Armed forces' "accesses" in J&K: Govt of India "doesn't know" procedure followed to sanction persecution

By A Representative
After waiting for more than 40 days, well-known Right to Information (RTI) activist Venkatesh Nayak has received a strange reply to his RTI plea regarding procedure followed by the Union ministry of defence in “sanctioning” the prosecution of members of the defence forces for human rights violations committed under the Armed Forces (Jammu & Kashmir) Special Powers, 1990 (J&K AFSPA).
While the reply says, the information on it is "not available/held with the concerned agency of the Army”, ironically, the Ministry told Parliament early this year that it had denied requests from the J&K Government for sanction to prosecute security personnel in 50 cases that occurred during 2001-16.
While the requests were pending in three cases, the Ministry’s reply to the Rajya Sabha to an unstarred question by Husain Dalwai, MP, said, it had ‘denied’ sanction to prosecute the accused in other cases involving allegations of ‘murder or killing of civilians’ (17 cases), ‘rape’ (2 cases), ‘death in security operations’ (10 cases), ‘custodial death’ (3 cases), ‘beating or torture’ (2 cases), ‘abduction and death (of the abducted person)’ (3 cases), ‘disappearance’ (7 cases), ‘illegal detention’ (1 case) ‘fake encounter’ (1 case) and ‘theft and molestation’ (2 cases).
Seeking a photocopy of all official records containing details of the procedure that is required to be followed by the ministry while deciding whether or not to grant sanction for prosecuting any member of the defence forces, Nayak said in an email alert to Counterview, he had also sought photocopies of official records/documents containing the norms, criteria and standards that are required to be applied for assessing the evidence submitted by the J&K government.
Nayak further sought the rank or designation of the officer who is competent to make a final decision on whether or not to grant sanction for prosecuting any member of the defence forces for actions committed under J&K AFSPA; and photocopies of the communication sent by the Ministry to the J&K government denying sanction for prosecution.
At the same time, Nayak had sought inspection of every file including all papers, correspondence, file notings and emails, if any, relating to the denial of sanction for prosecution. The reply to Nayak, notably, comes against the backdrop of the “good news” for the people in Meghalaya – lifting of the draconian Armed Forces (Special Powers) Act, 1958 (AFSPA) from their State.
Section 7 of J&K AFSPA requires that "no prosecution, suit or other legal proceeding 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."
Nayak received the reply after several departments of the defence ministry apparently avoided giving any reply to the RTI query. The Central Public Information Officer (CPIO) of defence ministry transferred the RTI plea to another CPIO, who sits in Sena Bhawan. The second CPIO transferred the RTI application to the CPIO, Indian Army after next four days.
Interestingly, the CPIO, Indian Army, sent Nayak an “acknowledgement” within a week of receiving the RTI plea transferred by the Defence Department, saying as the headquarters of the Indian Army worked only five days a week, and as there were 8 non-working days in a month, he should “accept” delayed response.
What Nayak, who is with the Commonwealth Human Rights Initiative (CHRI), finally received was a one line reply – that the information sought in the RTI application was "not available/held with the concerned agency of the Army”!
Asks Nayak, “If neither the defence ministry nor the Indian Army has the details of cases sent by the J&K government requesting sanction for prosecution of defence personnel, then what was the basis of the Minister's reply tabled in Parliament?”