Ten days before this verdict, the Indian Army had to face a huge embarrassment as its soldiers fired upon a moving car and killed two teenagers on the outskirts of capital Srinagar. Lt Gen Hooda, its top commander in Northern region, had to accept it as a mistake and own the responsibility. Even on November 14, it came under criticism for allegedly killing a civilian after a gun battle with militants in South Kashmir. The same day, a local MLA in North Kashmir’s Handwara town Abdur Rashid Sheikh made serious allegations against two Indian Army men for killing a civilian while they were in civies. The Indian Army denied involvement but cases stand registered.
Amidst this din, the “positive” verdict in the Machil encounter case could not make much impact. Even if the court martial giving life sentence to five guilty men is a significant development, the Indian Army has been in denial for more than two decades and the confidence that it could deliver justice is still eluding. There is a reason for that. The wrongs done by military and paramilitary forces while fighting the militants have been brazenly covered up under the much-trumpeted “national cause”. Kashmiris have a grudge against India’s national media as well, which they believe have fallen in the trap of “nationalism” thus covering up for the erring soldiers.
India's national media has fallen in the trap of 'nationalism', covering up for the erring soldiers
For Indian Army, the controversial Armed Forces Special Powers Act (AFSPA), that gives immunity to its men, has come in handy. Last week, former Indian home minister P Chidambaram called AFSPA “obnoxious”, saying “it had no place in a modern, civilized country”. As home minister, he is believed to have moved amendments in the law but because of defence ministry’s opposition he could not achieve his goal. On AFSPA’s continuation, noted journalist Kuldip Nayar opined in Deccan Herald that it needs a review. “Powers to kill on suspicion is too sweeping for a democratic country,” he wrote.
Notwithstanding the fact that Lt Gen Hooda’s public acknowledgement in the case of the death of two teenagers and the Machil verdict are a departure from the Indian Army’s conduct in the last 20 years, a lot more needs to be done to restore confidence among the people of Kashmir. According to an RTI reply by Jammu and Kashmir home department on February 23, 2012, sanction is still pending in 70 cases. These are the cases of alleged custodial killings and fake encounters in which Indian Army men have been found involved in preliminary investigations. Once the state police or the government is convinced that an army man is found guilty, it approaches defence ministry for formal sanction to prosecute them, but in most of the cases it has been denied. Similarly, the Border Security Force has escaped with minor punishments. BSF courts have surely proceeded against its men and according a reply under RTI it has punished more than 40 of its men in various cases of killing and rape since 1990. The punishments range from five years of rigorous imprisonment to dismissal of or reduction in service. But in a case like Sopore where on January 6, 1993, over 40 people were mowed down by BSF after a militant attack, it was called a “mischief” and those involved were given minor punishment.
Indian Army’s refusal to cooperate with the civilian courts or to conduct the trials in its courts transparently have caused a major dent in people’s confidence. Pathribal is a classic case in this long list. Five civilians were picked up in March 2000, soon after militants massacred 35 Sikhs in Chattisinghpora in South Kashmir coinciding with then US President Bill Clinton’s visit to India. They were later branded as terrorists and their charred bodies buried in a remote area. Central Bureau of Investigation conducted a thorough probe and held five officers of Indian Army, including a Brigadier, responsible for killing them in a fake encounter. The case went to Supreme Court where CBI insisted on trial in a civilian court. Indian Army put its foot down and decided to take it to its own court. The military court absolved all of them. When a local lawyers body approached a lower court to seek the proceedings in the military court, it was denied.
Human rights defender Khurram Parvez believes that the Machil verdict does not match the commitment of justice. “The Indian army court-martial verdict is not a beginning or a water-shed moment for Jammu and Kashmir, but an illustrative case of the manner in which political considerations and interests of the Indian Army overrule larger principles of justice and accountability,” he said.
According to human rights organization Jammu and Kashmir Coalition of Civil Society, the Indian Army has so far held 58 court martials, but punishment has been given in only two cases. Other cases have been dismissed as minor.
With a baggage of not doing much to deliver justice, this verdict has come at a time when Indian Army was found involved in two more such incidents last week. AFSPA is being seen as a major source of strength for Indian Army to have this immunity. The Machil verdict has surely opened a new window, but it needs to be widened to other cases.