Justice in the state of Jammu and Kashmir is a very long drawn process. In April 2010, soldiers from the 4 Rajputana Rifles announced that they had gunned down three militants in an encounter at the Machil sector of the Line of Control. However, a few months down the line, after the bodies of the four alleged terrorists were exhumed, it was found that they mere not foreign militants but three youths from Baramulla lured by the promise of cash and jobs and subsequently murdered in cold blood. In a judgment that will reverberate across the Kashmir Valley, the Indian Army’s Northern Command confirmed on Monday that life sentences were awarded to six Army personnel involved in the fake encounter, including a commanding officer. A leading national daily has claimed that the convicts will be sent to prisons in their respective towns to serve the sentence. Moreover, the army has decided to take away the ranks of the perpetrators and send them to jail as civilians. Suffice to say, there is some context behind why this judgment will reverberate across the Valley.
In 2010, these killings had become the flash point for violent protests, in which 123 people lost their lives. The state apparatus, under both the state government and Centre, was helpless in controlling the violence, leading to one of the biggest outpourings of public anger since the dawn of militancy in the early 1990s. Although it is a welcome move on the Indian Army’s part, justice has not been fully served to the victim’s kin. Two civilians, who aided the soldiers in this fake encounter case, are yet to be punished by the law. Moreover, for every just verdict, there are numerous cases across the Valley, where the Indian Army’s excesses have not yet been acknowledged. Take the Pathribal fake encounter case in Kashmir in 2000, where personnel from the 7 Rashtriya Rifles allegedly killed five innocent civilians falsely charged with the Chittisinghpora massacre of 36 Sikhs. Besides Pathribal and Machil, there are numerous cases of extra-judicial killings that have been willfully ignored.
Militancy, across the span of more than two decades, has left a trail of disappearances and alleged extra-judicial killings, with scant regard for accountability.
There are two primary reasons why certain segments of the Indian Army perpetrate the kind of horror and violence usually associated with dictatorial regimes and terrorist groups. First is the prevalence of the Armed Forces Special Powers Act, which has been in place since 1990. It is a law that has been widely criticised by civil society organisations, as they contained provisions that grossly violate constitutionally conferred fundamental rights. Key provisions of the act allow security forces to shoot on sight, arrest anybody on grounds of mere suspicion and carry out searches without a warrant. Members of the various security forces, primarily the Army, undertake these acts with the knowledge that they will not face any legal action in civil courts for operations conducted “in the line of duty”. Legal experts point out that the act falls short of the established norms of natural justice, such as, equality before law, the right of the accused of appearance before a Magistrate within 24 hours of arrest, fair trial in a public court and access to competent legal counsel, among others.
For the sake of fairness, however, one must understand why such a law is required in the first place. The Act comes into play if the administration (State government) is unable to deal with the prevailing law order situation in what authorities at the Centre or the State call a ‘Disturbed Area’. In the event the State machinery is unable to maintain law and order, the Army is brought in to protect the country’s integrity. Hence, they require the minimum legislation that is essential to ensure efficient utilisation of combat capability. However, one of the biggest failures of such an approach is that the Army is not trained to maintain law and order. They are trained to fight wars and protect borders, which is a far cry from maintaining law and order. Add the pressure faced by security forces to show results to the AFSPA mix, and there lies a deadly cocktail of unaccountability. Moreover, gallantry awards are used as incentives to kill insurgents. With such a heady mix of power, unaccountability and force, distinguishing if the targets involved are militants or ordinary civilians is an onerous task.
Is the Army’s recent decision on the Machil fake encounter a turning point? Will it result in the service of justice for those families that have suffered from the trail of other disappearances and extra-judicial killings? Only time will tell.