STRUCTURES OF VIOLENCE

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| Structures of Violence
appointed Justice Verma Committee made scathing
remarks that “impunity for systematic or isolated
sexual violence in the process of Internal Security
duties is being legitimized by the Armed Forces
27
Special Powers Act, 1958.” The Justice Verma
Committee recommended that sexual violence
against women by members of the armed forces or
uniformed personnel must be brought under the
purview of ordinary criminal law. It also recommended
that Section 6 of the AFSPA, 1958 [equivalent of
Section 7 of the Jammu and Kashmir AFSPA] should
be amended to exclude the requirement of sanction for
rape and other criminal offences against women
outlined in the Indian Penal Code, 1860. The proposed
amendment by the Justice Verma Committee read as
follows:
“AMENDMENT TO THE ARMED FORCES (SPECIAL
POWERS) ACT, 1958
1. The following amendment shall be made to Section
6 of the Armed Forces (Special Powers) Act, 1958:
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.
Provided that, no sanction shall be required if the
person has been accused of committing an offence
under Section 354, Section 354A, Section 354B,
Section 354C, Section 376(1), Section 376(2), Section
376(3), Section 376A, Section 376B, Section 376C,
Section 376D, Section 376D or Section 376E of the
IPC.”
The Criminal Law (Amendment) Act, 2013
incorporated several suggestions made by the Justice
Verma Committee but failed to make these crucial
changes with regard to sexual violence in conict
areas including the above amendment, which could
have been a step in the right direction.
On 30 April 2010, the Indian Army killed three innocent
Kashmiri civilians Shahzad Ahmad Khan (27), Riyaz
Ahmad Lone (20), and Mohammad Sha Lone (19)
belonging to Nadihal village in Baramulla by falsely
dubbing them as Pakistani inltrators along the Line of
Control in the Machil sector. Seven army personnel
including two ofcers were punished in a General
Court Martial for the Machil fake encounter. Machil is
the exception where army personnel were found guilty
in the court martial proceedings. Mostly, the army and
paramilitary in Kashmir have escaped any criminal
liability for committing grave human rights violations.
Moreover, the structural and procedural lack of
fairness of military tribunals remain despite the one off
conviction.
Jammu Kashmir Coalition of Civil Society in its press
release at the time of the Machil court-martial
conviction identied the problems of the rare
conviction as follows: “the Macchil conviction is a
political decision. The conviction was reportedly done
two months ago, but has only now been made public,
on the eve of the assembly elections in Jammu and
Kashmir. Further, the conviction is now to be conrmed
by the Northern Army Commander. Besides, the fact
that to begin with a court-martial was held, and not a
trial in a civilian court, it is clear that the court-martial
system is conscious of and guided by larger political
interests. Therefore, while the Pathribal case is
covered up, the Macchil case is not. In the case of
Pathribal, there was institutional support and approval,
manifested by the visit of L.K. Advani, then Deputy PM,
of the BJP led government, to congratulate the
Pathribal perpetrators.”
Finally, Military Tribunals compromise the basic
principle of equality before the law or equal treatment
before the law. While the Pathribal victims wait for
justice, we know it is only when court-martials are
replaced by an open, transparent and fair trial in a
regular independent court system, can the victims of
armed forces atrocities in Kashmir even begin to
expect justice.
27 Justice J. S. Verma, Reports of the Committee on the Amendemnt to Criminal Law, 23 January, 2013, available at
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf