Justice under AFSPA: Easier promised than delivered?

Defence minister Rajnath Singh has visited the families of those Kashmiris recently killed in army custody and assured them justice. He told them, it was reported, that "nobody can bring those who have died back to life. But there will be justice".

This was a good thing to have said in humane terms, and we shall see if justice comes. We should, however, examine the past record of the government of India (all governments including previous ones) when it comes to justice for those wronged by our army.

Much of the focus is on the Armed Forces Special Powers Act (AFSPA), the law that gives armed forces immunity in so called ‘disturbed areas’ of India. We should try and understand it. In 2015, it was pointed out that the Disturbed Areas Act had lapsed in Kashmir in 1998, but ASPFA was still in force, apparently without sanction, but this was overlooked.

The key provision of AFSPA was the sweeping empowerment of individuals belonging to the police and the military and paramilitary to open fire "if he is of opinion that it is necessary so to do for the maintenance of public order". The forces could use force "even to the causing of death" and would be immune from prosecution for their actions except with the sanction of the Centre.

They could destroy anything they thought was a hideout, a fortified position or shelter from which an attack could be made. And they could arrest and detain without a warrant anyone they wanted and could use force in effecting the arrest. What happens when you give armed men such freedom in a place that has been declared hostile by the State is not difficult to imagine.

On 1 January 2018, the Rajya Sabha was informed by the government that the defence ministry had received 50 requests in 26 years from the Jammu and Kashmir government for permission to prosecute soldiers under AFSPA. It granted permission in zero cases. These include cases of soldiers accused of unlawful killings, torture, and rape between 2001 and 2016.

An Amnesty India report published in 2015 looked at over 100 cases and met with 58 families and found that since 1990, no sanction had ever been given to prosecute those accused by the Kashmir government of crimes. A chargesheet is the document filed after an FIR is registered and on the basis of investigation, meaning the police had found evidence of a crime. However, the Centre has approved none of the state’s requests for justice.

The army says it conducts its own justice system, the court martial. These are opaque processes where the survivor or victim does not have access, and shouldn’t be used for crime unrelated to military discipline. However, this parallel court system has been allowed to soldiers trying fellow soldiers of crimes against civilians.

An editorial in the Economic Times (‘Pathribal fake encounter case: India’s army’s acquittal of accused soldiers a blot on democracy’, 27 January 2014) describes what happens in these courts martial. The case discussed related to an army action in March 2000 during then US President Bill Clinton’s visit to India, in which five civilians were killed. The army claimed it had raided a hut which it believed to contain Lashkar-e-Taiba militants who had participated in a massacre of Sikhs in the village of Chattisingpora just before Clinton's visit.

On 11 May 2006, having investigated the case, the CBI filed murder charges against five serving members of the 7 Rashtriya Rifles unit in the court of the chief judicial magistrate of Srinagar. The CBI argued this was a case of ‘cold blooded murder’ and were not actions taken in the course of performing official duties, and so the perpetrators could not be protected. The Indian Army , however, blocked the prosecution of the five personnel under Section 7 of the AFSPA. The Supreme Court of India upheld the army’s action and asked it to decide whether it wanted to court martial them instead.

In September 2012, over 12 years after the murder of the civilians in Pathribal, the Indian Army chose to bring the case before the military justice system and began proceedings in a general court martial. On 24 January 2014, the army said it was dismissing all charges against the five personnel owing to lack of evidence.

According to the closure report filed in the Srinagar chief magistrate’s court, the army did not conduct a trial, but instead dismissed the charges through a pre-trial procedure known as summary of evidence under Rule 24 of the Army Rules 1954.

The Economic Times editorial said "the army’s self-acquittal of the Pathribal accused is a continuation of the cover ups of human rights violations in J&K and India’s Northeast, where the military has a free hand in dealing out 'justice' as it deems fit. This is a blot on our democracy".

In another case, the paper reported on 11 July 2018 (‘Machhil encounter: Life sentence of 5 army men suspended’) that soldiers were convicted of murdering three civilians but freed nonetheless by an army tribunal without explanation.

Two years ago, on 4 December 2021, soldiers from the 21 Para Special Forces army unit shot and killed six coal miners in Nagaland’s Mon district. The deaths led to violent clashes between local villagers and troops, and seven more civilians and a soldier were killed. A day later, soldiers killed another person after protesting villagers attacked their camp.

In June 2022, Nagaland police filed charges against 30 soldiers, including a major, after a special investigation team found the military had used “wrong positive identification without proper application of mind”, and that the miners were shot “with a clear intention to kill”. On 14 April 2023, the Indian government denied permission to pursue the prosecution.

This is the background and it is against this that we should judge what Rajnath Singh has said about the events in Kashmir.

Views are personal