Are our soldiers above the law?

One wonders what senior officers in the Army, which sets such store by honour, think of what actually goes on

On February 12, two Benches of the Supreme Court heard similar matters. In one, Justice Lokur and Justice Lalit said they were not satisfied by the progress in investigations into alleged murders by India’s security forces in Manipur. The Central Bureau of Investigation has a team, which has so far registered 42 FIRs against personnel who faked encounters with civilians, to secure promotions and medals, and to settle scores.
 
The investigations came not after internal work by the security forces or the government, but civil society. The Extra-Judicial Execution Victim Families Association, or EEVFAM for short, documented over 1,500 murders by the armed forces.
 
In 2013, a commission headed by Justice Santosh Hegde examined six of the cases that EEVFAM had documented and found that each of them was a murder. The lack of progress in the others is what the court was not satisfied with on February 12. Now that it is established that our armed forces are capable of committing crimes against Indians, let us look at happenings in the other Bench the same day.
 
In that hearing, Chief Justice Dipak Misra ordered the Jammu and Kashmir government to “take no coercive steps” against a soldier of 10 Garhwal Rifles, who was named in an FIR. The FIR was filed after the army opened fire and shot dead three civilians who were part of a protest. It is unclear what the offence of the Kashmir police was. Of course an FIR has to be filed when people are killed: That is the law of this land.
 
The Bharatiya Janata Party’s (BJP’s) Subramaniam Swamy said this after the FIR was filed: “What’s this nonsense? Dismiss that government. Tell Mehbooba (Mufti, Kashmir chief minister) to withdraw the FIR else her government would be toppled.” He may have revealed something to the world that we do not want revealed, and it would be prudent for our leaders to talk responsibly.
 
The fact is that it is not possible for any Jammu and Kashimir government to coerce the Indian army: They are terrified of it. The Kashmir chief minister does not even have control over the state’s policing force and the CRPF that operates in Kashmir reports directly to Union Home Minister Rajnath Singh. The Kashmiris do not want police using the pellet-firing, 12-gauge shotgun that the CRPF uses against them, a weapon that has torn out the eyes of over 1,000 Kashmiris, including children and bystanders. It is Delhi that insists that the gun be used against Kashmiris.

Illustration by Binay Sinha

So far as the FIR goes, it must be followed by an investigation that, if the evidence supports the case, results in a charge sheet. Charge sheets have been filed against our soldiers in Kashmir before as well. It will interest the reader (and the chief justice of India) to know what follows. On January 1 this year, the Rajya Sabha heard unstarred question number 1,463. The question was:
 
“Will the Minister of Defence be pleased to state:
 
(a) The number of cases received by the Central Government from Jammu and Kashmir Government for sanction of prosecution of Armed Forces personnel, under Armed Forces (Jammu and Kashmir) Special Powers Act, (AFSPA), 1990;
 
(b) The number of such cases in which sanctions were granted, denied and pending;
 
(c) The details for each request received including its year of  receiving, offences alleged, outcome of investigation, current status of the sanction for prosecution; and
 
(d) The reasons for denying or pending status of sanction for prosecution?”
 
The answer was provided by Defence Minister of State Subhash Bhamre. He said: “A total of 50 cases have been received by the Union Government from the Government of Jammu and Kashmir for Prosecution Sanction against Armed Forces personnel under AFSPA, 1990.”
 
And of these how many had received sanction for prosecution? Zero. The annexure provided by the defence ministry says that in 47 of the cases, permission is “denied”. In three of the cases, the earliest from 2006, permission is “pending”.
 
The cases, going back to 2001, include rapes, murder, kidnap, and torture. The year is important because it shows that no government, whether the BJP or the Congress, will act against criminal behaviour by the army. It is puzzling why the Supreme Court is rushing to protect our soldiers in Kashmir from the law: they are in absolutely no danger from any cases filed against them as India’s history shows.
 
The armed forces are seen as incapable of committing crimes against Kashmiris, though the Supreme Court itself accepts that they may have committed them against Manipuris.
 
The army pretends it delivers justice under its martial courts, which have no transparency, but these are a sham. Interested readers should look at what the army has done in the murders of Pathribal and Machil. There isn’t space here to go into them, but suffice it to say that it is a scandal.
 
The petitioner in the case that the chief justice heard was also a soldier, the father of the man named in the FIR. His submission was that the army opened fire “only to impair and provide a safe escape from a savage and violent mob engaged in terrorist activity”.
 
This is the sort of phrasing that has become a commonplace not just with the media but also the Indian state, and it is the demonising of communities as being savage and requiring to be put down by violence.
 
As we have seen before, it is civil society, meaning the hated NGOs, which have done the work in uncovering the army’s criminal behaviour. Babloo Loitongbam of EEVFAM says that the number of civilians murdered in Manipur went down from about 400 in 2009 to zero, after the Supreme Court began the FIR filing against the security forces.
 
One wonders what the senior officers of the Indian army, serving and retired, think of this, because surely they all know what goes on. Do they feel shame? Pride? It would be interesting to know, because the army sets such great store by honour.
 
What do they make of the absurd situation that India’s soldiers, who are paid to protect Indian civilians, themselves demand protection from Indian civilians?