The Army above the law

Print edition : April 13, 2018

A stone-throwing protest in Srinagar on February 17 against the Supreme Court's decision to stay the FIR against Army personnel in the Shopian firing case. Photo: S. IRFAN/PTI

Chief Justice of India Dipak Misra. Photo: KAMAL NARANG

Chief Minister Mehbooba Mufti. Photo: R.V. Moorthy

Lieutenant Colonel Karamveer Singh, who filed a petition asking that no criminal action should be taken against his son, Major Aditya Kumar, in the Shopian firing case. Photo: R.V. Moorthy

Jalil Andrabi, who was killed by a major.

Farooq Ahmed Dar, a shawl weaver who was strapped to a patrolling Indian Army jeep as a human shield against stone-throwing protesters. Photo: DAR YASIN/AP

It is not only wrong but dangerously subversive of the rule of law and democracy itself to put a soldier on a pedestal above the “ordinary” citizen.

IT is not possible to exaggerate the enormity of the wrong committed by the Chief Justice of India, Justice Dipak Misra, on March 5, 2018, when he stayed the investigation by the Jammu & Kashmir Police into the firing in Shopian on January 27. On February 12, the Supreme Court had asked the State police not to take any “coercive” action against Major Aditya Kumar after his father, Lieutenant Colonel Karamveer Singh, a serving officer, asked that the first information report (FIR) against his son and other Army personnel be quashed on the grounds that he had been “wrongly and arbitrarily” named in it. The bench comprising the Chief Justice and Justices D.Y. Chandrachud and A.M. Khanvilkar sought the assistance of the Attorney General K.K. Venugopal “to address the court on the petition on behalf of the Centre”, Krishnadas Rajagopal reported (The Hindu, February 13). It did not appoint an amicus curiae. The petition was not presented through the Army but directly through the Major’s father, who apparently set out the facts as narrated by the son.

The proceedings on March 5 are of more than ordinary interest. Venugopal, the Attorney General, contended that the State should not have filed an FIR without the Centre’s prior sanction, a proposition devoid of legal authority. The Hindu’s report (March 6) adds: “The Centre agreed with the Army officer’s father that such criminal action demoralised soldiers fighting for the country. The Mehbooba Mufti government replied that Major Kumar was not named as an accused in the FIR, but only mentioned as the officer leading the convoy.” The Chief Justice “was not convinced” by the State’s explanation, and rightly so.

This had to do with Chief Minister Mehbooba Mufti’s personal problem—keep the Centre happy and continue to enjoy the crumbs of power for a while. Reporting from Srinagar, Saleem Pandit wrote: “The State’s U-turn has come as a rude shock to those who trusted CM Mehbooba, political analysts said. People in Kashmir posted images of the FIR on social media that clearly showed that Major Aditya had been charged with murder. A senior PDP Minister said on condition of anonymity that Monday’s [March 5] S.C. direction may encourage the armed forces in J&K” ( The Times of India, March 6).

The order is palpably wrong. The Major had ample opportunity to explain his case to the police, and the police had every right and a clear duty to investigate. In Leena Vivek Masal vs State of Maharashtra ([2018] 1Supreme Court Cases 781), the Supreme Court refused to quash an order by a magistrate issuing summons against a person for commission of certain offences. He would “get an opportunity to file reply and raise all the pleas and adduce evidence”. The order issuing the summons “was purely interim in nature”. This applies with greater force to an FIR which can be quashed only if it does not disclose an offence in law.

The FIR is, under Section 154 of the Criminal Procedure Code 1973, a mere “information relating to the commission of a cognisable offence” given orally to an officer in charge of a police station. He is bound to reduce it to writing. It is not a substantive piece of evidence but the starting point of an investigation.

The word “information” was advisedly used, the Supreme Court held ( Prakash Singh Badal vs State of Punjab [2007]1SCC 1). It did not use the words “credible information”. The police officer does not sit in judgment over it. He is bound to investigate.

Chief Justice Dipak Misra prevented him from doing so and did so on grounds that are not only untenable in law but shocking in the extreme. He ordered: “Let the matter be listed for final disposal on April 24. In the meantime there shall be no investigation on the basis of the FIR.” On February 12, he banned any “coercive” step against the Major. On March 5, he banned any “investigation” at all—even at the risk of disappearance of evidence.

Why on earth did he make this unprecedented order? Why indeed? This is how the Chief Justice justified it: “After all it is a case of an Army officer, not an ordinary criminal.” Indulgence was shown because the person mentioned in the FIR was an Army officer. An “ordinary” citizen accused of a crime would have received no such protection. Is that not showing “favour” to a class in breach of the judge’s oath of office?

Army excesses

The court did not even pause to reflect on the facts of the situation before pronouncing a sweeping exoneration unknown to the law in India or any other state in the world. The mob was armed with stones, yet the young people were shot in the head as the very first option in the good Indian Army pattern of response in Kashmir. No wonder it considers the Armed Forces Special Powers Act (AFSPA) its Bible.

Surely, it is precisely in the State of Jammu and Kashmir that Army officers should be made accountable to the law, given the 28 years’ documented record of excesses by the Army. The Army Chief, General Bipin Rawat, has publicly admitted as much in language used by one born with a silver foot in the mouth. He justified not only the beastly use of a human shield but also the award to the offending officer Major Leetul Gogoi even while a court of inquiry was probing the sordid incident. On April 9, 2017, Farooq Ahmed Dar was abducted, tied to the front of a jeep and paraded through the streets of Srinagar. An upright soldier, Lt Gen. (Retd) H.S. Panag, who headed the Northern Command, lamented: “A tradition, ethos, rules and regulations swept away by the mood of the nation.” On April 15, he tweeted: “Image of a ‘stone pelter’ tied in front of a jeep as a ‘human shield’ will for ever haunt the Indian Army and the nation.” He told a TV channel: “This image will end up being the defining moment of the Indian Army, just like the napalm gun was for the Vietnam War.”

The New York Times (April 22) was scathing: “Members of India’s armed forces reached a new low in the long history of alleged human rights abuses in the Indian State of Jammu & Kashmir.” That history is studded with the Kunan Poshpora rapes, Pathribal and similar outrages. As pointed out earlier, Rawat’s outlook is no different from that of Brigadier General Reginald Dyer of Jallianwala Bagh fame (see the writer’s article “Human shields and pellet guns”, Frontline, July 21, 2017).

Rawat exposed his outlook on Kashmir in an interview to PTI on May 28, 2017: “This is a proxy war and proxy war is a dirty war. It is played in a dirty way.... You fight a dirty war with innovation.” He is either ignorant of or indifferent to the law on war and international humanitarian law. In Kashmir, a whole people are in revolt. As it happens, March 16, 2018, marks the 50th anniversary of the My Lai massacre in Vietnam. The BBC interviewed Seymour Hersh, who had exposed it, as he did the Abu Ghraib outrages in Iraq. In My Lai, 504 unarmed people were killed where Charlie Company was deployed. No combatants were found. They killed people all the same, burning down their huts. Lt William Calley was convicted of 20 or so murders, but was freed after three years’ house arrest.

The soldier is not infallible or above the law. Jayaprakash Narayan denounced Army excesses in Nagaland; Pandit Sunderlal and his colleagues denounced them in Hyderabad where a “police action” was launched, led by a Lt General, three Majors General and an armoured brigade; Operation Blue Star had its own excesses. It is dangerous to let loose an army against a people.

Citizen in uniform

Chief Justice Dipak Misra’s rule on the primacy of an Army officer over an “ordinary criminal” deserves to be nailed to the counter. In law, the soldier is but a citizen in uniform, armed with a deadly weapon. If he commits a crime, he is no different in law or morality from an “ordinary criminal”. It is not only wrong but dangerously subversive of the rule of law and democracy itself to put a soldier on a pedestal above the “ordinary” citizen.

The issues are: What is the legal status of a soldier? What is the degree of force he can use and in what circumstances? What is his accountability to the civil courts of the land?

In glaring contrast to Chief Justice Dipak Misra’s dictum is a detailed judgment of 238 pages by Justice Leggatt of the United Kingdom’s High Court on December 14, 2017; less than three months before Chief Justice Dipak Misra spoke as he did without hearing arguments on the rule, without reference to authorities on law or to judicial precedents. They inhibit sweeping ex-cathedra pronouncements.

I am deeply indebted for a copy of the judgment to my friend Ravi Nair of the South Asia Human Rights Documentation Centre, New Delhi. Erudite and upright, he has suffered sheer persecution in the last decades.

Justice Leggatt’s judgment awarded heavy damages to four Iraqis for wrongs committed on their persons by British soldiers in Iraq. Their claims, a tort, were time-barred. The damages were for violations of the U.K.’s Human Rights Act, 1998, which incorporated into U.K. Law the European Convention on Human Rights and Fundamental Freedoms.

Six hundred other claims are still pending against the Ministry of Defence. Kamil Najim Abdullah Alseran, aged 22 at the time, was captured in his home on March 30, 2003, by British forces. He was released on May 7, 2003. “On the balance of probability Mr Alseran’s allegation that, following his capture, he (and other prisoners) were assaulted by soldiers running over their backs is true. The MOD was liable for this conduct which was also inhuman and degrading treatment....

“Because it was contrary to international humanitarian law, Mr Alseran’s detention between 10 April and 7 May 2003 violated Article 5 of the European Convention and also gave rise to liability in tort (as the British government did not authorise detention which was in breach of the Geneva Conventions and the Human Rights Act). Mr Alseran is awarded damages under the Human Rights Act for (i) the ill-treatment following his capture, in a sum of £10,000, and (ii) his unlawful detention for 27 days, in a sum of £2,700.”

Crimes in Iraq

The names of MRE and KSU were not mentioned in the order to protect their identity as they had been sodomised, a crime which stigmatises the victim. “When the war began, MRE and KSU were serving on a merchant ship which was moored in the Khawr az-Zubayr waterway north of Umm Qasr. MRE was 37 years old and was employed as an engineer on the ship. KSU was 27 years old and was employed as a guard. On the evening of 24 March 2003 their ship was boarded by coalition forces and the four crew members, including MRE and KSU, were captured. They were taken by boat a long way out to sea to a large warship on which they were held overnight. The claimants allege, and it was not disputed at the trial, that on arrival at this ship they were forced to strip naked and subjected to an intrusive physical inspection which involved sexual humiliation. KSU was also burnt on the buttock with a lit cigarette.

“The psychiatrists who gave expert evidence agreed that both MRE and KSU still suffer from post-traumatic stress disorder as result of their experiences at the hands of coalition forces.”

The judge added: “It is, however, clear that from when they disembarked at Umm Qasr port on 25 March 2003 until their release from Camp Bucca, which occurred on 10 April 2003, MRE and KSU were in the custody of British forces who were responsible for their detention throughout that time.

“The hooding of the claimants with sandbags during their transportation to Camp Bucca was inhuman and degrading and violated Article 3 of the European Convention as well as amounting to an assault. MRE also suffered an eye injury caused when a small shard of glass or other sharp object inside the sandbag covering his head entered his eye.

“MRE was struck on the head on the dock at Umm Qasr and later kicked in the knee by a British soldier while detained at Camp Bucca, as alleged. As a result of the blow to his head, MRE has since suffered from migraine headaches, migraine-related balance disorder, visual vertigo and a central auditory processing disorder. The kick to his knee caused swelling but was not a serious injury. Both incidents were assaults giving rise to liability in tort and the first also constituted inhuman treatment which violated Article 3 of the European Convention.

“The claimants were entitled under international humanitarian law and Article 5 of the European Convention to have their cases assessed and a decision whether to intern or release them made promptly following their arrival at Camp Bucca on 25 March 2003. Making all due allowance for the wartime conditions, such assessment should have taken place within, at most, ten days of their internment.

“The claims which succeed are those under the Human Rights Act based on: (a) the hooding of MRE and KSU, for which they are each awarded damages of £10,000; (b) an eye injury sustained by MRE as a result of the hooding, for which he is awarded additional damages of £1,000; (c) the blow struck to MRE’s head, for which he is awarded general damages of £15,000 together with £1,440 for the cost of medical treatment; and (d) six days of unlawful imprisonment, for which MRE and KSU are each awarded damages of £600.”

Abd Ali Hameed Ali Al-Waheed was arrested in a house raid carried out by British soldiers in Basra city on the night of February 11-12, 2007. He was 53 years old at the time and had recently remarried. The soldiers who raided the house were looking for his brother-in-law, Ali Jaleel, who was suspected of involvement in terrorist activities. Ali Jaleel was out, but a partly assembled improvised explosive device (IED) and a large quantity of explosives were found in the house. On his arrest, Al-Waheed was taken first to the Brigade Processing Facility at Basra Airport and from there to the Divisional Temporary Detention Facility at Shaibah, where he was interned. He alleged that at the time of his arrest and during the journey to Basra Airport and during the first 13 days of his internment at Shaibah he was subjected to multiple forms of inhuman and degrading treatment. He further alleged that his detention was unlawful, for the whole, or alternatively part, of the period for which he was detained.

The expert psychiatrists agreed that when they examined him in April 2016 he was suffering from post-traumatic stress disorder and depression with significant anxiety symptoms. They also agreed that his mental health problems and the multiple physical symptoms from which he also suffers, including lower back pain and joint pain, are interrelated and cause him significant impairment.

The judge concluded: “My main conclusions in this case are, in summary, as follows: Mr Al-Waheed’s allegations of mistreatment are greatly exaggerated. Nevertheless, there is contemporaneous medical evidence which shows that between the time of his arrest and his arrival at the Basra Airport base he was beaten on the upper back and arms (probably with rifle butts); he was also punched in the face by British soldiers and suffered a painful finger injury.

“In addition to this assault, Mr Al-Waheed was subjected to the following practices which were routinely used at the relevant time in handling prisoners, but which amounted to inhuman and degrading treatment: (a) ‘harsh’ interrogation, which involved a deliberate attempt to humiliate the detainee by insulting and shouting personal abuse at him; (b) being deliberately deprived of sleep for the purpose of interrogation during the first day and a half of his detention; and (c) complete deprivation of sight and hearing by being made to wear blacked out goggles and ear defenders for most of the first 12 hours following his arrest and thereafter whenever he was taken out of his cell while undergoing interrogation during the first 13 days of his detention.

“Mr Al-Waheed was detained without any legal basis from 23 February 2007 until he was ultimately released on 28 March 2007, a period of 33 days. His detention during this period violated Article 5 of the European Convention and also gave rise to a claim in tort as the British government did not authorise detention which was contrary to international law and the Human Rights Act.

“Mr Al-Waheed is awarded damages under the Human Rights Act in the following amounts: (i) £15,000 in respect of the beating which he suffered after his arrest; (ii) £15,000 in respect of the further inhuman and degrading treatment which he suffered encompassing harsh interrogation, being deprived of sleep and being deprived of sight and hearing; and (iii) £3,300 in respect of his unlawful detention for 33 days.”

Right to bodily integrity

Justice Leggatt’s analysis of the law is relevant. “First of all, where a person is a victim of an assault or false imprisonment, the wrong itself—that is to say, the interference with the claimant’s bodily integrity or liberty—is an injury for which the claimant is entitled to be compensated in English law whether or not the interference has resulted in any ‘actual harm’ to the claimant. As Lord Rodger said in Ashley vs Chief Constable of Sussex Police [2008] AC 962 at para 60: ‘Battery or trespass to the person is actionable without proof that the victim has suffered anything other than the infringement of his right to bodily integrity.’ See also Watkins vs Secretary of State for Home Department [2006] 2 AC 395, para 68. Likewise it is well established that loss of liberty is itself an injury for which a claimant is entitled to be compensated apart from any damage which has resulted from the loss of liberty: see e.g. R vs Governor of Brockhill prison, ex p Evans (No.2) [1999] QB 1043, 1060. This kind of injury which is inherent in the wrong itself is often referred to as ‘moral injury’.

“Second, an assault of false imprisonment may cause identifiable physical or psychiatric injury. In such circumstances damages are awarded in English law for what is conventionally referred to as ‘pain and suffering’ and any loss of amenity. A third kind of injury is injury to feelings. This includes the distress, misery, humiliation, anger and indignation that such a tort may cause.”

The Jalil Andrabi case

All these excesses pale into insignificance when compared with those routinely inflicted on Kashmiri detainees by the Army and other forces. This has been documented by Pervez Imroz and Khuram Pervez and the J&K Coalition Civil Society. Jalil Andrabi, a Senior Advocate, held a press conference publicly to reveal plans for his murder. He had seen suspicious men outside his house. He was a human rights activist internationally. He was arrested on March 9, 1996, and found dead on March 26. Public warning did not deter the killers. Major Avtar Singh, who had arrested him, was allowed to flee India after he was provided travel documents. Amnesty pursued his case for years. He was arrested in the U.S. for domestic violence in July 2011. On June 6, 2012, he killed his wife, son and himself. Since he was an “Army man”, the Government of India protected him, though it knew of his whereabouts. He was above the law.

The judgment is based on fundamental legal principles laid down over the years. Dicey’s classic An Introduction to the Study of the Law of the Constitution says: “With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person. Officials, such for example as soldiers or clergyman of the Established Church, are, it is true, in England as elsewhere, subject to laws which do not affect the rest of the nation, and are in some instances amenable to tribunals which have no jurisdiction over their fellow countrymen; officials, that is to say, are to a certain extent governed under what may be termed official law. But this fact is in no way inconsistent with the principle that all men are in England subject to the law of the realm; for though a soldier or a clergyman incurs from his position legal liabilities from which other men are exempt, he does not (speaking generally) escape thereby from the duties of an ordinary citizen.”

Hood Phillips and Jackson’s Constitutional Law and Administrative Law, edited by Paul Jackson and Patricia Leopold, states the law in clear, emphatic terms: “A soldier becomes subject to military law, but he also remains bound by the ordinary civil and military law... civil actions may be brought against individual officers for damages for false imprisonment, assault, malicious prosecution, defamation, etc. Criminal proceedings against officers may take the form of a prosecution for e.g. murder, manslaughter, or assault.”

Chief Justice Tindal’s (Sir Nicholas Conyngham Tindal) charge to the jury on January 2, 1832, is a classic. “The law acknowledges no distinction in this respect between the soldier and the private individual. The soldier is still a citizen, lying under the same obligations and invested with the same authority to preserve the peace of the King as any other subject. If the one is bound to attend the call of the civil magistrate, so also is the other; if the one may interfere for that purpose when the occasion demands it, without the requisition of the magistrate, so may the other too; if the one may employ arms for that purpose, when arms are necessary, the soldier may do the same.”

Irish case

An Irish case, Lynch vs Fitzgerald & Ors. (1938) I.R. 392, is accepted in the U.K. It held: “Officers and soldiers are under no special privileges and subject to no special responsibilities as regards this principle of the law. A soldier for the purpose of establishing civil order is only a citizen armed in a particular manner. He cannot, because he is a soldier, excuse himself if, without necessity, he takes human life. The duty of magistrates and peace officers to summon or to abstain from summoning the assistance of the military depends in like manner on the necessities of the case. A soldier can only act by using his arms. The weapons he carries are deadly. They cannot be employed at all without danger to life and limb, and, in these days of improved rifles and perfected ammunition, without some risk of injuring distant and possibly innocent bystanders. To call for assistance against rioters from those who can only interpose under such grave conditions ought, of course, to be the last expedient of the civil authorities. But when the call for help is made, and a necessity for assistance from the military has arisen, to refuse such assistance is in law a misdemeanour.

“The justification of Captain Barker and his men must stand or fall entirely by the common law. Was what they did necessary, and no more than necessary, to put a stop to or prevent felonious crime? In doing it, did they exercise all ordinary skill and caution, so as to do no more harm than could be reasonably avoided?....

“It may be laid down that there are very few occasions in the life of a police officer which justify the introduction of firearms and it is again to be emphasised that they are only to be used as a last resort and then only in the gravest circumstances.... The safer course for a member of a police force is to avail of every means of defence whatsoever before making effective use of firearms....

“But it is an invariable rule that the degree of force to be used must always be moderated and proportioned to the circumstances of the case, and the end to be attained. Hence it is that arms—now at such a state of perfection that they cannot be employed without grave danger to life and limb even of distant and innocent persons—must be used with the greatest of care, and the greatest pains must be exercised to avoid the infliction of fatal injuries, but if in resisting crimes of felonious violence, all resources have been exhausted and all possible methods employed without success, then it becomes not only justifiable but it is the duty of Detective Officers, or other members authorised to carry arms, to use these weapons according to the rules just enunciated, and, if death should unfortunately ensue, they will, nevertheless, be justified....

A gun should never be used, or used with any specified degree of force if there is any doubt as to the necessity.” (Emphasis added, throughout.)

The judge added: “But this case should not end with the determination of the civil liability of the defendants. The evidence discloses a prima facie case of manslaughter, and it is the duty of the court before whom a prima facie case of a criminal offence is committed to call the attention of the AttorneyGeneral to it and to the judge’s opinion. Accordingly, it will be my duty to direct the attention of the AttorneyGeneral to the evidence in this case and to my judgment thereon, with an expression of my opinion that the criminal liability of these three defendants against whom I have given judgment should be investigated by a jury. This investigation of the criminal liability is all the more necessary as the three defendants belonged to the armed forces of the state and there cannot be one rule for them, when their acts result in the death of a citizen, and another in the case of a motor driver who causes a death and has to stand his trial before a jury.”

The hoary Halsbury’s Laws of England states the law clearly in Volume 4: “Where death or injury to the person results from the excessive exercise of naval, military or air force authority, or from acts done by naval, military or air force authorities without jurisdiction, the responsible parties are liable to criminal proceedings.”

A law crippled

British colonialists crippled the law when applying it to Indians by requiring prior sanctions of the patrons of the perpetrators, the State gvernment, before a prosecution could be launched (Section 197 of the CrPC 1973). Their Indian heirs made it worse by applying it even to retired officers. The Supreme Court recognised in A.R. Antulay vs R.S. Nayak (1984) 2SCC 500 that, as a rule, anyone can set the criminal law in motion. The British injected the sanction provision to protect their officials against Indians’ recourse to the law. Independent India’s rulers found it convenient. The Supreme Court does not strike it down as being violative of the guarantee of equality before the law (Article 14) and the right to personal liberty (Article 21). So much for “judicial activism”.

It would be most useful to compile the facts of the grosser outrages like the Kunan Poshpora rapes and Pathribal killings. The State and the Centre refuse to accord sanction for prosecution. Amnesty International India’s Aakar Patel wrote in Asian Age on February 11: “In January, this question was asked in Parliament: ‘Will the Defence Minister be pleased to state: a) the number of cases received by the Central government from the J&K government for sanction of prosecution of Armed Forces personnel under Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA), 1990; (b) the number of such cases in which sanctions were granted, denied and pending; (c) the details for each request received including its year of receiving, offences alleged, outcome of investigation, current status of the sanction for prosecution; and (d) the reasons for denying or pending status of sanction for prosecution?”

Cases against soldiers

“The answer was provided by the Minister of State in the Ministry of Defence as follows: ‘(a) A total of 50 cases have been received by the Central government from the Government of Jammu and Kashmir for prosecution, sanction against Armed Forces personnel under AFSPA 1990. (b) & (c): A statement giving the details of the total number of cases received in each of the years, offence alleged and the current status of the sanction granted/denied/pending based on the investigation is annexed. (d) The reason for denial/pendency of prosecution sanction is on account of lack of sufficient evidence to establish a prima facie case.’

“The cases against the Armymen are listed as follows: In 2001, one FIR filed for killing (permission to prosecute soldiers denied). In 2006, two FIRs for killings (permission denied). In 2006, 17 FIRs, one for rape, one for molestation, six for kidnap and murder, the rest mostly for killings (in all cases permission denied, except for one case of kidnapping). In 2007, 13 FIRs, one for rape, one for torture and murder, the others mostly for killing (permission denied). In 2008, three FIRs, for rape and theft and murder (permission denied). In 2009, two FIRs for murder and kidnap (permission denied). In 2010, four FIRs, all for murder (permission denied).

“In 2011, two FIRs, one for murder (permission denied) and one for kidnap (pending). In 2013, three FIRs for murder (permission denied). In 2014, two FIRs for killing (permission denied in one and is pending in another). In 2016, one FIR for killing (permission denied).

“The total number of soldiers who have ever faced trial in a civilian court for a crime in Kashmir is zero.” Citing these figures, Aakar Patel wrote: “ There is no justice for Kashmiris in India, according to the data given by the Government of India. We should all feel offended by this. The Army pretends to give justice in its own martial courts which are closed off to victims and survivors. If you are interested in how soldiers are let off through this route, read what has happened in the matters of Pathribal and Machil. There is another thing we should feel offended by. The Indian Army is using children to demand protection from other Indians. The Indian Army is afraid of cases filed by Indian citizens in an Indian police station by an Indian policeman and of facing trial in an Indian court under an Indian judge. I do not find that offensive, I find it embarrassing. Fortunately for the Army, no matter what government is in power, it is immune from justice in India no matter what crime its soldiers commit. Jawans can rape, murder, kidnap and torture but they are guaranteed to get away because no government will ever change ‘denied’ and ‘pending’ to be ‘approved’.

“Indian children, and all of us, should sometimes consider why thousands of Kashmiris are pelting stones in the first place.”

The effect of all this on Kashmiris is well described in an editorial in the fearless Srinagar monthly Narrator in its issue of February 2018. “The Indian Army has been a major pillar of democracy in India. In the mid-1970s, when Indira Gandhi was at the height of her power, there stood an honest Chief of Army Staff, Gen. Tapishwar Narain Raina, a Kashmiri by birth. He famously refused to allow the Army to serve the interests of any political party and said the Army would not be used to further her ends but obey only those orders of a legally construed government.

“Back home in Kashmir, the Indian Army has a chequered history. Many Kashmiris see it as an ‘Army of occupation’. Our memory is clogged with massacres committed by the Indian soldiers. Scores of young men, and some teenagers too, have vanished into thin air after their arrest by the Army and India’s paramilitary troops. But in our experience, while junior officers tend to be rash and impulsive, there’re many seniors who have had fair understanding of the basic political issue that plagues Kashmir. For example, in 2016, Lt Gen. D.S. Hooda, the then Northern Command Head, called on ‘all parties to take a step back’, when the state violence against Kashmiris protesting on the streets was at its worst after the killing of young militant commander Burhan Wani. Gen. Hooda refrained from calling the protesters ‘anti-nationals or over-ground workers’. Post-retirement he has maintained that there is a need for dialogue.

“Contrast this with the belligerence of incumbent Army Chief, Gen. Bipin Rawat. In 2017, he labelled all protesters at encounter sites as ‘over-ground workers of militant outfits’. He announced that ‘the Army will get you’ while talking about militants....

“It is sad to see that an officer of the rank of the Army Chief speak the language of rabble-rousing ruling party politicians who are fed a diet of anti-Kashmir, anti-Muslim propaganda by a section of Delhi-based media. Wherever one goes in Kashmir, there is unison on one topic; demilitarisation. And all the political parties know that that has to be the first step towards any meaningful rapprochement with Kashmiris.”

Chief Justice Dipak Misra’s remarks on March 5, 2018, and his order extinguish their hopes.

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