Last month, over 700 officers and jawans moved the Supreme Court stating that “their colleagues are being persecuted and prosecuted for carrying out their bona fide duties, without making any distinction or determination with regard to the act having been done in good faith, without any criminal intent or mens rea”.
This unprecedented step immediately kicked up a storm, with human rights activists accusing the Army of making yet another attempt to draw the curtain over continuing human rights abuses by soldiers. A lot of the debate around the Armed Forces Special Powers Act (AFSPA) revolves around the claim that this law provides complete immunity to soldiers, even when they commit criminal acts like cold-blooded murders in ‘fake encounters’. The military justice system is seen as being supportive of the perpetrators of crime, backed by a government that refuses to grant sanction for prosecution.
This line of argument finds many backers because the Army’s judicial process of dealing with human rights cases appears opaque to many. Therefore, let me try and put this in the correct perspective. I will use data from Jammu and Kashmir (J&K) as I am familiar with it.
Allegations of human rights violations are received by the Army from many sources, the National and state human rights commissions, police, media reports, complaints by civilians and the Army’s own channel of reporting. In J&K, since 1990, about 1200 complaints have been received by the Army. Each complaint is carefully scrutinized by officers of the human rights cell that is located in each division, corps and command headquarters.
The first action that is normally taken is to seek the explanation of the unit where the human rights violation has allegedly occurred. This explanation is accompanied by the remarks and recommendations of different commanders as it travels up to the highest headquarters. After this scrutiny, if there is even a hint of violation, a court of inquiry is ordered against the accused.
A court of inquiry is a formally constituted team of officers who examine witnesses and record their statements. The accused is given an opportunity to call witnesses in his defence. After the inquiry is completed, the members give their opinion on whether the case stands disproved or there is sufficient evidence to warrant disciplinary action. The proceedings of the court of inquiry are also scrutinized by different commanders who give their independent recommendations.
As human rights violations invariably involve civilians, the police carry out their own investigation, and in case they feel that the law has been broken, they submit a report to the magistrate. Under the Army Act, cases of murder and rape against civilians cannot be tried by an Army court unless the accused soldiers are on ‘active service’. J&K is considered ‘active service’, and therefore the magistrate is legally bound to ask the Army if they would like to take over the case. When such a communication comes from the magistrate, the Army studies the case, and in most instances, takes over the case for legal action under the Army Act.
Disciplinary action begins with the recording of the summary of evidence, where statements are retaken, and other evidence brought on record. It is ensured that statements of all essential witnesses, including civilians, are recorded. In the Pathribal case, the summary of evidence was being recorded at Nagrota in Jammu but the civilian witnesses from Kashmir expressed their apprehension about travelling to Nagrota. In the interest of justice, the officer responsible for the summary of evidence was moved to Kashmir so that statements of civilians could be taken on record.
Thereafter, minor violations are directly dealt with by commanders using their authority, and serious cases by court-martials. A court-martial is similar to a civilian criminal trial except that it is conducted in a military court.
This is a comprehensive process and is open to legal scrutiny by the Armed Forces Tribunal, the high courts and the Supreme Court. The complete process involves a number of officers and commanders who are men and women of integrity. To assume that all of them conspire to cover up criminal acts would be completely unfair.
In its investigations of human rights allegations in J&K, the Army has found 78 cases to be true and punished 156 officers and soldiers. These figures are often glossed over by those who argue that the army does not take requisite action.
In my view, there are no real legal infirmities in the military justice system and no institutional weakness. I know cynics will quote the Pathribal and Machil cases to question this statement. I was closely involved in both cases and can say with complete confidence that the due process of law was followed. In one case there was insufficient evidence to proceed with the prosecution, while in the other, six officers and men were found guilty and sentenced to life imprisonment. Talking about both cases in the same breath is an attempt at distortion.
The real problem lies in the actions of a few officers and men who have carried out deliberate human rights violations for personal gains, and have evaded the Army’s legal process. The Army must focus on these cases to ensure swift justice. This will send out the right signal that there is no impunity for criminal behaviour.
The Army must also re-emphasize its core ethic of protection of civilians. As George Lucas has so lucidly expressed in his book, Military Ethics: What Everyone Needs to Know, “it is the intention of the warrior to defend, not his or her own life, but the lives of others, that make resort to force morally permissible.”
He further goes on to say that it is the“special and morally worthy vocation of the warrior to serve others, protect others, and even sacrifice his or her life for the sake of preserving the lives of others”. Therefore, causing harm to civilians or using them as human shields is principally wrong.
Currently, there is a lot of debate about the Army’s human rights record. Some of the criticism is due to misconceptions about the military justice system. However, the Army must also clearly show that it does not condone human rights violations by taking visible action.
(The author is former Northern Commander, Indian Army, under whose leadership India carried out surgical strikes against Pakistan in 2016. Views are personal.)