The Indian Army last week sentenced five of its personnel, including two officers, to life imprisonment for staging the killing of three Kashmiri civilians in the Macchil fake encounter case in 2010 and branding them as foreign militants for rewards and remunerations. Soon after, Jammu and Kashmir Chief Minister Omar Abdullah welcomed the decision calling it a “watershed moment.”
The Indian Army’s court martial verdict presents us with an indictment of state brutality, while simultaneously inviting us to consider the vacillations of those who peddle the promise of a more benign, transformed rule in Kashmir. The verdict is not a watershed moment, but indicative of the manner in which political considerations and interests of the Army override larger principles of justice and accountability. Rogue elements in the Macchil fake encounter were not driven to these acts for professional advancement. The encounter is not an aberration, but a deliberate enactment of the unfettered power and lawlessness of the state. It is reflective of the cash-for-kill policy that has institutionalised the incentivisation of encounter killings.
It is imperative that the Macchil fake encounter is placed within the larger context of violence perpetrated against civilians in Kashmir and the long history of human rights violations sanctioned by the state. Thousands of unmarked and mass graves in Jammu and Kashmir are believed to contain victims of unlawful killings, enforced disappearances, numerous fake encounters, torture, massacres and other abuses. The report “Facts under Ground” issued by the Srinagar-based Association of the Parents of Disappeared Persons alleges that more than 8,000 persons have gone missing in Jammu and Kashmir since 1989. There are innumerable cases of Army atrocities, cover-ups and systematic failure to prosecute.
This spectacle of death, destruction and disappearance witnessed over and over again in Kashmir is a culture of impunity that has flourished in the aftermath of years of conflict, occupation and militarisation. This reign of impunity constitutes a form of violence and a “structural element of everyday reality.”
Patterns of impunityIn Kashmir, state violence is openly exercised as the policy for governance; it is integral to the way in which sovereignty is practised. Questions of rule of law and state accountability remain abdicated. The political context to the exercise of state violence is the unchallenged impunity and authority enjoyed by the state forces. It is not just the question of The Armed Forces (Special Powers) Act, but also larger structures of oppression that dictate everyday life in Kashmir.
In Kunan Poshpora, a village in Kupwara district, soldiers of the 4th Rajputana Rifles of the Army’s 68th Brigade allegedly raped more than 50 women in 1991. The Indian Army has consistently denied the charges as “baseless” and called the women’s struggle for justice “mala fide.” In the 1998 Sailan massacre, 19 civilians, including 11 children and five women (one of whom was pregnant), were shot to death at point blank range in their homes in Sailan in Poonch district. Their bodies were thereafter dismembered to be disposed of. In official accounts, these heinous crimes were reported as collateral damage during an “encounter” despite overwhelming evidence to the contrary.
In the 2000 Pathribal fake encounter, Indian military forces killed five men claiming that the victims were “foreign militants” responsible for the massacre of Sikhs in Chittisinghpora. During the course of investigation, DNA samples of the Pathribal victims had been tampered with. The Central Bureau of Investigation told the Supreme Court of India that the Pathribal killings by the Army “were cold-blooded murders and the accused officials deserve to be meted out exemplary punishment.” Despite these findings, the Indian Army closed the case in January this year stating that “the evidence did not establish a prima facie case against any of the accused” and chose not to conduct a court martial.
The existence of judicial institutions holds out the promise of accountability, and a facade of redress, but patterns of cover-up and denials are pervasive throughout the legal system. The institutional denial of justice extends the control of the military while maintaining the facade of law. Impunity has been the norm in Kashmir and convictions such as in the Macchil case are exceptions in service of political end.
The military justice system in India remains opaque, procedurally long-winded, antiquated and unable to serve the end goal of justice. It is incompatible with the fundamental rights that collectively constitute the right to due process in India. Rather than aid the system of checks and balances that impose accountability, court martials have become a distinctive tool; kangaroo courts that aid in the fiction of state accountability, while legitimising violence and counterinsurgency operations.
Every now and again, security forces green light court martials in carefully chosen cases in the guise of accountability. Of particular note are two cases of rape, one against Captain Ravinder Singh Tewatia in 2000 and the other against Major Rehman Hussain in 2004. Captain Tewatia was convicted by the court martial and sentenced to imprisonment for seven years. Major Hussain was dismissed from service. Both the accused challenged their decisions in the Jammu and Kashmir High Court and in both the instances, the court overturned the court martial’s verdict. While the Captain Tewatia case is still awaiting further legal challenge, Major Hussain is reported to have returned to service.
While the court martial decision in Macchil has been announced, the conviction remains to be confirmed by the Northern Army Commander. This might take up to two to three months. Whether the perpetrators will be held accountable remains to be seen. The court martial verdict by itself is not an administration of justice. A few inconsequential punishments will not lead to justice when there is an entire chain of command and a vicious structure in place that makes these encounters, disappearances and everyday violence a norm. An unjust law and a flawed court of justice in itself is a species of violence. Systemic unaccountability for its breach is more so.
Moral and political failureKashmir is India’s greatest moral and political failure. It is here that even the most civilised amongst us begin to make excuses for repression, brutality and violence. It is here that we subsume all that we otherwise celebrate under the demands of freedom, progress, liberalism, liberty and secular ideals. Since 1947, the Indian state has responded to the political aspirations and the social and the legal demands in Kashmir through militarisation, repression, and indiscriminate violence, including, at various times, the denial of democratic rights, the manipulation of elections, and the murder and imprisonment of its political leaders.
The Macchil verdict and the decision to announce the conviction on the eve of the Assembly elections in Jammu and Kashmir is a political decision, and not one in support of justice or transformation. Even as change is being trumpeted, Kashmir has witnessed yet another killing of a civilian by Indian Army personnel, 18-year-old Tariq Ahmad in Kulgam area. Possibilities of change will occur when perpetrators are held uniformly accountable for their act in a civil court under the public gaze and when victims, survivors and their families finally have the opportunity to confront those responsible for what happened to them.
(Suchitra Vijayan is a Barrister-at-Law and a political analyst.)
