The recent Apex Court judgment on the Pathribal killings in J&K, and the Doom Dooma killings of Assam, has come as a disappointment for many who hoped that it would provide cause to enforce greater accountability among the armed forces. Activist Groups from Amnesty International to the Association of Parents of Disappeared Persons have termed the ruling ‘disappointing’ and ‘a setback for justice’.

On 20th March, 2000, over a dozen gunmen dressed in army fatigues launched an attack on Chittisinghpora in the Anantnag District leading to the killing of 36 Sikhs. Five day later, from Pathribal in the same district, five innocent civilians were picked up and killed in an encounter staged by the 7th Rashtriya Rifles of the Indian army. Following this encounter, L.K. Advani, then Union Home Minister, announced to the nation that the ‘militants’ responsible for the Chittisinghpora massacre had been nabbed and killed. But the families of the men who had been picked up, averred their innocence while mourning their deaths. Following protests, the investigation of the case was handed over to the CBI.

The CBI enquiry established that the Pathribal killings constituted a ‘fake encounter’. Subsequently, a chargesheet was filed before the Chief Judicial Magistrate in Srinagar implicating soldiers of the 7th Rashtriya Rifles. In 2006, the army was offered an option: either its personnel should face court martial or they should be tried by a regular criminal court. The army personnel refused to be put on trial, insisting that under the AFSPA, prior sanction from the Central Government was required.

On 22nd February 1994, the 18th Battalion of the Punjab Regiment claimed to have killed five militants in an encounter and exchange of fire at the Saikhowa Reserve Forest in Tinsukia district of Assam. An FIR was registered at P.S Doom Dooma, and a police investigation and two magisterial enquiries upheld the Army’s claim. However, the High Court, responding to two writ petitions, ordered the CBI to conduct an enquiry. And the CBI concluded that the killing was a fake encounter and filed a chargesheet against 7 Army personnel in the Court of the Special Judicial Magistrate, Kamrup. The Army claimed that under AFSPA, prior Central Government sanction was required for a trial, since the action had been carried out by Army personnel ‘in performance of their official duty.’ The SJM rejected this plea in 2003, and in 2005, the High Court rejected the Army’s revision petition in 2005, following which the appeal reached the Supreme Court.

As per the Armed Forces Special Powers Act (AFSPA), sanction must be taken from the Central Government before prosecution of military personnel. The Ministry of Defence is meant to give sanction in the case of army personnel and the Ministry of Home in the case of paramilitary forces, after an application for such sanction is applied for by the State Government. As a result, debates on this matter reached the Apex Court.

Following arguments, on 1st May 2012, a bench comprising Judges B.S. Chauhan and Swatanter Kumar ruled that the competent authority in the army should decide within eight weeks whether the trial should be held by criminal court or court martial. If the army personnel are to be tried by criminal court, then sanction from the Central Government is necessary. If not, then the military tribunal could hold proceedings as per its own laws.

In this case, the Apex Court was not called upon to decide whether AFSPA should stay or go. Nor was it asked to pass judgment on those who perpetrated the massacre. That is why the judgment limits itself to the question of the process of sanctioning trial. But at the same time, although the Court was not asked questions about ‘good faith’ or the ‘discharge of duty,’ it spends a lot of time defining these terms. And what is worse is the fact that it defines them in a way that benefits the army personnel rather than the families of the victims killed in cold blood.

In the Pathribal case as well as the Doom Dooma case, the CBI had established the guilt of the army personnel and chargesheeted them in the matter, and there was likelihood that the guilty could be brought to book. But with the recent judgment, the long cycle of the judicial process will begin once again, from scratch. Further, the two options envisioned: a court martial or trial by a criminal court following government sanction for prosecution do not bode well. Particularly when the Government of Jammu and Kashmir itself admitted in response to an RTI enquiry that no sanction for prosecution had ever been granted in Jammu and Kashmir since 1990 until 2012! And given the fact that the army legitimizes and benefits from the culture of impunity that makes fake encounters possible, we cannot believe that an aggrieved party can have any expectations of justice from a military tribunal. And if this is what happens in a situation where the machinery of the state itself admits that these armed personnel transgressed their duty, what expectations can ever be held out for a situation where no such admission is forthcoming?

So, let us ask, how could the judgment have been different? What else could it have done? Given the current political demand for an unequivocal removal of AFSPA, the least that could have been done would have been to indicate the need for greater accountability on the part of the armed forces. The recent past has witnessed a situation where even certain sections of the state machinery have begun responding to rights violations and injustice rather than refusing to recognize them. Thus, in 2011, the State Human Rights Commission endorsed the findings of mass graves and unmarked graves in Kashmir, passed a judgment on the Kunan Poshpra mass rape case of 1991, and raised the plight of prisoners in jails across the state. To acknowledge that a crime took place does not ensure punishment to the perpetrators, but it is an important step on the road to justice.

The Apex Court in its wisdom has also seen fit to offer a discussion on what it believes constitutes ‘good faith’. This discussion arises because under section 7 of AFSPA legal immunity is provided only in an act is undertaken in ‘good faith’. But instead of asking how fake encounters or mass rapes can be said to be undertaken in ‘good faith’ or discharge of duty, the Court has provided a wide and all-inclusive interpretation to the term. Summing up the discussion it says: “We are therefore of the view that such immunity clauses have to be interpreted with wide discretionary powers to the sanctioning authority in order to uphold the official discharge of duties in good faith.” Instead of ensuring that those responsible for extra-judicial killings are brought to book, it in fact helps reaffirm the political culture of contempt for mechanisms of justice.

As rights groups working in Kashmir point out, the culture of impunity is not a prerogative of Indian army alone. It extends to the Jammu and Kashmir Police personnel, Village Defence Committes, Special Police Officers as well as government sponsored private militias like Ikhwan. The lawlessness and repression that prevails on the ground do not arise only on account of a law such as AFSPA, but because state mechanisms, even those charged with enforcing justice, in fact abuse it regularly and wantonly.

The recent Apex Court judgment interprets the legal question posed to it in bureaucratic, almost administrative terms. It does not address any of the key moral questions essential to ensuring justice. False encounters or rapes perpetuated by armed forces are not ‘excesses’. They are crimes and must be prosecuted as such. For years now, the people of Jammu and Kashmir and the North East have been subject to human rights abuses, violence, custodial killing, rapes and disappearances. The Apex Court’s judgment on the Pathribal and Doom Dooma massacres cannot be read independently of this situation. In the present context, it only serves to extend the plight of the victim’s families and compound the institutional denial of justice.