| The court martial proceedings against 2 officers and 4 jawans in the 2010 Machhil fake encounter can hardly be defined as a tryst with justice. Firstly, for the prolonged delay that inspired such a decision. It is not easy to forget that protests over the fake encounter and complete official denial about the incident and persistent cover up is what sparked the summer agitation of 2010 in the first place, in which 120 young men and teenagers were killed. Had the mechanism of justice been in place with prompt action, those 120 lives could
saved and Kashmir could have been saved from spiraling into venomous rage, the of which continue till date. Where is the element of justice when the colossal loss of the said fake encounter goes beyond the three men who were killed after being kidnapped and passed off as infiltrators and terrorists? Secondly, the experience of punishing guilty men in uniform after summary court martial proceedings in some of of human rights abuse in Kashmir makes a mockery of the very idea of justice. Neither is there any transparency in these departmental probes, nor is the verdict usually made public. Justice does not only have to be dispensed with, it also needs to be seen to be done and a cursory look at the fate of some of the court martial proceedings, which army officials claim to be exemplary stringent punishments, is enough to make victims skeptical enough.
The Handwara-Badar Payein mother-daughter rape allegations ended up in the suspension of an army major with the conclusion that he was “guilty of misconduct.” In the 1990 case of a newly wedded bride being gang raped by BSF men, a BSF Staff court of inquiry that held the men guilty, “suspended seven men.” Normally, a person convicted for rape could get upto ten years in prison if the normal Indian legal procedures are followed. The fate of majority of the cases is unknown and in some the convicted have moved the civil courts and got relief purely because the military probes left ample loopholes for the convicted to explore and manipulate. Whether the final verdict is based on whims or prejudices remains unknown forbidding a transparent and accountable mechanism of justice.
The very manner in which impunity is enforced through extra-constitutional laws, denials and delays makes the entire process of court martials subject to suspicions of cover-ups. If indeed, the court martial proceedings were an effective mechanism to deal with men in uniform accused of rights abuses, there should not have been any hesitation in proceeding with the due process at the very initial stage. It is over three years after the Machhil encounter that the court martial proceedings have been announced. It was after more than a decade that Supreme Court gave the army the choice of trial in a civil court or a court of military enquiry in the Pathribal fake encounter case and the army conveniently chose the latter, armed with denials, delays and fudged evidence in the case.
The problem is the widespread culture of impunity that the men in uniform enjoy for their heinous crimes, passed off in the name of national interest and covered up by denials, more repression, laws like Armed Forces Special Powers Act forbidding the scope of prosecution of armed personnel under the normal civil courts, fudged evidence and delayed trials. The problematic part is not just the mechanisms but a mindset that perpetuates this culture of impunity.
The Machhil encounter is not a case in isolation. There have been far more shocking betrayals of justice. The snails pace at which the legal battle in the murder of human rights defender Jalil Andrabi had been going on, gave enough room and space for the accused, Major Avtar Singh to take retirement from service and rush to seek refuge in U.S.A, which obviously points out to the tacit involvement of an entire state machinery in ensuring that he got away to safety without having to face the trial. It took the government ten years after Andrabi was kidnapped, tortured and killed, to just begin the simple exercise of seeking CBI’s help for the extradition of Major Avtar Singh. After Avtar Singh allegedly committed suicide in his California house after killing his own family members two years ago, the courts announced a closure on the case without hearing the arguments of the complainant that there were other accused in the case as well. This well documented case is a glaring example of government policy of patronising the men who misuse official position and violate the rights of civilians, resort of large scale torture and killings without being questioned. It is an obvious manifestation of the inability to address or prosecute cases relating to forces, which are deemed above the board.
The institutionalized system of impunity, denial of justice and victimizing those seeking justice has been the norm in Jammu and Kashmir in the last over two decades. With this appalling baggage of betrayal of justice at the cost of defying basic democratic principles, how is the simple and rather over-delayed announcement of a court martial proceedings, with all its inherent flaws of lack of transparency and impartiality, in just one case likely to win over the confidence of the people or be construed as a step towards delivery of justice.