Suddenly a little known small village called Amshipora in south Kashmir with a population of just 1700 inhabitants has taken a center stage in the local news. This after an encounter with the security forces in which three suspected militants were neutralized. The news could have croaked here just like the trio but their afterlife fate wanted their names to live for some more time. The said encounter came under clouds when relatives of three young men from dhar sakri village of district Rajouri lodged a belated missing person report after the encounter and suspicion arose if the 3 missing labourers are those who were neutralized as terrorists. The relatives of missing youth in their complaint to the police claimed that they had last spoken to the trio on July 16th when these young labourers informed that they had rented a small room in Chowgam, Shopian.
After the matter gained prominence, the Army ordered a high-level Court of Inquiry “CoI”. The spokesperson of the Army later informed that the process of recording of statements of key witnesses is in progress, which is being monitored closely. The Army has also published advertisements in the local newspaper calling for people acquainted with the case to come forward and depose before the CoI. In the meanwhile, the J&K Police collected DNA samples of the family members from Rajouri for juxtaposing them with those, now buried in north of Kashmir.
Allegations of fake encounters are not alien to India and J&K obviously is no exception. A very recent case of an alleged fake encounter, which conquered our TV screens for quite a while, was the encounter of gangster Vikas Dubey who was shot dead when he tried to escape from police custody. With the uncountable incidents, it is imperative to comprehend as to how an allegation of fake encounter is dealt with in conflict areas like J&K where the security forces, owing to the AFSPA, wear an extra vest in comparison to their counterparts placed elsewhere.
Whenever concerns with respect to an extrajudicial killing are raised, the Officer in Command of the troop, which had conducted the operation, may order a CoI. The CoI finds its place in chapter VI of The Army Rules-1954, Rule 177 to be more specific. The CoI is an investigation team, which is set up to conduct inquiry and report the matter to higher-ups for suitable action if warranted. Pertinently, it is not a permanent unit of the Indian Army, which specializes in investigations but is only a mandate specific team, which is established to conduct a particular inquiry. The CoI may include assembly of officers of any rank usually not less than three in number. The CoI is guided by the written instructions of the authority, which constituted it. These guidelines are not standard and vary from case to case with some customary instructions engraved in all. As far as the procedural aspect is concerned, the CoI is expected to inspect the site, examine the weapons, record statements of the witnesses and officers involved and may additionally put such questions to them as may be necessary to test the veracity of their respective versions. Once concluded, the CoI submits its report along with recommendations to the Officer in Command. The proceedings of CoI are not admissible in evidence and can only be used for the purposes of cross-examination only.
Upon receipt of the CoI report, if the Officer in Command is satisfied that prima facie a military offence appears to have been committed under his command, he is ordained under Rule 22 to grant an opportunity of being heard to his men and may thereafter either dismiss the case or may commit it for Court Martial proceedings. Concurrently, the indicted men may be taken into custody in terms of Section 101 of the Army Act. However, the arrest is discretionary and is usually resorted to when there is an apprehension of tampering of evidence or eloping.
A Court-martial shall comprise of not less than five and not more than nine members. Upon the appreciation of evidence placed on record and other factors brought to its knowledge, it may either discharge or convict the indicted men. The Court has vast powers including the power to award the death sentence. The order so passed can be impugned before the Armed Forces Tribunal.
Apropos the police investigation, the mere constitution of a CoI, does not preclude the state machinery from continuing with their parallel investigation. It is vital to appreciate that while the police is a specialized agency trained and better equipped to conduct detailed investigations, the CoI, on the contrary, may at best be equated to a Jury of the colonial era. However, the difficulty emanates on the culmination of CoI and police investigation because the Army Act provides for a choice to the Officer in Command, whereby he has to choose whether to send his men for a trial to the Army Court or a regular Court of Law, civilian Courts as they say. Usually, the choice is very naïve and rarely cases come to civilian Courts for adjudication. Another hurdle faced by Civilian courts in the grant of sanction and which may take several years for the file to travel from one ministry to another to another.
The greater question is if the Army proceeds with the Court Martial and not Civilian Court, would it be a fair trial qua the victims or their families? Is it not a prejudicial practice of adjudication of complaints by brother colleagues? The Pragmatic approach should be that in case the Specialized agency or Court of Inquiry forms a prima facie opinion the case shall be tried by Local Court itself to abide by the principles of Natural Justice and as has been said: “Justice is not be done but seen to be done”. Though the Army has time and again proved by convicting the guilty that Court Martials are conducted without any biases and strictly as per the law. The number of convictions by the Army to its own men in the past is reflective of the non-biased approach as far the serious offences of Fake Encounters in concerned.
All the institutions of this country, which were architected by the British, still follow intra house trials and every acquittal by such institutional bodies leaves the victim or their family with the impression of biasness. We have come a long way since independence but are yet to realize its true meaning. Perhaps, the reasons are that the regime and ancien regime have never really cared for civil liberties which have resulted in us being ruled and not being served. But in reality, we are equally to be blamed because when it comes to voting the idea of autonomy, self-rule and independence sway us more than the idea of good governance and dignified life. But relax there is always the next time.
The authors, Viqas Malik and Romaan Munneb, are Lawyers at J&K High Court. They can be reached at malikandrooman@gmail.com.
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