The Army’s decision to court-martial six military personnel, including a Colonel, for the heinous murder of three civilians in a fake encounter at Machhil in the Kashmir Valley in April 2010, is a rare, but significant event. For once, internal processes in the military, such as the Court of Inquiry that recommended that these suspects be tried by a military court for murder, abduction and conspiracy, seem to show some resolve towards securing justice to the families of victims of bogus encounters. Shahzad Ahmad Khan, Riyaz Ahmad Lone and Mohammad Shafi Lone had gone missing in April 2010 after they went looking for “an army job.” On April 30 that year, an Army unit claimed that it had killed three militants in an encounter at Machhil in Kupwara district, but the families questioned the claim and insisted on a police probe. As the police investigation progressed, the bodies were exhumed and an autopsy concluded that the three had been shot at point blank range. Eleven persons, including Colonel D.K. Pathania and two Majors were charge-sheeted in a criminal court at Sopore. Three “counter-insurgents,” it emerged, had pocketed cash from an Army unit for handing over the three men, and the men in uniform had, in turn, killed the trio and earned cash rewards for eliminating “militants.” Despite the police charge sheet, the Army successfully stalled the proceedings before a trial court and opted for a Court of Inquiry. The CoI came to the same conclusion as the police.
If the experience of the Pathribal fake encounter, which dates back to 2000, is anything to go by, denial, delay and obfuscation have been the reflexive responses of the military establishment to credible complaints that some rogue elements in the armed forces are staging killings, passing them off as encounters with “terrorists” and staking claim to rewards. Often, the process pits the military establishment against the police, which investigate such incidents and seek to prosecute armed forces personnel in regular criminal courts. After the Supreme Court ruled that the CBI required prior sanction under the Armed Forces Special Powers Act to prosecute the Army personnel involved in the Pathribal encounter, but not if they were tried by court-martial, the Army opted for its own internal probe. Perhaps chastened by this experience, the Army, in the Machhil case, departed from its routine practice of taking cover under AFSPA to evade investigation and scrutiny. Accountability for military misdeeds during counter-insurgency operations is undoubtedly a great challenge to the Indian state. If there is a lesson in this, it is that statutory shields granting impunity have ultimately to give way to the cry for justice and accountability.