By Ravi Nair
One would have liked to join the hoi polloi in welcoming the decision of the General Court Martial to recommend imprisonment for life to Captain Bhoopendra Singh, alias Major Bashir Khan for staging the encounter killings of three men in Shopian, Kashmir in 2020. The sentence will be final if and when it is confirmed by the Northern Army Commander. However, the brooding presence of the past cautions one’s reaction.
While difficult indeed for the top brass, there are ways to facilitate keeping the rules, where democracy rules. One is to set an example as a military commander by seeing to it that a thorough investigation will be carried out when human rights violations, by soldiers under their command, have been reported. If offenders are not brought to justice the army will continue dishonouring itself.
The Indian Army will only be doing itself proud by isolating the few bad eggs. For this, in the present case, the commanding officer is to be commended. This is indeed a welcome and necessary initiative. However, a few swallows do not make the summer. In the past, the army has resisted any move by the Jammu and Kashmir Police (JK Police) to get the custody of accused army officials, including in two highly publicised cases — the 2007 Ganderbal fake encounter case and the 2000 Pathribal fake encounter case.
In 2007, Rashtriya Rifles and JK Police officers abducted and killed five villagers in Ganderbal, dubbing them as militants. A senior superintendent of police, his deputy, and five others were arrested for murdering the villagers. Some army men’s involvement was established, but they were never handed over to the police.
The Pathribal encounter in March 2000 was first reported as a legitimate anti-militancy operation. Within hours of it, the then Union Home Secretary Kamal Panday and the then Union Home Minister L.K. Advani came on record saying that the army and police had gunned down five Lashkar terrorists, responsible for the massacre of 36 Sikh villagers in Chittisinghpura in Anantnag, Kashmir earlier that month. The facts of this encounter would not have never been investigated if there had not been public pressure. The case was finally handed over to the Central Bureau of Investigation (CBI), which not only concluded that the encounter was fake but also chargesheeted five army officers.
Ten years later, there is still a debate on whether the CBI has the authority to probe the army. The accused army officers have been promoted during the pendency of investigation. The relief provided to the families was one lakh rupees each.
The use of the armed forces against a country’s own people cannot be considered an internal affair. As responsible military officers are aware, it is of paramount importance to maintain good relations with and build the confidence of the civilian population. Violations of human rights committed by the military can only damage those relations and also lead to a loss of professional respect among military personnel. Military personnel need to be given strict instructions, limiting the use of lethal force against unarmed civilians.
Military men, especially general officers — who want to maintain their dignity and stick to the values they were introduced to at their military academies — are to carry out military operations without breaching the Geneva Conventions of 1949.This is difficult, and during a state of internal armed conflict, the wrong idea may develop that no holds are barred. Nevertheless, the rules are clear: torture, rape, arbitrary killings and other such acts are never allowed.
The only competent organisation dealing with armed forces training on international humanitarian law is the humanitarian organisation, International Committee of Red Cross (ICRC). However, in Kashmir, the ICRC has allowed itself to be enfeebled to an extent that brings into question its very presence there.
The Indian Army is a disciplined army, with a rigorous chain of command and an esprit de corps. However, there is evidence of aberrations. The Major L. Gogoi case is illustrative. Section 46 (certain forms of disgraceful conduct) of the Army Act, 1950, penalises “disgraceful conduct of a cruel, indecent or unnatural kind”. Per Section 64 (miscellaneous offences) of the Act, failing to provide due reparation or report the case to the proper authority upon receiving a complaint — while in command at any post or on the march — that someone under their command has “beaten or otherwise maltreated or oppressed any person”, is an offence.
Additionally, the ‘Ten Commandments‘ issued by the Chief of Army Staff oblige the armed forces to respect human rights. In Extra Judicial Execution Victim Families Association & Anr. versus Union of India (2013), the Supreme Court invoked the Ten Commandments, stating: “It is quite clear from the various instructions issued (which are binding on the armed forces) that minimum force is to be used even against terrorists, militants and insurgents. There is absolutely no reason why an equally toned-down response cannot be given by our armed forces in times of internal disturbances and why no enquiry should be held if the response is alleged to be disproportionate.”
The Army Headquarters has also issued a list of ‘Dos and Don’ts’ to be followed while acting under the Armed Forces (Jammu and Kashmir) Special Powers Act and the Armed Forces (Special Powers) Act, 1958. In Naga Peoples’ Movement of Human Rights (NPMHR) versus Union of India (1997), the Supreme Court declared that “officers of the armed forces shall strictly follow the instructions contained in the list and any disregard to the said instructions would entail suitable action under the Army Act, 1950.”
The list provides for only minimal force required for effective action against persons acting in contravention of a prohibitory order, and specifically prohibits torture, harassment of civilians and use of force after the arrest, except when the arrested person tries to escape. If the hapless victim used as a human shield by Major Gogoi had been indulging in or inciting violence, as has been alleged, he should have been handed over to the police, rather than being publicly paraded.
The first information report against 53 Rashtriya Rifles for the act of using a civilian as a human shield was registered under the provisions of wrongful confinement, criminal intimidation and kidnapping — all offences under the Jammu and Kashmir State Ranbir Penal Code, then applicable in the then state of Jammu and Kashmir. Under Section 69 (civil offences) of the Army Act, a person subject to the Act is deemed guilty if he commits any civil offence. Using a person as a human shield would also fall under Section 69.
Further, the burden of proving that the circumstances fall within the general exceptions is on the accused. Despite this, the then Indian Army chief stated that Major Gogoi would face no action even if the military investigations found him guilty.
The right to life under Article 21 of the Constitution also means the right to be treated with dignity. In Prem Shankar Shukla versus Delhi Administration (1980), the Supreme Court held, for example, that handcuffing undertrials and parading them violates Article 21.
The Armed Forces Special Powers Acts (AFSPA) contain immunity clauses for armed forces even if they are to engage in violations of the right to life, and/or torture. However, the Union government may give permission to prosecute army personnel for criminal offences upon application, and according to a question raised in the Rajya Sabha (upper house of Parliament) in 2018, a total of 50 requests for the sanction of prosecution against armed forces personnel under AFSPA were made by the Jammu and Kashmir government to the Union Government between 2001 and 2018, of which none were approved.
Since the AFSPA came into force in Jammu and Kashmir in 1990, the Indian government has not granted permission to prosecute any security force personnel in civilian courts. Those cases that were tried were tried in military courts. The targeted denial of support may therefore have a concrete impact in incentivising prosecutions for select units and officers.
AFSPA, or at least a part of it, has been questioned in 2013 by the Justice J.S. Verma-led committee constituted by the Union government to recommend amendments to criminal law for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. In November 2004, a five-member committee, chaired by former Supreme Court judge, Justice B.P. Jeevan Reddy, was set up to review the AFSPA, 1958 in the context of its application to the Northeastern states of Assam and Manipur. This was in the wake of an intense agitation by civil society groups in Manipur following the death of 32-year Manipuri woman Thangjam Manorama on July 11, 2004 while in the custody of the Assam Rifles, a paramilitary force, allegedly after being raped and tortured.
The committee observed that the Act was “too sketchy, too bald and quite inadequate in several particulars.” While it acknowledged that the Act was held constitutional in NPMHR , it asserted that “constitutional validity…is not an endorsement of the desirability or advisability of the Act.” The recommendations further described the committee’s impression that the Act had become a “symbol of oppression, an object of hate and an instrument of discrimination.”The Committee insisted on a periodic review of AFSPA every six months, with any extension of deployment approved by both Houses of the Parliament.
The Committee’s recommendations were presented to the Prime Minister and the Union Government in June of 2005, seven months after review began. While supported by the Administrative Reforms Commission and the United Nations, in the years since the recommendations, there has been no official acceptance or government action.
We are still waiting for the sanction for prosecution of Assam Rifles personnel pursuant to the Supreme Court judgment in Extra Judicial Execution Victim Families Association versus Union of India (2016). Forget the detritus of Operation Golden Bird and Operation Bajrang in Assam. The last hearing was scheduled for February 24 this year. The hearing did not take place. Thereby hangs a tale. (IPA Service)
Courtesy: The Leaflet