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. 
On 2 April 2008, the Srinagar District and Session Judge Hassain Masoodi issued non-bailable warrants against five army officers of the 13th 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
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
Forensic evidence suggests otherwise. Kataria’s
body was exhumed from Bazipora-Ajas-Bandipore on 3 February 2007. The Central
Forensic Science Laboratory,
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.
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
- 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
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
On 28 December 2007, the chief Judicial Magistrate
On 3 March 2008 the Chief Magistrate of
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
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.
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
The Army’s failure to cooperate with the civilian
court in the Kataria and many other cases reveals a dangerous weakness in
In this context of impunity,
And while the dust has not yet settled, initial
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.’ 
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
 Karatia fake encounter case - non bailable warrants for 5 army officers, The Kashmir Times, 3 April 2008
 Brigadier Ajay Saxena, Lt Col Brijendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena and Subedar I Khan
 Nepali Times 383.