South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

India’s government has prevaricated for months over whether to phase out controversial laws that protect soldiers operating in Kashmir from prosecution for alleged human rights abuses.

But the issue may be coming to a head because of a little-noticed Supreme Court ruling Friday over a case involving the alleged killing of five innocent men by army soldiers in the Pathribal district of Kashmir in 2000.

The court gave the government until Dec. 16 to decide whether to allow the Central Bureau of Investigation, India’s federal investigative agency, to push ahead with the investigation of five soldiers that it indicted for the killings in 2006.

The CBI alleged the soldiers, who were under pressure to find the perpetrators of an earlier massacre of 35 Sikhs in Kashmir, killed the local men and later claimed they were foreign Islamist militants guilty of the first crime.

Jammu and Kashmir state authorities handed the investigation over to the CBI after DNA testing of the exhumed bodies showed the five men were local residents and not foreign militants.

But the case ground to a halt in 2007 after the army made a legal push to argue that its soldiers were covered by the Armed Forces Special Powers Act, legislation which gives immunity from prosecution to the military in Kashmir.

That line was thrown out by the High Court in Jammu and Kashmir. But the Supreme Court in 2007, hearing the army’s appeal, ordered the CBI to cease its investigation.

And there the matter languished. The Supreme Court has not taken a decision. But on Friday it issued a ruling which gives the government until Dec. 16 – the next hearing in the case – to decide whether to allow CBI to press ahead, according to a lawyer involved in the case.

The case comes amid an increasingly explosive political debate over what to do about the Armed Forces Special Powers Act. Jammu and Kashmir Chief Minister Omar Abdullah said last month the act would been withdrawn within days from some peaceful areas of Kashmir, but he later backtracked, saying it was his intention for this to happen but it had not been decided by policymakers.

P. Chidambaram, India’s home minister, also backs partially withdrawing the act, according to a ministry official, but he has failed to publicly back Mr. Abdullah and has remained quiet on the issue in recent weeks.

Those who support a partial repeal say that Kashmir is now at relative peace compared to the 1990s and 2000s, when Pakistan-backed militants staged regular assaults on Indian forces in the disputed Himalayan territory. Removing the law, at least in part, would help reduce anti-India sentiment, they argue.

But the army says Pakistan continues to sponsor militants in Kashmir and opposes any change in the laws, which it claims are needed to help soldiers operate effectively.

The Supreme Court ruling Friday on the Pathribal killings is intended to push the government to decide exactly where the limits of immunity lie.

The Armed Forces Special Powers Act states soldiers cannot be prosecuted for deaths carried out in the line of duty in Kashmir unless the central government issues a waiver allowing a case to proceed. (The laws were first applied to the restive northeast of India and extended to Jammu and Kashmir in 1990.)

CBI lawyers argue the accused soldiers were not carrying out their duty when they allegedly killed the five villagers, therefore meaning the agency did not need to get a government waiver, a bureau spokeswoman said.

Government lawyers representing the army argue the CBI has no right to proceed without central government permission, which it has not obtained.

“The core issue is whether government sanction is required,” said Anuj Phandari, a counsel for the armed forces.

The government now must decide whether to allow the case to go ahead. But this is unlikely to be easy. The Home Ministry is likely to be supportive; the Defense Ministry is likely to back the army’s position, as it has in the past.

Prime Minister Manmohan Singh could play a decisive role but has so far declined to make any move.

If the government is unable to reach an agreement by Dec. 16, which appears the most likely outcome, then the Supreme Court will push ahead with its own ruling on whether to allow the criminal case against the soldiers to proceed.

Source: Wall Street Journal – 9/11/2011