Every time a fresh debate surrounding removal of AFSPA is energised, the army raises a spectre to oppose it. Past all other arguments, the army now fears independence for Kashmir in five years if the impunity law was even partially removed. Under pressure from the Supreme Court in the Pathribal faked encounters case, is the army undermining the political executive? Kashmir Life reports.

On Wednesday, November 9, when chief minister Omar Abdullah walked into the Unified Headquarters – responsible for overall security of the state – he must have hoped to convince the army to go along with his ‘intention’ of removing the Armed Forces Special Powers Act (AFSPA) from some areas. Instead, the chief elected official of the state was reportedly shown a ‘presentation’ by the generals present in the meeting which, apart from other things, raised a spectre that if AFSPA was removed from any areas in the state it would create conditions to necessitate granting independence to Kashmir by 2016.

This was not the first time that the Indian army establishment vociferously objected to any move for revocation of the impunity law. It is the army’s best-known position that as long as they are required in Kashmir AFSPA must remain in place, despite the political executive’s declared support for a phased removal of the unpopular law from Jammu and Kashmir.

The current debate over AFSPA started recently when Omar Abdullah declared at a police function that it would be removed from certain areas before the biannual movement of the government establishment from the summer capital of Srinagar to winter capital Jammu in the last week of October.

On numerous earlier occasions when the continued usefulness of AFSPA came under question, the army objected raising spectres of armed militants waiting on the other side of the LoC to launch attacks and neutralising advantages the army won the political establishment for manoeuvring in this side of Kashmir. A general went to the extent of calling AFSPA the army’s ‘holy book’.

This time the army tried to put the chief minister in the dock when the generals at the Unified Headquarters, headed by Omar himself, reportedly said in a presentation that demands for revocation of AFSPA came from ‘Pakistan, the Inter-Services Intelligence Directorate, terrorists and the secessionists’. This clearly indicates that the army has a final say in the matter despite home minister P Chidambaram having indicated his backing to Omar on the issue.

However, the army has lately come under some pressure from elsewhere as well, regarding the extent of immunity its personnel should genuinely have. Last week (November 4, 2011) Supreme Court’s division bench comprising Justices B S Chauhan and Swatanter Kumar directed the central government to spell out its stand on the extent of immunity enjoyed by Army personnel under AFSPA and other laws for fake encounter killings. Orders came on a CBI application seeking vacation of a stay order that prevents trial of seven soldiers involved in the faked encounter of five civilians at Pathribal (Panchalthan) in south Kashmir. The slain, whose bodied were burnt in a hut were accused of being responsible for the massacre of 35 Sikhs at Cahitisinghpora.

“We are conscious of the matter and want to strike a balance between civilians’ rights and national security,” Additional Solicitor General Parag Tripathi, appearing for the Army, told the court while seeking adjournment. “The matter is being dealt at the highest level.” The ASG informed the court that the government be allowed to settle the issue between two of its arms – CBI and Army – who are contesting on the interpretation of Section 6 of the AFSPA and the 197 of CrPC, mandating the sanction for prosecution by the Defence Ministry. The bench appreciated the concern of the ASG but asserted that “If you don’t take a decision, we will proceed with the matter.” The case is listed for December 16.

Since September 14, 2007 when a Bench of Justices B N Aggrawal and P P Naolekars stayed the process of prosecution initiated by the CBI in a Srinagar court, there have been many flip-flops in the courtroom. The most famous was the last hearing in June when Ashok Bhan, a counsel of the CBI appeared before the court in two separate cases of intended criminal prosecution – one each from Assam and J&K, involving different security agencies producing contradictory arguments. It triggered scathing observations from the court.

Bhan appeared in the Pathribal case and pleaded for revocation of the stay order. In another case involving CRPF in Assam, Bhan said the personnel cannot be prosecuted because they are enjoying immunity under the CRPF Act. When questioned for his “diametrically different views”, Bhan admitted the dichotomy and termed it his “professional compulsion.”

The court was clear and categorical. “The government should clarify whether the army / paramilitary personnel enjoy immunity from criminal prosecution for any penal offence committed in discharge of their official duties including fake encounters and rapes vis-?-vis AFSP Act, Section 197 CrPC and Section 17 of the CRPF Act. It also sought to know if the CBI should conduct a preliminary inquiry into such killings before registering an FIR against the accused army  paramilitary personnel.” The government is yet to respond and the latest order was just another reminder.

There are many issues that the two agencies are debating. After CBI filed the charge sheet in the Srinagar court, the army counsel Anil Bhan said it lacks legal formalities because the prosecution has failed in getting the clearance from the central government.

The CBI insisted that impunity under law couldn’t be extended to the accused because they were not “conducting any legitimate military operation in good faith”. Now, in the apex court the CBI is challenging the role of army as an institution in contesting the case. “Under the provision of law, the accused named in the charge sheet have to approach the court individually and ask for the relief. Army as an institution has no locus standi in the case,” Ashok Bhan believes.

The case is one of Kashmir’s most sensational ones, exposing the extent of misuse AFSPA can be put to. On the eve of arrival of US president Bill Clinton to India, 35 Sikhs were massacred in Chittisinghpora on March 21, 2000. Then came the news of an “encounter” at Pathribal on March 26 in which police claimed all the five terrorists involved in the Chhattisighpora massacre were killed in a Gujjar hutment. Around the same time a few villagers in the area had gone missing that triggered protests.

It took an ugly turn after the villagers traced items at the encounter site indicating the slain were civilians. One such protest was fired upon by Special Operations Group of the state police at Brakpora on April 3 killing eight protestors and injuring 14, some of them were crippled for life.

Later, the bodies of the five “terrorists” were exhumed, identified and returned to their families though their “scientific identification” using DNA fingerprinting became yet another scandal when it was revealed that the samples were fudged. Fresh samples and tests proved the slain were innocent civilians.

Three personnel SOG and four others from CRPF were indicted by Justice S R Pandian Commission of Inquiry that probed the Brakpora massacre. The case was finally handed over to CBI in January 2003 and in 39 months the investigating agency filed the charge-sheet on May 12, 2006.

The CBI charge-sheet found Brigadier Ajay Saxena, Lt Col Brajendra Pratap Singh, Major Surabh Sharma, Major Amit Saxena and JCO Idress Khan and others – all from 7-RR of the army’s counterinsurgency force, responsible for acts punishable for hatching a criminal conspiracy (120-B RPC), kidnapping with intention to murder (364), attempt to murder (307), murder (302), culpable homicide by causing death of a person other than person whose death was intended (301) and destroying the evidence (201).

The CBI suggested they completed the investigations against all odds especially because the armed forces were not cooperative and denied access to vital documents. It, however, absolved the state police. “They had no role in the encounter excepting that they made fake entries in the Rooznamcha. [For] this they did to get the medals and honours.”

But the stay order that the Supreme Court issued on the trial has not blocked the Pathribal case alone. The armed forces invoked this stay order in many other cases preventing any forward movement in the delivery of justice. These included most of the murders that were part of another sensational case involving the SOG’s super-killer H S Parihar, who is now in jail. Parihar carried out a number of murders in which some army personnel were also involved. At least in two cases – one each pending disposal in Ganderbal and Baramulla, the army invoked the apex court stay order from to frustrate the trial that is otherwise going on against the involved police personnel.

Troopers, policemen and the paramilitaries enjoy protection under various laws from prosecution, as de facto and de jure impunity exists for the government forces in India. This immunity prevents prosecution of the forces personnel during normal as well as abnormal circumstances and emanates from sections 45 and 197 CrPC, AFSPA and section 17 of the CRPF Act, “except with the previous sanction of the central government”. This has created a situation in which the state government can act against its personnel but can only ask for permission to prosecute the army or central paramilitary forces.

According to JKCCS, a civil society group of human rights defenders, since 1989, the state government sent 50 requests to the central government – 31 to defence ministry and 19 to Ministry of Home Affairs (MHA) – for granting permission to prosecute the members of paramilitary forces and the army for their involvement in various cases. In 26 cases, the request has been summarily rejected. So far, according to JKCSS, in 16 cases the response is awaited. So in 22 years the net permissions granted by the central government is only eight – two cases by the Defence Ministry and six by the Home Ministry. This information was obtained by the JKCCS from the state home department by an RTI application.

The JKCSS has even disputed this information. It refers to a communication that the defence ministry submitted to the high court (Writ Petition 1842 of 2003) on June 5, 2009 stating the ministry received 35 cases from J&K government for prosecution sanction under AFSPA. The civil liberty group has pin-pointed two cases in which the two documents tell different stories. Even in one of the most sensational cases involving the kidnapping and murder of lawyer Jalil Andrabi there is a contradiction. State home department says that the prosecution sanction under the AFSPA for the proclaimed offender Major Avtar Singh is awaited, while as the Ministry of Defence affidavit claimed that they have not received the case, so far. “Even when there is a red corner Interpol warrant against Singh and he continues to live a  comfortable life in USA, the Ministry of Defence is still not concerned in helping the processes of justice,” a JKCSS statement said.

But the flip-flops are nothing new. On October 26 2010, a senior officer at the Northern Command told reporters that J&K government has sought prosecution sanction against soldiers in many cases. “The J&K Home department has sought the sanction from the central government to prosecute Army persons under AFSPA in 41 cases since 1990,” a senior Army officer of Northern Command said. “No prosecution sanction has been accorded by the central government so far. Out of the 36 cases investigated, sanction was not accorded in 14 cases, 2 were settled and one case was referred back to the J&K government,” the officer said. “Remaining 19 cases are under process at the Army Headquarters and Ministry of Defence.”

In November 2010 when Delhi based Mail Today sought details of the prosecution sanction from the Ministry of Defence in J&K through RTI, it was informed that since 1990, it received 42 cases from the J&K government requesting sanction to institute legal proceedings against accused army personnel, but no such request was ever accepted. “Twenty-five sanction requests have been declined with MoD/ army headquarters, while 17 are still pending,” Mail Today reported quoting RTI reply on November 29, 2010. As many as 11 such requests from the J& K government have been declined by the MoD in 2010 alone.

“The FIR and the statement of witnesses stand in contradiction. The unilateral conclusions reached by the police appeared to have been made under pressure from militants,” it reported. “In one case the MoD accused the state police of charging army troopers due to pressure from militants. In other two cases which were of alleged rape, the state government was denied legal proceedings against army on the ground that militants had forced the women to file complaints.” However, the RTI maintained the MoD gave sanction only in one case because the army itself had convicted the officer.

The AFSPA, reported the Mail Today, allows the men in uniform to play the role of an accused, an investigator and a judge in the same matter. That was befitted to the statement made by a senior army officer in October 2010 who said the police had registered 1514 cases against the Army concerning human rights allegations in the last 20 years of militancy. “1508 cases had already been probed…In as many as 1473 cases, nearly 97 percent of them were found false and baseless,” the officer was quoted saying. But if police registered the FIRs, it is the police that should complete the investigations and absolve the personnel. But it is accused who claims they investigated the cases and proved them fake!

Human Rights lawyer Vrinda Grower told NDTV recently that let the central government have the authority to grant prosecution sanction. But let there be the time frame for the government to accord sanction for prosecution and if it does not come within the stipulated time it will be deemed to have been accorded, she said. Besides, she says the government must offer reasons for rejecting the requests of sanction for prosecution made by the sate government.
In 35 cases (2.3 percent of total cases), however, allegations were found true. As a result of this 104 soldiers including 48 officers and 56 other ranks were punished for human right violations in J&K, the officer informed the reporters in Udhampur.

The state and the central government along with their respective security appendages have consistently been informing the media that the system of going against the guilty is a continuous process. The actions are supposed to be the outcome of internal systems in place within the security organizations – the Court Martial in the army and the General Security Forces Court (GSFC).

Various ‘stakeholders’ have often displayed there respective positions on AFSPA and their concerns surrounding impunity the law accords the federal government forces.

Ali Mohammad Sagar, as MoS (home) briefing the state legislature in 2000 on human rights said 364 personnel including 210 soldiers, 125 BSF personnel and 29 officials from SOG were indicted for their conduct on human rights.

Briefing the state legislature on June 21, 2003 Abdul Rehman Veeri as MoS (home) said the government was investigating 53 Special Operation Group (SOG) personnel for their alleged involvement in human rights abuse cases. This was besides 272 members of various security agencies who were punished between 1991 and 2005.

Mufti Mohammed Sayeed as chief minister informed the state legislature on March 4, 2005 that 118 officials of various security agencies were punished. These included 44 from BSF, 47 from CRPF and 27 from state police.

Again in the state legislature on September 27, 2005 the government said there were 206 complaints against BSF between 1990 and April 15, 2004 of which 162 were false and three could not be proved at all. This left 41 complaints that were proved and action was taken against 68 members of the force which included 40 constables. Similarly, the house was informed that there were 1385 complaints against the army (1990-March 2004) of which 1311 were false, 32 were substantiated and 42 are under investigation. For the charges proved, the army punished 131 personnel – two got life imprisonment, 59 rigorous imprisonment, 11 were dismissed from service with one year imprisonment, four were dismissed from service, and 55 awarded ‘other punishments’.

It was after a heated discussion in the state assembly over the Parihar encounters that Taj Mohi-ud-Din on February 9, 2007 informed the house that action was taken against 266 ranks from police, BSF and army for various acts of violations of human rights. These included 47 personnel including one lieutenant colonel, 10 Majors and four Captains who were punished and some of them got rigorous imprisonment to the tune of 10 years. In paramilitary BSF 79 personnel including one DIG, one Commandant, one Deputy Commandant, four assistant commandants, three inspectors and five sub-inspectors were taken to task till June 2006 and some of them were actually dismissed. Of the 140 police officials against whom action was initiated, a DySP is the top-most officer. Eight were dismissed and 84 police officials are facing trial.

Defence sources in Jammu told the PTI on August 29, 2007 that there were 1460 allegations of violations of human rights against the army between 1990 and 1995. While all excepting 33 were false, they moved swiftly against the accused and punished 89 personnel including 34 officers, five JCOs and 50 other ranks.

Lt Gen A S Shekon, the commander of Srinagar based 15 corps told reporters at Awantipora on November 1, 2007 that they have punished 85 soldiers since 1990.

On May 16, 2008 Lt Gen Mukesh Sabarwal, the commander of the Srinagar based 15 corps said the army has punished 80 personnel in last 19 years for violations of human rights in the state. They were involved in 26 of the 1400 odd allegations that army faced.

On May 22, 2008 the PTI sources in the J&K government claiming action was taken against 223 security personnel for various acts of violations of human rights “in the last five years”. These included 90 army men, 82 paramilitary personnel and 51 policemen.

J&K government informed the High Court (in case of Ghulam Nabi Magray, S/o Mohammad Ismail Magray R/o Soitang (Lasjan) Budgam in June 2010 that it has received 458 cases against various central security agencies (from state police) for issuance of prosecution sanction by the Central Government for the period 1990-2007. Of this only 45 cases pertained to the army.

Officials of successive governments have been hurling statistics to douse the debate that usually gets triggered by the situation on the ground. But different ‘stakeholders’ talk differently.

While most of these ‘actions’ are the outcome of the Court Martial in the army and General Security Force Court for the other security agencies, the processes are pretty different and far away from the victims. Many believe the processes are not transparent especially in case of paramilitary forces.

“…Even when the BSF has been forced to act, the sentences have been too lenient to act as a deterrent,” reported Siddharth Varadarajan & Manoj Joshi in the Times of India on 21 Apr 2002. “In May 1990, a newly-married woman Mubina Gani was taken off a bus by BSF men on the Anantnag-Korenag road along with her maid. Both were raped. The case created a furore and the BSF’s attempts to hush it up failed. As a result of a court martial, two constables were sentenced to just five year’s imprisonment and dismissed from service, while two head constables punished with forfeiture of seniority and reduction in rank.”

Last month, Army informed journalist Sreenivasan Jain of NDTV that they there were 1484 allegations of the human rights against the army. The army investigated all the complaints and found 43 to be true. By the end of October 2011, the army has punished 96 of its ranks as three cases are still under investigation. When Jain asked for details of the cases that were tried and settled, the army refused offering details!

The contradictory statistics and non-transparent nature of the prosecution process in the government forces’ establishment is revealing of the extent of immunity and impunity central government forces enjoy while on ‘unconventional’ duty. And, it is this latitude the forces protected by special laws like the AFSPA want to retain unmindful of the political costs incurred.

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