writings of ali ahmed ...with due acknowledgement and thanks to publications where these have appeared. Views expressed are personal and may not be associated with any organisation. Follow on twitter: @aliahd66
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A report in The Hindu has it that, ‘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…’. Since the government does not have a written policy, its policy has to be inferred from its actions. In this case its action, or inaction, suggests that it is wary of permitting prosecutions of members of its armed forces, even though it has the power to do so under the AFSPA Section 6 (for North East) and Section 7 (for J&K).
The report acquires significance due to the Supreme Court pulling up the Army on the eve of Republic Day for stalling the prosecution in the 2000 Pathribal encounter case, initiated by the CBI against five officers. This is one among a few high profile cases that include Macchel in which three men killed were portrayed as crossing the Line of Control; the Malom case that provoked Irom Sharmila’s fast and the Manorama Devi case that had led to the Jeevan Reddy committee review of the operation of the AFSPA in the North East.
Procedurally, the cases that come up to the Home Ministry for decision have had preliminary investigation done by the police making apparent that the armed force investigated has exceeded its brief in acting in aid to civil authority. The Home Ministry’s hand is possibly held up by the recommendation it receives from the Ministry of Defence, where the Army is concerned. Where the Central Armed Police Forces are concerned, the Ministry has direct accountability for these. Yet it is reticent.
Where the military is concerned, the Army can dispose-off the case under the Army Act in case the Home Ministry does not permit prosecution by civil courts. This can be expected to preserve military cohesion and morale, prevent military men from being prosecuted in civil courts where their rights may be ignored in the surcharged atmosphere and it will strengthen the military judicial system and command authority. Such prosecutions could well have been proceeded with but for the case pending a decision with the Home Ministry. The time lapse makes the case more difficult to pursue, but it can still be opened under military law. In any case, for the Army to proceed, it would first require an indication that the Home Ministry is not permitting prosecution by the judicial system, since a person cannot be tried twice over. This explains why no action is usually taken in some cases of egregious violence: the reason being that that file is awaiting decision.
The problem with such a defence is that it virtually negates the utility of Section 6/7. While the section was to prevent motivated litigation against military men in the performance of duty, insertion of the section enables democratic control over the military. While military law can cope with most acts of omission and commission, where acts are ‘beyond the pail’ or have acquired strategic contours, there is a case for the Home Ministry to exercise of its powers. If the Ministry needs a ‘push’, the parliamentary committee overseeing the Ministry could scrutinise its action and members of parliament can raise parliamentary questions as to the process followed.
The problem that arises in not using the power with the Center is that it sends the wrong message to the people in the disturbed areas. Healing gets postponed. Second, the military gets a feeling of impunity. Allowing prosecutions helps deter violations. This is useful for military discipline. Third, good governance implies upholding the laws and the Constitution. Where it is felt that the military may not do justice adequately for organisational reasons, such as preserving morale, protecting the chain of command, hiding misdemeanours, covering up earlier misreporting etc., then the civil courts must be allowed to step in.
A valid concern would be that the judiciary in affected areas may be more harsh than warranted and the very process, that is bound to be extended and emotionally charged, would expose military men to personal risk. Innocent army men may suffer the indignity of being mishandled by over-zealous policemen, prosecutors and mischievous lawyers of the opposition. This can be addressed by having either fast track courts appropriately located in secure areas, or by moving the trials to a neighbouring state. Alternatively, the Defence Ministry must monitor the cases in question and the results broadcast. Withholding prosecution with the laconic comment that ‘no cause is made out’ does little to inspire confidence in the system.
Another valid concern would be on the consequences of such prosecution. A view is that morale will go down of the armed forces if extremists are allowed to get away with legal hurdles. The rank and file would be less willing to take initiative and risk. This would impede future counter insurgency effort, allowing the insurgent greater space. The problem with this line of argument is that it seems to suggest that cutting corners should be permissible. It disregards the overall counter insurgency paradigm that the means are as important as the ends. Permissive atmosphere for violations only fuels the insurgency. Lastly, it downgrades the premium on leadership. The military leader is expected to deliver on morale, discipline and effectiveness, even while the state must hold his hand. The criterion of ‘good faith’ is a leadership judgment that must be judiciously exercised by the military leader in appraising the act.
Details of exemplary punishments awarded since the start of the insurgency in Kashmir, given on the Northern Command website, are given in the table:
It is clear that only the first serial amounts to a consequential punishment. That the numbers have been released into the public domain suggests that the military is satisfied with its record. A second opinion, of its civilian masters, can be necessary balancer, since it is not self-evident that the military can be relied on entirely for dispensing justice. Its efforts need to be supplemented by the civilian judicial system, for which the two Ministries need to exercise their powers.
One aspect that acts as hold up, liable to be missed, is that some actions are under the rubric of intelligence operations, a kind of reverse ‘propaganda by deed’. For instance, the link made out by, among others, Pankaj Mishra, of the the Pathribal case to the Chittisingpora massacre of Sikhs, and in turn the Clinton visit to India of 2000, suggest an intelligence operation that went wrong in its cover up. It possibly had clearance at a higher level than which it was executed. The government’s reluctance is therefore understandable. It perhaps does not want to allow prosecutions in some cases and not in others.
A suggestion by Siddharth Varadarajan was that the government must give more than a one line answer as to why it is not permitting prosecution. The government could withhold permission in such cases by resort to the ‘national security’ excuse, even as it allows the other cases to go through.
Setting a precedent is important. If the past is guide, India will be faced with similar problems ahead. It must establish a ‘best practices’ scheme now by facing up to the detritus of its otherwise comparatively remarkably successful and humane counter insurgency campaigns.
*(The author is Research Fellow, Institute for Defence Studies and Analyses)