Army Told to Disclose Macchil Fake Encounter Details

Following a petition filed by RTI activist, Venkatesh Nayak, the Central Information Commission has ordered the army to disclose the proceedings of its court martial from 2013.

Policemen patrol a deserted road during a curfew in Srinagar. Credit: Reuters

Policemen patrol a deserted road during a curfew in Srinagar. Credit: Reuters

The Central Information Commission (CIC) has directed the army to disclose all proceedings related to the general court martial which was constituted by it in 2013. The court martial was tasked with the trial of the accused in the extra-judicial killing of 3 people in Macchil in Jammu and Kashmir on April 30, 2010. The court martial had later convicted five army personnel for a fake encounter, including a colonel and a captain.

The orders of the CIC came on a petition by RTI activist and programme coordinator at the Commonwealth Human Rights Initiative, Venkatesh Nayak. In January 2015, he had filed a request for information under the RTI Act, 2005, asking for the details of the court martial proceedings from the army.

He demanded the entire text of the findings of the court martial, a photocopy of the chargesheet, a photocopy of the sentence given to the convicted army personnel, a photocopy of all the communication and a photocopy of all the proceedings of the court of inquiry that looked into the killing of five persons in Pathribal, in the Anantnag district of Kashmir in the year 2000.

Earlier last week, the Jammu and Kashmir high court had dismissed a petition that sought to reopen a probe into the Pathribal encounter case and hand it over to the CBI.

The army had closed the case in January 2014 and exonerated all the five officers accused in the case for want of evidence.

Perplexing case of Pathribal

For the Pathribal case, Nayak said that while media reports indicated that the court of inquiry instituted by the army did not find any evidence against its personnel, the Indian Army has argued before the CIC that a court of inquiry was never held regarding this incident.

“What is perplexing in this case is that the Indian Army representative admitted at the CIC hearing, that a court of inquiry was never held in the Pathribal incident. The CIC has recorded this admission in its decision. Media in Jammu and Kashmir and the rest of the country have reported more than once, about the existence of a court of inquiry in the Pathribal case,” said Nayak, noting that the matter had even reached the Supreme Court.

Army had much to hide about the court martial

As for the Macchil killings, Nayak noted how the army was not forthcoming with information. “The Central Public Information Officer (CPIO) of the Indian Army invoked Section 8(1)(h) of the RTI Act to deny access to the court martial and court of inquiry records. Under Section 8(1)(h), a public authority may deny access to information if disclosure will impede the process of investigation or the arrest or the prosecution of persons accused of committing crimes. Later on, the first appellate authority upheld the decision of the CPIO.”

At this juncture, Nayak in his second appeal before the CIC, argued that Section 8(1)(h) was simply not applicable to the information he had sought. “I cited case laws from the Delhi high court about how the exemptions must not be applied in a mechanical manner. Subsequently, the CIC has ordered the disclosure of all information sought in my RTI application relating to the court martial in the Macchil case.”

Note: The original headline of this story erroneously said the CIC had ordered the Pathribal encounter documents released. The order actually pertains to Macchil. In the case of Pathribak, the CIC order records the army’s claim that a court of inquiry was never held.

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