In November 2004, a woman from Badar Payeen alleged that she and her 10-year-old daughter had been raped by an Army Major, during searches. An inquiry ordered by the Army immediately found him guilty of ‘misconduct’ and suspended him. What does ‘misconduct’ mean? There is no legal interpretation of the word. Section 375 of the Indian Penal Code which defines and criminalises rape states that it is punishable with an imprisonment of up to 7 years (even life imprisonment after the 2013 amendments). Section 354 of the IPC which defines sexual offences like molestation and attempt to rape holds such acts punishable with imprisonment of up to 2 years. So, what exactly was found to be the Major’s crime? What punishment did he finally receive or not? For 16 years, we have no idea.
The Indian Army has initiated disciplinary proceedings against its personnel after its preliminary finding of some wrongdoing in the allegations of Shopian fake encounter. An army statement said, “The inquiry has brought out certain prima facie evidence indicating that during the operation, powers vested under the AFSPA 1990 were exceeded and the Do’s and Don’ts of Chief of Army Staff (COAS) as approved by the Hon’ble Supreme Court have been contravened.” The ambiguity and jugglery of words bear an uncanny resemblance to the Handwara case. What exactly are the personnel indicted for? How many personnel face disciplinary action? What precisely are the Dos and Don’ts of AFSPA that have been violated?
In 2004, the medical report of the complainants remained under wraps. In 2020, the DNA report is intriguing as yet missing, more than a month after the samples were collected. Looking for a Dinosaur fossil would be easier and quicker! Two separate inquiries were ordered by the army and police in this case when the allegations first surfaced. Unlike the Army, the police have not only come out with the preliminary finding but have also delayed the DNA report.
The Army’s announcement thus inspires little confidence in justice and closure because it remains unconvincing. Not only is the vocabulary vague, but the facts are also as much obfuscated. What is it that the army has based its assumptions of wrongdoing on if the DNA report is not out? And what exactly are these assumptions? The police assertion that their investigation is trying to find out if the three slain persons had any connection to the terror outfit further brings us closer to the question of whether the promised disciplinary action is a mere cosmetic distraction or is there indeed sincerity in bringing culprits to book. The essence of justice dictates that justice need not only be done but it should be seen to be done in a bid to assuage the wounds of the victims.
Militancy and the state’s militarized response to it is a continuing phenomenon since the 1990s. The last three decades have shown that the practice of denial in human rights allegations and cover-up is not an aberration but built into the legal systems that should be protecting the rights of the citizens. The chronic use of anti-terrorism laws often to victimise civilians, preventive detention laws that enable the state to keep dissenting voices out of circulation and the Armed Forces Special Powers Act, which provide immunity to the armed forces, have created a situation where the normal methods of ‘investigation’ have been replaced by disappearances, illegal detention, custodial torture, sexual violence against women and summary executions disguised as armed encounters. The AFSPA provides fool-proof impunity to soldiers accused of gross violation of human rights as it stipulates that prior permission from the state or central authorities is required to prosecute the alleged perpetrators in civil courts. Responses by defence ministry to several RTI applications have shown that at least in the case of Jammu and Kashmir, sanction for prosecution has not been accorded in a single case. In face of allegations of human rights abuse and patterns of impunity, the Centre has maintained a statistic of 100 plus prosecutions in cases decided in military courts where trials, transparency and quantum of punishment are characterized by a complete failure of accountability. The only exception was the Macchil encounter where three army personnel were held guilty by a military court but later their conviction was overturned by the Army Tribunal. The details of the proceedings of both the conviction and the acquittal are not placed in the public domain.
Lack of transparency is an element that reinforces the culture of impunity. If the Pathribal fake encounter killings epitomized this, the Shopian rapes and murders of 2009 showed that impunity in Kashmir goes beyond the extra-constitutional laws and is exercised through official and political patronage like refusal to register cases and fudging of evidence, primarily in cases where the accused are personnel of Jammu and Kashmir police, who do not enjoy immunity under AFSPA.
Discarding this pattern of impunity is imperative for several reasons. The liberal Indian constitution, with its core of protecting the civil liberties of the citizens, ties the Indian state to the commitment of addressing the human rights allegations in keeping with high standards of fairness and accountability. Secondly, it is also important for salvaging the tarnished image of the security forces and the police; and thus restoring the public confidence in these institutions. Thirdly, many experts have found that human rights abuse, the culture of impunity engenders deepening public distrust, unrest and fan the fires of militancy. Ashraf Mattoo, the father of Tufail Mattoo (the first victim of police firing in the summer of 2010) whose death triggered a five-month-long cycle of violent street protests and retributive action of the local police and security personnel deployed there, is one of the few people who are tirelessly pursuing their legal battles despite the sluggish pace of investigations and trials. Some years ago, he said that the issue at stake is not just human rights but also the political situation of the Valley that is linked to that question. “Had they investigated fairly and speedily some cases of 2010, the youth would not have lost hope and the situation may not have taken the turn it took in 2016.”
The authorities would thus have to go beyond the optics in the present Shopian case.