MEHBOOBA GOVERNMENT’S F.I.R. AGAINST ARMY IS A MUDDLED AFFAIR

Mehbooba Mufti’s F.I.R. has become a big jigsaw puzzle

With the Supreme Court order of February 12 having stayed the J&K Government’s F.I.R. against the Indian Army’s personnel of its Major Aditya-led 10, Garhwal unit for killing two civilians, there is adequate time to ascertain how the State’s chief minister, Mehbooba Mufti, helped create an unbelievable muddled affair.

Mehbooba proceeded to get a sensitive n F.I.R. registered within 48 hours of the incident

First of all, consider the fact that the F.I.R. was filed by the Police in Shopian district on January 28— just one day after the provoking incident happened. Speaking in the State Assembly on the next day (Jan. 29), she said that “I talked to the Union Defence Minister immediately after learning about the incident and she was positive in her response. She (Defence Minister) said, “if you feel there is carelessness (on the part of the Army), you take whatever action you want to take.” (https://www.hindustantimes.com/india-news/cm-mufti-says-j-k-govt-will-take-fir-against-army-in-shopian-case-to-logical-conclusion-bjp-mla-wants-it-withdrawn/story-E2Q7if9AImVA5pOQJ4nD0M.html))

That’s how, without personally witnessing the Shopian incident and without waiting for any kind of inquiry report by a District authority, Mehbooba proceeded to get a sensitive  F.I.R. registered within 48 hours of the incident.

That action was certainly Superman speed, like the orally given triple talaq which Muslim women were subjected to prior to the recent Supreme Court ban on that male inhumanity. That speed of action was in utter contrast to her withdrawal in December last of cases against 9,730 stone pelters registered between 2008 and 2017.

That’s where, one supposes, the muddling began. At least one media outlet interpreted the above statement of Mehbooba Mufti as having taken the ok of the Defence Minister, Nirmala Sitharaman, as the Central Government’s approval to the filing of the F.I.R.

That is not the reality of the law concerned. That law, in this case, is The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 of 10th September 1990. (Attached as downloaded from http://www.satp.org/satporgtp/countries/india/states/jandk/documents/actsandordinances/J&K_Specialpoweract.htm)

Section 7 of that above Act says “Protection of persons acting in good faith under this Act.—No prosecution, suit or other legal proceedings 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.”

Note the words “previous sanction of the Central Government”. A sanction by the Central Government cannot be a telephonic conversation. Nor can a sanction be given by, say, a Defence Secretary, be considered as that of the Central Government unless that person is approved by the Central Government as being its own sanction in such sensitive and serious cases of AFSPA. And the Defence Minister, if so approved by the Central Government as the sanctioning authority, will simply not given without he or she had personally whetted the final version of the F.I.R. intended to be filed. Further, that sanction will have to be given in writing on the Government of India letter-head after signing approval on the copy of the final version of the F.I.R.

None of the above requirements of “the previous sanction” seems to have been met in the present case; the actual F.I.R. could not have been approved by the Defence Minister on a Sunday that came immediately after the incident on preceding Saturday evening and the subsequent announcement of the F.I.R. being filed on a Monday that followed. And remember the Defence Minister’s caveat about the “Army’s carelessness.” That sensitive F.I.R. certainly required a close whetting of its draft as well as a total satisfaction (after personal verification) about the minutest detail of the incident concerned. It’s really impossible to believe that the Defence Minister of Prime Minister Modi’s cabinet can be as stupid or negligent as to grant written sanction to a telephone request. And, finally, nobody in this muddled affair has told us whether Ms Sitharaman had the authority at all to give such a sanction.

There’s the so-called “counter F.I.R.” filed by the Indian Army according to the “breaking news brigade

And, by the way, should the Shopian District Police have enclosed the “Central Government sanction” to its F.I.R.? Nobody has told us whether that was done!

There have been other kinds of muddling as well.

Take the PTI report of January 29, 2018 saying” An FIR lodged under Sections 302 and 307 of the Indian Penal Code in Ganowpora village mentions an Indian Army Major and others as those who opened fire on civilians, leaving two people dead.” ((https://www.hindustantimes.com/india-news/cm-mufti-says-j-k-govt-will-take-fir-against-army-in-shopian-case-to-logical-conclusion-bjp-mla-wants-it-withdrawn/story-E2Q7if9AImVA5pOQJ4nD0M.html) To anyone who has studied Article 370 of our Constitution, this report by the foremost Indian news agency is shocking ignorance because the Indian Penal Code is NOT applicable to the J&K State. What is applicable there instead is the Ranbir Penal Code which was introduced during the reign of the Dogra dynasty with Ranbir Singh as its ruler. It was made on the lines of Indian Penal Code prepared by Thomas Macaulay. And the F.I.R. filed was actually under sections 336 (endangering life or personal safety of others), 302 (murder) and 307 (attempt to murder) of the Ranbir Code.

Then, there’s the so-called “counter F.I.R.” filed by the Indian Army according to the “breaking news brigade.” The fact is that the Army only publicised its own version of the incident in that village in Shopian district which occurred on January 27. It was NOT a counter F.I.R.

Then there’s the bevvy of war veterans who were given a field day by the TV channels. Among the issue that troubled these honourable soldiers of ours was “the naming” of Major Aditya who was leading the convoy that was sought to be lynched by the stone pelters. The fact is that the AFSPA does not prohibit the mentioning of the guilty ones. Why don’t these respected soldiers of our take the trouble to read the law carefully before facing the TV cameras?

Lastly, there’s that sentence in Mehbooba Mufti’s statement in the J&K Assembly on Monday, January 29. She said, “we lodged an FIR and ordered a magisterial probe.”  Not knowing criminal law, this ignorant writer has a question: “Should a magisterial inquiry not precede an F.I.R. that is bound to create serious concern for the morale of the soldiers?”

Meanwhile, there’s no doubt that Mehbooba Mufti’s F.I.R. has become a big jigsaw puzzle. Let’s hope that it’s soon satisfactorily resolved. But, whatever happens, there’s no getting away that J&K’s present chief minister warrants a massive kick in her back; her role as the chief of the Unified Command of the Army is to be suspected, deeply suspected.

Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 by PGurus on Scribd

Note:
1. Text in Blue points to additional data on the topic.
2. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.

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Arvind Lavakare

Arvind Lavakare has been a freelance writer since 1957. He has written and spoken on sports on radio and TV. He currently writes on political issues regularly. His writings include a book on Article 370 of the Indian Constitution.

His freelancing career began in "The Times of India" with a sports article published when he was a month shy of 20 years of age. He was also a regular political affairs columnist first for rediff.com for five years or so and then shifted to sify.com. He also wrote extensively for niticentral.com "till it stopped publication."

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