Huff Post India: New Delhi: Wednesday, August 22, 2018.
The Indian
Army is using all available legal means to suppress the public release of
documents relating to the trial that found six army personnel guilty of killing
three Kashmiri civilians in the Macchil fake encounter, HuffPost India has
found.
Releasing the
information, the army has argued in a Delhi high court petition exclusively
accessed by HuffPost India, served no public interest, was an "unwarranted
invasion of the privacy" of the accused, and would result in public
outrage that would "prejudicially affect the security, sovereignty and
integrity of India", and affect military operations in the state.
In September
2015, the Northern Army Commander had confirmed the life sentence awarded by
the Court Martial earlier, paving the way for the convicts to be handed over to
jail authorities. Last year, the Armed Forces Tribunal (AFT) suspended the
sentences of five of the six accused (one person was already out on bail by
then).The trial has not concluded yet.
The army's
refusal to provide information related to the Macchil trial is despite the
Central Information Commission (CIC) ruling it was "inappropriate" to
do so.
Huff Post
India has reached out to the Army's spokesperson and will update this story if
he responds.
Granting such
immunity from scrutiny to the armed forces, civil liberties activists have long
held, has contributed to the cycle of violence and unrest in troubled areas
like Kashmir by allowing individual soldiers to act with impunity.
Advocate
Anjana Gosain, who is representing the army in the high court, declined to
comment on the case. "The case is sub judice, so I cannot comment on
it," she said.
The army's
refusal to explain how it acts on allegations of human rights abuses by its
personnel is significant in the context of an unprecedented Supreme Court
petition, filed by 300 serving Army officers, seeking protection from
prosecution of armed forces personnel by civilian courts and law enforcement
agencies in insurgency-hit areas.
Granting such
immunity from scrutiny to the armed forces, civil liberties activists have long
held, has contributed to the cycle of violence and unrest in troubled areas
like Kashmir by allowing individual soldiers to act with impunity.
"Impunity
for human rights violations and lack of access to justice are key human rights
challenges in the Indian state of Jammu and Kashmir," notes a recently
published report by the Office of the United Nations High Commissioner for
Human Rights. "Special laws in force in the state, such as the Armed
Forces (Jammu and Kashmir) Special Powers Act, 1990 and the Jammu and Kashmir
Public Safety Act, 1978 have created structures that obstruct the normal course
of law, impede accountability and jeopardise the right to remedy for victims of
human rights violations."
A timeline of
the army's persistent opposition to the Right to Information (RTI) request
seeking details on the Macchil encounter, pieced together by HuffPost India,
reveals just how difficult it is to seek justice for the families of those
killed in fake encounters by the military, and the lengths to which Indian
armed forces are prepared to resist the constitutional authority of the CIC.
Venkatesh
Nayak, coordinator of the Access to Information programme of the Commonwealth
Human Rights Initiative (CHRI), who filed the RTI, said the grounds for denial
of information, "seem to be an afterthought aimed at preventing public
access to crucial documents that throw light on the events that resulted in the
deaths of three civilians at Macchil".
MACCHIL
ENCOUNTER
In 2014, a
Court Martial found Col. Dinesh Pathania, Capt. Upendra Singh, Havaldar
Davender, Lance Naik Lakhmi, Lance Naik Arun Kumar and Rifleman Abbas Hussain
guilty of killing Shahzad Ahmad Khan, Mohammad Shafi Lone and Riyaz Ahmad Lone
in a staged encounter in the Macchil area of Kupwara district in Kashmir.
The three
Kashmiri men had been lured to an army camp to ostensibly work as porters, but
were passed off as foreign insurgents and killed in return for promotions and
honours. One of the men, a subsequent police investigation revealed, was so
young that the accused painted a beard on his face to make him look like a
militant. The incident, which came to be known as the Macchil encounter,
occurred in 2010.
The 'guilty'
verdict marked a rare occasion when serving senior military officers were
convicted for a staged encounter. However, in 2017, the AFT suspended the
sentence and granted bail to five of the six accused.
REQUEST
FOR INFORMATION
In January
2015, Nayak from the CHRI filed an RTI request for copies of five specific sets
of documents:
- The findings of the Court Martial in relation to the conviction of six army personnel for the killings committed at Macchil.
- The charge sheet filed before the Court Martial in relation to the case.
- The sentence awarded to the convicted army personnel by the Court Martial.
- Communication, along with annexures, pertaining to the case.
- A photocopy of proceedings of another Court of Inquiry which apparently enquired into the killings of five persons in Pathribal in the Kashmir valley in 2000.
The Army
refused to part with any information, citing exemption from disclosure under
Section 8 (1)(h) of the RTI Act, 2005, which pertains to cases that are still
under investigation or under prosecution.
"Disclosure
of such sensitive information would result in public outrage. Hence keeping in
view of public interest and security, it was decided not to implement it."
Further, to
Nayak's surprise, the Army noted they could not share information on the Pathribal
case as a Court of Inquiry was never held.
In September
2015, Nayak appealed to the CIC, the top adjudicating authority for the RTI.
The army court had completed trial and sentenced the accused to a life term in
the Macchil case, Nayak noted—hence the case was no longer under investigation,
the prosecution process was complete and the Army's grounds for denying the
information were unfounded.
The CIC bench
of Information Commissioner Divya Prakash Sinha agreed.
"Commission
observes from the further submissions of the CPIO that there are no tenable
grounds for invoking Section 8(1)(h)," the CIC order dated November 2016
said. "In the absence of any plausible justification for invoking the
exemption of Section 8(1)(h), Commission finds it inappropriate on the part of
the CPIO to have denied the information."
"CPIO"
refers to the Army's Central Public Information Officer.
The CIC also
directed the army to respond in 15 days, but it didn't.
So, in
February 2017, Nayak wrote to the CIC again. The CIC wrote to the army the same
month, asking that its orders be followed.
In May 2017,
the army filed a writ petition through an 'urgent application' in the Delhi
High Court to set aside the CIC order. In July 2017, the HC stayed the CIC
order but has not given a final decision on the army petition yet.
NATIONAL
SECURITY
The army has
used grounds of national security to deny information that reveals just how the
military judges their own officers and soldiers accused of heinous crimes.
"Disclosure
of such sensitive information would result in public outrage," the army
petition states. "Hence keeping in view of public interest and security,
it was decided not to implement it."
Sharing this
information, the petition claims, "would prejudicially affect the
security, sovereignty and integrity of India, and shall further have national
and international ramifications. It further might create unrest in the State of
Jammu and Kashmir, affecting the law and order situation, which would in turn affect
the National Security".
"This
issue (Macchil encounter) or any other issue related to... sentiments of
people, there should always be transparency in these matters. Unless the
documents are related to the security of the nation and are classified, there
is no harm if they release it," Nasir Sogami, who was Jammu and Kashmir's
minister of state (home), from 2011-12, told HuffPost India.