Maze of Military Justice

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In its latest report, human rights watchdog Amnesty International says the continued use of AFSPA has created a vast web that frustrates the idea of justice in Kashmir, a Kashmir Life report

KL Image: Bilal Bahadur

KL Image: Bilal Bahadur

“..Continued use of AFSPA violates India’s constitutional guaranteed rights to life, justice and remedy,” the Amnesty International says in its latest report Denied- Failure in accountability for human rights violations by security forces personnel in Jammu & Kashmir. “By not addressing human rights violations committed by security forces personnel in the name of national security, India has not only failed to uphold its international obligations, but has also failed its own Constitution.”

Investigating the patterns in denying justice in cases of murders carried out, as the law says, “in good faith”, the global watchdog has rediscovered the entire labyrinth of justice systems that are in vogue in J&K. Though the armed forces, Amnesty says now only 60,000 personnel are deployed for counter-insurgency, are the focus of the report, it offers interesting similarities in patterns and systems governing other forces and the broad legal infrastructure in vogue that has frustrated the idea of justice.

Here are the seven steps that operate, sometimes independent of each other, to ensure justice is denied by delay. The watchdog says Delhi has skipped responding to its research that it had submitted for a formal reaction in anticipation of its release last week.

Protected by law

Legally, no person who dons a uniform can be tried without seeking a formal permission from his employer, the state or the union government. “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act,” read out Section 7 of the Armed Forces (J&K) Special Powers Act 1990, a law that all successive regimes have promised to roll back.

But this is not the only law that gives impunity to the security personnel. Section 22 of J&K Public Safety Act 1978 provides a complete bar on criminal, civil or “any other legal proceedings … against any person for anything done or intended to be done in good faith in pursuance of the provisions of this Act.” Even J&K code of criminal procedure 1989 protects state police men from prosecution in civilian courts unless sanction to prosecute is obtained from the state home department under section 197 (1).  Section 197 (2), CrPC 1973 bars courts from taking cognizance without formal permission from the union government.

For all these years, people have been reacting to this inhumanity. “The AFSPA is an obnoxious law that has no place in modern, civilized country,” P Chidambaram said as India’s Home Minister in November 2014. “It purports to incorporate the principle of immunity against prosecution without previous sanction. In reality, it allows the Armed Forces and Central Armed Police Forces to act with impunity.”

Justice seekers and in one case even the CBI argue that prosecuting civil offences such as murder or rape should not require sanction from the government as such offences do not fall under the “exercise of the power conferred” by the AFSPA. Nobody, so far, in government or lawmaking has taken the argument seriously. Not even the courts.

Why Register A Case?

This abnormality has been a norm in J&K, more so during 1990s. “Police and court records pertaining to nearly 100 cases of human rights violations filed by families of victims between 1990 and 2012 showed that JK Police often failed to register complaints, or take action on registered complaints until compelled by court orders, or by findings of a judicially-ordered enquiry,” the reports says. “..Often, as in the past, victims and their families must resort to the courts or rely on public or political pressure to ensure that complaints are registered and investigations continue.”

Mushtaq Ahmad Dar and Mushtaq Ahmad Khan abducted by army in 1997 from their Srinagar homes, according to Amnesty report, took their families “12 years to register a compliant and investigate their enforced disappearance.”

Other interesting phenomenon, hitherto unreported, is that police lack  adequate legal provisions for registering cases in specific cases of human rights violations. Law does not specifically recognize the offence of ‘enforced disappearance’ so the FIRs are registered under section 364, 346, 365 of RPC. Deaths in custody are registered as murders. Torture, interestingly, is not punishable as a specific offence and complaints are registered as “voluntarily causing hurt”.

Non-cooperation

There has not been a single case in which armed forces or even the paramilitaries have cooperated with the police in investigations, in cases in which police registered FIRs. Even in special enquiries that the state government has instituted in certain cases, the armed forces have always stayed at an arm’s length not offering any cooperation or participation in the process.

“Court and police records collected by Amnesty International India in 2013 clearly show that requests for information made by police during investigations into incidents implicating security forces personnel – including requests for the roasters of personnel involved in operations, records of weapons and ammunition used etc – have been refused,” the report says. “Police requests for security forces personnel to appear for questioning or identification area also frequently turned down by army and other security forces.”

In Pathribal case, even CBI faced the same music. It had to get an order from Ministry of Defence – which took a year, to ensure accused officers present themselves for questioning. Amnesty quoted a legal officer saying: “..No army officer or personnel has testified during police investigations or court proceedings to date, despite being summoned by the police.”

Compensation V/S Prosecution

J&K has a set-up for blood money. As civilian casualties surged substantially in 1990s, authorities started paying an ex-gratia compensation of one lakh rupees plus a class-IV job for next of the kin of deceased. However, the slain had to be a certified civilian. Often, the report had quoted an activist saying, state leads families to believe that compensation equals justice, and that if they accept compensation they are forfeiting the pursuit of prosecution against the accused.

“In some cases, families interviewed said that the police had threatened to withhold compensation until the families agreed to withdraw their complaint against the security forces,” the reports reads. “In other cases, families admitted, they had themselves refused to accept compensation for fear that the authorities would view the gesture as an acceptable remedy, and deem, the investigation and prosecution of the alleged perpetrators unnecessary.”

Discretion of Sanction

This is the single biggest intervention that ensures impunity. Interesting twist is that nobody knows the number of cases in which J&K government sought sanction or the cases in which prosecution was permitted. Governments in Srinagar and Delhi have offered different figures at different times about the cases in which sanction was required.

Amnesty estimates the cases in which state government sought sanction for prosecution, to be around 70 including some cases that “appear to have been lost between the J&K state home department and the Ministry of Defence”.

Amnesty asserts that it used RTI to get the details but failed as the responses offered scanty information.

State government informed the High Court in 2008 that there were 458 cases seeking permission to prosecute security personnel including the cops between 1990 and 2007. It claimed it granted permission in 60 percent cases in case of police.

Unlike state police, the cases of which are decided locally, the sanction for armed forces and paramilitary men is  a tedious exercise. The police, in case of armed forces or paramilitaries, are supposed to investigate a compliant and once it concludes, the case goes to the prosecution wing, to state police chief and eventually to the state home department that takes a final call. Once the case is submitted to the Defence Ministry, its Integrated Service Headquarters opts for ‘verification and comments’. Here it is being decided whether the offence is proved and also whether it was committed while acting or purporting to act in the discharge of official duties. On basis of this report, ministry of defence takes the final call.

Amnesty report says the Defence Ministry justifies delays in evaluating sanction applications by pointing to the 14-15 years that police takes to conclude the investigations and move for sanction. “…by the time such applications for sanction were received by the central government, often the individuals and units involved in the alleged incidents were moved/posted out long back making the process of identifying the individuals and records cumbersome and time consuming,” the report says. But the watchdog sees a similar pattern in cases which are promptly investigated. “Even in those cases in which the sanction application was received following police investigation within a year of the alleged violation, the MoD has failed to issue a prompt decision on sanction in majority of cases: several cases have been under consideration for more than eight years without a decision.”

In cases where the families have challenged the denial of sanction in the court of law, the wait is getting only longer to know what the courts will decide.

Close Door Trails

The first case involving security forces is yet to be tried in a civilian court. The armed forces have a Human Rights Cell, which, according to Amnesty summarily dismisses complaints as “false or baseless”. But in cases where it has no option but to take recourse to court martial, outcome is not different. Apart from seeing India’s military justice system as “key instrument in shielding alleged perpetrators”, the report says India’s military courts suffer from “structural flaws causing them to fall short of international fair trail standards and rendering them unsuitable for prosecuting human rights violations”.

“Court martials in J&K generally take place in heavily guarded military areas, typically out of bounds for the general public, making the provision for public hearings meaningless in practice,” the report says. It has identified cases in which complainants have skipped attending military courts. “…judgments of courts-martial are not made public and accessing hearings remains difficult for ordinary people.”

Though the verdicts in court martial are subject to review in Armed Forces Tribunal or the Supreme Court, Amnesty says it has failed to trace a single instance in which court martial decision was challenged. This apparently is because the complainants lack access to the copies of verdict which could be challenged. The report has instances in which the copy of trial proceedings was denied.

No Transparency

Time, as they say, is the best healer. That is exactly what the faulty system of justice encourages. First, it discourages a complaint. Then it frustrates the investigation. Delay and lack of transparency, eventually creates the situation that the accused is either retired or is untraceable. This forces the complainant to focus on rebuilding the lives of individuals impacted by the violation, rather than seeking justice and then time takes over the wound. This makes healing touch complete its circle – forget and forgive!

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