The Supreme Court's ruling on the requirement of previous sanction to prosecute soldiers accused of committing crimes may have clarified matters as far as the legal provisions of the Armed Forces (Special Powers) Act are concerned but for the families of the five innocent men who were killed in a fake encounter at Pathribal, Jammu and Kashmir, in March 2000, it is still not clear whether or not they will receive justice. According to the chargesheet filed in the case by the Central Bureau of Investigation in 2006, the five Kashmiris were picked up at random by the security forces from in and around Anantnag and taken to a desolate place where they were killed in cold blood. An FIR was filed by a detachment of Army men from the 7 Rashtriya Rifles in which the claim was made that the five slain individuals were the terrorists who were responsible for the massacre of Sikh villagers in Chittisinghpora a few days before the ‘encounter'. The bodies of the five were exhumed and claimed as their own by villagers who had complained about their family members going missing just before the ‘encounter'. DNA testing was done to establish their identity in two stages. In the first stage, the samples were deliberately switched to thwart the investigation. When this was exposed, a second test was done which conclusively fixed the identity of the five. This was in 2003. A case of murder was then registered and the matter entrusted to the CBI.
The CBI quickly established the sordid facts and filed a chargesheet in a Srinagar court in 2006. Six years had already elapsed. That court offered the Army the chance of trying its men before a court martial but the offer was not accepted. It has taken another six years for the legal battles which ensued to finally be resolved, with the Supreme Court upholding the claim of the accused soldiers that Central government sanction was needed to prosecute them. By asking the Army to take a decision on whether it intends to court martial the accused, the Supreme Court has cut through the careful posturing of the Ministry of Defence on the matter. It bears noting that at no stage did the Ministry seek to discharge its own obligation to ensure justice under the Army Act in the face of the cold-blooded killing of five innocent civilians by senior officers. That obligation can no longer be shrugged aside. The CBI has been directed to seek sanction to prosecute from the government if the court martial option is not exercised within eight weeks, and a decision on that request has to be taken within three months. For the families of the victims, there is finally light at the end of the tunnel. For their sake, and the sake of Indian democracy, Prime Minister Manmohan Singh must do the right thing and ensure that the prosecution gets to have its day in court.