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

[mc mahant]

<Amid the raging debate over confrontationbet'n judiciary&legislature,Speker(parliament) Somnath Chatterji asked Courtsto "remain within" their area....and " they cannot interfere in Parliament"->----today's PTI news.
PM  Singh  also said like that a few weeks back!~
Now Ms Upddipana can explain clearly,fearlessly -if she knows-- what the game is?
mm


Date: Mon, 4 Jun 2007 07:51:50 -0500To: uddipana at gmail.com; assam at assamnet.orgFrom: cmahanta at charter.netSubject: Re: [Assam] Supreme Court Sets Dangerous Precedent on Armed Forces (Special Powers) Act



> 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 02-05-2007This writ petition was filed by the wife of deceased Advocate andbusinessman, Ghulam Mohi-ud-din Regoo, who had been taken into custodyby soldiers of 17 Jat Regiment, based at Lethapora from hisresidence in Chandhara village, Sopore and then tortured to death onthe night of 1st February 1998. His body was blown apart by explosivesand the Army claimed that he was a militant. The petitioner haddemanded compensation for the said killing and a job on compassionategrounds.The Supreme Court dismissed the writ petition while accepting thecontention of the army that the deceased was a militant. The courtaccepted this submission even when not a scrap of evidence exists forsuch an allegation and to show that Regoo was a militant or that hehad any association with any militant organization Even the vague'intelligence inputs received by the battalion' and his interrogationwere never brought on record. The Court has also chosen to overlookthe fact that the original file of the S. 174 DrPC investigationconducted in the death was conveniently "lost" after the DistrictMagistrate, Pulwama rejected the finding of "accidental death" in theclosure report presented by the local police.Most dangerously, the Court has further observed that the petitionerhas not been able to show her version of events was true. Thisobservation completely inverts the fundamental principle ofpresumption of innocence and burden of proof. In a writ petition inthe nature of habeas corpus, the burden is on the State to show whathappened to the arrested person, and the burden is all the moreonerous when the person has admittedly died in custody.This is the first judgment of the Supreme Court interpreting theprovisions of the Jammu and Kashmir Armed Forces Special Powers Act.,1990. On one hand, the Court has acknowledged that the guidelines andthe law laid down in Naga People's Movement of Human Rights v. Unionof India [(1998) 2 SCC 109] applies mutatis mutandis to this statuteas well.But amidst numerous platitudes, the Court has chosen to carve outsomething bordering on an exception, by stating: "[W]e are notunmindful of the fact that prompt action by the army in such mattersis the key to success and any delay can result in leakage ofinformation which would frustrate the very purpose of the armyaction." This observation of the Court goes against the grain of theJudgment of a 5 Judge Constitution Bench rejecting an applicationfiled by the Government of India seeking exemptions from thedirections laid down in the NPMHR case.Being the first major case of interpretation of the Jammu and KashmirArmed Forces Special Powers Act, the observations made in this casesets a very dangerous precedent for future and also roll back some ofthe favorable principles laid out in the NPMHR case. For the SupremeCourt 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 theState 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 Courtis an abdication of its function as a Constitutional Courtsafeguarding 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 fora strong civil society discussion, debate and opposition to such ananti-people, undemocratic and authoritarian judgment from the ApexCourt that gives a license to impunity on the part of the Armed Forcesin Jammu and Kashmir, and approves the precedence of coercive powersof the state over the fundamental rights liberties of people. 
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