Impunity, War and Justice

May 1, 2014

By Gautam Navlakha

The confusion between conventional and sub-conventional wars, the fact that wars against people in postcolonial nation-states are not even recognized as wars/armed conflict, the criminalizing and de-legitimisation of opponents that ensues during war etc. all contribute to drawing a veil over ongoing war/s inside India. Indian scholarship has examined ‘militarization’, ‘militarism’, violence versus non-violence, and restricting itself to collapsing all protests around a single issue of Armed Forces Special Powers Act etc as subject matters of utmost concern. There is a lack of comprehension over postcolonial State’s propensity to wage war against its own people and the place impunity occupies in enforcing ‘national unity and integrity’.

When a debate of sorts earlier raged in India whether or not to withdraw Armed Forces Special Powers Act 1990 from four out of 22 districts in Jammu and Kashmir, it was pitched as a gradual process of “de-militarization”. In line with this projected belief on October 21, 2011 the Chief Minister of J&K had famously said that “within next few days” AFSPA and Disturbed Area Act would be revoked from four districts. He also claimed that once the Council of Ministers advice the state Governor to revoke AFSPA and DAA he is obliged to follow their advice. However, the Union Law Ministry held otherwise and said that the Governor of J&K, not only is empowered to overrule any “advice” on such matter offered by the council of ministers but that he/she has the discretionary powers to take a decision on the matter to remove or not to remove AFSPA and DAA. In other words this was a contrived debate in public meant to take the heat-off the demand for “de-militarisation” in Jammu and Kashmir by reducing it to a gradual removal of AFSPA.

Building on earlier colonial law, AFSPA is barely a page long, but nonetheless lethal for its brevity. Section 4 (S5 under the application of AFSPA in J&K) enables the army to fire upon, even to the extent of causing death, members of a group of more than five persons if they are deemed to be violating public order or carrying weapons (even traditional ones). It gives them the power to arrest, without warrant, anyone against whom even a suspicion exists that he has committed or is about to commit an offence. Also, it gives the power to destroy any structure (including a home) from which it is deemed an attack has been made or likely to be made. They can enter and search, again without warrant, any place to recover any person believed to be wrongly confined or any property believed to be stolen property or arms. Section 6 (S 7 in J&K) of AFSPA effectively grants immunity from prosecution to those armed personnel acting under this Act unless sanction is provided by the central government.

Prior to the UPA I government instituting the review process, the Indian Supreme Court had examined this Act. The judicial process had resulted in the Supreme Court in 1997 upholding the legal validity of AFSPA asserting that Parliament had the powers to enact such an act. The petitioners had challenged the Act on the grounds of violating fundamental rights to life, liberty, equality, freedom of speech and expression, against peaceful assembly, move freely, practice any profession, protection against arbitrary arrests among other things. These petitions filed in 1982 came up for hearing after fifteen years in August 1997. The judgment was delivered on November 1997. Major portion of the judgment is devoted to an academic discussion of Parliament’s right to enact such law and whether enactment of the Act violated the federal structure of the Indian Constitution. But it refused to go into the actual working of AFSPA.

The review of the Act, undertaken by the Justice Jeevan Reddy Committee in 2004-5, as per its Terms of Reference, for the first time looked at the experience of people living under AFSPA. While this was welcome, the fact that it chose to confine itself to North East and refused to hold public hearing in J&K eroded its credibility. The review and public hearings that followed were confined to Manipur and Assam. When the report was released, it recommended AFSPA’s repeal, which incidentally was not part of the TOR, but did so by suggesting that certain provisions of the Act could be incorporated in the Unlawful Activities Prevention Act 2004.

Thus both the Supreme Court in its 1997 judgment as well as the Justice Reddy Committee in its report have upheld the need to empower the Armed Forces of the Union when they are deployed for prolonged period in an area declared to be “Disturbed”. Thereby both implicitly accepted the need to deploy Armed Forces of the Union (AFU) for prolonged period, if need be with some “legal protection”, which is but an euphemism for indemnifying the Armed Forces against prosecution without the prior sanction of the Central or State government (whichever be the case).

It rejected certain parts of AFSPA, by presenting a draft chapter (pp. 82-87 of the Report). This draft eliminates a few pernicious parts of the existing Act. For instance, it does not contain the words from section 4a “to the extent of causing death” when giving security forces the power to fire upon those it deems violating a prohibitory order. This existing power to use force to the extent of causing death went beyond the argument of ‘self defence’ permissible in Section 100 CrPC, and beyond the power conferred by Section 46 CrPC on police to shoot at those resisting arrest. And beyond section 130 and 131, by which the armed forces are required to use as little force and do as little injury consistent with dispersing an assembly. In prohibition, it removes the words “prohibiting the assembly of five or more people”. It drops from the current 4b the power to destroy … any shelter from which arms attacks are made or likely to be made …”.

The fact that the Jeevan Reddy committee was forced to suggest deletion of these parts from the existing AFSPA is an admission of the opprobrium earned by the Armed Forces of the Union for the excesses committed by them over the years. The legal remedy sought by the people was for normal judicial process to function, FIRs to be lodged, investigations to be carried out, charges to be filed, and action taken against convicted armed forces personnel. None of which happens normally.

But by far the biggest problem has been refusal to accept the fact of war being waged at home against our own people. And, therefore, a central issue for us is to realize that the period of war gets distinguished from ‘peace times’ by the system of justice that comes to prevail. In India laws that authorize Armed Forces of the Union, while simultaneously abridging the legal rights of citizens, come into play during internal wars. A system of multi-layered legal immunity is provided and AFSPA is just one layer of legal immunity amongst others.

For instance, in areas where AFUs are not engaged in ‘active duty’ i.e. they are posted in “peace stations”, it is the criminal court which tries the service personnel in the event he is accused of committing murder, culpable homicide or rape of a civilian. In “disturbed” areas, the AFUs decide whether the military court (Court Martial for Army or General Security Forces Court for central para military forces) should take over the case, or to allow trial by the criminal court. However, no matter where the matter gets referred to military personnel enjoy a legal shield, which raises the threshold of legal requirement for bringing armed force personnel to justice.

Section 3(iii) of the Army Act defines “civil offences” as offences “triable by criminal court”. Section 70 of the Army Act 1950, seemingly does the same by listing “civil offences” which are “not triable” by the Court Martial. However, the provision lays down that in the event of “an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape…shall not be deemed guilty of an offence against this Act and shall not be tried by a court-martial, unless he commits any of the offences:(a) while on active service…” apart from being (b) “outside India” or (c) at a “frontier post”. The exception made for “while on active service” at home to combat enemies in shape of “all armed mutineers, armed rebels, armed rioters and any person in arms against whom it is the duty of any person subject to military law to act” (AA 3(x)), removes the matter from the jurisdiction of the criminal court. (1)

When the perpetrators of a crime comprise a mixed group of soldiers and say Special Police Officers (SPOs) are tried by the criminal court, while soldiers are tried by the military court. Alleged Perpetrator I cites a case of rape of two women, by a Captain of the Army and a SPO, which took place on 14th February, 2000 in Nowgam village of Banihal [Case No 42]. (2) The case was split with court martial of the Captain and trial by criminal court of the SPO. What is more even when a soldier is tried by the military court he can always challenge the judgment of court martial before the High Court. This is what happened because while court martial convicted the captain of rape the High Court exonerated him.

In the papers submitted before the High Court the captain through his lawyer contended that he had “consensual sex” with one of the victims. Now the fact is that in a “disturbed” area, military forces get empowered and civilians dis-empowered, and there exists an unequal power relation between armed soldier and unarmed civilians. Question of ‘consent’ presumes absence of war/armed conflict, as well as absence of the inherent unequal power relation between an armed soldier and unarmed women. So the fact that an accused can claim “consent” instead of rape and also claim immunity from prosecution by a criminal court, reveals how mutually contradictory stances are possible when military enjoys immunity and the Government denies presence of wars at home! Justice stands no chance when “national security”, “national interest”, and “national integrity” are invoked.

The overall reluctance to prosecute members of armed force runs deep in India. It gets worse when it comes to their prosecution for crimes committed by their personnel during military suppression. The hold of nationalism and the belief that project of nation-state is a bloody process where ‘breaking-eggs-to-make-omelette’ syndrome operates, go a long way in creating social sanction for their bloody operations.

In other words, we need to understand that Counter Insurgency or COIN is a war on people and not between two conventional armies, where differentiating civilians from militants becomes difficult. Such wars, no matter what they are called, are ‘dirty wars’ where civilians become easy target for government forces. The main objective behind COIN is to “transform the will and attitude of the people” (see Doctrine of Sub-conventional Operations; Army Headquarters, December 2006). For this to happen it requires a muscular approach. So the law claims that whenever personnel of the AFU are on “active duty” combating “enemy” in shape of “armed mutineers, armed rebels, armed rioters….” it becomes necessary to not only assume that the AFU personnel is working in “good faith” but that he needs to be prosecuted by the military force he belongs to.

However, in COIN distinguishing an armed militant from an unarmed civilian becomes difficult and therefore definition of “enemy” becomes elastic and applicable to even civilians. In profiling the image of the “enemy” projected, where Kashmir is concerned it was presented as someone doing Pakistan’s bidding to dis-member India, whereby the overlap between civilian and enemy gets strengthened. An indirect corroboration of the same is found in army’s own sponsored studies of its personnel and their mental health, which shows that soldiers in J&K saw for instance Jamaat-i-Islami as the “enemy” itself. The study lists various “operational stressors” and third on the list with 64% of the respondents is: “bitterness at not being able to deal with the unarmed but vicious ideologues/motivators/financers of militants, the ‘jamayatis’ who were blatantly misusing religious institutions such as ‘madrasas’ in their anti-national activities (64%)”. (3)

What further compounds the problem is that there are innumerable other crimes which are common during internal wars which remain undefined by Indian law, civil or military. Indian law does neither define enforced disappearance, torture or genocide nor is it aware of how even rape and torture in armed conflict area acquires an aggravated character and becomes a heinous war crime. Absence of laws or presence of antiquated colonial law, in contravention of the international covenant or law, therefore, goes towards providing legal immunity to the armed soldier.

Indeed even something as common as entry-and-search, for instance, acquires an aggravated character in armed conflict area because searches invariably are occasions when sexual crimes or excesses take place because men are separated from women and children, with former outside and latter inside homes. The policy of shoot-to-kill, incentives for ‘kills’ which brought about fake encounters of civilians, detention, mass scale torture meant to humiliate male members, and disappearance etc. are all common occurrence. The very fact that the law provides immunity for soldiers against all this is a clear sign of war at home. It is therefore necessary to look into the Pathribal case to understand the nature of the ‘beast’ that we are confronted with.

The Pathribal case has travelled the farthest so far. What it has done is to show us that whereas civilians can file complaints against the security force personnel, and police can investigate the matter and even file charge-sheet, prosecution is barred before criminal court. It is worth remembering that as elementary a thing as filing of complaint is an uphill task in conflict area. As for investigation it is another rarity. In other words, when all these imponderables could be negotiated and the Pathribal case evidenced some follow-up, it could not proceed beyond this.

On 20th March 2000, at Chittisinghpora of Anantnag district, 36 Sikhs were massacred by “unidentified gunmen”. The massacre coincided with the visit of US president Bill Clinton to India. Indian Agencies blamed Lashkar-i-Toiba, although some fingers were also pointed towards government militants. Between March 23rd and 24th 2000, 17 civilians from surrounding villages were picked up by the Army, in the name of tracking the culprits of the massacre. On 25th March 2000 five persons from three villages in Pancehalthan area were reported killed in an alleged early morning encounter between the army and the militants. The FIR filed by the Army maintained that they had killed five “foreign militants” who allegedly massacred the Sikhs at Chattisinghora. The Army claimed that out of the five, three were Pakistanis and their purported names too were provided. On 3rd April 2000, more than 5000 persons were fired upon by the CRPF and SOG resulting in death of eight persons, when they came out to demand prosecution of the guilty.

Bloodletting and protests persuaded the Chief Judicial Magistrate to order an inquiry headed by the Deputy SP. His report averred that people killed were local civilians and not “foreign militants”. And that it was a fake encounter. The complaint of the villagers was then registered. In March 2002 it was found that DNA samples had been tampered with by the authorities in connivance with the Head of Pathology, Government Medical College, Srinagar. By April 2002 it was established that the five who were killed were not “foreigners” let alone militants, but were disappeared from 17 persons picked up in Pancehalthan.

In November 2002, the Justice GA Kuchay commission was constituted to enquire into the entire incident and following its report in December 2002, the state government asked the Central Bureau of Investigation in January 2003 to take up investigation. Three years later, CBI filed its charge-sheet contending that from “facts and circumstances of the case, it is established that these five innocent civilians were picked up by the personnel of 7RR….. (and) eliminated in a fake encounter…” (italics added). It charged five army personnel under S120 B (Punishment of Criminal Conspiracy), read with S 342 (Wrongful Confinement), 364 (Kidnapping for Murder), 302 (Homicide) and 201(Causing disappearance of evidence or giving false information to screen offenders) of the IPC.

In 2006, the Army moved the apex court claiming that criminal court has no jurisdiction to try its personnel. Six years later in May 2012 the two judge bench of Supreme Court pronounced its judgment. Although the Supreme Court rejected the Army’s claim that sanction is required even for undertaking investigation, it upheld the Army’s claim that once a charge-sheet is filed, sanction is needed for trial to begin. The Court also opined that although S126 of the Army Act confers power on the criminal court to try personnel of the armed forces, it cannot take cognizance of the case unless the Central Government provides sanction. Thus a Magistrate has no power to decide, where armed forces personnel are concerned, whether there is a prima facie case to be made or not. It also upheld that under Section 125 of the Army Act, the choice rests with the Army to either opt for trial of its personnel before the criminal court or the Court Martial. No sanction is required for court martial. Consequent to the Supreme Court judgment, the Army opted for the Court Martial in 2012.

On March 14th, 2014 the Brigadier Adjutant of Jammu-based 16 Corps filed a 11 page ‘reply/objections’ before the Chief Judicial Magistrate, Srinagar (J&K) citing reasons behind Army’s refusal to provide certified copies of the General Military Court to one of the aggrieved parties in the March 24/25th 2000 Pathribal killings. The Army pointed out that Nazir Ahmad Dalal, the petitioner who was an uncle of Zahoor Ahmad Dalal, one of the seven killed at Pathribal, and his family had “no locus standi to obtain a copy of the conducted by the Commanding Officer (of 16 Corps) in respect of the accused persons as he is not party thereto”.

Army said it had undertaken “effectual proceedings” in the matter. What were these? The commanding officer of the five army personnel accused of the crime of abduction, killing and mutilation of the bodies, i.e. the GoC of 16 Corps heard the charges against them and “directed that evidence be reduced to writing”, which is called a “Summary of Evidence”. SoE comprises accounts of “55 prosecution witnesses (who) were examined which included the next of kin/relatives of the five deceased persons, police personnel involved in the case, CBI officials who investigated the case and witnesses from the Army. A large number of documents to include reports initiated after the incident, forensic reports, police documents, statement of witnesses examined by CBI and investigation reports of inquiry Commissions which were ordered by the State of Jammu and Kashmir, were taken on record of the Summary of Evidence”. It was this SoE, which was sought by the petitioner/applicant.

On the basis of SoE the letter further argues that the CO was “satisfied that a joint operation was launched by the Army…along with Civil Police on 25th March 2000”. It further notes that “there was no evidence on record which in anyway connects any of the five accused persons with the abduction/causing disappearance of the five deceased persons…[and it] “found that the evidence on record did not establish a prima facie case against any of the five accused.”

The opaqueness of “effectual proceedings” needs no elaboration. While “effectual proceedings” are in accordance with the law, pursuant to 1987 judgment of the apex court [Union of India versus Major SK Sharma], it does not make military justice either transparent or fair to the civilians aggrieved by crimes committed by the personnel of the AFU. That as elementary a thing as SoE can be withheld from the family member/s of those killed means that another royal battle awaits the aggrieved to move the court to obtain the written record of the “effectual proceedings” in order to highlight deficiencies or shortcoming of the military system of justice and to bring the perpetrators to trial. For this, years of appeal, hearing and uncertain outcome awaits the aggrieved. Thus, scales are heavily loaded in favour of the military personnel.

In Pathribal, the CBI investigated and filed the chargesheet, despite stonewalling by the Army. But they do not have any say in the military court proceedings, and it became easy for Army to dismiss the evidence provided in the CBI charge-sheet for offering “no evidence”. The defense offered for Pathribal killings by the Army was that it was a joint police-army operation and that it was on the basis of intelligence inputs provided by the police that the operation took place. But questions remain as to why the army men abducted, killed and then mutilated the bodies, if all they were doing was follow the leads provided by the intelligence agencies and undertook joint operation?

CBI found that Army’s own records show that it was an Army operation and state police remained non-active participant. It claimed that the Seizure Memo, Situation Report, After Action Report etc, and other communications between 7RR and Civil police show that joint or not the Army remained in lead. While the Army claimed that it was the civil police that provided intelligence, this was disputed by the police. Instead documents cited reveal involvement of army personnel in the abduction, as all eyewitness affirm this. Army itself also possessed information provided by a “suspect”, which listed names of those said to be either militants or were their over ground workers hiding at a “likely” location in Panchalhathan area. But CBI claims that even this list did not contain the names of the five killed. So the basis for arresting the five civilians was not clear.

The chargesheet also records that all five persons carried 98% burn injuries apart from bullets on their body. And yet, the ‘kothas’ they were supposed to be hiding in had insignificant burns! Meaning that the five were burnt after their killing and did not get burns due to explosives or something setting the ‘kothas’ on fire. Indeed the weapons alleged to have been ‘seized’ from the dead “militants” were not burnt. CBI saw all this to be an attempt to suppress evidence, especially making it difficult to identify the dead. It also charges the accused for claiming that three of the dead were Pakistanis providing their purported names, whereas these were local villagers.

So why did they provide false names and particulars of the dead? And if they were local civilians, where did the Army get the weapons which were shown as seized from the militants? The charges and evidence cited by the CBI show that there was prima facie evidence of the involvement of accused in the crime. The claim of ‘no evidence’ does not stand up to scrutiny. The fact is also that all the five accused military personnel were commended and rewarded by the Army for carrying out a successful encounter! So why did the Army own the encounter but not how it was carried out?

If facts, other than those provided in the CBI charge-sheet, informed the closure order by the Army, this is something we will not know, because in accordance with Supreme Court judgment in Union of India versus Major A Hussain (1997) the Court had laid down that: “(t)hough court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the Court-Martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a Court-Martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any court must stay its hands”. Thus after 14 years, and a long and arduous legal battle (which continues), there is no closure for those who lost their family members in a fake encounter.

What the Pathribal judgment, read together with the 1997 apex court judgment upholding the constitutional validity of AFSPA, or the Masooda Parveen case, where “demoralisation” of armed forces personnel was cited as reason for denying ex-gratia payment of Rs 50,000 to the widow of the victim of custodial torture & brutal killing, or even in multiple other cases where the apex court has accepted that unwarranted killing of civilians had taken place, but confined itself to merely ordering compensation to the victims, brings out is how judicial pronouncements have manufactured another layer of legal immunity for the Armed Forces of the Union.

Two paragraphs from the Pathribal judgment are given below provides Court’s thinking on S125 and 126 of the Army Act:

57.The CJM Court gave option to the higher authorities of the Army to choose whether the trial be held by the court-martial or by the criminal court as required under Section 125 of the Army Act. Mr. P.P. Malhotra, learned ASG, has submitted the original file of the Army Authorities before the court, File notings reveal their decision that in case it is decided by this Court that sanction is required and the Central Government accords sanction, option would be availed at that stage.

58. Military Authority may ask the criminal court dealing with the case that the accused would be tried by the court-martial in view of the provisions of Section 125 of the Army Act. However, the option given by the Authority is not final in view of the provisions of Section 126 of the Army Act. Criminal court having jurisdiction to try the offender may require the competent military officer to deliver the offender to the Magistrate concerned to be proceeded according to law or to postpone the proceedings pending reference to the Central Government, if that criminal court is of the opinion that proceedings be instituted before itself in respect of that offence. Thus, in case the criminal court makes such a request, the Military Officer either has to comply with it or to make a reference to the Central Govt. whose orders would be final with respect to the venue of the trial. Therefore, the discretion exercised by the Military Officer is subject to the control of the Central Govt. Such matter is being governed by the provisions of Section 475 Cr.P.C. read with the provisions of the J & K Criminal Courts and court-martial (Adjustment of Jurisdiction) Rules, 1983.

In other words if the option is exercised by the Army to try its own personnel before the Court Martial it requires no prior sanction to do so. But if under S126 the criminal court wants that the “proceedings be instituted before itself” then again the Army has the option to refer the matter to the Central Government, which is the final authority to decide on the venue of the trial. In other words, while formally the central government has the final say, de facto the writ of Armed Forces of the Union prevails. Each stage of judicial process from Magistrate, CJM, High Court and then Supreme Court, has not culminated in trial. Conviction is near absent. And procrastination is meant to tire out the aggrieved and/or deter them from pursuing the legal battle.

The highest court also ruled, while discussing what constitutes ‘official duty’, that: “(t)here must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits.” By saying that ‘even if the Army has exceeded in using force the issue can be taken up at the stage of trial’ the Court overlooked three important facts.

One, that the crimes committed by the AFUs rarely reach the trial stage. Indeed much before they reach the trial stage there are a number of humps that have to be crossed. For one getting the police to agree to register complaints by the civilians against the personnel of AFU is an uphill task. Even when complaints are registered, investigations seldom get smoothly off the ground. For instance even interrogation of personnel of the AFU by investigating agencies turns into a dispute, with armed forces chary over handing their personnel to civilian police. Where investigations result in filing of chargesheets, jurisdiction and sanction become an issue before trial can commence.

Second, under S125 of AA, the designated authority, a commander of a force, has the option to choose court martial or the criminal court. But the point is whether the matter is taken up at all in the court martial/effectual proceedings and if so how? Pathribal case illustrates that even knowledge of what transpired in such proceedings is hard to come by.

And three, as the Army itself explained, the family of Nazir Ahmad Dalal, one of the dead, had no “locus standi” before it. As a result, disregard for legal rights of the aggrieved and justice for victims are fully in accordance with domestic military law and judicial pronouncements. This is where the significance of presumption of “good faith” and immunity during “active service” become critical issues.

On the issue of ‘‘good faith’ the apex Court ruled that, “the quality and quantity of the honesty requisite for constituting ‘‘good faith’’ is conditioned by the context and object of the statute in which this term is employed”. It added, “The allegations which are generally made are that the act was not traceable to any lawful discharge of duty. That by itself would not be sufficient to conclude that the duty was performed in bad faith”. The court insisted that: “The presumption of ‘good faith’ therefore can be dislodged only by cogent and clinching material…”. But the Criminal court cannot take cognizance of the material without sanction of the central government. The judgment said: “In Dr. Subramanian Swamy v. Dr. Manmohan Singh & Anr., AIR 2012 SC 1185, this Court dealt with the issue elaborately and explained the meaning of the word ‘cognizance’ as under:

“In legal parlance cognizance is ‘taking judicial notice by the court of law’, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially.”

Thus even the act of “deciding whether there is any basis” to dislodge the “presumption of good faith” cannot be undertaken by the Magistrate without prior sanction of the central government. Thus the Supreme Court managed, through its judgment, to raise the bar high for dislodging the presumption of good faith for entirety of “active service”, which is 24 hours of the day.

If “good faith” is read with “active service” then full immunity exists for service personnel. Army Act, 1950 Section 3(i) describes “active service” as service personnel (a) engaged in operations against an enemy; (b) engaged in military operations …wholly or partly occupied by an enemy; and (c) forms part of a force which is in military occupation of a foreign country. Section 3(x) defines “enemy” as including “all armed mutineers, armed rebels, armed rioters and any person in arms against whom it is the duty of any person subject to military law to act”. Reading 3(i)(a) together with 3(x) forms the raison d’etre for indemnity for service personnel. This amounts to providing a judicial carte blanche for the AFUs when they are fighting our own people.

The manner in which criminal law operates in “disturbed” areas, which is but an euphemism for war zones/ zone of armed conflict, brings out that we face a ‘catch 22’ situation where obstacles are created for civilians for getting judicial redressal. The Army Act, together with corresponding acts of the central paramilitary formations (cpmfs), make it evident that their personnel, when engaged against military suppression of “enemy”, are indemnified by their own forces Act/Charter, and civilian jurisdiction does not apply over them. This situation is an implicit acknowledgement of armed conflict, something whose existence is publicly denied by the Indian State. If civilian victims of military suppression have no actual judicial remedy available to them then in that case even if AFSPA is repealed, there will remain legal immunity for the soldiers.

This lends weight to the JKCCS report “Alleged Perpetrator I”, which not only meticulously researched 214 cases and name 500 perpetrators, but laid bare the incapacity of the Indian law to bring perpetrators to justice if the accused is a service personnel and the crime occurred in a “disturbed area”. Indian legal process is designed to defeat the process of justice for civilians by according privilege and protection to the armed forces personnel deployed in “disturbed areas.”

On the other hand, the civilian in the very same zone, is prone to become a victim of armed forces operations and conduct, and is divested of legal rights because the criminal court does not receive sanction to try the case and the army court martial proceedings refuse the aggrieved kith and kin any ‘locus standi’. “The immunity is a kind of freedom”, said the apex court in Pathribal judgment, “conferred on the authority in the form of an exemption while performing or discharging official duties and responsibilities. The act or the duty so performed is such for which an official stands excused by reason of his office or post.”

What compounds the problem is the fact that AFU always disputes facts accusing the victim of maligning them as part of militant game-plan to discredit the Indian forces. Gang rape by Army men in March 1991 in Kunan Poshpora was dismissed by Press Council of India by claiming that it was part of militant plot to discredit the Indian armed forces! And nearly a quarter of century later Army tries its damndest to scuttle investigation and prosecution. This condition, which operates on the ground and creates impunity, is only partially addressed by a call to repeal AFSPA. Sanction is hardly an issue since provision of prior sanction is there under S197 of Cr PC for all public servants.

Removal of AFSPA will not rob AFUs of their policing powers to search, arrest or kill on ‘mere suspicion’. Nor will it rob the armed forces of the union of immunity from prosecution. Why? Because, counter-insurgency has its own logic and requires the military forces to crack-down hard on the “enemy”. In CI distinguishing between a civilian and an “enemy” becomes difficult. When it is difficult for military forces to distinguish between a civilian and an armed person and it is a war on people, atrocities against civilians are inevitable and widespread. And, even without AFSPA ‘good faith” offers another layer of immunity. In other words withdrawal of AFSPA will not mean withdrawal of the war unleashed. It is ending CI that will bring this to an end.

Arguably, Court Martial or General Security Forces Court (for the cpmfs) prescribe harsher sentences and take much less time than criminal court for trials. If the case relates to a crime where the perpetrator as well as the victim are military personnel, or if it pits soldier against the officer, the process of investigation and trial work quite well. But where crimes are committed on civilians by personnel of AFU in armed conflict zone, a Court of one’s own peers tilts heavily in favour of its own personnel. As noted above, affected civilians do not enjoy any “locus-standi” before the military courts. Thus military court may work when dealing with their own personnel for variety of acts meant to ensure discipline, obedience and duty to follow orders, or matters related to service conditions etc.

But, when it comes to investigating and trying military personnel for having committed heinous crimes on civilians in areas where they are operating, the military justice system shows itself to be grossly incapable of dispensing justice. For instance decks which are stacked in favour of military hierarchy against a soldier in military courts where intra military offences are tried, tilts in favour of the accused soldier cum officers when civilians complain of atrocities committed by military personnel.In fact, it can be argued that if the military authorities were at all interested in ensuring justice for civilians and enhance their prestige among people they could have opted for criminal court to send a message that murder and rape is not “duty” and allowed their prosecution. But they chose not to do so.

It is in keeping with this practise that complaints and legal proceedings get de-railed or dismissed, long before they reach the charge-sheet stage. Therefore, the periodic data put out by AFUs claim that ‘x’ number of complaints of violations were received and perused and of these only an insignificant few were found to be genuine. This means that few such cases, if any, will reach trial stage if left to the AFUs. In fact the calculative nature of such exercise is visible in the non-availability of the documentation of the very process adopted to dismiss accusations. Immunity provided has another dimension. One would expect that all laws get tested for not veering away from principles of natural justice. Unfortunately, natural justice does not enjoy much traction because cases from conflict areas are trumped by “national interest” or demand for giving priority to “national security”.

Unlike the 101 out of 628 districts notified as “Disturbed”, when a crime occurs in the 500 plus districts and the accused is a member of the Armed Forces of the Union, criminal court has the jurisdiction to try the case. This means there is one law which applies to all for ‘civil offences’. But this is not the case in areas notified as “disturbed”. In these areas, particularly, in Kashmir, Manipur and parts of Assam, the fate of Pathribal case is what constitutes the norm. Armed forces are loath to bring their own personnel to justice and vigorously contest civilian jurisdiction over their personnel in long drawn out court battles (a waste of public funds) to assert their prerogative to try their own personnel. Trial by court-martial for such cases are a rare occurrence. Most cases usually go the Pathribal way; get closed before trial.

Thus, even if AFSPA is repealed, the war-making reflexes of the Indian State will not fade away nor will legal immunity provided to AFUs become inoperable. Impunity flows not only out of a body of law/s, but equally by absence of laws on torture, genocide, enforced disappearance, etc which are particularly widespread in armed conflict areas. Impunity also flows out of the institutions of the State, the judiciary in particular, providing succour to the perpetrators and a cold shoulder to the victims. Thus, while prosecution of soldiers becomes a rarity, the courts have become unduly concerned over the ‘morale’ of the soldiers. The government also extends incentive to soldiers to earn reward and promotion by capturing and/or killing even suspects and civilians. Thus they are encouraged to carry out ‘kills’ for cash and career improvement.

Now imagine when soldiers, for instance, engaged in the suppression of the Kashmiri people’s struggle for their right to self-determination, see themselves fighting a proxy war launched by Pakistan, thus conditioning themselves to believe that when they are suppressing the Kashmiri Muslims, they are actually fighting Pakistan. The deep-seated hatred for Pakistan, nurtured through propaganda, part of India’s popular culture, colours the understanding of these soldiers. Thus when the officers briefs/exhorts their soldiers to suppress militants, they ask their units to realize that they are actually fighting Pakistan, the most hated enemy. The very nature of counter-insurgency requires that military personnel are able to operate unencumbered in order to restore the authority of the government.

Their training and “duty” leaves them with little compunction in carrying out a brutal suppression of Kashmiri Muslim women, children and men.

So the real issue that faces us is whether we honestly accept that there are wars being waged within the borders of India against our own people or we continue to pretend that these are only “police action”. Both carry consequences. If, the fact of war is accepted then the Geneva Convention and Protocol II come into play, as do a number of international laws, covenants and obligations. Crimes committed during war/armed conflict invite greater scrutiny and immunity provided gets watered down. If, however, deniability remains the main prop and wars are passed off as “police action” then there is no need for AFSPA, no need for legal immunity or sanction, and definitely not for military courts to enjoy jurisdiction over crimes committed by military personnel against civilians.

Thus battle against AFSPA, even less for ‘humanizing’ AFSPA, as some advocate in name of realism, will not bring an end to impunity. Pathribal case compels us to accept this. Impunity is derived by way of legal entitlements and exceptions, presumption of ‘good faith’ and ‘active duty’, as well as through institutional bias in favour of the armed forces. In other words any “act” committed during ‘active duty’ falls within the purview of security forces own court and they are further protected by the presumption of ‘good faith’. AFSPA is but just one more layer of immunity, not the only one. The sooner this realization, the better it would be for us to move away from symbolism and move towards more substantive issues.

It also means that amendments to legislations, which come into use during armed conflicts are informed by progressive laws and provide greater protection for civilians. For instance many sections of the IPC are invoked such as S 330, 331 of IPC, which contain provision for punishment of those who cause hurt to extort confession. S348 of IPC makes wrongful confinement to extort confession a crime. Also articles 20(3) of the Constitution as well as articles 21 and 22 have been read to argue against torture. Yet, most cases of torture only deal with cases where “grievous bodily harm” can be established, that too in police custody. Instead we need a separate torture law that not only defines torture along the lines of the Convention against Torture, but more pointedly addresses the issue of torture in armed conflict area.

This is needed because in armed conflict areas torture is not motivated by extraction of information or confession, but is egregiously used to humiliate and terrorize an entire community. For instance it is estimated that in Jammu and Kashmir from 1990-2012 more than 60,000 persons were subjected to grievous bodily harm and at least five times that number subjected to other forms of torture as defined by Convention against Torture. Similar is the case with enforced disappearances or genocide.

Moreover, we cannot retain ‘frog in the well’ attitude to issues. Our neighbor Nepal, in its Army Act 2006 through S22, removed impunity provisions of the earlier Army Act 1959. Thus the new S22 of the Nepal’s AA 2006 says “No case may be filed in any court against a person under the jurisdiction of this Act who commits any act, in the course of discharging his duties, resulting in the death of or loss suffered by any person. This notwithstanding, the offences provided by S62 and 66 shall not be deemed an offence committed during the course of discharging duties.”

Section 62 of Nepal’s Army Act describes special provision “(o)n offences of corruption, theft, torture and disappearance” and S66 which describes rape and homicide, as falling within the jurisdiction of criminal court. Nitya Ramakrishnan writes that “(t)he penalizing of torture, enforced disappearances, homicide and rape, and the express disclaimer of immunity are welcome features of the new law. But there are disturbing features too. One is the issue of limitation for offences. In cases of torture or disappearance, no can action be taken after three years of the incident. There is no minimum penalty prescribed for custodial torture or death.” (4) Nepal has travelled some distance to bring an end to impunity, and even if some lacunae remains it is far ahead of India.

Consequently, it is high time we understand that while we fight for changing/amending the law and doing away with legal processes that leave civilians high and dry, and fight for doing away with AFSPA, dual jurisdiction, sanction and various legal immunities created by judicial pronouncements cocoon the military. But, there is need to acknowledge also the actual reality of war at home because it is war that throws up the need for providing impunity. It is when we acknowledge that Indian State wages war against our own people, and vigorously champion political resolutions of disputes and conflicts, that bringing an end to impunity acquires a shaper profile. Consequently, all forms of legal immunity extended to military personnel should concern us because our opposition to impunity stems from our opposition to waging war against people.

1. The central para military forces have similar if not identical language in their charters which run along the same line as the Army Act. For instance Border Security Force Act S 47 bars trial by GSFC in relation to a civilian who commit the offence of homicide, culpable homicide or rape. However, this bar does not operate if the crime was committed during “active duty”. The BSF Act defines “active duty” [S2(a)] thus: (i) when “engaged in operation against an enemy” or (ii) “operating at a picket or engaged on patrol or other guard duty along the borders of India”. Similarly quite like S125 of the AA S80 of the BSF Act gives option to the BSF to decide between Security Force Court or the criminal court. S 2(1)(j) defines “enemy” as including “all armed mutineers, armed, rebels, armed rioters, pirates and any person in arms against whom it is the duty of any person subject to this Act to take action”.

2. Alleged Perpetrators: Stories of impunity in Jammu and Kashmir: December 2012;

3. Total number of students in Madrasas in J&K were no more than 1729 boys and 962 girls in 2005-06. So why did the respondents exaggerate the role of ‘madrasa’? And why were the “jamayatis” being singled out as enemy? Or is it their beard and clothes that distinguish them? Or is it the briefing by their officers that persuades them to hate “jamayatis”? { Impact of Low Intentsity Conflict Operations on Service Personnel: S Chowdhury, PK Chakaraborty, V Pande, TR John, R Saini, SP Rathee, Industrial Psychiatry Journal 2005, 14(1-2)].} This is not clear from the report. That is one aspect.

4. In Custody: Law, Impunity and Prisoner Abuse in South Asia; Nitya Ramakrishnan;Sage New Delhi 2013,p308-311.

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