By Lt Gen H S Panag
It would be a shame if there was tacit understanding between Indian Army and the accused to abuse the justice system.
n epitaph at the cremation site in village Dangari, district Tinsukhia, Assam, reads, “We, Prabin, Akhil, Pradip, Debojit and Bhaben, five innocent and unarmed young men, rest here as witnesses of the Indian state’s heartless atrocities. When you go back from here, tell everyone about the barbarianism of the Indian Army”. It seems like many other epitaphs put up by relatives and supporters of terrorists/insurgents/militants killed by security forces in the northeast, Jammu and Kashmir, and the Red Corridor.
However, in this case, the chilling words were found to be true by a Summary General Court Martial (SGCM) held by the Army from 16 July to 27 July 2018, 24 years after the incident. On 13 October, the SGCM awarded life imprisonment (subject to confirmation by the competent authority) to seven retired Army personnel – one Major General, two Colonels, two Honorary Captains and two Non-Commissioned Officers – for extra-judicial killings of five persons in Tinsukhia district, Assam, on the night 22/23 February 1994.
The only thing worse than the ‘instrument of last resort’ committing deliberate human rights violations is their systematic cover-up with the complicity of the state. This was an open-and-shut case.
On the night of 17/18 February 1994, nine men, all members of the All Assam Students Union (AASU), were picked up from various parts of Talap area of Tinsukhia district by 18 Punjab, then based at Dhola. The suspicion was about their involvement in the murder of Rameshwar Singh, general manager of Assam Frontier Tea Estate, on 15 February.
A habeas corpus petition was filed on 22 February in Gauhati High Court, which asked the Army to produce the nine men in front of a magistrate or at the nearest police station.
Rather than obey the high court order, 18 Punjab released four of the nine men at different locations on 23 February, and reported that five members of United Liberation Front of Assam (ULFA) were killed in an encounter because they were setting up a militant camp at the Dibru-Saikhowa National Park. The bodies bore marks of torture and extreme brutalisation. The four released men who had also been tortured confirmed the presence of the five victims in the Dhola camp. The boatman who had ferried the soldiers of 18 Punjab and the victims to the encounter site had mysteriously disappeared, but later gave evidence before the CBI.
Two parallel inquiries, one by the Army and one by the police, were conducted, which reached two contradictory conclusions. The Army called it a legitimate encounter and the police called it a cold-blooded extra-judicial killing. The high court ordered a CBI inquiry in 2001, which indicted the Commanding Officer, Colonel A.K. Lal (later Major General), two officers and four other ranks for the murder of five men, and filed a chargesheet on 30 May 2002.
Prosecution could not progress as the Army invoked the AFSPA. Finally, the case was heard by the Supreme Court on 1 May 2012, which gave the Army the option of trial by a court martial or by a criminal/CBI court after obtaining necessary sanction from the central government as required by Section 6 of the AFSPA.
A study in contrast
Assam chief minister Sarbananda Sonowal and senior BJP functionary Jagadish Bhuyan as members of AASU and later as part of the Asom Gana Parishad were at the forefront of this prolonged struggle to seek justice for the victims
Both welcomed the decision and praised the Army. Human rights activists hailed the verdict as a benchmark and course correction by the Army. Television, print and social media welcomed the SGCM verdict.
The attitude of the politicians, the Army and the media is in sharp contrast to the one they adopt towards similar cases in Jammu and Kashmir. No one, in this case, came out in support of the “victimised soldiers” who had claimed that they were merely doing their legitimate duty.
The Army’s approach towards the Pathribal incident is a case in point. Both the cases (Dangari and Pathribal) were heard together by the Supreme Court on 1 May 2012. The Supreme Court gave the Army the choice to try the accused by a court martial or let the matter be decided by a criminal/CBI court after necessary sanction of the government.
The Pathribal case was closed at the “hearing of the change” stage itself by the Commanding Officer on 24 January 2014, citing lack of evidence to establish a prima facie case. The Army’s sudden decision to hold a SGCM in the Dangari case, after six years of dithering post the Supreme Court directions on 1 May 2012, is hard to explain.
While each case is unique, it would be very unfortunate if the Army’s approach to human rights violations is influenced by extraneous – regional, political or demographic – factors.
Has the Dangari case reached closure? I am afraid not. The accused have the right to appeal against the verdict of the SGCM to the COAS/central government in the Armed Forces Tribunal and thereafter in the Supreme Court.
This is chimera
More than that, there is a legal issue, which may lead to their exoneration. The Army Act 1950, Section 122, unambiguously states that no trial of any person subject to the Act shall commence after the expiration of three years from the date of the offence; or where the commission of the offence was not known to the aggrieved person or the authority competent to take action, from the first day it comes to be known; or if the identity of the accused was not known, from the first day it comes to be known.
The Army Act 1950 is an act of Parliament and the provision of Section 122 is absolute, and has been upheld by the Supreme Court on a number of occasions in favour of the accused. The SGCM thus becomes legally invalid. The case could only have been tried in a criminal court, for which the permission of the central government is mandatory as the case is covered by the AFSPA.
It is surprising that this was not brought to the notice of the Supreme Court during the course of the hearing in May 2012 by the petitioners or the respondents. It is intriguing that neither the convening authority nor the court in the SGCM took note of this. The accused may not have raised the issue as they knew that they have a favourable case at the appeal stage.
It would be a shame if there was a tacit understanding between the Army and the accused to abuse the justice system. In my view, the Dangari SGCM is chimera, where justice has not only been delayed but is likely to be denied too.
Lt Gen H S Panag PVSM, AVSM (R) served in the Indian Army for 40 years. He was GOC in C Northern Command and Central Command. Post retirement, he was Member of Armed Forces Tribunal.