Shopian and the fault lines

THE Jammu and Kashmir government and the Army have once again locked horns over the killing of civilians. This time, the battle was directly taken to the Supreme Court, which, in the first such instance, stayed a first information report (FIR) lodged against one Major Aditya Kumar of 10 Garhwal Rifles. Much before the magisterial inquiry could reach a conclusion and the initial investigation by the police began, the apex court came into the picture.

It all started with the death of two young men who fell to bullets fired by the Army’s 10 Garhwal unit in Shopian district of south Kashmir on January 27. An Army spokesman said that the soldiers fired after a mob of nearly 250 people threw stones at them.

The tone and tenor of the press release issued by the Defence spokesman in Srinagar suggested that the soldiers opened fire because they thought that they were about to be lynched and were terrified. This is not the first time that such a justification has been put forward for such a gut-wrenching incident. However, the plea of an Army unit firing in self-defence at a mob armed with stones shows the Army in a poor light. The young men were shot in the head, and this method was used as the first and only option.

An examination of what happened that day suggests that this drastic step could have been avoided. Emotions were running high as a militant had been killed in the area three days earlier. A team of the 44 Rashtriya Rifles, a counter-insurgency force, had visited the area to remove posters and black flags (of ISIS) from the graveyard where the militant was buried. It beat a quick retreat as young people started throwing stones at the personnel.

In the middle of this, an admin convoy of 10 Garhwal passed by. This unit had been called during the Amarnath pilgrimage and had stayed put like many other units had. Without assessing the situation or its sensitivity, it pressed forward, which led local residents to think that the unit was conducting a cordon-and-search operation and that 44 Rashtriya Rifles had called for reinforcement.

More people gathered to put up a resistance. They kept throwing stones and a standoff developed. But the only “solution” that the Army’s company commander could come up with was to open fire and kill two civilians. Nine people were injured. Police officers said that the Army unit had ignored the ground situation, thus inviting trouble. The outrage was genuine and on expected lines. Why did the Army ignore this and choose to open fire as the only option? The expectation must have been that it would get away with it since previous inquiries had not been helpful in punishing the guilty.

Probes & results

As usual, the State government ordered a magisterial probe. Chief Minister Mehbooba Mufti asserted that the investigation would be taken to its logical conclusion, at the cost of snubbing her coalition partner, the Bharatiya Janata Party. The BJP members of the Legislative Assembly demanded the withdrawal of the FIR lodged against the Army unit and its major.

There is nothing new about a magisterial probe being ordered. Successive governments have done this to douse the initial fire. Since the armed rebellion broke out in late 1989, the government must have ordered nearly 400 magisterial probes into human rights violations, mostly at the hands of the police and the armed forces. But there are hardly any that can be cited as having been completed or in which the guilty were punished.

In the Hawal massacre of May 1990, 56 civilians were mowed down by the Central Reserve Police Force (CRPF) in what became a classic case. An FIR was registered, but the case is not closed and the investigation remains incomplete. There have been an estimated 65,000 FIRs registered since 1990, but no major action has been taken.

From time to time, the government has admitted in the State legislature that probes have not been completed. According to a government report, in 13 years (2003 to 2015) 180 probes were ordered, but most of them were not concluded. The incidents include custodial killings, firing at civilians, gang rapes, fake encounters and massacres by the security forces.

According to the Jammu and Kashmir Coalition of Civil Society, a human rights organisation, the State ordered 33 probes in 2003, 25 in 2004, 21 in 2005, 11 in 2006, and 12 in 2007.

Its report said: “Since 2003, the State has ordered 168 probes and not even once the inquiries have led to the prosecution of any armed forces personnel.” Justice (retd) M.L. Koul took 19 months to complete the investigation into the killing of 120 people in 2010 during Omar Abdullah’s chief ministership. He handed over the report to the current Chief Minister, but its findings are yet to be made public. Faith in these investigations and confidence in the state as an institution are hence abysmally low.

AFSPA and Army Act

The call for revoking the Armed Forces Special Powers Act (AFSPA) has been growing louder with each passing day. AFSPA has derailed the course of justice when it comes to not only probes ordered by the State government but also those conducted by the Central Bureau of Investigation (CBI). The Pathribal fake encounter case is an example.

In almost all cases, AFSPA has come in handy for the Army to evade prosecution. Ironically, in the Pathribal case, instead of losing their jobs after a foolproof CBI inquiry, the officers concerned were promoted. The same happened with the 1993 Bijbehara massacre, in which Border Security Force (BSF) personnel were indicted but eventually let off. The latest case is the Machil fake encounter: a court martial held an Army officer guilty of killing three innocent civilians in a fake encounter in 2010. The Armed Forces Tribunal stayed his punishment since the Army Act gives even offenders absolute powers.

Unfortunately, the Army has made AFSPA a matter of prestige. When former Home Minister P. Chidambaram brought certain amendments to the Act, they were stalled by the Defence Ministry, and the Army proved to be more powerful than the political leadership. The Army has used the Act as cover to shield its own from investigations. Even in civil courts Army officers choose to remain absent. For magisterial probes they do not even respond to summons. The full cover that the Army enjoys under AFSPA and the Army Act makes these probes meaningless.

Essentially, whenever the security forces commit human rights violations, twofold legal provisions hamper accountability. The personnel concerned can choose to be tried in the forum they desire, and in most cases they choose court martial. Secondly, particularly after the Supreme Court decision in Pathribal, there is the issue of sanction for prosecution.

According to official figures, between 2001 and 2016, the Defence Ministry received from the State government 50 requests for sanction for prosecution against armed forces personnel involved in alleged rights violations. Sanction was denied in 47, while three cases are still pending.

The following are the relevant sections of the various laws regarding prior sanction for prosecution of members of the armed forces.

Section 45(1), Code of Criminal Procedure (CrPC): “Notwithstanding anything contained in Sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central government.”

Section 197(2), CrPC: “No court shall take cognisance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central government.”

Section 7, AFSPA: “Protection of persons acting in good faith under this Act. No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.”

Interestingly, so far AFSPA has not been invoked. The need never arose because the Army Act protects the interests of soldiers adequately.

Ironically, erring Army personnel choose civil courts when it comes to accidents, as they fear stern punishment from Army courts as discipline is violated. But in cases of human rights violations, they prefer court martial.

There is a classic case in which an Army major was punished and dismissed from service with a sentence of seven years in a court martial, but he later went to civil court. Captain Ravinder Singh Tewatia and SPO Bharat Bhushan were found guilty of raping two women at their home in Banihal in Doda district on February 14, 2000.

Two separate charge sheets were filed in the court of Chief Judicial Magistrate, Banihal, and finally the court martial confirmed the crime and the captain was punished. He, however, went to the district court, which did not give him relief. He challenged it in the High Court, which set aside the court martial verdict. But the Army went into appeal before a division bench; the case is pending.

Both the Army and BSF Acts are silent about the victim’s right to defence in Army courts. In the Pathribal case, no relative of the victim was allowed to speak.

Of late, the Army has been receiving support from some TV channels that openly justify killings such as the ones in Shopian. Hashtags such as #StandwithArmy have made the media a part of the state apparatus as they treat every incident in Kashmir as terrorism.

Nationalism vs terrorism

TV debates on this particular case made it look like it was an instance of Kashmir (including the ruling People’s Democratic Party, or PDP, and the opposition National Conference, or NC) versus the Army. Children were brought to TV studios.

In a first instance of its kind, a father came to his son’s rescue by moving the Supreme Court, bypassing the Army as an institution. Filing an FIR is purely within the jurisdiction of the local station house officer, but in this case even the Defence Minister was brought in into discussions on whether she had given “permission”. Mehbooba Mufti is an elected leader who also holds the Home portfolio. But the media questioned her credentials, and she was disparaged as a pro-Pakistan Chief Minister.

Meanwhile, those supporting the Army would justify what the 10 Garhwal unit did in Shopian. “My regimental unit 10 Garhwal Rifles [was] involved. The unit has perhaps maximum experience in dealing with situations in the Valley. It would never fire without reason,” Lt Gen. (retd) Ata Hasnain, former Commander of Srinagar-based 15 Corps, wrote on Twitter. He also said: “AFSPA gives no immunity, unlike what people try to make of it. But only the Central Govt can order prosecution. There is simply no immunity from investigation. This aspect was overlooked in 1990 when the experience of hindsight of proxy war conditions was not there.”

Stating that the Army was not supposed to shoot to kill, Lt Gen. (retd) D.S. Hooda, who until recently headed the Northern Command in Udhampur, said: “The soldiers are told to shoot below the knees and ideally that should happen, but in situations like these [in Shopian], when they are under attack, these conditions do not exist. Expecting the soldiers to have the ‘order approach’ and control is of little impact.”

There may be debates over whether young people are justified in venting their anger by throwing stones. But justifying unabashed killings has drawn a clear line between New Delhi and Srinagar. The BJP, which is part of the ruling coalition in the State, has also made it clear that it favours complete immunity for the Army. The PDP, meanwhile, follows a carrot-and-stick policy. In such cases, the two coalition partners are not on the same page. There is no hope from a probe like this but the fact is that two young men lost their lives.

This is unfortunately the new normal in Kashmir.