The Indian army may have given an assurance to keep its court martial proceedings against three army officers in the Pathribal fake encounter open for civilian eye-witnesses and encourage depositions by them, but that hardly induces any sense of credibility in the process of investigations against the accused men. What does one expect when it takes 12 years of shielding their guilty men, showered in this period with promotions and perks, and a court verdict for them to finally project the force as some kind of a champion of human rights? More importantly, the history of court martial proceedings against a handful of army personnel accused in cases of human rights abuse in Kashmir Valley, the scale of which is far higher, is not particularly great enough to make anyone convinced about any positively dramatic fate of this one. In a Right to Information application filed by a human rights group, the Ministry of Defence responded that it has given prosecution sanction under Armed Forces Special Powers Act, only in one case, in any of the human rights cases since the 1990. Out of the 44 applications by state government for prosecution against army personnel, the Union defence ministry has allowed civil suit only against one, and refuses to identify the claimed convicted man, making the affair murky, atleast not giving victims a sense that justice, if at all done, has been done.
As for the court martial proceedings, in which the army and defence ministry claims that personnel have been held guilty and punished, the quantum of punishment has never been spelt out, manifesting the total lack of transparency. In some of the known cases, the punishments have been only as severe as dismissals. In one of them – a case of double rape in Handwara, an army officer was held guilty in 2001 in a court martial proceeding and sentenced to 7 years imprisonment as also terminated from services. However, the accused officer approached the civil court, which turned down the verdict of army court and ordered his reinstatement. Where an entire system including the organ of judiciary appears to be in collusion to ensure complete impunity to armed forces personnel involved in criminal acts, how much can an over delayed court martial proceeding yield?
A systemic pattern of impunity and the trend of invoking misplaced so-called ‘national interest’ as well as the notion of ‘boosting the morale of the armed forces’, such injustices can no longer be tolerated, not just by the victimised lot but all those in the country who cherish civil liberties, democratic spaces and a sense of peace with justice. Also, for ensuring that criminalization does not seep into institutions like army, which are vital for the security of the borders of the country, and who no doubt may be doing a great job in many other parts of the country, including their rescue and relief operations in Jammu and Kashmir itself during times of disasters. However, such services, which are also rendered by several progressive beings as part of their organizations or as individuals, cannot legitimise the criminal acts of the men in uniform. They need to be dealt with sternly if we do believe in cleansing a system. The frequently used argument to stonewall any bid to review or revoke AFSPA or to investigate fairly any case of human rights abuse is to defend unjustified and indefensible inaction against the accused on the plea that this would lower the morale of the forces as a whole. On the contrary, if justice is dispensed with, it would not only bring some relief to the victims, it would also ensure greater discipline within the forces, setting the much needed right kind of precedence, and would lower the morale only of the criminalized ones within the forces. By using this ‘morale boosting’ plea, the government so far has only ensured a continuum of violations and violence.
The most recent example of this is the Bandipora case, where army continues to be in a state of denial still in the face of allegations of fake encounter killing, and where in collusion with the governments, both in the state and at the Centre, it is making all out attempts to crush the voices for justice with repulsively repressive measures.
Obviously, the state government is not living in some fool’s paradise when it maintains a deliberate silence over such cases and instead churns up a false propaganda that AFSPA may wind up from certain pockets – an idea that remains questionable, more so in light of fresh reports that such a proposal has already been struck down two years ago. The political patronage in giving sweeping powers to the armed forces without a system of introducing accountability, which continues to perpetuate violence, disaffection and also anger, is not something that can be ignored.
If the unending culture of impunity has to be questioned, one has to begin questioning this huge shield provided by those at the helm of affairs.