December 31, 2013 by Team SAISA
Filed under Analysis
The army deserves to be complimented on its ability to see through the lengthy procedure of military justice with a sense of balance and ensure that the alleged perpetrators are brought to justice, but like in any such system patience has to be exercised so that justice is meted out and seen to be correctly executed.
Lt Gen Syed Ata Hasnain (Retd)
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IN April 2010, the third year of street protests in Kashmir was warming when brief media reports indicated that an army unit de-inducting after spending 24 months on the Line of Control (LoC) allegedly eliminated three young innocent persons in a fake encounter in the Machil area of the North Shamshabari, pass of their bodies as those of foreign terrorists and garner the credit in the “numbers’ game”. Post this incident, a brief inquiry by the Jammu and Kashmir Police indicated that there had been a conspiracy. Identifications were done after exhumation of the bodies and news of the incident went viral, leading to a spurt in the street protests. An alleged isolated incident slurred the army’s reputation and provided an impetus for the 2010 separatist campaign which would paralyze not only Kashmir but almost the entire nation. Machil thus became a byword in the Valley and the latest symbol of alleged human rights violations by the army.
Army jawans on anti-terrorist operations in Kashmir. The public at large is unaware of the military justice system and it is now up to the army to ensure that while imparting justice the perception game is not lost because of the lack of information
For all the alleged dastardly nature of the incident, the army had to first take stock of the situation. It had been manipulated many times in the past to put it on the back foot, although admittedly it had a history of mistakes, as is wont to happen when any army thanklessly battles a sponsored militancy where the information/disinformation struggle becomes a part of the adversarial campaign. It correctly followed the legal procedure to arrive at the current juncture but the skeptics continue to doubt its credentials towards justice.
On December 26, 2013, the nation woke to headlines stating that the perpetrators of the incident were to be tried by a general court martial (GCM). The perceived delay in justice (three and a half years), the apparent lack of knowledge about the military justice system and the emotions connected to the recall of the incident created enough of a potpourri to send the social media into a tizzy. Some perceived that the verdict was about to be announced as also the sentence, while others worked overtime to denigrate the army for the delay, painting it as the typical response of denial of justice by the army. A few explanations on social media put the procedural aspects and facts in the right perspective and better informed people started to change their ideas and in fact appreciate the army’s actions.
Information battle
The 24 year militancy and separatist campaign that the army has been fighting is not about elimination of terrorists alone. Much of the campaign has been about the information battle, something the army has never been very adept at. Its silence at the wrong times has cost it the image of a just army and it has been at the receiving end of smear campaigns even when it takes the correct decisions as it has very creditably done this time. It is all about information and timing. In November 2004, it gained much credit for the quick decision to investigate and put one of its officers through the military justice system. The officer had been accused of raping a mother and her young daughter. The GCM conducted in its wake (in precisely six weeks) found the officer guilty of attempted molestation and sentenced him to “be dismissed from service”, a verdict and sentence which was subsequently confirmed as per procedure but overturned by a higher civil court to which the accused officer appealed as per his rights. It gave enough credit to both the army and the judiciary in India, although many in Kashmir perceived the reversal as a decision of a biased Indian judicial system. The Army did not sufficiently publicise this important judgment of the higher court and that is coming back today to treat its promises of justice with much skepticism.
What is it this time? Why the delay and what is the military justice system all about? The nation must be made aware of this so that it is in a better position to appreciate the difficulties of its army as also those of the innocent populace. It needs to also know that in the conflict zone there are thousands of innocents who have nothing to do with insurgency—ordinary human beings who fight daily battles for existence with dignity and pride. While there may be many who carry emotional support for separatism and may sympathise with militants or separatists, it does not make them villains. The human rights and dignity of these is as much the responsibility of the state (nation) in the overall spirit of the hugely successful democratic model that India has established. In the situation that presents itself, leaders have to perceive things in different shades of grey, much against the usual trend of judging everything in black and white.
Military justice system
The army, smitten by manipulation in the past and matured by its experience, invariably examines misdemeanour by its troops first with an eye to prevent being manipulated. Failure to do so will dampen the dynamism and will of its rank and file. This is an important aspect which needs to be understood by human rights activists. It may lead to delay in initiation of disciplinary proceedings and this delay brings pressure from all quarters including the media and activists. When an act of misdemeanour by uniformed personnel occurs, procedurally the army is supposed to ascertain all facts and whether it occurred on active service, through a court of inquiry (CoI). If the army perceives culpability, it has the choice to file before the appropriate court of law to take over the case for proceedings through the military justice system under the statutory Army Act (1950) read in conjunction with Army Rules. Once the case is taken over, the army authority carries out framing and hearing of charge(s) and thereafter orders recording of the summary of evidence (SoE) which is to done by an officer who should not be related to the case. The proceedings of the SoE are processed for the final decision by the concerned superior authority as to the mode of trial. A military court is then convened by the convening authority and assembles along with an officer from the Judge Advocate General’s (JAG) Branch who acts as the legal adviser through the proceedings. The GCM, if ordered, comprises a presiding officer and minimum four other officers who cannot be of rank lower than the accused. The GCM can also conduct a joint trial if necessary. There are defending and prosecuting officers appointed who can be supplemented by civilian counsel if required. The proceedings are reduced to writing in each session and civilian witnesses are also called to depose. The verdict and sentence is to be confirmed by an authority higher than the one which convened the court.
What has happened in this particular case? As soon as the Army’s CoI ascertained that the incident occurred at the place of the unit’s deployment on active service, the case was not one of manipulation by inimical parties and there appeared prima facie culpability, the army applied to the court of the judicial magistrate to take over the case. The same was denied on grounds of the contentious aspect whether the incident occurred on “active service” or otherwise. An appeal to the sessions court met a similar fate. The accused remained attached to a headquarters in Kupwara for disciplinary purpose. The army then went for appeal in the J&K High Court under the provisions of Section 125 of the Army Act, which lays down that in the event of concurrent jurisdiction of a criminal court and court martial the discretion lies with the commanding officer of the accused. The opposite parties took considerable time to file their response and the court had to repeatedly adjourn. Through this elongated time the army was unjustifiably accused of delaying tactics and its perception management efforts could not better the bitter campaign to smear it.
Winning the perception game
Eventually, the High Court ruled in favor of the army, directing it to take over the case and try the accused through the military justice system, vindicating the army’s stance. The High Court in its judgment even observed that the counsel for the army had stated that “the petitioners are keen to see the accused…..tried by court martial at the earliest”. Since the CoI had already been completed before the army’s decision to take over the case, recording of SoE was ordered. This is a meticulous procedure which has bearing on the subsequent decisions to decide the type of court to try the accused and the evidence so recorded can be/is used during the proceedings of the court martial. The evidence so recorded would have undergone further legal scrutiny by the army’s legal officers and the procedure for a final decision would then have been initiated which led to the current position to convene a GCM. Thus the trial is only now set to begin as against the popular perception that it is over and verdict is to be announced.
The army needs to be complimented on its ability to see through the entire procedure with a sense of balance and ensure that the alleged perpetrators are brought to justice but like in any such system patience has to be exercised so that justice is meted out and seen to be correctly executed. An information game is bound to ensue. The public at large is justifiably unaware of the of the military justice system. It is now up to the army to ensure that while imparting justice the perception game is not lost because of the lack of information. Perhaps, a near open court with daily briefs on the proceedings would not be a bad idea. There is precedence to this and the army needs to ensure it looks at all options when it comes to the information aspects while the GCM is in progress. There are enough detractors awaiting a slip up.
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Flare up in the Valley
On April 30, 2010, the army claimed to have foiled an infiltration bid from across the Line of Control, in the Machil Sector of Kupwara by killing three armed militants from Pakistan. It was, however, subsequently established that the encounter had been staged and that the three alleged militants were in fact civilians who had been lured to the army camp by promising them jobs as porters and then shot. They were identified as Mohammed Shafi, Shehzad Ahmed and Riyaz Ahmed, residents of Nadihal in Baramulla district.
On June 11, there were protests in Srinagar against these killings during which the local police used force to disperse the protesting youth resulting in the death of a 17-year old boy Tufail Ahmad Mattoo. Several protest marches were organised across the Valley in response to the killings. These resulted in clashes with police and the CRPF, in which another boy was killed. This set off a vicious cycle of violent street protests in Kashmir, causing over 120 deaths due to stone-pelting from May to September 2010.
After the incident, complaints from relatives of the victims led to the police arresting three persons, Territorial Army jawan Abbas Shah, Basharat Lone and Abdul Hamid Bhat, both associated with anti-terror operations, for their alleged involvement in the case. The Jammu and Kashmir Police had in July 2010 filed a charge-sheet against an army Colonel, a Major and seven others before the Chief Judicial Magistrate in Sopore.
According to reports, Indian intelligence agencies had claimed that these protests and demonstrations were part of covert operations of Pakistani intelligence agencies and were sponsored and supported by them. Media reports earlier in March had suggested that with the support of its intelligence agencies, Pakistan had been once again boosting terrorism in Kashmir.
It was reported that in a meeting held in Muzaffarabad in January 2010, the United Jihad Council called for reinvigorated jihad in Kashmir. In May 2010 increased activities of terrorists was reported from across the border in Neelum valley in Pakistani-administered Gilgit-Baltistan. The locals reported that large numbers of terrorists, who did not appear to be Kashmiri, had set up camps in the area with the intention of crossing into Kashmir. — TNS
Cause of delay
* On establishing that the incident occurred on active service, the army moved the local courts of law to take over the case
* The same was denied on grounds of the contentious aspect whether the incident occurred on active service or otherwise.
* The army then went for appeal in the High Court. The opposite parties took considerable time to file replies and the court had to repeatedly adjourn
* Through this elongated time the army was unjustifiably accused of delaying tactics and its perception management efforts could not better the bitter campaign to smear it
* Eventually, the High Court ruled in favor of the army, directing it to take over the case and try the accused through the military justice system, vindicating the army’s stance.
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The writer is a former General Officer Commanding of the Srinagar-based 15 Corps. This article first appeared in The Tribune. View expressed are personal.
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Author’s Note
This article was written with much diligence and it needs to be read so; it is not one of those ‘one glance’ pieces. I was assisted in drafting and authenticating by Col Pravin Kumar, ex DJAG, HQ 15 Corps. The legal aspects of this case were overseen in our time in the Valley; the recommendation to appeal in the JK High Court was also Col Pravin’s. It is a path breaking precedent now as the High Court upheld our appeal to take over the case.
Army may have won that case but the GCM must not become a contentious issue in the field of information management. Ask me; I was the Presiding Officer of the Court Martial of the officer in 2004-5, referred in this article.
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