Supreme Court judgment disappointing: JKCCS

Srinagar: President, Jammu and Kashmir Coalition of Civil Society (JKCCS) Saturday said that Supreme Court judgment in Zahid Farooq Sheikh Case is yet another disappointment for the people of Kashmir. JKCCS has stated that Very few cases related to Jammu and Kashmir human rights have gone to the Supreme Court and once again, after the Pathribal judgment, the Supreme Court has disappointed the people of Kashmir in Zahid Farooq murder case. It said that the armed forces are the real beneficiaries of the Supreme Court verdicts.

In a statement, president, JKCCS, Parvez Imroz has said that the judgment passed by the Supreme Court in Zahid Farooq Sheikh case, which received welcome reactions from different sections of society requires both serious critique, and crucially, a serious introspection on public reaction that appears not to have been based on an actual reading of the judgment.
“Both the lower judiciary and the High Court, in this case of a killing of a 16 year old student on 5 February 2010, acquiesced to the Border Security Force (BSF) application to have the case tried by court-martial. The Supreme Court set aside these judgments, ordered that the record of the case be returned to the Chief Judicial Magistrate (CJM), Srinagar, but also noted that within eight weeks the BSF could once again apply for the matter to be tried by the court-martial,” the statement reads.
According to JKCCS, the judgment does not order for the trial to be conducted by the civilian court. The judgment upholds that the actions of the accused were done while on “active duty” and only vitiates the application of the BSF for the court-martial on technical grounds.
“The first critique of the Supreme Court judgment is the manner in which it deals with the issue of “active duty”. This is relevant as Section 47 of the BSF Act bars trial by court-martial for a crime of murder unless certain exceptions are proved, including that the accused were on “active duty.” While the Supreme Court correctly finds that, “there is no connection, not even the remotest one, between their duty as members of the Force and the crime in question”, it still holds the accused in the present case to have acted under “active duty” based purely on a Central Government Notification [SO.1473 (E), dated 8 August 2007] that states that every personnel of the forces in Jammu and Kashmir, for a specified period, is considered to be under “active duty”.
“Rather than strike down this government notification, which is clearly a part of the larger State design to ensure absolute impunity for human rights violations in Jammu and Kashmir, the Supreme Court chose to plead apparent helplessness. Therefore, even in the blatant extra-judicial execution of a 16 year old in Jammu and Kashmir, the Supreme Court will accept that this was done by personnel on “active duty” and a court-martial system, that is clearly designed to assist the accused, will be allowed to try the accused. The abysmal record of the armed forces with regard to court martials is well known in Jammu and Kashmir.”
According to JKCCS, the second critique of the Supreme Court judgment is that it chose not to clarify to the CJM the extent of its power when the forces make an application for a court-martial. The Supreme Court held that the application by the BSF was vitiated as no reasons, as per guidelines laid down under Rule 41 of the BSF Rules, were provided for the application. For example, the application could have stated that a court-martial is necessary in the interests of the discipline of the force.
Therefore, within eight weeks, the BSF could return to the CJM with specified reasons for the court-martial, and this would be in adherence to the Supreme Court judgment. What the Supreme Court failed to do was clarify to the CJM that despite a request from the BSF, the civilian court can also exercise the right to try the case. While ultimately, if there were claims to jurisdiction by both the CJM and the BSF, the matter would be referred to the Central Government, the CJM should have been informed that the right to claim jurisdiction exists. Therefore, the CJM need not blindly acquiesce to the application of the BSF, as it did earlier.