Author: Vishal Thapar
Publication: The Hindustan Times
Date: July 31, 2002
For the first time, Army personnel
fighting militancy in Jammu and Kashmir have filed complaints of human
rights violation, and demanded compensation from the state.
These complaints are poised to be
landmark cases in the determination of the rights of the armed forces personnel
fighting violent movements to preserve the integrity of the country. Over
4,100 troopers have died in J&K since 1990.
An Army officer whose daughter was
killed in a terrorist-triggered blast in Kashmir has contended before the
NHRC that she was targetted only because she belonged to an Army family.
This was done in order to "terrorise the public and send a message that
anyone associated with the Army would be eliminated".
Leena Sharma, the daughter of Captain
Ram Niwas Sharma, was killed while travelling from Srinagar to Jammu in
an Army bus on January 18, 2001. The bus, which was part of an Army convoy,
was blown up by an improvised explosive device (IED) at village Chursoo
near Awantipura.
Captain Sharma has claimed parity
with "innocent victims of mindless violence" in the Delhi and Gujarat riots
in demanding compensation. He has pointed out that the Prime Minister personally
announced compensation of Rs 2 lakh each for the Gujarat victims.
Legal opinion is divided on the
issue of compensation for Leena's killing. Former Additional Solicitor
General K.T.S. Tulsi stresses that defence personnel cannot be denied human
rights. "Merely because they are in uniform does not mean that they cease
to be human," he says.
Tulsi sees merit in the contention
that Leena was targetted because she was travelling in a military vehicle.
"The family is entitled to exemplary damages," he says.
But will this not open the floodgates
for similar claims, like in the Kaluchak case, where over 30 innocents
were killed by terrorists only because they related to Armymen?
Constitutional lawyer Abhishek Singhvi
agrees. "Despite obvious sympathies, liabilities of the government are
not easy to establish. Issues of the officer's consent in allowing his
daughter to travel in an Army bus and determination of negligence are involved.
Obviously, an external terrorist attack can't be termed negligence," he
argues.
"It's very difficult to bring this
case within the established slot of Tort Law or Criminal Law. Hence, liability
will remain a vexed issue," says Singhvi.
The other case relates to the police
torture of Naik Barkat Hussain of 18 Mahar Regiment. Police charged Armymen,
including Hussain, with killing a local, Fazal Kahi. Hussain was subjected
to third degree and reduced to a cripple, before the Army could rescue
him from the police. Today, he can't use either of his arms. The murder
charge was never proved.