summoned the families of the victims to Nagrota, the 16 Corps HQs in Jammu, on September 20, 2012, 300 miles away from their homes. Public protests prompted the case’s transfer to Awantipora. The witnesses understandably expressed fears about entering army camps. The 15 Corps at Srinagar defended the officials; its sister, the 16 Corps, claims to offer their victims a fair trial. The law on sanction defaces the statute book. It survives to protect the corrupt and the murderous — thanks to the Supreme Court.
(A.G. Noorani is an advocate, Supreme Court of India, and a leading constitutional expert. His latest book , Article 370: A Constitutional History of Jammu and Kashmir, was published by Oxford University Press in 2011)
