December 2006 News

'Case Against Kashmiris Failed SC Test'

15 December 2006
The Times of India

Mumbai: 'Would a mere collection of men, arms and ammunition amount to waging a war against India?' This was the question before the division bench of the Bombay high court that heard the case of four Kashmiri youths who had been convicted by a trial court for intending to wage a war against the country. The division bench of Justice V G Palshikar and Justice Nishita Mhatre cited the judgment in the Parliament attack case while acquitting Javed alias Java Ahmed Mohammad Akbar Bhat (23), Farooq Ahmed Mohammad Sidiqui (23), Altaf Hussain Gulam Mohideen Bhat (19) and Farooq Ahmed Mohammad Ramzan Sopan (28). In the Parliament attack case, two of the accused - Shaukat Geelani and Navjot Sandhu alias Afsan Guru (wife of one of the prime accused, Afzal Guru) - were acquitted by the Supreme Court. The apex court, while considering the scope of the term 'waging war', observed that the expression 'admits many shades of meaning and defies a definition with exactitude'. The SC had ruled that the most important criteria was 'intention and purpose of the war-like operations'. If the object was to strike at the soverign authority of the country either through the use of arms or force or by a stealthy operation, it would mean waging a war, observed the court. But the court held that there was a need to 'dissociate ourselves from the old English and Indian authorities' (concept of war)'. It ruled that there was a need for a balance and realistic approach when charging someone with the treason. 'The expression 'waging war' should not be stretched too far to hold that all the acts of disrupting public order and peace irrespective of their magnitude and repercussions could be reckoned as acts of waging war against the government.' 'An organised movement attended with violence and attacks against the public officials and armed forces while agitating for the repeal of an unpopular law or for preventing burdensome taxes were viewed as acts of treason in the form of levying war. We doubt whether such construction is in tune with the modern-day perspectives and standards,'the SC said, seeking to differenciate waging war from legitimate political activity. In the present case, the HC observed that the prosecution had failed in all the tests laid down by SC in the Parliament attack case. 'Accepting theevidence of the prosecution, all that is proved is a collection of arms and some books.' The court held that the ballistic reports were not brought on record by the police during the trial to prove the intention to use deadly force. 'None of the witnesses (all policemen ) say an oath that all this was done to wage a war or to be prepared to wage a war against India,'remarked the bench.


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