The Supreme Court on Monday directed that “no coercive steps shall be taken” against Maj Aditya Kumar, named by Jammu & Kashmir Police in an FIR registered in connection with the deaths of three civilians after troops of 10 Garhwal Rifles fired on protesters in Shopian on January 27. The court gave the J&K government two weeks to reply to a petition filed by Maj Kumar’s father, Lt Col Karamveer Singh, a serving Army officer, seeking quashing of the FIR. Lt Col Singh has alleged that “…the manner in which the lodging of the FIR has been portrayed… by the political leadership… of the state, reflects the extremely hostile atmosphere in the state”, and underlined that police had targeted “a serving Army officer (who) was performing his bona fide duties…”.
Chief Minister Mehbooba Mufti has defended the FIR, while the BJP, a coalition partner of the PDP, has demanded that it be withdrawn. However, their public disagreement is possibly intended primarily for their respective constituencies.
For, even if a police investigation indicts Maj Kumar and his men, the case cannot move forward in a civilian court unless the Ministry of Defence gives sanction for prosecution. And in nearly three decades of the militancy in J&K, this has never happened.
Immunity under AFSPA
The filing of an FIR by J&K Police against the Army, paramilitary forces, or even its own men for alleged abuse of power is not unusual. But the Army and paramilitary forces, while operating in disturbed areas, are protected by provisions of the Armed Forces Special Powers Act (AFSPA), under which bona fide mistakes committed while “acting in good faith” do not attract “prosecution, suit or other legal proceeding… except with the previous sanction of the Central Government” (which means the Defence Ministry in the case of the Army, and Home Ministry in case of paramilitary forces).
The Army has invoked AFSPA even where police investigations have established that the alleged violations were not committed in the line of duty — for example, in cases of rape, custodial killings, and fake or staged encounters (Machil, 2010; Ganderbal, 2007; Pathribal, 2000). Last month, the government told Rajya Sabha that between 2001 and 2016, the Defence Ministry received 50 requests for sanction for prosecution from the J&K government — sanction was denied in 47, while three cases were pending. Seventeen of the 50 cases were related to alleged killings of civilians, 16 to custodial deaths, eight to custodial disappearances, four to rapes and molestation.
Allegations of rape
Rape does not fall in the category of bona fide mistake during an operation; however, the Defence Ministry hasn’t allowed prosecution in civilian courts in these cases.
On January 3, 1997, soldiers allegedly led by Maj Arora of 5 Rashtriya Rifles entered a home in Manzgam, Kokernag, where a 60-year-old man, his two daughters and a grandson were present. The soldiers allegedly picked up the man, who remains untraced. The police registered a case of rape, and the government sought the Defence Ministry’s sanction to prosecute the officer. On June 5, 2009, the Ministry told the High Court that the request was “under consideration in Army Headquarters/Ministry of Defence”. On January 10, 2012, in response to an RTI query, the Ministry said permission was denied on April 21, 2007. “There were a number of inconsistencies in the statements of witnesses… The lady was forced to lodge a false allegation by anti-national elements,” it said.
On December 5, 1999, soldiers led by Maj Aman Yadav of 28 Rashtriya Rifles, and counter-insurgents raided a house in Rafiabad. On January 4, 2000, an FIR was lodged, accusing the officer of rape. On September 23, 2010, the Ministry refused sanction for prosecution, saying the allegations were “baseless and framed with mala fide intentions to put Army on the defensive”.
Cases of Court Martial
In some cases, the Ministry denied permission for prosecution in a civilian court, but the Army conducted Court Martial proceedings.
On May 15, 1994, Rashtriya Rifles men allegedly gangraped a housewife in Qazigund. Responding to an RTI application, the J&K Home Department said it had sought sanction for prosecution on January 23, 2006. In a 2009 affidavit in the High Court, the Defence Ministry said the state government had been informed that both accused, Nk Harbhajan Singh and Rfn Gurtej Singh, had been tried by a summary General Court Martial for rape, and sentenced to 10 years’ rigorous imprisonment and sacked from service. “A retrial for the same offence will be in contravention to Article 20 (2) of the Constitution,” it said.
On November 6, 2004, troops of 30 RR raided the home of a horsecart driver in Handwara. Police registered a case of rape, but the Army invoked AFSPA and ordered its own probe. A General Court Martial absolved the accused officer, Maj Rehman Hussain, of the charge of rape, but found him “guilty of using criminal force with the intent of outraging the modesty” of a 10-year-old girl. The officer was dismissed; he challenged the dismissal in court and returned to service.
On February 14, 2000, Capt Ravinder Singh Tewatia and an SPO allegedly raped a mother and daughter in Nowgam. The Court Martial found him guilty of rape, sentenced him to seven years in jail, and dismissed him from service. On December 31, 2002, the High Court set aside the Court Martial ruling. The state government did not challenge the order.
In several cases, courts have convicted police officers involved in fake encounters carried out jointly by the police and Army, while the soldiers couldn’t even be questioned due to AFSPA.
In 2007, legal proceedings were initiated in a series of alleged fake encounters carried out by joint parties of the Army and police — four cases were registered in Srinagar district, one at Sumbal in North Kashmir. In each case, an alleged foreign terrorist — whom investigations later showed to be an innocent villager — was killed in a remote area in Ganderbal or Kangan. Police arrested an SSP, a DSP, an ASI, four constables, and a driver for the fake encounters. However, no action could be taken against a Colonel, two Majors, a JCO and several other soldiers whom the police investigation indicted.
The case of the arrest and subsequent murder of a Srinagar-based human rights lawyer Jalil Andrabi on March, 8, 1996 too has witnessed a similar trajectory. Major Avtar Singh of 103 Territorial Army and his men had arrested Andrabi in front of his wife. Nineteen days later, the family found Andrabi’s decomposed body. A report by Special Investigation Team set up by J-K High Court in June 1996 identified Major Singh prima facie responsible for Andrabi’s custodial killing. But Army representatives told the court that the Major was no longer employed with the Army and that he had not committed the offence “in his official capacity”. The case kept lingering on even as the J-K Police found Major Singh involved in eleven similar killings, including the mysterious disappearance of surrendered militants who were witnesses to Andrabi’s murder. Major Singh had immigrated to Canada, then moved to the United States. In 2012, he killed his wife and two children before committing suicide in Selma, California.
Then there is a case of fake surrender on November, 9, 2004 where a masked group of 47 villagers from Budgam were made to parade as militants willing to lay down arms before 16 Corps Commander and J-K DGP in Nagrota. These villagers had been taken to Delhi with a promise of jobs by a Congress activist but handed over to army, who held them in a camp for six months before the fake surrender ceremony. Once J&K Police established that the surrender was stage-managed and these villagers were civilians with no link to militancy, they were released. The J& K police probe identified a Brigadier and a Colonel responsible for this fake surrender but there was no action.
In the Pathribal fake encounter case, where five villagers were killed and shown as “Pakistani militants” in March 2000, the CBI charged five Army officials with abduction, murder, criminal conspiracy and destruction of evidence. The Army invoked AFSPA and questioned the CBI’s authority to investigate them. After a long legal battle, the Supreme Court asked the Army to choose between prosecution in a criminal court or Court Martial. The Army chose the latter, which found no evidence to prosecute the officers.
On April 29, 2010, the Army claimed to have killed three infiltrating militants on the LoC in Machil, Kupwara. A J&K Police investigation showed civilians had been killed in a fake encounter for cash awards. The Army invoked AFSPA, and a Court Martial in 2014 sentenced six accused, including a Colonel and a Captain, to life imprisonment. In July 2017, the Armed Forces Tribunal suspended the sentence.