Aakar Patel | After Rajnath's vow, will Army give justice' to all it wronged?

Defence minister Rajnath Singh visited the families of those Kashmiris killed in Army custody and assured them justice. He told them, it was reported, that “nobody can bring those who have died back to life. But there will be justice”. This was a good thing to have said, and we shall see if justice comes. We should, however, examine the past record of the Government of India (all governments, including previous ones) when it comes to justice for those wronged by the Army.

Much of the focus is on AFSPA, the law that gives the armed forces immunity in so-called “disturbed areas”. We should try and understand it. In 2015, it was noted that the Disturbed Areas Act had lapsed in J&K in 1998, but ASPFA was still in force, apparently without sanction, but this was overlooked.

The key AFSPA provision was the sweeping empowerment of individuals belonging to the police, the military and the paramilitary to open fire “if he is of the opinion that it is necessary so to do for maintenance of public order”. They could use force “even to the causing of death” and would be immune from prosecution for their actions, except with the sanction of the Centre.

They could destroy anything they thought was a hideout, a fortified position or shelter from which an attack could be made. They could arrest and detain without a warrant anyone they wanted and could use force in effecting the arrest. What happens when you give armed men such freedom in a place that has been declared hostile by the State is not difficult to imagine.

On January 1, 2018, the Rajya Sabha was told by the government that the defence ministry had got 50 requests in 26 years from the J&K government for permission to prosecute soldiers under AFSPA. It granted permission in zero cases. These include cases of soldiers accused of unlawful killings, torture and rape between 2001 and 2016.

An Amnesty India report published in 2015 looked at over 100 cases and met 58 families and found that since 1990, no sanction was ever given to prosecute those accused by the J&K government. A chargesheet is the document filed after an FIR is registered and on the basis of investigation, meaning the police had found evidence of a crime. But the Centre approved none of the state’s requests for justice.

The Army says it conducts its own justice system: a court-martial. These are opaque processes where the survivor or victim does not have access and shouldn’t be used for any crime unrelated to military discipline. However, this parallel court system has been allowed to soldiers trying fellow soldiers of crimes against civilians.

An editorial in a financial newspaper in January 2014 describes what happens in these courts-martial. The case discussed related to an attack in March 2000 during then US President Bill Clinton’s visit to India. The Army claimed it had attacked a hut which contained Lashkar-e-Tayyaba militants who had participated in a massacre of Sikhs in the village of Chattisingpora just before President Clinton’s visit.

On May 11, 2006, after investigating the case, the CBI filed murder charges against five serving Army personnel from the 7 Rashtriya Rifles unit in the court of Srinagar’s chief judicial magistrate. The CBI argued this was a case of “cold blooded murder” and were not actions taken in the course of performing official duties, so the perpetrators could not be protected. The Indian Army blocked the prosecution of the five Army personnel under Section 7 of AFSPA. The Supreme Court of India upheld the Army’s action and asked it to decide if it wanted to court-martial them instead.

In September 2012, over 12 years after the murder of the five civilians in Pathribal, the Indian Army chose to bring the case before the military justice system and began proceedings in a general court-martial.

On January 24, 2014 the Indian Army said it was dismissing all the charges against five of its personnel due to lack of evidence.

According to the closure report filed in the Srinagar chief judicial magistrate’s court, the Indian Army did not conduct a trial but instead dismissed the charges through a pre-trial procedure known as summary of evidence under Rule 24 of the Army Rules 1954.

The editorial said that “the Army’s self-acquittal of the Pathribal accused is a continuation of the cover-ups of human rights violations in J&K and India’s Northeast, where the military has a free hand in dealing out ‘justice’ as it deems fit. This is a blot on our democracy”.

In another case, a newspaper reported in July 2018 that the soldiers who were convicted of murdering three civilians were nonetheless freed by an Army tribunal without any explanation.

Two years ago, on December 4, 2021, soldiers from the 21 Para Special Forces Army unit shot and killed six coal miners in Nagaland’s Mon district. The deaths led to violent clashes between local villagers and the troops, and seven more civilians and a soldier were killed. A day later, soldiers killed another person after protesting villagers attacked their camp.

In June 2022, the Nagaland police filed charges against 30 soldiers, including a major, after a special investigation team found the military had used “wrong positive identification without proper application of mind”, and that the miners were shot “with a clear intention to kill”. On April 14, 2023, the Indian government denied permission to pursue the prosecution.

This is the background, and it is against this that we should judge what Rajnath Singh has said about the events in Kashmir.