STRUCTURES OF VIOLENCE

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| Structures of Violence
and Kashmir from 2001 when it came under the
control of the Ministry of Home Affairs. Even prior to
2001, there were no human rights cases against it.
By communication dated 5 March 2014, the Indo-
Tibetan Border Police Force provided information that
only 6 cases have been subject to enquiry. All relate to
human rights violations to varying degree. While
mostly no action was deemed required, in a case of a
rape, the alleged perpetrators were dismissed from
service for forcible entry into the house and it appears
the rape charge was dismissed. By communication
dated March 2014, the Central Reserve Police Force
gave information related to three cases. In the case of
detention and molestation of girls, dismissal of
service was handed down. By communication dated
3 March 2014, the Border Security Force provided
information that 10 court-martials had been carried
out for cases of human rights violations, and six cases
of corruption. In all the cases of corruption, the
alleged perpetrators were found guilty, and strong
punishments handed down, including one year
rigorous imprisonment for inducement of Rs. 5000
under threat of injury to a civilian.
Despite repeated statements by Indian army
authorities on the number of armed forces personnel
punished in court-martials there is complete denial
when any details/information on these convictions
are sought.
Even in a handful of cases where perpetrators have
been punished, severe delays have been caused in
implementing the sentences due to the accused ling
appeals and/or review in the regular criminal courts
against their convictions. The rape of two women in
Doda District on 14 February 2000, allegedly by
Captain Ravinder Singh Tewatia and SPO Bharat
Bhushan is a case at hand. The alleged perpetrators
came to the residence of the victims at about 8:00 pm
and asked the family members to leave the house on
the pretext of recording their statements. While two
other alleged perpetrators kept guard at a local inn,
Captain Ravinder Singh Tewatia and SPO Bharat
Bhushan raped the two women in two separate
rooms.
Two separate chargesheets were led on 1 April 2000
at the Chief Judicial Magistarte (CJM), Banihal under
Sections 376 (Rape), 452 (House trespass after
preparation for hurt/assault/wrongful restraint), 342
(Wrongfully conning person) and 166 Ranbir Penal
Code, 1989 (RPC). While SPO Bharat Bhushan was
committed for trial to the court of Additional Sessions
Judge, Ramban, Captain Ravinder Singh Tewatia
was tried by a Summary General Court-Martial
[SGCM] and was found guilty u/s 376 (1) [Rape]
Ranbir Penal Code, 1989 [RPC] and was sentenced
vide order dated 1 October 2000 to dismissal from
service and imprisonment for seven years. Captain
Ravinder Singh Tewatia challenged the order of 1
April 2000 by the CJM, Banihal before the Additional
Sessions Judge, Ramban, which was rejected on 14
December 2000, and then led Criminal Revision no.
11/2001 before the High Court of Jammu and
Kashmir. Captain Ravinder Singh Tewatia also
challenged the ndings of the SGCM on 1 October
2000 [which was conrmed by the Conrming
Authority on 14 December 2000] before the High
Court, Jammu bench, in Original Writ Petition [OWP]
742/2001. The nal judgment in this case by the High
Court was on 31 December 2002. The judgment of
the SGCM was set aside. Criminal Revision no.
11/2001 was considered infructous and disposed off.
The High Court considered the medical report on
record, which found evidence of recent sexual
assault. The Union of India, Ministry of Defence, led
a Letter Patent Appeal [LPA no.17/2003] before the
Jammu bench of the High Court that remains pending
25
before the court.
Conclusion
Court-martial and other equivalent procedures are
unacceptable and unjust for any equal and fair judicial
system. Court-martials promote impunity and hinder
justice and accountability for grave crimes. There is
growing consensus that “Because military courts do
not have enough statutory independence, their
jurisdiction must be limited to specically military
infractions committed by members of the military,
excluding serious crimes under international law
which must come within the jurisdiction of the ordinary
26
courts.”
The nuts and bolts of the India military tribunals prove
that it was never envisaged to operate in areas such
as Jammu and Kashmir or the Northeast, where the
Indian armed forces are implicated in heinous human
rights crimes against the civilian population. The Army
Act was enacted for two main purposes: rstly, to
punish army personnel for disciplinary infringements,
including committing offences against the army;
secondly, to provide an enforceable code of conduct
for war times against the enemy. The legal design of
the Army Act, 1950 makes it clear that it was never
meant to operate in civilian areas including Kashmir.
Therefore, the impunity of the armed forces in
Kashmir is precisely because these acts never
envisaged a situation of conict in a civilian area such
as Kashmir. It was only equipped to deal with a
traditional cross border war, and not a conict, where
the army is operating in a civilian area. Consequently,
court-martial proceedings under the Army Act or other
Acts governing the paramilitary forces such as The
Border Security Forces Act, 1968, or The Central
Reserve Police Force Act, 1949 can never deliver
justice in a fair and independent manner for
committing atrocities against civilians in conict
areas.
Furthermore, even the Indian Central government
25 This case is analyzed in greater detail in the very next chapter of this report titled “Alleged Perpetrators…”
26 Final report on “Question of the impunity of perpetrators of human rights violations (civil and political),”prepared by Louis Joinet for the
Commission on Human Rights, E/CN.4/Sub.2/1997/20, June 26, 1997, para. 38.