The Wire: New Delhi: Monday, April 30, 2018.
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Last week,
there was both good news and not-so-good news on the AFSPA front from across
the country.
The good
news: people in Meghalaya can heave a sigh of relief over the lifting of the
draconian Armed Forces (Special Powers) Act, 1958 (AFSPA) from their state.
The bad news:
the Central government has claimed that it does not hold files of 47 cases in
which it denied sanction to prosecute members of the defence forces for alleged
offences and human rights violations said to have been committed in Jammu and
Kashmir (J&K) while operating under a similar law of 1990 vintage.
On new year’s
day this year, the Ministry of Defence informed parliament that it had received
requests from the Jammu and Kashmir government for sanction to prosecute
security personnel in 50 cases that occurred between 2001 and 2016. While the
requests were pending in three cases, the government had denied sanction to
prosecute the accused in other cases involving allegations of “murder or
killing of civilians” (17 cases), “rape” (two cases), “death in security
operations” (ten cases), “custodial death” (three cases), “beating or torture”
(two cases), “abduction and death (of the abducted person)” (three cases),
“disappearance” (seven cases), “illegal detention” (one case) “fake encounter”
(one case) and “theft and molestation” (two cases). The minister of state for
defence used these labels to describe the alleged incidents while replying to a
question raised by Husain Dalwai, MP, in the Rajya Sabha. Apparently, the
sanction to prosecute the accused in all 47 cases was refused because of
insufficient evidence.
Prosecution
under J&K AFSPA and related case law in a nutshell
Under Section
7 of The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (J&K
AFSPA) “no prosecution, suit or other legal proceeding shall be instituted,
except with the previous sanction of the Central government, against any person
in respect of anything done or purported to be done in exercise of the powers
conferred by this Act.”
Through two
notifications gazetted in 1990 and 2001, the state government declared almost
the whole of Jammu and Kashmir except Ladakh a “disturbed area” under J&K
AFSPA.
Under Section
4 of J&K AFSPA, any commissioned officer, warrant officer or
non-commissioned officer of the armed forces of the Union may open fire or use
force to the extent of killing any person in a “disturbed area” in Jammu and
Kashmir who is violating prohibitory orders or is carrying weapons, firearms or
explosives. Additionally, security personnel (defence forces and paramilitary
forces) are empowered to arrest any person without warrant on the mere
suspicion that he or she has committed a cognisable offence (serious offences
attracting a jail term of more than two years for which the police may arrest
the accused without a warrant from a judicial magistrate). They may enter any
premises without a warrant to conduct search and seizure operations. They are
also empowered to stop and search any vehicle suspected to be carrying any
proclaimed offender (a person who is avoiding appearance before a court) or a
person who has committed or is suspected to have committed a non-cognisable
offence, i.e. offences carrying much lesser punishment and for which the
accused cannot be arrested without a warrant from a judicial magistrate). Such
actions of the security personnel do not require the prior sanction of any
authority.
Until
recently, according to case law that had developed around AFSPA-type laws,
unless there was prior sanction from the Central government, it was not
possible to legally register even a first information report (FIR) with the
local police against a member of the defence forces about allegations of
offences or human rights violation they were said to have committed in a
“disturbed area”. However, in July 2016, in the matter of Extra Judicial Victim
Families Association (EEVFAM) & Anr vs Union of India & Anr., the
Supreme Court ruled that proceedings in a criminal court can be instituted
against defence personnel if an offence is said to have been committed by them
through the use of excessive force or retaliatory force resulting in the death
of any person. In April 2017, the apex court dismissed the government’s
curative petition against this ruling. So now the police can register an FIR in
such cases without prior sanction from the Central government.
The RTI
intervention
After coming
across the queries and replies tabled in parliament in January 2018, I
submitted an RTI application to the Ministry of Defence in February, seeking
the following information:
“Apropos of
the reply to Unstarred Question No. 1463 tabled in the Rajya Sabha on
01/01/2018 (copy along with Annexure is enclosed), by the Hon’ble Minister of
State in your Ministry, I would like to obtain the following information under
the RTI Act:
- A clear photocopy of all official records containing details of the procedure that is required to be followed by your Ministry while deciding whether or not to grant sanction for prosecuting any member of the defence forces for actions committed under the Armed Forces (Jammu and Kashmir) Special Powers, 1990 (J&K AFSPA), including channel(s) of supervision over and accountability of such decision making procedure;
- A clear photocopy of all official records/documents containing the norms, criteria and standards that are required to be applied for assessing the evidence submitted by the Government of Jammu and Kashmir in relation to its request for sanction for prosecuting any member of the defence forces for actions committed under J&K AFSPA;
- The rank or designation of the officer who is competent to make a final decision on whether or not to grant sanction for prosecuting any member of the defence forces for actions committed under J&K AFSPA in any case (name of the officer is not required);
- A clear photocopy of the communication sent by your Ministry to the Government of J&K denying sanction for prosecution of members of the defence forces in all cases listed in the Annexure to the reply to the said Unstarred Question; and
- Inspection of every file including all papers, correspondence, file notings and emails, if any, relating to the denial of sanction for prosecution of members of the defence forces as per the list annexed to the reply to the said Unstarred Question and supply of clear photocopies of the relevant papers and electronic files identified by me during the inspection.
I believe
that the information sought at paras #1-4 above are required to be proactively
disclosed by your Ministry under Sections 4(1)(b), 4(1)(c) and 4(1)(d) of the RTI
Act. As I am unable to locate the said information on your official website, I
am constrained to file this RTI application. I would like to receive all this
information by post at my postal address mentioned above.
As regards
the request for inspection of information described at para #5 above, I would
be grateful if you would give me sufficient advance notice of the date and time
for inspection.”
Defence
Ministry’s reply
The central
public information officer (CPIO) of the Department of Defence’s D(GS-I/IS),
sitting in South Block, transferred the RTI application within a week to
another CPIO with the D(AG) who sits in Sena Bhawan. The second CPIO
transferred the RTI application to the CPIO, Indian Army within the next four
days. Of course neither CPIO bothered to explain what D(GS-I/IS) and D(AG) meant in expanded form. I am still not
sure which sections or divisions they might be in the defence department.
Dissatisfied
with the reply of the second CPIO, I filed a first appeal with the First
Appellate Authority (FAA) against the transfer of my RTI application to the
CPIO, Indian Army. In my appeal, I argued that the transfer was wrong on the
following grounds:
as the
Minister of State for Defence had submitted some details of the 50 cases to
Parliament in January the Department was bound to have the related case files;
and
Under the
Second Schedule attached to the Central Government’s Allocation of Business
Rules, 1961, the Indian Army falls under the administrative jurisdiction of the
Ministry of Defence. So the Indian Army is not competent to decide whether
sanction for prosecuting its personnel should be granted or not. That is the
job of the defence department or the Ministry of Defence to whom I had sent the
RTI application in the first place.
The FAA of
the defence department has now ruled that the CPIO’s action of transferring the
RTI application was correct because the Indian Army was the “custodian” of the
information sought in my RTI application.
Indian
Army’s reply
Meanwhile,
the CPIO, Indian Army sent me an acknowledgement within a week of receiving the
RTI application transferred by the defence department. While assigning an
identification number to the RTI application, the CPIO explained that as the HQ
of the Indian Army worked only five days a week and as there were eight
non-working days in a month, I should accept delayed response. Twenty-seven
days later, he sought extra time to send a substantial reply.
Last week
(after more than 40 days of receiving the RTI application), the CPIO sent a
final reply claiming that the information sought in my RTI application was “not
available/held with the concerned agency of the Army”.
What is
wrong with these replies?
If neither
the defence department nor the Indian Army has the details of cases sent by the
Jammu and Kashmir government requesting sanction for prosecution of defence
personnel, then what was the basis of the minister’s reply tabled in parliament
on new year’s day this year? Surely, no other ministry can be involved as this
subject matter is not allocated to them under the Allocation of Business Rules,
1961.
Further, only
one of the two public authorities – the defence department or the Indian Army
can be telling the truth. Both their RTI replies cannot be true and correct as
they contradict each other. Even if the files of all decided cases might have
been sent back to Jammu and Kashmir, surely an office copy of the replies sent
would have been maintained by the concerned office.
Further, if
the norms, criteria and standards for assessing evidence and the rank and
designation of the officer who is competent to make a decision whether to
permit prosecution or not, are not written down in any official record, then
who in government rejected the requests for sanction to prosecute defence
personnel and by following what procedure?
All of
this information should have been proactively disclosed under the RTI Act
Sub-clauses
(ii), (iii) and (iv) of Section 4(1)(b) of the RTI Act require the defence
department to voluntarily disclose the procedure for decision making and the
related supervisory and accountability mechanisms along with the attendant
norms and criteria involved in the making of such decisions. Section 4(1)(c) of
the RTI Act requires the defence department to place all relevant facts in the
public domain while announcing decisions that affect the public.
The people in
Jammu and Kashmir and elsewhere in India have the right to know these facts.
Under Section 4(1)(d) of the RTI Act, the affected families have the right to
know the reasons behind the denial of sanction for prosecution in all 47 cases.
Despite this duty of proactive disclosure, the public authorities have denied
the very existence of the case files and information regarding the procedures to
be followed and the norms to be applied while denying sanction for prosecution.
Of course, I
will move the Central Information Commission against the two public authorities
for denying the very existence of the information requested in the RTI
application. However, the contradictory RTI replies relating to a matter raised
in parliament is perplexing, to say the least.
Venkatesh
Nayak is programme coordinator, access to information, Commonwealth Human
Rights Initiative, an independent NGO based in Delhi.