Srinagar: The suspension of sentence and release on bail by the Armed Forces Tribunal of Indian Army personnel convicted and sentenced by army court-martial in 2014 for the Macchil fake encounter of 29/30 April 2010 is yet another reminder that the armed forces are protected by the Indian State and immunity for crimes committed in Jammu and Kashmir is the norm.
The Indian State has ensured impunity in Jammu and Kashmir through draconian laws, a climate of fear and obfuscation that does not allow any processes of justice to function, investigative agencies (local police and agencies such as the Central Bureau of Investigation – CBI) that almost always favor the accused State forces, and, crucially, a judiciary that has displayed an unwillingness to uphold principles of rule of law and ensure justice. Human rights violations in Jammu and Kashmir have been widespread, systematic and systemic and the Indian State and its institutions have ensured impunity.
Court-martial procedures are opaque and do not provide any role for the family members of the victims. Further, court-martials are not the appropriate judicial forum to prosecute crimes committed by armed forces personnel against civilians. Yet, the executive through their notifications and actions and judiciary through their decisions have upheld armed forces pleas for court-martials when the victims have clearly demanded trial by civilian court. The recent decision of the Armed Forces Tribunal, particularly the order for bail, suggests that the accused in this case may well be acquitted as the Armed Forces Tribunal Act, 2007, Section 15(3) Proviso states that bail may not be granted if reasonable grounds of guilt exist. The Tribunal appears to have found that such reasonable grounds do not exist in this case thereby allowing for release on bail. RTI information on army court-martials makes clear that court-martials have essentially served as a convenient and internal mechanism to ensure immunity to army personnel in the few cases where the investigative agencies have investigated and indicted specific accused. Through limited RTI information accessed [after repeated efforts that illustrates the opaque nature of the court-martial process], two lists dated 28 March 2012 and 18 June 2012 pertaining only to the Rashtriya Rifles, and a separate communication dated 22 June 2012 relating to one Rashtriya Rifles court-martial, was provided. The total number of court-martials is: 58. Based on information provided in the RTI, except in three cases, there is no way to discern whether these court-martials relate to violations against civilians or other army personnel. But based on other available information it appears only a total of five cases in these lists relate to crimes against civilians. Only NINE officers appear to be involved in all these court-martials. Further, what is clear is that of these 58 cases, 20 appear to be quite clearly related to more minor crimes. Of the remaining 38 cases, appropriate conviction/punishment appears [as there is no record to analyze] to have been provided in only 21 cases. Of particular note are two cases of rape, one against Captain Ravinder Singh Tewatia [for the rape of mother and daughter in February 2000 in Banihal], and the other against Major Rehman Hussain [for the rape of mother and daughter in November 2004 in Badra Payeen]. Captain Tewatia was convicted by the court-martial and sentenced to imprisonment for seven years. Major Hussain was dismissed from service as he was reportedly only convicted for outraging the modesty of the victims. Both accused challenged their decisions in the High Court of Jammu and Kashmir and received verdicts in their favor. While the Captain Tewatia case is still pending further legal challenge, Major Hussain has reportedly returned to service. A high profile case – the Pathribal fake encounter case of 2000 where five civilians were killed and shown as militants – clearly illustrates the prevalent impunity. The CBI filed a chargesheet and this was challenged by the army and the Supreme Court directed that a trial be conducted and gave the army the option of holding a trial by court-martial. But, rather than hold a court-martial, the army held a “summary of evidence” and closed the case concluding that there was no connection between the accused army personnel and the crime. The families of the victim have once again approached the Supreme Court in this case.
The story of impunity that emerges from the history of court-martials in Jammu and Kashmir is similar to the record of other State institutions. The investigating agencies, including CBI, have rarely carried out fair and proper investigations. In the few cases in which such investigations have been carried out, the executive or judiciary have intervened by denying sanction under AFSPA or by allowing a court-martial (examples: Pathribal fake encounter of 2000 and Zahid Farooq killing of 2010). Similarly, in the rare cases where the judiciary has passed stringent directions, the executive has ignored or delayed execution of these orders and the judiciary has refused to take action and ensure that justice is done. Meanwhile, the executive – specifically the respective governments in power – have limited themselves to rhetorical statements and the constitution of Commissions of Inquiry or magisterial enquiries that have either carried out no inquiries or been shelved by the governments subsequently, or, as in the case of the ML Koul Commission constituted to enquire into the 2010 killings, the final report is not even made public.
In the present context, Jammu Kashmir Coalition of Civil Society (JKCCS) re-iterates its demand for access to be allowed to international institutions, particularly the UN High Commission for Human Rights, to investigate human rights violations in Jammu and Kashmir.