The Supreme Court put a stay on the FIR filed against Major Aditya Kumar of 10 Garhwal Rifles in connection with the killing of three civilians in firing by the army in Shopian, South Kashmir, last month.
Jammu and Kashmir Coalition of Civil Society (JKCCS), a reputed human rights group in Kashmir, has termed the Supreme Court order staying the police investigation against Major Aditya Kumar of 10 Garhwal Rifles as “irregular and against the established norms of criminal procedure” and “appears to favor the accused, at the cost of the victims”.
Earlier in the day, the Supreme Court put a stay on the First Information Report (FIR) filed against Major Aditya Kumar of 10 Garhwal Rifles in connection with the killing of three civilians in firing by the army in Shopian (South Kashmir) last month. The Court issued notices to the Centre and the Jammu and Kashmir government seeking a response within two weeks. READ MORE | Shopian firing: SC stays FIR against Army officer, seeks report from Centre, J&K govt
In a statement, JKCCS said: “First, the stay of investigations against Major Aditya Kumar is irregular and against the established norms of criminal procedure. Courts rarely interfere in ongoing investigations. The FIR is a recording of information of a cognizable offence (for example murder and other serious offences). When in receipt of such information, the police are duty bound to lodge the FIR and begin investigations. “Self defence”, and other such justifications for action, cannot be considered at the stage of registration of FIR and certainly cannot be a basis to quash the FIR (as the petition in the Supreme Court seeks). That is a question for investigations, and more importantly, trial. The army is entitled to its rival version of events (including in the form of a counter-FIR) but the claims of the army cannot be used to prevent the registration of a FIR at this stage and investigations on the version of the victims or other persons that the army firing was an act of murder”.
“Second, today’s order is neither surprising nor a serious set back to the extent that the impunity for the armed forces in Jammu and Kashmir is entrenched. While the police rarely file FIRs against the armed forces, it is even more rare for them to carry out any proper or fair investigations resulting in the filing of a chargesheet. Further, even when investigations indict the armed forces, either sanction for prosecution under AFSPA is declined or the armed forces successfully transfer the cases to the opaque court-martial process that often result in acquittals,” the statement said. “The Supreme Court’s own past record – in Kashmir related cases such as the 2000 Pathribal fake encounter and 2010 killing of Zahid Farooq – has appeared to favor the armed forces. The Supreme Court through its past judgments restricted the powers of the lower judiciary, and in this case it appears even the powers of the police are to be curtailed vis-à-vis the armed forces”.
The JKCCS also said that “the legal impunity for the armed forces is a consequence of a larger moral and political impunity for their actions in Jammu and Kashmir”.
“It is this wider culture of impunity that influences the legal processes. A recent petition in the National Human Rights Commission (NHRC) – based on the “human rights” of the soldier – is a perverse example of this culture where an armed soldier is being compared to a protesting civilian,” JKCCS said. “But the NHRC petition, perhaps unwittingly, does point to the true state of affairs in Jammu and Kashmir when it refers to “sub optimal war” and the “Geneva convention”. Past actions of the State – including the judiciary – under Indian domestic law that have ensured impunity for the armed forces, and the reality of Jammu and Kashmir – an armed conflict – clearly indicate that justice is only possible in Jammu and Kashmir under the broader framework of international law, including international humanitarian law”.
The JKCCS said that “while today’s Supreme Court order appears to favor the accused, at the cost of the victims, it provides yet another opportunity to appreciate the reality of questions of human rights and justice in Jammu and Kashmir”.
“Scuttling of legal processes against the armed forces is only strengthening the belief that there can be no expectation of justice from the Indian State and its institutions,” the statement said.