Opinion Machil and the opaque world of the ‘court-martial’

The fact that the Tribunal suspended the sentences and released them on bail is not that shocking. In Jammu & Kashmir, there has been a long history of state institutions favoring armed forces personnel for crimes committed. For example, the Tribunal was unconvinced that the Machil victims were civilians as they wore “Pathan combat fatigue” and arms and ammunitions were recovered from them.

Kashmiris are incredulous that a Pathan suit is now to be viewed as standard combatant clothing. It is difficult to view the Tribunal as credible when it seems to miss the fact that the entire case against the army is that they carried out a “fake encounter” – that by itself should render any seizures of arms/ammunition as suspect.

The Machil case is only one of several human rights violations that have not seen justice being served. In 2010 there were numerous cases of extra-judicial killings – some of which received a great deal of media attention. Families approached the courts (and in some cases, like the killing of Wamiq Farooq and Tufail Mattoo, continue to do so). In the case of killing of Zahid Farooq in 2010 by the BSF, the family fought for a civilian court trial all the way to the Supreme Court. But, the court allowed for a court-martial that recently ended with an acquittal (on the crime of murder but reportedly a conviction on “other charges”).

Even on the local government level there is no effort at justice as is seen in the fact that the ML Koul Commission that was set up to enquire into the 2010 killings submitted its report to the government last year but to date it has not even been made public!

The situation gets clearer when one travels further back in time. An estimated 70,000 killings, 8000+ enforced disappearances, widespread torture and sexual violence, and virtually no prosecutions in civilian courts (barring a few trials against police personnel and counter-insurgents, the ‘Ikhwan’).

Data on court-martials reveals a similar picture: Some convictions have been made and sentences passed in cases where crimes have been committed against civilians. But these orders aren’t public and in some cases the accused have litigated relentlessly, managed acquittals and even returned to service!

In the Pathribal fake encounter case of 2000, despite an order from the Supreme Court in 2012 for a “trial”, the army concluded an internal enquiry (“summary of evidence”) and decided there was no need for a court-martial. The families are back in the Supreme Court seeking a civilian court trial. The Kunan Poshpora rape and torture case is also before the Supreme Court with the army and the local government doing everything possible to delay proceedings and ensure that no fair and proper investigations are carried out.

The Tribunal order in the Machil case is therefore a small drop in the ocean of criminality and impunity that is the human rights story of Jammu & Kashmir. The Tribunal was merely following in the footsteps of virtually all the other institutions of the Indian State – executive, legislature and judiciary.

The legislature has done its job by legislating draconian laws – from the Public Safety Act, 1978 to the Armed Forces Special Powers Act, 1990 (AFSPA). The executive, in its various forms, ensures that even the basic criminal procedure is thwarted. So the local police will ensure that no criminal case is even registered in the police station (in cases of fake encounters, only the armed forces version of events is registered as a case) thereby forcing families to approach the judiciary and spend years struggling for the most basic of rights – a simple First Information Report in the police station.

Then, too, investigations are rarely carried out. Even agencies like the CBI are more likely, as in the Sopore and Sailan massacre cases of 1993 and 1998, to file a closure report (stating that the case should be closed) in the courts than actually carry out fair investigations and indict the accused.

Of course, in the rare cases where investigations do indict forces personnel, the armed forces either manages to take the case into the opaque world of the “court-martial” or the Ministries of Defence and Home Affairs in New Delhi refuse to grant sanction for prosecution under AFSPA.

Finally, the judiciary. The greatest travesty in Jammu & Kashmir has been the abysmal role of the judiciary. The victims have been thoroughly abandoned. The matter is perhaps most aptly summed up by the recent Supreme Court dismissal of a petition seeking investigations into Kashmiri Pandit killings wherein the court has stated that the passage of time (27 years) is ground for dismissal of the case. When it comes to Jammu & Kashmir it appears the entire burden of pursuing justice is on the victim – and the State stands united to protect the accused.

What is distressing is that crimes continue to be committed. Why is this happening? It appears that the Indian state, in its obsession with a military solution to Jammu & Kashmir, prioritizes the armed forces and their morale over justice and credibility of its own judicial processes.