STRUCTURES OF VIOLENCE

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| Structures of Violence
“Section, 7, AFSPA- Protection of persons acting in
good faith under this Act.- 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.
However, prior sanction is required only initiating for
prosecution in the ordinary criminal courts and not
court martial. Why is there this distinction? Why is the
immunity not available for court martial proceedings?
This distinction implies that court martial proceedings
are not as serious as trial before the ordinary criminal
courts. What is the rationale for not requiring sanction
for court martial proceedings? It emanates from the
fact that court martial is considered much lighter than
prosecution in ordinary criminal courts. Or perhaps
that as the army is itself in charge of the conduct of the
court-martials there is no need for any further
“protection” in the form of prior sanction from the
government.
Even when sanction is sought for prosecution of the
armed forces by the government, it is a long drawn
process, and it is nearly impossible to gain
permission. The Investigating ofcers of the local
police nd it impossible to enlist the cooperation of the
armed forces whenever their personnel are allegedly
involved in committing serious violations. A police
ofcer interviewed as far back as 2005 had pointed
out that the armed forces refuse to cooperate with any
investigations when their personnel are allegedly
involved.
“We were investigating a case involving an army
ofcer. The concerned army unit's reply to our letter
was a threat. They said that if the police overstepped
its boundaries and interfered with them the
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consequences could be unpleasant. ” (Police ofcer,
Jammu and Kashmir Police, Srinagar)Even in the
cases in which the police were specically ordered by
the courts to conduct investigations, the police
complained that the communication between the
investigating ofcers and the concerned battalion of
the army/paramilitary is long-drawn-out. The police
characterized the army's response as indifferent,
arrogant and non-cooperative. Eventually, the case
was closed. Very often, the sanctioning authority
keeps the cases for sanction pending thus causing
severe delay, as evidenced by the cases analyzed in
the subsequent chapter of this report. Neither do they
grant sanction nor deny it.
Inordinate delays & lack of transparency
Military Tribunals have facilitated impunity for serious
human rights violations in Kashmir. Between
December 2011 and January 2012, the IPTK led
various RTIs to the Ministry of Home Affairs and
Ministry of Defence, seeking information on the courtmartials
conducted in Jammu and Kashmir from 1990
till the date of ling of RTI.
The Ministry of Defence, Government of India
provided very limited information and that too with
regard to merely one unit of the Indian Army, the
Rashtriya Ries. By and large, even in the case of
court-martials, the information provided again
illustrates patterns and forms of impunity. Of particular
signicance is the absolute lack of accountability and
transparency in relation to the armed forces
engendered by their absolute refusal to share
information. For example, information provided by
communication dated 28 March 2012 was decient
but also telling: between 2001 and 2009, the period for
which information was provided, only four ofcers
[against numerous allegations] were subject to a
court-martial process. Further, 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
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found not guilty in a case of killing.
On 18 October 2012, the Central Information
Commission [CIC] dismissed the second appeal on
the contention of the Ministry of Defence that
information had already been provided on 28 March
2012. The CIC failed to consider the blatantly obvious
that the 28 March 2012 information related only to the
Rashtriya Ries unit of the Indian Army.
The agencies of the Ministry of Home Affairs refused
to share information by stating they were exempted
from the RTI Act. Subsequently, through its order
dated 7 January 2014, the CIC partly allowed for
certain information to be shared. But, the CIC upheld
the privacy of the alleged perpetrators and stated that
the FIR no., name of alleged perpetrator and “details
of incident” cannot be released. But, contradictorily it
allowed for allegations in brief to be provided, along
with number of cases, and punishment/award
granted. In response to this, the Central Industrial
Security Force stated that no court-martials or
enquiries had been conducted by it in Jammu and
Kashmir between 1990 and 2011. The Sashastra
Seema Bal [SSB], during the proceedings [and
reected in the nal CIC decision], stated that the
court-martial rules only came into effect on 1 August
2009. Further, that the SSB was shifted from Jammu
23 Research Interview conducted with a senior police ofcer, Budgam, 2005.
24 By communication dated 18 June 2012, further information on cases relating to the RR was provided and related to the time
period between 1999 and 2011. Once again, only seven officers were said to have been subject to the court-martial process.
Only three of these cases dealt with potential human rights violations. Information on Major Rehman Hussain was a repetition.
Information was provided on the conviction by court-martial of Captain Ravinder Singh Tewatia, but no mention is made of
the fact that this judgment was overturned on appeal before the High Court. The Government of Jammu and Kashmir chose not
to appeal this judgment. Finally, Major Arvid Rishi was found not guilty for murder. By communication dated 22 June 2012,
further information was provided on a case of two RR personnel [in the context of information on sanction for prosecution
under AFSPA related cases where court-martials were conducted], Naik [Corporal] Harbhajan Singh and Rifleman Gurtej,
who were dismissed from service and punished by imprisonment for 10 years for the rape of a woman.