Even as Supreme Court says murderers in uniform not protected by AFSPA, Delhi rejects findings of police investigations against Army

In the past four years alone, the Home Ministry has rejected at least 42 requests to sanction the prosecution of military personnel found by the police to have engaged in crimes such as murder, homicide and rape in Kashmir, data obtained by The Hindu reveal.

Last week, two Supreme Court judges said the Armed Forces (Special Powers) Act (AFSPA) — which makes the Central government's sanction mandatory for prosecution — ought not to cover cases in which crimes such as murder or rape were committed. “You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction?” Justices B.S. Chauhan and Swatanter Kumar said.

Thirty-one of the cases in which sanction was denied relate to rape, culpable homicide or murder. The others involve a wide variety of crimes, ranging from criminal trespass to illegal confinement. In not a single case, The Hindu found, had sanction been granted.

Not a few of the cases in which sanction was denied involve victims unconnected with terror. In 1991, for example, the police established that an unidentified body floating in the Dal Lake was that of Muhammad Ayub Bhat, a Batwara resident with no record of involvement in terror.

Brigadier Gulshan Rao, then in charge of Srinagar's Field Ordnance Depot, was charged with his murder. The Ministry rejected the request for sanction on March 3, 2009.

Likewise, local resident Muhammad Ashraf Aul and a Major-rank officer were found responsible for an attempted rape of a Beerwah woman in 1997.

The case — initially closed and then reopened in 2001 after fresh evidence of the officer's identity emerged — was rejected by the Ministry on September 12, 2011.

In 1997, investigators charged troops of the 3 Kumaon Regiment with beating up Ganderbal resident Abdul Khaliq Wani, resulting in his death.

Adjutant Yoginder Mohan was held responsible by the police — but the request for sanction of his prosecution was denied on June 3, 2011.

The Army insists that it has court-martialled dozens of personnel for human rights violations, but will not release trial records or names, making it impossible to verify whether any of the alleged perpetrators were tried.

Officials of the Home Ministry would not discuss the cases on record, but said the investigations were conducted shoddily. A senior official noted that in 2010, Jammu and Kashmir had the lowest conviction rate among all the States for murder, at 17.1 per cent against the national average of 36.7 per cent. The conviction rate for rape was 2.1 per cent against 26.6 per cent nationwide.

Police officials, however, said the Ministry's rejection letters did not point to specific problems in the investigations, recording only that “no case is made out.” “How is it,” a senior officer said, “that the Ministry of Home Affairs gives our personnel medals every year for their investigation of terrorists, but can't find a single case where our findings against the Army are correct?”

The Ministry often takes years to process requests. The case the Supreme Court is now hearing dates back to March, 2000, when the Army killed five south Kashmir residents and allegedly passed them off as the Lashkar-e-Taiba men, who had shot dead 36 Sikhs in the village of Chattisinghpora.

In the years since, there have been several similar outrages: among them, the 2007 execution of villagers in Ganderbal by a rogue military unit, and at Macchel in 2010. In both these cases, sanction to prosecute is yet to be received, though the trial of other suspects, including police officers, has begun.

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