Machil Verdict and Eluding Justice

 Shujaat Bukhari

When an Army court martial handed over life imprisonment to five of its men including a Colonel for staging a fake encounter to kill three Kashmiri youth in 2010, it evoked a mixed response. Families of the three civilians, who were picked up from a North Kashmir village, branded as “terrorists” and bumped off in Machil, close to Line of Control, did welcome the verdict but they wanted more: “Death for the killers”.

Ten days before this verdict, the Army had to face a huge embarrassment as its soldiers fired upon a moving car and killed two teenagers on the outskirts of capital Srinagar. Lt Gen Hooda, its top commander in Northern region had to accept it as a mistake and own the responsibility. Even on November 14, it came under criticism for allegedly killing a civilian after a gun battle with militants in South Kashmir. Same day a local MLA in North Kashmir’s Handwara town Abdur Rashid Sheikh made serious allegations against two Army men for killing a civilian while being in civvies. Army denied involvement but cases stand registered.
Amidst this din the “positive” verdict in Machil encounter could not make much impact. Even if the court martial awarding lifer to five guilty men is a significant development, since Army has been in denial mode for last over two decades, but the confidence that it could deliver justice is still eluding. There is a reason for that. Whatever wrongs done by Army and para-military forces such as Border Security Force and Central Reserve Police Force while fighting the militants have been brazenly covered up under the much-trumpeted “national cause”. Kashmiris have grudge against India’s national media as well which they believe have fallen in the trap of “nationalism” thus covering up the erring soldiers.
For Army, the controversial Armed Forces Special Powers Act (AFSPA), that gives immunity to its men, has come in handy to protect them. Past week, the former Indian Home Minister P Chidambaram termed AFSPA as “obnoxious’ saying “it had no place in a modern, civilized country”. He as home minister is believed to have moved amendments in the law but for Defence Ministry’s opposition could not achieve his goal. On AFSPA’s continuation, noted journalist Kuldip Nayar opined in Deccan Herald that it needs re-look. “Powers to kill on suspicion is too sweeping for a democratic country,” he wrote.

Notwithstanding the fact that Lt Gen Hooda’s public acknowledgement in case of death of two teenagers and the Machil verdict are a departure from its conduct in last over 20 years, but a lot more needs to be done to restore the confidence among the people. According to an RTI reply by Jammu and Kashmir Home department on February 23, 2012, sanction is still pending in 70 cases. These are the cases of alleged custodial killings and fake encounters in which Army men have been found involved in preliminary investigations. Once the state police or the government is convinced that an Army man is found guilty it approaches Defence Ministry for formal sanction to prosecute them, but in most of the cases it has been denied. Similarly the BSF has escaped with minor punishments. BSF courts have surely proceeded against its men and according a reply under RTI it has punished more than 40 of its men in various cases of killing and rape since 1990. The punishments range from five years rigorous imprisonment to dismissal of, or reduction in service. But in a case like that of Sopore where on January 6, 1993 over 40 people were mowed down by BSF after a militant attack, it has been termed as a “mischief” and those involved were given a minor punishment.
Army’s refusal to cooperate with the civilian courts or to transparently conduct the trials in its courts have caused a major dent to people’s confidence. Pathribal is a classic case in this long list. Five civilians were picked up in March 2000, soon after militants massacred 35 Sikhs in Chattisinghpora in South Kashmir coinciding with the then US President Bill Clinton’s visit to India. They were later branded as terrorists and their charred bodies were buried in a remote area. Central Bureau of Investigation conducted a thorough probe and held five officers of Army including a Brigadier responsible for killing them in fake encounter. The case went to Supreme Court where CBI insisted on trial in a civilian court. Army put its foot down and decided to take it to its own court. The Army court absolved all of them. When a local lawyers body approached a lower court to seek the proceedings in the Army court it was denied.
Human rights defender Khurram Parvez believes that Machil verdict does not match with the commitment of justice. “The Indian army court-martial verdict is not a beginning or a water-shed moment for Jammu and Kashmir, but an illustrative case of the manner in which political considerations and interests of the Indian army overrule larger principles of justice and accountability” he said.
According to human rights organization Jammu and Kashmir Coalition of Civil Society, the Army has so far held 58 court martial’s but punishment has been given in only two cases and others dismissed as minor ones.
With a baggage of not doing much to deliver justice, this verdict has come at a time when Army was found involved in two more such incidents past week. AFSPA is being seen as a major source of strength for Army to have this immunity. Machil verdict has surely opened a new window but it needs to be extended to other cases that have mauled the justice.