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24 Nov 2014

A rare instance of army convicting its own personnel for war crimes does not mean end of legal immunity enjoyed by the armed forces in what officialdom calls the “disturbed area”. That the government denies presence of armed conflict is of course in marked contrast to the reality on the ground where armed forces enjoy war-time legal immunity. Peoples Union for Democratic Rights has been arguing that  the issue of justice in armed conflict areas in India is whether criminal court will exercise jurisdiction or security forces own court, over  armed forces personnel  for alleged crimes against civilians. Civilians have, in any case, no locus standi in armed forces court. Since the Supreme Court through its judgment on Pathribal case (2012) overturned every single tenet of the Constitution meant to protect the citizen against the abuse of power: it decided against the right to life; against fairness; against the right to equality before law; against the right to Constitutional remedies. It was therefore only another step in that direction that it overturned  the foremost principle of law by empowering the accused agency to investigate, prosecute and judge its own crimes. 

So given that the aggrieved find doors of criminal court closed to them and having no locus standi before armed forces court, thousands of cases of massacres, rapes, fake encounters, enforced disappearances, torture etc   evade justice, perpetrators roam free and aggrieved nurse their wounds. To then project a single case of conviction by GCM as heralding whittling down of impunity is to rub salt in people’s wounds.

Seen in this light the conviction by the General Court Martial headed by Brigadier Deepak Mehra of five army personnel, including two officers, for  April 29-30, 2010 fake encounter by luring and then killing three civilians to secure unit citation and cash reward, is a rarity not the rule. Machil killings acted as a catalyst for the 2010 agitation in Kashmir valley in which 126 persons were killed by the Indian security forces. Chief Minister Omar Abdullah has publicly credited former Home Minister P Chidambaram and Lt General KT Parnaik who then headed the Northern Command for  ensuring that in the Machil case justice was done.

The announcement of the conviction in Machil case is an exception which was used to mute criticism which arose because of the Budgam incident where trigger happy army personnel fired 126 rounds of bullets on five youths, killing two and injuring three others. There were 45 bullets wounds on the two who died. Demand for repeal of AFSPA and ending legal immunity for forces rose as assembly elections were announced and campaigning began. It was politically embarrassing. Now the GCM had convicted the five army personnel implicated in Machil killing two months back. But the process was not complete. Neither army’s confirming authority, in this case GOC-in-C of Northern Command, had confirmed the sentence, nor closure report filed with the Chief Judicial Magistrate as required. 

Our  apprehension that this was a PR exercise gain ground because in January army’s GCM had summarily acquitted a retired Major General, two Colonels, a Lt Colonel and a Subedar, belonging to 7 Rashtriya Rifles in the Pathribal case (2000), where CBI had investigated, gathered evidence  and filed the charge-sheet. Recently, when Kunan Poshpora (1991) matter came up before the J&K High Court’s Srinagar bench the army, state and the Union government were one in opposing the re-opening of investigation into the notorious gangrape case carried out by personnel from army’s Rajputana Rifles. Thus 23 years after the commission of the mass rape and torture, and 18 months after the Kupwara court order for further investigations, the Indian State continues to deny criminality, and instead defames the victims. 

PUDR is convinced that what victims of armed forces violence need are not empty gestures and platitudes but substantive and comprehensive change which brings to an end legal immunity enjoyed by armed forces personnel  in “disturbed” areas.

D. Manjit and Asish Gupta