[Assam] Supreme Court Sets Dangerous Precedent on Armed Forces (Special Powers) Act

[Chan Mahanta]

>  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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