Can Army allow scrutiny of Machil and Pathribal verdicts?
As the Army’s Northern Command confirmed life sentences awarded to six Army personnel involved in the Machil fake encounter case, it is to be seen what will happen to the case once the convicted Army personnel move the high court against the verdict, which they are likely to.
It is not the first time that Army officials have been sentenced. Already in the case of rape of a 30-year-old mother and her 12-year-old daughter in Kupwara in November 2004 by Major Rehman Hussain, the Army dismissed the guilty from service after the COI. Rehman challenged the decision in the high court which overruled the court martial verdict and he reportedly rejoined the services.
Even in the case of sexual offence, the Armed Forces (Special Powers) Act (AFSPA) is being invoked to seek prior sanction for prosecution from the defence ministry which never comes.
A committee headed by Justice JS Verma, former Chief Justice of India, had recommended that the requirement of sanction for prosecution of armed forces personnel be specifically excluded when a sexual offence is alleged. The committee, in its report in 2013, recommended that continuance of the AFSPA in conflict areas needs to be revisited in case of sexual offences. No one even refers to the report.
Pathribal fake encounter
The Pathribal fake encounter is an eye-opener to understand what it means to even ask for whereabouts of the missing. It took eight killings to exhume the bodies of five missing people killed in the fake encounter at Pathribal in south Kashmir.
On April 3, 2000, eight persons were killed and nearly 14 wounded after the special operation group (SOG) of Jammu and Kashmir Police and Central Reserve Police Force (CRPF) opened fire on protesters in south Kashmir who were seeking the whereabouts of five persons picked up by the Army on March 5, 2000.
On March 20, 2000, 36 Sikhs in Chittisingpora in south Kashmir were killed when the then US president Bill Clinton was on a visit to the country. Five days after the incident, the Army claimed to have killed five foreign militants who were responsible for the Chittisingpora massacre.
Meanwhile, five civilians went missing from different areas of south Kashmir. The residents started protesting and sought their whereabouts. It was this protest that was fired upon by the SOG and CRPF personnel killing eight.
The killing of eight civilians forced the then government to appoint a commission under the Commission of Inquiries Act 1962 to investigate the case. However, the Chittisingpora and Pathribal incidents were not included in the terms and reference of the commission, though they were interlinked. The commission described the killing of eight persons in the SOG firing as nothing but a brutal attack amounting to murder. It held seven SOG and CRPF personnel guilty.
Later, bodies of five persons whom the Army had claimed were foreign militants responsible for the killing of 36 sikhs in Chattisingpora were exhumed. The charred bodies were identified by the relatives and the case was handed over to the Central Bureau of Investigation (CBI).
The CBI indicted five Army personnel including a brigadier, a lieutenant colonel and a major in the fake encounter case and described it as a “cold blooded murder”. In 2007, the CBI presented a chargesheet against the accused armymen in the court of chief judicial magistrate of Srinagar. The Army insisted on a court martial. In January 2014, in the summary of evidence, it was said there was no need to even conduct a court martial, thus acquitting all.
Now let us look at the Machil case: Three youths were lured to the line of control (LoC) by a former special police officer, his associate and a territorial Army jawan Abas Hussain Shah promising them money and jobs. They handed them over to Army unit, and in lieu of handing over the three youths they allegedly received Rs 50,000 each from the Army as “blood money”. The youths were killed in a staged encounter on the evening of April 29, 2010 with the Army claiming they were militants. On May 29, 2010 the bodies of the youth were exhumed by the police after massive protests. They were identified by their parents.
The killings sparked massive protests across the Valley. In fact Omar Abdullah blamed the Machil fake encounter for streets protests of 2010 in Kashmir in which 112 youth were killed in police and paramilitary forces firing.
Why are court martial proceedings absurd?
The Army preferred to have court martial proceedings in the Machil case, which culminated in life sentence for the accused. Even after a life sentence, the court martial cannot replace the civilian court. Notwithstanding all the drawbacks of a civilian court, victims and family members can at least have access to the court and they can follow the proceedings. No such access is possible in court martial proceedings. Court martial proceedings in Kashmir are completely opaque as there is no access. There is no access to the nature of evidence and procedural issues taking place there. Such is the secrecy of proceedings that in the Pathribal fake encounter case, the Army court martial didn’t provide a copy of its verdict to the police and the government. The court of the chief judicial magistrate of Srinagar which transferred the case to the court martial was not given the copy of the judgment.
Now that a court martial has given life sentences to the accused involved in the Machil fake encounter case and another court martial exonerated the accused involved in the Pathribal case, can the Army allow scrutiny of its verdicts by a civilian court or desist from handing over even the judgment, in which it sentenced five army men to life, to a civilian court?