The claims and counter-claims following the death of three civilians on January 27, after Major Aditya Kumar of 10 Garhwal Rifles allegedly opened fire on a group of protesters in Shopian, Kashmir, threatens the delicate balance between the army and the police, between civilian authority and the operational needs of the military. The J&K police filed an FIR against the officer under section 302 (murder), prompting the army to file a counter-complaint. The army has insisted that Kumar opened fire to protect the lives of his men and to prevent damage to property. Matters have been complicated further after Lt. Colonel Karamveer Singh, Kumar’s father and a serving officer himself, moved the Supreme Court seeking that the FIR against his son be quashed. In Jammu and Kashmir, as in any conflict zone with a military presence, the army and police cannot afford to be at odds with each other, or to be seen to be so. Maintaining even a fragile truce requires that men in uniform are not seen to be acting at cross-purposes. The BJP, which is part of the ruling alliance in the state, has demanded that the FIR against Kumar be withdrawn, while Chief Minister Mehbooba Mufti has said that “the investigation will take its course”. An already fraught issue is in danger of being polarised along political lines.
Under the Armed Forces Special Powers Act (AFSPA), the military can, and does, block the prosecution of its men by civilian authorities. The jurisdiction of the army over its men in areas where AFSPA is in force has been upheld by the courts. In Pathribal in 2000, for example, five villagers were killed in what the CBI investigation confirmed was a fake encounter. The army closed the case against the accused, a decision subsequently upheld by J&K High Court. The law of the land and its institutions are clearly mindful of and sensitive to the travails of the army and its personnel. It should, therefore, let the due process unfold, rather than be caught in an unseemly shouting match.
The situation in Kashmir demands maturity and restraint from both the army and the state police. Under normal circumstances, issues of criminality would fall under the police’s jurisdiction and those involving external acts of war against the state, under the army. That line is, however, redrawn in Kashmir, thanks to a prolonged conflict, deepening alienation among its people, especially the youth, and foreign actors stirring the pot. Individual officers or families of soldiers are, of course, entitled as citizens of India to approach any branch of government, including the judiciary. As recently as February 9, the National Human Rights Commission has taken cognisance of a complaint by the children of army officers alleging the human rights of soldiers are being violated by “stone pelters”. As an institution, however, the army must avoid taking a confrontational stance against civilian authorities, especially the police, in Kashmir