[Reader-list] Fwd: Masooda Parveen Review Petition dismissed by Supreme Court of India

atreyee majumder atreyee.m at gmail.com
Fri Oct 12 17:06:08 IST 2007


---------- Forwarded message ----------
From: Shrimoyee Nandini Ghosh <shrimoyee at gmail.com>
Date: Oct 12, 2007 4:52 PM
Subject: Fwd: Masooda Parveen Review Petition dismissed by Supreme Court of
India
To: atreyee majumder <atreyee.m at gmail.com>, bugu <bhairav.acharya at gmail.com>

- ---------- Forwarded message ----------
From: Shomona Khanna <shomona at gmail.com>
Date: Oct 11, 2007 10:33 PM
Subject: Masooda Parveen Review Petition dismissed by Supreme Court of India
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Dear Friends,



It is with regret that I inform you that the review petition which was
filed by Masooda Parveen against the judgment dated 2.5.2007 passed by
the Supreme Court came up before Justices Dalaveer Bhandari and H.S.
Bedi today (11/10/07), and has been dismissed.



I may remind you that Masooda Parveen had filed a writ petition under
Article 32 and 21 for compensation for the death of her husband, an
advocate, in the custody of 17 Jat Regiment in Pulwama, Kashmir, as
far back as February 1998. While initially the petition was for
compensation and for compassionate employment to the wife, later its
scope had been expanded to get the court to lay down some safeguards
from the army that enjoys "special powers" in J&K under the J&K Armed
Forces Special Powers Act. It was hoped by us that the Supreme Court
would use this opportunity to apply the safeguards in the Naga
People's Movement for Human Rights case to J&K.



In the judgment dated 2.5.2007 handed down after nearly 9 years of its
filing (reported in 2007(6) SCALE 447; copy enclosed) the Supreme
Court has inexplicably overlooked crucial facts which pointed to
glaring inconsistencies and contradictions in the version of
'accidental death' put forward by the state.  It also ignored the fact
that despite the closure report in an investigation under s. 174 CrPC
being rejected by the District Magistrate, Pulwama, and Rule Nisi
being issued by the Supreme Court, the local administration "lost" the
inquest file and all the critical documentation contained in it.



In the judgment, the Supreme Court has unquestioningly accepted the
army's bald version that the deceased had been a 'militant', when not
a scrap of evidence exists for such a serious allegation. It has
further observed that the petitioner has not been able to show her
version of events was true. Placing the burden of proof squarely on
the petitioner, the judgment contradicts the body of existing law
where the burden lies on the state to show how the death occurred in
incidents of custodial death. Such burden must for obvious reasons be
even higher where death occurs in Army custody in a disturbed area
where the Armed forces are, theoretically, operating under the
supervision of the 'civil authorities'.



A further disturbing aspect of the judgment is that it proceeds to
carve out an exception to directions made by a 5 judge Constitution
Bench in the NPMHR judgment ((1998) 2 SCC 109). According to that
judgment, the Army is bound by the Constitution of India as well as by
the provisions of the Armed Forces Special Powers Act to produce any
person arrested by it before the nearest police station with "least
possible delay". In that judgment the Supreme Court had also observed
that "least possible delay" could not exceed 2-3 hours, since after
being handed over at the nearest police station, the arrestee has to
be produced before the Magistrate within 24 hours of arrest in
accordance with Article 22 of the Constitution.



However, the judgment in Masooda Parveen's case chose to ignore
evidence before it that the deceased was in illegal Army custody for
at least 30 hours before his death, and instead observes:

" We are also not un-mindful of the fact that prompt action by the
army in such matters is the key to success and any delay can result in
the leakage of information which would frustrate the very purpose of
the army action."


The Government of India had attempted to get just such an exemption in
the petition seeking clarification of the NPMHR judgment, and this had
been negatived by a 5 judge bench of the Supreme Court by order dated
7.8.2001.



The petitioner widow who has in the intervening years raised her
children single-handedly and also been under surveillance by the
state, is heartbroken to get this verdict that labels her husband a
militant, and therefore by extension herself and her children as well.



But the implications of the judgment go far beyond the private
heartbreak of one family. This is probably the first judgment of the
Supreme Court interpreting the provisions of the Jammu and Kashmir
Armed Forces Special Powers Act. Not only has the Supreme Court lost
an opportunity to hold the Armed forces accountable for increasingly
heinous excesses against the Kashmiri people, the Supreme Court has
also sent out a message virtually endorsing the impunity of the Armed
Forces for such acts.



All this, and more, had been placed before the Supreme Court in the
Review Petition filed by the petitioner-widow in July 2007 (copy
attached), in the hope that the Court would recognise the impact of
the judgment dated 2.5.2007 on the petitioner, as well as its larger
implications for the people of Kashmir, and therefore reverse it. The
Supreme Court has, however, chosen today to dismiss the review
petition filed by the petitioner.



With regards,



Shomona Khanna

Advocate




- --
Shomona Khanna
Res:180-D Pocket C
Sidharth Extn. New Delhi-14
Off: 164-A Pocket C
Sidharth Extn. New Delhi-14
Ph: 91-11-26903709, 26346058, 9873665288
email: < shomona at gmail.com> <alt_law at rediffmailcom>


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