In 2014, five soldiers of the the Indian Army were court martialed and given life sentences for killing three boys in a fake encounter at Machil in North Kashmir. Less than three years later, the Armed Forces Tribunal has suspended the life sentences and granted bail to those convicted.
“They have a right of appeal, to the chief of army staff and to the Centre” said HS Panag, former general officer commanding of the army’s Northern Command and former member of the Armed Forces Tribunal. “After they have exhausted these appeals, they can go to the Armed Forces Tribunal.” Hearings in the case would go on, Panag said, and a verdict would be reached in two or three months. The tribunal had even been known to enhance sentences in some cases, he said.
In Kashmir, however, hopes of jusitce in the case are dimming. “They will never get justice,” said Parveena Ahanger, chairperson of the Association of the Parents of Disappeared Persons, Kashmir. “No one will listen, they will only listen to the army men.”
Parvez Imroz, a human rights lawyer in the Valley, called it yet another instance of the “impunity which the army and other institutions of state are enjoying.” Bitterness about the new turn in the Machil case has now opened up old grievances about military courts and the justice system as a whole.
The Machil moment
“They picked up three boys for work, on the second day they shot them and called them Pakistani,” said Ahanger. The Machil encounter, which triggered a fresh cycle of violence in the Valley in 2010, was a high profile case.
On April 30, 2010, the Army claimed it had shot dead three infiltrators near the Line of Control in Machil. They were then buried as unidentified militants. It later came to light that they were Reyaz Ahmad, Mohammad Shafi and Shahzad Ahmad, all residents of Nadihal in North Kashmir’s Baramulla district. Two days before they were killed, they had allegedly been promised jobs and taken to the border area by a former special police officer from their village, Bashir Ahmad Lone. Lone reportedly handed them over to the army for Rs 50,000 each.
The Machil fake encounter would have a ripple effect in the Valley. Scattered protests broke out in various areas. Then in June that year, police fired tear gas shells on protestors in Srinagar. One of them hit 17-year-old Tufail Mattoo, killing him and sparking off a mass uprising in the Valley. By the time the protests died out, months later, they had claimed at least 120 lives, many of them young boys.
Away from the streets, a legal battle ensued.
A court martial
The families of the three victims filed a complaint at the Baramulla police station, after which investigations began. The police charged 11 persons, including nine army personnel, with murder, abduction and criminal conspiracy, and submitted its report to the chief judicial magistrate’s court in Baramulla.
The army, however, refused to produce its personnel before the court or to the police. In 2011, it filed a revision petition in the Baramulla district and sessions court, challenging the judicial magistrate’s order to produce the army men for questioning. When the sessions court upheld the order, the army took its appeal to the high court, which struck down the decision of the lower courts.
The army was allowed to court martial the accused personnel, a court of enquiry was set up and in September 2014, Panag says, it gave out life sentences to five men. The judgment was made public in November that year and confirmed by the army’s Northern Command in January 2015. The five men were then dispatched to prisons across the country where they were serving life terms. Until now.
With the tribunal granting them bail, the men will be released, and the victims’ families fear for their safety. “I have met them,” said Ahangar. “They are very poor and they have no support.”
A ‘benchmark case’?
Panag defends the army against accusations that it was trying to shield the accused. “The army itself ordered a court of enquiry,” he said. “By 2010, it had concluded that it required disciplinary action. The case was handed over to the army in 2013. Within a year, military courts had finished the case.” In civilian courts, he said, it could have languished for years.
In fact, the accused, he said, had pleaded that the outcome of the court martial had been predetermined by the state government and the Centre. But the court had acted impartially when it meted out a strict punishment, he said. The appeal to the Armed Forces Tribunal, he said, was part of the “normal process of law”. The benches of the tribunal, set up by an act of Parliament passed in 2007, normally consist of a judicial member, which means a retired high court judge, and an administrative member, or a member of the armed forces who has held the rank of major general or higher for at least three years. The tribunal was different from others, Panag explained, because it had the power to admit fresh evidence.
Back in 2014, the Machil verdict had been hailed by the press as a turning point for military justice. But this was no “benchmark case”, Panag felt. “There have been over a hundred court martials in Jammu and Kashmir,” he said. “This case came into the limelight because it happened at a time when the number of terrorists had reduced so it got undue attention. People have been dismissed and given life terms before as well.” He also refuted charges that military courts were opaque. “Anybody can go and attend court martials,” he said.
Yet the military court has drawn flak from both the tribunal and human rights groups. The tribunal reportedly found the military court’s judgment flawed as it “failed to establish the chain of evidences to confirm the circumstantial evidence which was relied upon by the Army court martial to convict the personnel”.
Imroz feels the military court had no jurisdiction in the matter. “The army cannot try civil offences,” he said. “It can only try intra-army offences - indiscipline, fratricide.” Section 70 of the Army Act, 1950, he pointed out, states that court martials did not have the power to try cases of murder, culpable homicide or rape by armed forces personnel if the victim was “a person not subject to military, naval or air force law”.
It does, however, make exceptions. The first of these says that military courts can try their personnel for such offences if they took place “while on active service”. Back in 2011, the army had reportedly contended that forces in Jammu and Kashmir were considered to be “in active service” all the time.
‘Institutions have failed them’
Either way, Imroz says, the military court’s 2014 verdict had done little to restore confidence in the military justice system among residents of the Valley. There were too many high profile cases that had faded away with no one being held to account: the Pathribal encounter of 2000, the Kunan Poshpora rapes of 1991, the alleged rape and murder of two girls in Shopian in 2009.
Even the civilian deaths in the protests of 2010 had gone unprosecuted, he pointed out. “In 2010, the Makhan Lal Koul commission was appointed and mandated to find the perpetrators,” he said. “The report was never made public or given to the families of the victims.”
The regular processes of justice were complicated by the Armed Forces (Special Powers) act, imposed on Jammu and Kashmir in 1990. Under the law, soldiers acting in the line of duty could not be prosecuted by civil courts unless the Centre gave permission. And permission is rare. Ahanger, whose son disappeared after being picked by the armed forces in Srinagar in 1990, has been fighting a legal battle for years. “In 1997, my case went for sanction to the home minister, they still have not given sanction,” she said.
Panag admitted that there were “aberrations”. “Two cases were not investigated properly – Pathribal and Kunan Poshpora,” he said. “But now a lot of time has passed, it will be difficult.” Earlier this year, he had taken a strong stand against the commendation certificate given by the army chief to Leetul Gogoi, the army officer responsible for tying a Kashmir man to the front of a jeep and using him as a “human shield”. In that case, he said, “the army had erred”.
But for Ahanger and Imroz, these failures are systemic, spreading from military courts to the civil justice system. In the decades since militancy began, public faith in these institutions has waned. “In 1990, they had some expectations of the CBI, the commissions of enquiry, the Supreme Court,” said Imroz. “But after 27 years, they don’t have any credibility. These institutions have failed them.”