Centre Says Total Bar on Action Against Army, Files Petition for Quashing FIR Against Major Aditya

In an affidavit submitted by the Central government to the Supreme Court on Thursday, the government has said that without a prior sanction, not even an FIR can be registered against army personnel. This is in relation to the FIR that was registered to investigate army action leading to death of three civilians in Ganowpora, Shopian in late January. On Friday, the Centre filed a fresh petition in the Supreme Court for quashing of the FIR.

The affidavit says that it is up to the Central government to “apply its mind to all the facts and circumstances regarding any act of violence indulged in by terrorists or other anti-national elements and any preventive steps by way of firing taken by the members of the Armed Forces against overwhelming odds,” as reported by The Hindu.

In a 2013 five member constitutional bench ruling (Lalita Kumari vs state of UP), the Supreme Court had made it mandatory for FIRs to be registered in every cognizable offence. The Armed Forces Special Powers Act (AFSPA) grants certain immunity to army personnel from investigation, but according to a Supreme Court ruling passed by bench of Justices Madan B. Lokur and U.U. Lalit in 2016, it is mandatory for FIRs to be registered in every alleged case of usage of excessive force by the army resulting in loss of lives. This applies to "disturbed" areas under AFSPA. The contention here is the naming of an armed personnel, which in this case is Major Aditya Kumar of 10 Garhwal Rifles.

This comes after the Supreme Court passed an order on Monday staying any investigation in the case until the next hearing on April 24 in response to the petition filed by Major Aditya’s father alleging that his son was being falsely implicated. In the original FIR, Jammu and Kashmir police had named Major Aditya as leading the convoy that opened fire on protestors in Ganowpora village, resulting in three deaths. However, his name does not feature in the accused column.The court asked the senior counsel representing Jammu and Kashmir government if Major Aditya will not be declared as accused, to which the state government responded saying that it depends on the investigation.

Chief Justice of India Dipak Misra stayed the probe saying that, “The petitioner’s son is an Army official, not a common criminal.” This exceptionalism being granted to the army is alarming as it places lives of soldiers above regular citizens, which in a democracy cannot be considered acceptable. In a “disturbed” area where armed forces operate under AFSPA, foreclosing any avenues of investigation leave civilians bereft of the process of justice.

After the second incident of army firing in Shopian this year occurred on Sunday, yet again under questionable circumstances, and claimed six lives, the preceding events leave little hope for any investigation. 

While two of the six people who lost their lives were militants, the other four had been declared “over-ground workers” (OGWs) of the militants by the army. Locals have countered this saying that they were civilians. CM Mehbooba Mufti also called the other four civilians in a tweet. "Deeply distressed by more deaths of civilians caught in the crossfire in Shopian. My heartfelt condolences to the deceased's families,” she tweeted.

Following the disturbing trend of the army naming civilian casualties as over-ground workers in a bid to avoid scrutiny, Brigadier Harbir Singh said, "It is a matter of investigation, there is a thin line between a civilian and an over ground worker, we don't have to be overly concerned about that. They were definitely civilians, it is a matter of investigation to what extent they were involved in supporting the terrorists.” (Emphasis added)

Other problems also exist in the army’s narrative of Sunday’s incident, such as the discovery of the body of Gowhar Ahmad Lone the morning after the firing. The vehicle was not even mentioned by the Army just as they had earlier claimed that three “OGW” were “accompanying” the militants, whereas their bodies were found in the second vehicle without any arms or other incriminating material. Abdul Rashid Lone, father of the 23 year old civilian, whose body was found in the third vehicle, said, “His body was found in his car. He was on the steering wheel but there was no blood inside the car. A bullet had pierced his back. There was no bullet mark in the back of his seat. I think, he was killed and then his body was put back in the car.”

Another militant’s body was found in an apple orchard ten kilometres from the site of the shoot-out the next day. While the police said that the killing was part of Sunday night’s shooting, they did not provide any explanation of how the body was found so far from the original site of the incident.

The army unit involved in this case was 44 Rashtriya Rifles. In a press statement issued on Monday, Jammu Kashmir Coalition of Civil Society pointed out that the actions of this particular army unit, camped in Shopian, have resulted in a high number of civilian deaths. 

“On 23 February 2017, 44 RR was involved in the killing of a civilian lady Jana Begum during an encounter in Chittargam in Shopian. On 24 January 2018, 44 RR killed one minor boy Shakir Ahmad Mir and one lady Saima Wani near an encounter site at Chaigund village of Shopian. Again on 27 January 2018, army personnel from 44 RR shot dead 3 civilians in Ganowpora area of Shopian. The police filed an FIR against Major Aditya of 44 RR (Garhwal Rifles). Yesterday, it was the same unit of 44 RR who have been accused of killing of 4 civilians and 2 militants allegedly in an encounter in Pahnoo area of Shopian. The locals have refuted the Army version and have said that the Army has killed the four civilians in a cold-blooded manner. In a span of one year, 44 RR stationed in Shopian is involved in the killing of at least 9 civilians in the district,” the statement says.