The indictment of Major Leetul Gogoi by an army Court of Inquiry is a sad revelation of where our military draws its moral and legal lines. In May, Major Gogoi booked a room in The Grand Mamta in Srinagar, intending to spend a few hours with a female who hotel staff say was 17 years old but is described as an adult by the local police and her family. After he was denied the room thanks to the hotel’s policy forbidding Kashmiri women from sharing accommodation with unrelated men, his driver got into a scuffle with hotel staff, leading to the police being called in and the case blowing up in the media.

The reason it got wide attention is that Major Gogoi is a national celebrity, the officer who tied a Kashmiri civilian named Farooq Ahmed Dar to the front of his jeep as a human shield during protests in 2017. Some commentators felt that act ought to have invited a court martial, but he was instead given a commendation by the army chief General Bipin Rawat.

It’s extraordinarily difficult to get members of India’s security forces punished for atrocities committed in Kashmir, because they are protected by the Armed Forces (Special Powers) Act, a piece of legislation that was applied to Assam and Manipur in 1958, followed by other states in the North East, and extended to Jammu & Kashmir in 1990. Through Congress-led, Bharatiya Janata Party-led and Third-Front governments, AFSPA has remained a shield of impunity for Indian troops operating in insurgency-hit regions.

Central sanction

Theoretically, AFSPA permits the prosecution of soldiers who commit heinous crimes, but requires the Central government to sanction it. For 60 years, however, prosecution has remained nothing more than an abstract idea. Of the more than 500 complaints that have been forwarded from North Eastern states, not a single case has been allowed to go forward by the Centre. Jammu & Kashmir’s state government suggested 50 cases for prosecution between 2001 and 2018, not a large number considering there are half a million troops stationed in the state. Only the most egregious excesses were sought to be punished, and yet the Union government refused to sanction a single prosecution from among the 50.

In the fog of war, the line between self-defence and murder is often blurred. Troops risking everything and having to make split-second decisions about life and death cannot be expected to choose perfectly each time. The legal process ought to, and does, take this fact into account. There are, however, acts motivated by retribution or greed that come nowhere close to the category of split-second error. Take the case of the Macchil killings, in which army personnel bribed counter-insurgents to bring poor civilians to them, whom they then murdered in cold blood and claimed were terrorists from across the Line of Control, all to gain medals and speedy promotions. After the bodies were discovered, officials initiated a cover-up by tampering with DNA samples to back the lie about the dead men’s identities. The state police investigators persevered, and the offending army personnel were given life sentences, a unique event in the history of states under AFSPA, only for the Armed Forces Tribunal to suspend the punishment and set the men free.

We can only guess how many Macchils have taken place in AFSPA states. Over 2,000 corpses have been found in unmarked graves in Kashmir, some bearing marks of torture, some decapitated. These are among the state’s thousands of disappeared civilians, whose families will find neither closure nor justice. No argument for national security can legitimise impunity for such acts.

Verma suggestions rejected

Nor can national security ever provide just cause or cover for rape. There may be occasions when innocents are killed after being misidentified as terrorists, but the violation of women’s bodies by security forces cannot happen by error or accident. In 2012, protests following the brutal rape and torture of Jyoti Pandey in Delhi spurred the Manmohan Singh administration to appoint a committee tasked with recommending revisions to India’s sexual assault laws. Most suggestions of the committee, headed by the retired Supreme Court judge Jagdish Verma, were accepted, but not the one which asked for AFSPA to be revised because it legitimised sexual violence in conflict zones.

In 2016, the Supreme Court finally paid heed to decades of agitation and argument against AFSPA, including Irom Sharmila’s heroic marathon hunger strike, and the naked protest of 12 Manipuri mothers against the killing of a girl named Thangjam Manorama. Hearing a plea for a proper investigation into 1,528 deaths in Manipur, Justices Madan Lokur and UU Lalit held that, “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both”. The judgement shredded AFSPA’s umbrella of impunity, and gave hope to hundreds seeking justice for the loss of family members. Before such justice could be delivered, 300 soldiers appealed to the Supreme Court to reverse that verdict, claiming it would demoralise serving troops and place the nation in peril.

I hope the panel of Supreme Court judges hearing the soldiers’ appeal will concur with Justices Lokur and Lalit in upholding the rights of Indian civilians. To understand what’s at stake, consider this paradox. The mother of the girl Major Gogoi was to meet in Srinagar told the press that the officer had “raided” their home several times in the past. Had Gogoi, during one of those raids, raped the girl, he would still be serving with honour in the army. In case of a complaint against him, the entire military apparatus would have been activated to defend him, as it has defended every soldier charged with a crime. But because Major Gogoi befriended the girl and she met him of her own free will, he was found guilty of “fraternising with a woman”, and faces summary dismissal.