Justice for victims of army atrocities in Kashmir: Long road to accountability

Since the Armed Forces Special Powers Act came into force in Jammu and Kashmir in 1990, the Indian government has not granted permission to prosecute any security force personnel in civilian courts.

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ONE would have liked to join the hoi polloi in welcoming the decision of the General Court Martial to recommend imprisonment for life to Captain Bhoopendra Singh, alias Major Bashir Khan for staging the encounter killings of three men in Shopian, Kashmir in 2020. The sentence will be final if and when it is confirmed by the Northern Army Commander. However, the brooding presence of the past cautions one's reaction.

Welcome and necessary initiative

While difficult indeed for the top brass, there are ways to facilitate keeping the rules, where democracy rules. One is to set an example as a military commander by seeing to it that a thorough investigation will be carried out when human rights violations, by soldiers under their command, have been reported. If offenders are not brought to justice the army will continue dishonouring itself.

The Indian Army will only be doing itself proud by isolating the few bad eggs. For this, in the present case, the commanding officer is to be commended. This is indeed a welcome and necessary initiative.

Unhappy past experience

However, a few swallows do not make the summer. In the past, the army has resisted any move by the Jammu and Kashmir Police (JK Police) to get the custody of accused army officials, including in two highly publicised cases — the 2007 Ganderbal fake encounter case and the 2000 Pathribal fake encounter case.

In 2007, Rashtriya Rifles and JK Police officers abducted and killed five villagers in Ganderbal, dubbing them as militants. A senior superintendent of police, his deputy, and five others were arrested for murdering the villagers. Some army men's involvement was established, but they were never handed over to the police.

The Pathribal encounter in March 2000 was first reported as a legitimate anti-militancy operation. Within hours of it, the then Union Home Secretary Kamal Panday and the then Union Home Minister L.K. Advani came on record saying that the army and police had gunned down five Lashkar terrorists, responsible for the massacre of 36 Sikh villagers in Chittisinghpura in Anantnag, Kashmir earlier that month.

The facts of this encounter would not have never been investigated if there had not been public pressure. The case was finally handed over to the Central Bureau of Investigation (CBI), which not only concluded that the encounter was fake but also chargesheeted five army officers.

Ten years later, there is still a debate on whether the CBI has the authority to probe the army. The accused army officers have been promoted during the pendency of investigation. The relief provided to the families was one lakh rupees each.

Also read: How Fair is Compensation for Human Rights Violations in India?

In 2005, JK Police investigations led to the exposé of a large-scale fake surrender. Forty-one villagers from Chrar-e-Sharief town in Kashmir were forcibly taken to Delhi and kept in army custody for six months, to participate in a choreographed surrender ceremony in front of a Corps commander and a Director General of Policy.

The Inspector General of Police, Kashmir, wrote letters to the army, alleging that two of its officers, including a brigadier, were involved in this case. But nobody intimated these villagers or their families as to what happened to this probe. There was not even an apology, let alone compensation to these people.

Though then Union Defence Minister A.K. Antony and the army leadership promised strict action in the case, there was little hope in the Valley that the offending army officers would be punished. It was believed that the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 would be invoked, and hollow assurances given that the army will conduct an internal probe. The Act provides blanket legal protection to soldiers conducting counterinsurgency operations.

The use of the armed forces against a country's own people cannot be considered an internal affair. As responsible military officers are aware, it is of paramount importance to maintain good relations with and build the confidence of the civilian population.

Violations of human rights committed by the military can only damage those relations and also lead to a loss of professional respect among military personnel. Military personnel need to be given strict instructions, limiting the use of lethal force against unarmed civilians.

The situation that Indian military commanders in Kashmir are facing is not uncommon in today's world. Each government has to find its own way to deal with insurgent forces. However, one would like to stress two important elements in all such conflicts. One is a matter of experience: recent history teaches us that escalating the conflict by answering acts of terrorism with counterterror by government forces does not pay off, certainly not in the long run.

The other is a matter of law and of honour. Military men, especially general officers — who want to maintain their dignity and stick to the values they were introduced to at their military academies — are to carry out military operations without breaching the Geneva Conventions of 1949.

This is difficult, and during a state of internal armed conflict, the wrong idea may develop that no holds are barred. Nevertheless, the rules are clear: torture, rape, arbitrary killings and other such acts are never allowed.

Also read: OHCHR report on Kashmir: A belated signpost of recognition that India shouldn't dismiss

ICRC enfeebled

The only competent organisation dealing with armed forces training on international humanitarian law is the humanitarian organisation, International Committee of Red Cross (ICRC). However, in Kashmir, the ICRC has allowed itself to be enfeebled to an extent that brings into question its very presence there.

Indian military law

The Indian Army is a disciplined army, with a rigorous chain of command and an esprit de corps. However, there is evidence of aberrations. The Major L. Gogoi case is illustrative.

Section 46 (certain forms of disgraceful conduct) of the Army Act, 1950, penalises "disgraceful conduct of a cruel, indecent or unnatural kind".

Per Section 64 (miscellaneous offences) of the Act, failing to provide due reparation or report the case to the proper authority upon receiving a complaint — while in command at any post or on the march — that someone under their command has "beaten or otherwise maltreated or oppressed any person", is an offence.

Additionally, the 'Ten Commandments' issued by the Chief of Army Staff oblige the armed forces to respect human rights. In Extra Judicial Execution Victim Families Association & Anr. versus Union of India (2013), the Supreme Court invoked the Ten Commandments, stating: "It is quite clear from the various instructions issued (which are binding on the armed forces) that minimum force is to be used even against terrorists, militants and insurgents. There is absolutely no reason why an equally toned-down response cannot be given by our armed forces in times of internal disturbances and why no enquiry should be held if the response is alleged to be disproportionate."

The Army Headquarters has also issued a list of 'Dos and Don'ts' to be followed while acting under the Armed Forces (Jammu and Kashmir) Special Powers Act and the Armed Forces (Special Powers) Act, 1958. In Naga Peoples' Movement of Human Rights (NPMHR) versus Union of India (1997), the Supreme Court declared that "officers of the armed forces shall strictly follow the instructions contained in the list and any disregard to the said instructions would entail suitable action under the Army Act, 1950."

Also read: AFSPA in the North East – the never ending trauma

The list provides for only minimal force required for effective action against persons acting in contravention of a prohibitory order, and specifically prohibits torture, harassment of civilians and use of force after the arrest, except when the arrested person tries to escape. If the hapless victim used as a human shield by Major Gogoi had been indulging in or inciting violence, as has been alleged, he should have been handed over to the police, rather than being publicly paraded.

The first information report against 53 Rashtriya Rifles for the act of using a civilian as a human shield was registered under the provisions of wrongful confinement, criminal intimidation and kidnapping — all offences under the Jammu and Kashmir State Ranbir Penal Code, then applicable in the then state of Jammu and Kashmir. Under Section 69 (civil offences) of the Army Act, a person subject to the Act is deemed guilty if he commits any civil offence. Using a person as a human shield would also fall under Section 69.

Further, the burden of proving that the circumstances fall within the general exceptions is on the accused. Despite this, the then Indian Army chief stated that Major Gogoi would face no action even if the military investigations found him guilty.

The right to life under Article 21 of the Constitution also means the right to be treated with dignity. In Prem Shankar Shukla versus Delhi Administration (1980), the Supreme Court held, for example, that handcuffing undertrials and parading them violates Article 21.

In Shri Kisan @ Kisanchand Tharurmal Wadhawa versus The State Of Maharashtra & Ors. (2013), the Bombay High Court held that being paraded in public in handcuffs "afforded the public at large an opportunity to see the petitioner being taken in this manner, the inevitable consequence of which, it goes without saying, is the feeling of humiliation overtaking the petitioner." The action "amounted to giving cruel and degrading treatment to the petitioner thereby violating his fundamental right with regard to his liberty and dignity under Article 21 of the Constitution of India."

Yet, at least one senior academic in the National Defence College extolled this incident, while the now deceased then Chief of Army staff, in a crass action, gave Major Gogoi a commendation.

AFSPA and impunity

The Armed Forces Special Powers Acts (AFSPA) contain immunity clauses for armed forces even if they are to engage in violations of the right to life, and/or torture. However, the Union government may give permission to prosecute army personnel for criminal offences upon application, and according to a question raised in the Rajya Sabha (upper house of Parliament) in 2018, a total of 50 requests for the sanction of prosecution against armed forces personnel under AFSPA were made by the Jammu and Kashmir government to the Union Government between 2001 and 2018, of which none were approved.

Since the AFSPA came into force in Jammu and Kashmir in 1990, the Indian government has not granted permission to prosecute any security force personnel in civilian courts. Those cases that were tried were tried in military courts. The targeted denial of support may therefore have a concrete impact in incentivising prosecutions for select units and officers.

And the near impossibility of redress is continually brought to light, most recently in the Supreme Court decision in Masooda Parveen versus Union of India (2007), in which the court leaned in favour of 'feasibility' and 'practicability' as against strict conformity to guidelines laid down in an earlier case.

Also read: The Oting massacre and the state of exception in democracies

Judicial indifference

The excessive powers granted to security forces under the AFSPAs also appear to have failed to move the Supreme Court. In May 2007, in Masooda Parveen, the Supreme Court undercut its own 1997 ruling in the NPMHR case. In NPMHR, the Supreme Court upheld the constitutionality of the AFSPA 1958, but placed various checks on the armed forces' exercise of power under the Act. Specifically, the court rejected the petitioners' argument, which was that the AFSPA was unconstitutional because it transferred to the armed forces full power to maintain public order in a disturbed area, whereas the Constitution only permits the Parliament to enact laws relating to the 'use of the Armed Forces in aid of civil power'.

But in rejecting this argument, the Supreme Court also held that the 'in aid of civil power' clause mandated the continued existence and relevance of the authority to be aided. Under the AFSPA, therefore, the armed forces cannot 'supplant or act as a substitute' for a State's civilian authorities in the maintenance of public order, but are strictly required to act in cooperation with them.

Ten years later, in Masooda, the Supreme Court, however, echoed the army's argument that the recovery of arms and ammunition from the arrestee was an "apparent…first priority" that took precedence over the transfer of custody to civil police forces because "to cause any delay could lead to a failure of the operation". The arguments accepted by the court were alarmingly similar to those used by both the army and the government to justify human rights abuses that are facilitated by the vast, broad provisions of the AFSPA.

Too sketchy, too bald, too vague

AFSPA, or at least a part of it, has been questioned in 2013 by the Justice J.S. Verma-led committee constituted by the Union government to recommend amendments to criminal law for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women.

In November 2004, a five-member committee, chaired by former Supreme Court judge, Justice B.P. Jeevan Reddy, was set up to review the AFSPA, 1958 in the context of its application to the Northeastern states of Assam and Manipur. This was in the wake of an intense agitation by civil society groups in Manipur following the death of 32-year Manipuri woman Thangjam Manorama on July 11, 2004 while in the custody of the Assam Rifles, a paramilitary force, allegedly after being raped and tortured.

The committee observed that the Act was "too sketchy, too bald and quite inadequate in several particulars." While it acknowledged that the Act was held constitutional in NPMHR , it asserted that "constitutional validity…is not an endorsement of the desirability or advisability of the Act." The recommendations further described the committee's impression that the Act had become a "symbol of oppression, an object of hate and an instrument of discrimination."

Periodic review by the Parliament recommended

The Committee insisted on a periodic review of AFSPA every six months, with any extension of deployment approved by both Houses of the Parliament.

The Committee's recommendations were presented to the Prime Minister and the Union Government in June of 2005, seven months after review began. While supported by the Administrative Reforms Commission and the United Nations, in the years since the recommendations, there has been no official acceptance or government action. 

Also read: 'AFSPA cannot protect unlawful killings', says human rights defender documenting abuses by the security forces

Administrative Reforms Commission recommended repeal

In June 2007, the Second Administrative Reforms Commission (ARC), chaired by politician and lawyer M. Veerappa Moily, published its fifth report on public order. The Commission of Inquiry was set up by the President to prepare a detailed blueprint for revamping the public administration system. A review of the AFSPA was included as part of the report's Chapter entitled Constitutional Issues and Special Laws. In its assessment, the ARC took into account the conclusions in the NPMHR judgment, recognising the constitutionality of the Act and the imposition of a periodic review.

The Commission's recommendation was submitted to the Union government on June 1, 2007 and met with immediate resistance from the sanctimonious then Union Defence Minister A.K. Antony. Antony rejected the ARC's recommendation, stating the time had not come to scrap the law, adding, "but there is always scope for improvement".

We are still waiting for the sanction for prosecution of Assam Rifles personnel pursuant to the Supreme Court judgment in Extra Judicial Execution Victim Families Association versus Union of India (2016). Forget the detritus of Operation Golden Bird and Operation Bajrang in Assam. The last hearing was scheduled for February 24 this year. The hearing did not take place. Thereby hangs a tale.