is to say that the Army can kill anyone in the
State by labeling him/her as a militant, and then the burden of proof
is on his family to show that he was not. This rationale of the Court
is an abdication of its function as a Constitutional Court
safeguarding the fundamental rights of the people, and needs to be
critiqued in all possible ways and foras.
*** So what else is new :-)?
And Indians wave their democratic values at the world! Would we see
a ground swell of outrage from the elite, such as members of this
forum?
I will not hold MY breath on that.
cm
At 11:43 AM +0530 6/4/07, Uddipana Goswami wrote:
found this circulating on the mediavigil list:
MASOODA PARVEEN V UNION OF INDIA & ORS
[W.P. (CIVIL) 275 OF 1999]
Judgment dtd 02-05-2007
This writ petition was filed by the wife of deceased Advocate and
businessman, Ghulam Mohi-ud-din Regoo, who had been taken into custody
by soldiers of 17 Jat Regiment, based at Lethapora from his
residence in Chandhara village, Sopore and then tortured to death on
the night of 1st February 1998. His body was blown apart by explosives
and the Army claimed that he was a militant. The petitioner had
demanded compensation for the said killing and a job on compassionate
grounds.
The Supreme Court dismissed the writ petition while accepting the
contention of the army that the deceased was a militant. The court
accepted this submission even when not a scrap of evidence exists for
such an allegation and to show that Regoo was a militant or that he
had any association with any militant organization Even the vague
'intelligence inputs received by the battalion' and his interrogation
were never brought on record. The Court has also chosen to overlook
the fact that the original file of the S. 174 DrPC investigation
conducted in the death was conveniently "lost" after the District
Magistrate, Pulwama rejected the finding of "accidental death" in the
closure report presented by the local police.
Most dangerously, the Court has further observed that the petitioner
has not been able to show her version of events was true. This
observation completely inverts the fundamental principle of
presumption of innocence and burden of proof. In a writ petition in
the nature of habeas corpus, the burden is on the State to show what
happened to the arrested person, and the burden is all the more
onerous when the person has admittedly died in custody.
This is the first judgment of the Supreme Court interpreting the
provisions of the Jammu and Kashmir Armed Forces Special Powers Act.,
1990. On one hand, the Court has acknowledged that the guidelines and
the law laid down in Naga People's Movement of Human Rights v. Union
of India [(1998) 2 SCC 109] applies mutatis mutandis to this statute
as well.
But amidst numerous platitudes, the Court has chosen to carve out
something bordering on an exception, by stating: "[W]e are not
unmindful of the fact that prompt action by the army in such matters
is the key to success and any delay can result in leakage of
information which would frustrate the very purpose of the army
action." This observation of the Court goes against the grain of the
Judgment of a 5 Judge Constitution Bench rejecting an application
filed by the Government of India seeking exemptions from the
directions laid down in the NPMHR case.
Being the first major case of interpretation of the Jammu and Kashmir
Armed Forces Special Powers Act, the observations made in this case
sets a very dangerous precedent for future and also roll back some of
the favorable principles laid out in the NPMHR case. For the Supreme
Court to dismiss such a petition on the ground that the petitioner has
not discharged her burden , especially in the political context of
Jammu and Kashmir, is to say that the Army can kill anyone in the
State by labeling him/her as a militant, and then the burden of proof
is on his family to show that he was not. This rationale of the Court
is an abdication of its function as a Constitutional Court
safeguarding the fundamental rights of the people, and needs to be
critiqued in all possible ways and foras.
As much as there is a need for due legal recourse, there is a need for
a strong civil society discussion, debate and opposition to such an
anti-people, undemocratic and authoritarian judgment from the Apex
Court that gives a license to impunity on the part of the Armed Forces
in Jammu and Kashmir, and approves the precedence of coercive powers
of the state over the fundamental rights liberties of people.
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