Pathribal Acquittal: The Republic Has Blood on Its Hands

The President of India, in his address on the eve of Republic Day warned that “security and armed forces, backed by the steel of popular support, have proved that they can crush an enemy within,” and that “mavericks who question the integrity of our armed services should find no place in public life.” Perhaps for the first time in India’s history, the designated custodian of the Constitution virtually issued an open call to ‘supporters’ of armed forces to evict critics of the Army’s impunity, from public life. And on the heels of Republic Day, the Army gave itself a clean-chit in the infamous Pathribal fake encounter case, which the CBI had found to be a cold-blooded killing of Kashmiri villagers. The Republic has blood on its hands, but the public has been warned to remain silent.
The Army’s acquittal of its officers charge-sheeted by the CBI for the cold-blooded fake encounter of five innocent men in Pathribal (Jammu and Kashmir), is a shameful case of the killers exonerating themselves. The Army officers, protected by AFSPA from prosecution in a civilian court, have been acquitted by a court martial. The Pathribal episode drives home the fact that the ordinary Kashmiri in India is entirely unprotected by any semblance of civil liberties or any hope of justice, and is at the mercy of the Army that enjoys the license to murder. It is a message to the common Kashmiris that the flimsy fig leaf of India’s democracy, rule of law, and judicial process, are not meant to offer them even nominal cover. The profound hypocrisy and inherent barbarism of the Indian State, which dons a respectable garb in other places, lies unveiled in Kashmir, where it goes naked.
On March 25, 2000, a contingent of the Rashtriya Rifles and the J&K Police’s Special Operations Group claimed to have killed 5 LeT militants in a hut in Pathribal village, in Anantnag, Jammu and Kashmir. LK Advani, then Home Minister, endorsed the Army’s claim that these five men were “foreign militants” who had perpetrated the heinous Chattisingpora massacre of Sikhs days before, on the eve of the then US President Bill Clinton’s visit to India. The 5 bodies, badly burnt, were buried without any post mortem examination.
Meanwhile, five men – Zahoor Dalal, Bashir Ahmad Bhat, Mohammed Malik, Juma Khan and Juma Khan - had gone missing since March 24 from various Anantnag villages, and frantic villagers demanded the exhumation and identification of the bodies at Pathribal. On April 3, CRPF firing on a demonstration at Brakpora demanding exhumation killed nine – including a son of one of the missing men Juma Khan. Eventually, the bodies were exhumed and identified by families as those of the missing villagers. The DNA matching turned up negative, but in March 2002, it was established that the blood samples had been tampered with. Fresh blood samples were collected, and tests proved beyond doubt that the 5 men killed were none other than the missing villagers. It was evident that the security forces had simply picked up 5 villagers at random – including 2 men of the same name from different villages – and murdered them in cold blood, passing them off as ‘foreign militants’.
The CBI enquiry ordered by the State Government confirmed that the ‘encounter’ was indeed deliberate murder, and in 2006, filed a charge-sheet against Brigadier Ajay Saxena, Lt. Col. Brijendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena and Subedar I Khan of 7th Rashtriya Rifles.
But the trial never took place, because the Army claimed that under the AFSPA, prior sanction of the Central Government was required for prosecution of the accused soldiers. The Defence Ministry and the Central Government did not grant sanction, in spite of the CBI’s categorical finding. The CBI argued that prior sanction under AFSPA was not required in this case, since it was intended only for protection of personnel acting in the line of duty, not for deliberate abduction and murder of innocents. This argument, upheld by the High Court in 2007, was rejected by the Supreme Court in 2012.
The Supreme Court allowed the Army the choice of civil court proceedings (contingent on Central Government sanction) and a Court Martial according to the Army’s own regulations. The Army, which in 2006 had rejected either option, chose the Court Martial route this time. And now, the inevitable has happened – the Army has flown in the face of damning evidence, and has protected its own. ‘Integrity’ of the armed forces has proved to be synonymous with shameless impunity. And yet, President Pranab Mukherjee declares that this truth must not even be spoken of!
The Pathribal massacre is by no means an aberration. Pathribal has shown the way for the ongoing Court Martial in the Macchil (Kupwara) killings of 3 villagers in 2010. In 2011, the J&K SHRC confirmed the existence of at least 2156 unidentified bodies lying in mass graves in Bandipora, Baramulla, Kupwara, and Handwara districts. The actual number of such mass graves is far higher – up till 7000. Yet, DNA profiling of the bodies in the mass graves has not taken place. The Government is delaying and subverting such a probe, fearing no doubt that the findings might establish, as exhumations at Pathribal and Macchil did, that many or most of the bodies are those of ‘disappeared’ persons killed in custody of security forces.
The barest minimum requirement of democracy must be that the AFSPA be scrapped, and Army officers accused of murder and rape must enjoy no shield of protection. We must demand that the Centre lose no time in ensuring that the Pathribal killers in uniform face trial and justice in a civil court.
The Republic has blood on its hands. There are fascist foot-soldiers aplenty to do as the President of the Republic suggests, and police the public space and intimidate the voices demanding accountability, truth, or justice. The Indian political establishment, with few exceptions, lacks any will to break the enforced silence. But the ‘public’ can and must reclaim the Republic. Democratic forces will defy the threats whether issued from the Presidential palace or the saffron thugs, and will speak out against murder perpetrated and protected in the name of the Republic! .