The State versus Kataria
The Impunity of the Indian Army and Lessons from Nepal

On 17 April 2008, the District and Sessions Court of Srinagar is scheduled to hear the murder case of Showkat Ahmad Kataria. Five army officers are charged with conspiracy to murder Kataria. Five police officers as well as a civilian have also been charged with the same offence. [1]

 

On 2 April 2008, the Srinagar District and Session Judge Hassain Masoodi issued non-bailable warrants against five army officers of the 13^th Rashtriya Rifles – Col Vikram Singh, his second in command V K Sharma, Major Rishi, Junior Commissioned Officer Puran Singh and Naik Satya Lal. The warrants were issued following the failure of the Army to produce the officers before the court.

 

The implications of a refusal are serious. The case is an emblem of the thousands of enforced disappearances and extrajudicial executions in India – euphemistically called fake encounters – that demand justice.  In this review ACHR examines the Kataria case, the wider implications for India’s attempts to mitigate conflict with reference to lessons emerging from Nepal’s recent elections.

 

Kataria, an emblematic case

 

Mr Showkat Ahmad Kataria (25) of Doligam-Jabdi-Banihall went missing on 4 October 2006 at around 10:00 pm from Alamgari Bazaar, where he had been supposed to lead prayers at the nearby Ibrahim Mosque. 

 

According to credible sources, Kataria was extra-judicially executed by the Army. The Army claims that Kataria was killed in an encounter between the Special Operations Group (SOG) and militants. The SOG also alleged that Kataria was in fact Abu Zahid, a foreign militant from Karachi.  

Forensic evidence suggests otherwise. Kataria’s body was exhumed from Bazipora-Ajas-Bandipore on 3 February 2007. The Central Forensic Science Laboratory, Chandigarh concluded that the exhumed body was that of Showkat Ahmad Kataria.

The State police’s Special Investigation Team subsequently filed a chargesheet with the Chief Judicial Magistrate in Srinagar against Army personnel and the police involved in the killing. The Court ruled that the Army could decide whether they wanted a court martial or allow the accused soldiers to face civilian court. 

 

On 18 October 2007, the Army requested the court to suspend the trial pending the ruling of the Supreme Court on the Central Bureau of Investigation (CBI) versus Brigadier Ajay Saxena case.  

The case relates to the so called ‘Pathribal fake encounter killing’ in Anantnag district of Kashmir on 24 March 2000. In April 2006, the Central Bureau of Investigation (CBI), following an investigation, found that five civilians - Zahoor Ahmed Dalal, Juma Khan, Mohammad Yussuf Malik, and Bashir Ahmed Bhat - were killed by the army. The Army again claimed the victims were killed in an encounter and  those killed were foreign militants. The CBI filed charges against five army officers [2] - Brigadier Ajay Saxena, Lt Col Brijendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena and Subedar I Khan of 7th Rashtriya Rifles before the Chief Judicial Magistrate, Srinagar. The accused army officers  challenged the CBI's chargesheet on the grounds that CBI did not have prior permission of the Central Government to chargesheet them. On 21 June 2006, CBI replied before the Court that prior permission of the Central Government was not necessary in this case. The Army thereafter filed Special Leave Petition before the Supreme Court on the grounds that no prior permission was sought from the army before charges were filed, as is required under the Jammu & Kashmir Armed Forces Special Powers Act which provides that “No prosecution, suit or other legal proceeding shall be instituted, except  with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of  the powers conferred by this Act”. On 13 September 2007, the Supreme Court in its interim order stated "Until further orders, further proceedings before the trial court shall remain stayed." Consequently, the proceedings in Srinagar remain stalled until the Supreme Court decides on the issue.

On 25 October 2007, the State government filed an objection to the petition filed by the army in the Kataria case. The State government stated that "The order passed by the Apex Court in the special leave petition titled GOC versus CBI and ANR is not a final order and as such can not be applied in this application/case. In the premises of the objection it is prayed to reject the application which aims at deferring the proceedings." In other words, since the Supreme Court had not reached a final verdict the Army could not request a delay in the Kataria case based on the interim order in the Saxena case.

 

On 28 December 2007, the chief Judicial Magistrate in Srinagar dismissed the Army's application in the Kataria case. It again requested the Army to decide on the form of trial for its officers: military tribunal or a civilian court. However, again the Army failed to respond.  

On 3 March 2008 the Chief Magistrate of Srinagar transferred the case to the Session's court.  On 2 April during the hearing Advocate Mushtaq Ahmad Dar, the counsel for the five accused police personnel, argued that the trial was being delayed because of the failure of the  accused Army personnel to attend. Dar has argued that the court should proceed against the accused Army personnel under section 512 of the Code of Jammu and Kashmir Criminal Procedure Code which provides for declaration of absconder.

Impunity

 

The Army argues that no investigating agency from Jammu and Kashmir has the authority to investigate Army personnel unless prior permission is obtained from the Union Government (under section 7 of the Jammu and Kashmir Armed Forces Special Powers Act, 1990). However the issue in this case is not prior permission per se but rather the unwillingness of the Army to provide any kind of accountability. Otherwise, the Army authorities would have proceeded to a military tribunal and, if found guilty, to an eventual court martial.

 

The Army’s approach should be contrasted with the Jammu and Kashmir Police, which has acted effectively in regard to serious crimes by its own officers.  It promptly arrested senior personnel, including Senior Superintendent of Police Hans Raj Parihar and Deputy Superintendent of Police Bahadur Ram, Assistant Sub-Inspector Farooq Ahmad Gudoo; and constables Farooq Ahmad Paddar, Manzoor Ahmad, Bansi Lal and Zaheer Abbas for abducting and killing a carpenter, Abdur Rehman Paddar in Anantnag district on 6 December 2006.

 

However, the police’s record is not all positive, particularly with regard to crimes involving the Army. They have so far delayed filing charges in four other cases which involved the army, including the killing of civilian Ghulam Nabi Wani at Dodwan village in Baramulla district in 2006.

 

Conclusions: Lessons from Nepal

 

The requirement of prior permission is an explicit expression of the lack of faith of the Executive in the Judiciary. The requirement erodes the fundamental separation of powers, essential to prevent abuse.  The Courts in India, for their part, regularly collude in this dangerous blurring of lines, if only by the way it has repeatedly supported the constitutional validity of such [D1]  laws on the grounds that the Legislature is authorised to enact such legislation.

 

The Army’s failure to cooperate with the civilian court in the Kataria and many other cases reveals a dangerous weakness in India ’s system of justice: a pervasive regime of impunity.

 

In this context of impunity, Nepal’s recent experience is worth examining. There is little disagreement among most analysts that the Nepal Army’s perpetration of widespread and systematic pattern of grave violations of human rights and the State’s failure to address impunity for these violations played a fundamental part in the success of the insurgency. The conduct of the Army and its flagrant abuses during the Royal takeover played a hand in the people’s movement.

 

And while the dust has not yet settled, initial analysis of Nepal ’s election suggests that the stunning results for the Maoists are an indicator of the electorate’s clear expression of lack of faith in the ‘old’ State and its lack of accountability to the people. And as the dominant player of the ‘old state’ it would not be difficult to conclude that the Nepal Army’s conduct made a significant contribution to Maoist's success at the ballot box. It is the institutional embodiment of the elite’s refusal to change while change is exactly what the ordinary people voted for.

 

Or as Journalist CK Lal puts it:

 

‘Despite its aggressive denials, the army is composed of even more politically indoctrinated members than the Maoists.

 

Loyalists to the crown continue to dominate the army brass. The force is still largely feudal and considers itself the custodian of religious rites that used to give our monarchy the divine right to rule.’ [3]

India is, of course, not Nepal . Its democracy is older and far more robust; its conflicts are very different. And as this ACHR Review demonstrates the Indian Police are clearly not beholden to the Army as they are in Nepal . But checks and balances are neither static nor guaranteed. If not defended they will weaken over time particularly when challenged by the demands of internal conflict. This is why individual emblematic cases such as Kataria’s are so important. They are an indicator of wider problems and at the same time represent opportunities to restore the rule of law. ACHR is not arguing that the Indian Army as an institution will lose its legitimacy in the manner of the Nepal Army but if it and the central government fails to tackle impunity then the prospects for counter insurgency success will diminish significantly.

Of course mistakes happen in conflict, but the willingness, or otherwise, of the security forces and the State to address these ‘mistakes’ sets the tone for the conduct of any counter-insurgency. Mistakes, unless quickly nipped in the bud, soon become routine. The routine use of fake encounter and disappearance perpetrated with impunity by Indian security forces, at best, sends a worrying message. Military contempt for the rule of law is unlikely to contribute to respect for the rule of law by the people.