Bail to convicted officer in Amshipora fake encounter killings follows the pattern

The bail granted by the Armed Forces Tribunal (AFT) to an army officer convicted of killing three men in a staged encounter in Amshipora, Shopian in July 2020, and sentenced to life imprisonment by a military court, once again highlights the lack of procedural fairness in cases of human rights violations by security forces in Kashmir.

An investigation by the KASHMIR TIMES into some of the past cases reveals a pattern systemic impunity to armed personnel through non sanction for prosecution in civil courts, under Armed Forces Special Powers Act (AFSPA) and procedural lacunae of the military courts resulting mostly in acquittals. In some of the rare convictions in military courts, the decisions were later overturned by the AFT or other security forces tribunals.   

Captain Bhoopendra Singh, who was granted bail by the AFT, is not the first army personnel convicted of murders to walk out of jail.

Macchil staged encounter case

Earlier in 2017, the Armed Forces Tribunal granted bail to 5 convicted army personnel in the Macchil fake encounter case and suspended their conviction. The Tribunal suspended the life sentence of the five accused army personnel of 4 Rajputana Rifles who were convicted by a General Court Martial in 2014 for staging the killings. The sentences were confirmed in 2015.

The suspension of punishment allowed the accused – Colonel Dinesh Pathania, Captain Upendra Singh, Havildar Devinder and Lance Naiks Arun Kumar and Lakhmi – to walk out of jail.

As per the sequence of events in the Macchil fake encounter case, on April 29, 2010, three civilians – Shazad Ahmed Khan, Shafu Ahmad Lone and Riyaz Ahmad Lone – were killed by the Indian Army personnel in a staged encounter in Macchil, Kupwara, and labelled as ‘foreign terrorists’. A police investigation revealed that the three had been lured by a source of the Army and handed over to the accused personnel who killed them in a staged encounter.

The police filed a chargesheet against 11 accused persons including 9 army personnel, accusing them of murder, abduction and criminal conspiracy. The case was produced first in the Sopore High Court but using Armed Forces Special Powers Act as a shield, the army refused to comply. The army later set up its own inquiry in December 2013 and the accused were sentenced to life imprisonment in 2014 by the Summary General Court Martial.

The army confirmed the life imprisonment of convicted people on September 7, 2015. However, three army sources such as Abbas, Bashir and Hamid were acquitted by the court.

In July 2017, the Army Tribunal finally suspended their conviction and gave all the accused a bail.

Rare Convictions by army courts

The Macchil encounter convictions by the army’s court was significant. This was for the first time in Jammu and Kashmir that the army had confirmed life imprisonment to its men by a general court martial for their involvement in killing civilians in a fake encounter.

Punishments for human rights abuse in army’s court martial proceedings have been rare or cosmetic.

In a slew of RTIs filed in 2011-2012, seeking information on the court-martials conducted in Jammu and Kashmir from 1990, the information was provided for the period between 2001 and 2009. According to the RTI reply, only four officers were subject to a court-martial process. Only two of these cases dealt with potential human rights violations. Major Rehman Hussain was dismissed from service for the charge of rape, and Major V.K. Rawat was found not guilty in a case of killing.

News reports and reports by human rights organisations revealed that Major Rehman was not punished for alleged rape of mother-daughter duo in Handwara-Badar Payein in November 2004. An internal army enquiry simply held the major “guilty of misconduct” and “transgression into civilian property.”

In May 1990, Mubina Gani, a bride being taken along with her bridegroom and baratis after the marriage was solemnised, was allegedly raped in south Kashmir by the Border Security Force (BSF). Her aunt accompanying the marriage party was raped too. One man was killed and several wounded. A BSF staff court of inquiry held the men guilty “suspended seven men.” But the subsequent General Security Force Court trial acquitted them.

Pathribal fake encounter case

On the most publicised cases, highlighting the impunity enjoyed by the armed forces under AFSPA, is that of the Pathribal ‘fake encounter’ (March 2000), in which five local civilians were allegedly killed by the army and passed off as foreign terrorists responsible for gunning down Sikh community members in Chittisinghpora.

After several attempts to fudge DNA samples in a dramatic series of events, the CBI indicted the army personnel of killing innocent civilians.

The CBI charge-sheet said: “The Army unit of 7 Rashtriya Rifles at Khundroo, Anantnag, was under tremendous psychological pressure to show results after the massacre of 36 Sikhs at Chittisinghpora on 20 March 2000. Col Ajay Saxena, then Major B.P. Singh, Major Sourabh Sharma, Subedar Idrees Khan and other personnel of 7RR hatched a criminal conspiracy to pick up some innocent persons and stage-manage an encounter to create an impression that the militants responsible for the Chittisinghpora killings had been neutralized.”

However, it took fourteen years of litigation to get the government to sanction the prosecution of the accused army personnel after which the Supreme Court finally gave the Indian Army the option of choosing between a trial in a criminal court or the Army’s court martial proceedings.

A final seal on the case came in 2012-2013 when the court martial gave a clean chit to all the accused army personnel. The army court’s verdict said, “The evidence recorded could not establish a prima facie case against any of the accused persons.” Other details about the proceedings were not made public.

Rewind to March 2000: Within hours of the Pathribal killings, army and police officers had faced camera crews to say that ‘the police and Army were jointly working’ to eliminate the militants behind the Chittisinghpora massacre and proclaimed they were “foreign terrorists”. If proof of the innocence of the slain men was later established, who killed those men and why? The army court’s verdict on Pathribal, while giving a clean chit to its officers does not address these questions.

Lolab ‘fake encounter’

One of the most intriguing cases of alleged staged encounter is of four men – poor labourers from Jammu – killed in Lolab. One of them, Bhushan Lal, was the son of former army personnel, Madan Lal of Manguchak village in RS Pura, less than an hour’s drive from Jammu city. The incident came to light when Lance Naik (Retd) Madan Lal received an anonymous letter, written in Hindi, which said that Bhushan Lal and three others had been killed in a fake encounter in Lolab on April 20, 2004,  eight days after they had left home, and passed off as foreign terrorists. The letter reached him over a year after the incident and triggered protests in the region, forcing the army to initiate a probe. Madan Lal’s testimonies were also recorded.

In April 2006, an army officer serving in Lolab, Captain Sumit Kohli, was found dead in his quarters under mysterious circumstances, slumped in his chair with an AK-47 at his feet. An Army investigation said it was a case of suicide. When the news was splashed with mugshots of the officer, Madan Lal recognized him as the officer he met when he had gone to Lolab to testify in his son’s case. Kohli had spoken to him and said: ‘The man who sent you the letter will also ensure justice is done.’ While Madan Lal suspected that Sumit Kohli was the author of the anonymous letter he had received, Kohli’s family received a similar letter stating that he was killed because he would have blown the lid off the fake encounter. The officer’s family suspected foul play, rejected the army enquiry and demanded a fresh probe which never happened.

As for the Lolab alleged fake encounter probe by the Army, it vanished without a trace.

AFSPA and sanction for prosecution

For decades, the army has been using Armed Forces Special Powers Act as a shield to evade civil court proceedings in cases of human rights violations including murders, enforced disappearances and torture.

Under the Armed Forces Special Powers Act (AFSPA), the central government may designate a state or union territory as a “disturbed area,” authorizing security forces in the state to use deadly force to “maintain law and order” and to arrest any person “against whom reasonable suspicion exists” without informing the detainee of the grounds for arrest.  The law also provides security forces immunity from civilian prosecution for acts committed in regions under the AFSPA.  Human rights organizations asserted the law is in violation of Article 21 of the constitution and continued to call for its repeal, citing alleged human rights violations.

According to the Section 7 of AFSPA, “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.”

For prosecuting members of the armed forces prior sanction of the Central government is required, which is rarely given. There is little data on the cases in which sanction for prosecution was given by the Government of India, if at all.

In 2012, the government admitted that it had not accorded sanction for prosecution under Armed Forces Special Powers Act (AFSPA) in any of the cases referred to it by the Jammu and Kashmir government till 2011.

“No sanction for prosecution has been intimated by Ministry of Home Affairs and Ministry of Defence to the state government from 1990-2011 under the (Jammu and Kashmir) Armed Forces Special Powers Act,” the state Home Department said in response to an RTI application.

In January 2018, the Ministry of Defence informed parliament that it had received requests from the Jammu and Kashmir government for sanction to prosecute security personnel in 50 cases that occurred between 2001 and 2016. “While the requests were pending in three cases, the government had denied sanction to prosecute the accused in other cases,” the minister said in parliament in response to a query.  

In April 2018, in response to an RTI application regarding these 50 cases, the government response was that “the information sought was not available/held with the concerned agency of the Army”.  After several appeals in the same application, the Central Information Commission rejected access to information on sanction denial for prosecution under J&K AFSPA.

Limitations of Army Courts

A thorough reading of the Army Act, 1950 along with the prescribed offences reveals that it was primarily designed for punishing disciplinary offences within the army. The procedure prescribed in the Army Act is inadequate to try serious offences like murders and other heinous human rights violations.

Section 70 of the Army Act, which recognizes this limitation, however, provides for an exemption to offences committed by the Army personnel “(a) while on active service, or (b) at any place outside India, or (c) at a frontier post specified by the Central Government by notification in this behalf.”

The Army Act, 1950 does not provide for an appeal from an acquittal from a court martial. Though with the introduction of the Armed Forces Tribunal Act, 2007, a limited right to appeal was provided. However, the AFTA is designed for appeals from convictions and not acquittals. The Macchil and Amshipora cases demonstrate this.  

International Opinion on Military Courts

Human rights activists around the globe have opposed the jurisdiction of military courts in cases of severe violations. Several UN rapporteurs in their reports to the Human Rights Council & the UN General Assembly have written against military tribunals trying serious human rights abuses.

Sir Nigel Rodley, a noted international law jurist, while serving as the UN Special Rapporteur on Torture stated, “A person found to be responsible for torture or severe mal-treatment should be tried and, if found guilty, punished…Military tribunals should not be used to try persons accused of torture…Complaints about torture should be dealt with immediately and should be investigated by an independent authority with no relation to that which is investigating or prosecuting the case against the alleged victim”.

According to the UN Special Rapporteur on the Independence of Judges and Lawyers, “regardless of the relative effectiveness of each national military justice system” the jurisdiction of military courts should be limited to offences of a strictly military nature.

Principle 29 of the Updated Set of principles for the protection and promotion of human rights through action to combat impunity also states: “The jurisdiction of military tribunals must be restricted solely to specifically military offences committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts…”

Human Rights Reports on Impunity in Kashmir

After the Amshipora killings came to light, the Jammu and Kashmir Coalition of Civil Society (JKCCS), in a statement said that the “crime is a continuation of the unaccountable nature of counter-insurgency measures” and that “extra-judicial killings at the hands of armed forces is not an exception…. but a norm”.

The statement pointed out, “Over the last three decades, APDP and JKCCS have documented thousands of cases of enforced disappearances, extra-judicial killings and torture in Kashmir, including cases of civilians killed in fake encounters and passed off as militants. Two most prominent cases of fake encounters in recent times include that of Machhil fake encounter in 2010, Padroo case in 2006 and Pathribal fake encounter in 2000. In both these case, despite public pressure and order of probes, justice was not served to the victims. In all these cases, families of the victims exhausted the judicial remedies from the lower court to the Supreme Court of India, but perpetrators have not been punished.”

An Amnesty International Report titled, ‘Denied: Failures in accountability for human rights violations by security force personnel in Jammu and Kashmir’, and released in 2015 documents the obstacles to justice faced in several cases of human rights violations.

The report said that “the Ministry of Defence (MoD) has denied, or kept pending, all applications seeking sanction to prosecute army personnel for alleged human rights violations in civilian courts.”

It states that police and court records pertaining to nearly 100 cases of human rights violations filed by families of victims between 1990 and 2012 showed that the Jammu and Kashmir police often failed to register complaints or take action on registered complaints until they were compelled. In some cases, army personnel have been reluctant or refused to cooperate with police investigations.”

The army has dismissed more than 96 per cent of all allegations of human rights violations against its personnel in Jammu & Kashmir as “false or baseless”, the report pointed out. It noted that “the evidence for finding the majority of allegations false is not publicly available. Few details of the investigations or military trials conducted by the security forces are available to the public.”