The only thing worse than the Army committing human rights violations is the failure to legally prosecute and punish the perpetrators. Unfortunately, this is likely to happen in the case of the Amshipora ‘encounter’ in Jammu and Kashmir’s Shopian.
This was a high-profile case when the much-lauded killing of three ‘terrorists’ on the night of 18 July 2020 turned out to be the cold-blooded murder of three labourers from Rajouri district in a fake encounter. Earlier this year, Captain Bhoopendra Singh was found guilty by a Summary General Court Martial (SGCM) and awarded a life term. However, on 9 November, the Armed Forces Tribunal (AFT) suspended Singh’s life term and also granted him conditional bail.
The AFT bench observed that the evidence accepted by the SGCM in the case was “not convincing enough to hold the applicant guilty of the charges levelled against him”. It also said that based on the material available on record “we are convinced that the likelihood of the applicant being acquitted after hearing of this appeal cannot be ruled out”.
The fake encounter happened a year after the abrogation of Article 370 in Jammu and Kashmir, when the government claimed that it had restored law and order. Even Prime Minister Narendra Modi took note of the case. His assurance that “there will be justice and they will be taken care of” was personally conveyed to the families of the victims by J&K Lieutenant Governor Manoj Sinha.
Why, then, does the case not seem to be heading to its logical conclusion? Is it due to the shortcomings of the military justice system? Or is there a sinister design to save the accused by deliberately manipulating the legal procedure so that it fails to withstand scrutiny at the appeal stage?
Also Read: Amshipora ‘encounter’: Tribunal bench suspends Army officer’s life sentence, casts doubt on verdict
Cloud over court-martial conviction
While suspending the life sentence awarded to Singh and granting him bail, the AFT pointed out a number of legal infirmities that impinged on the principle of proving guilt beyond reasonable doubt.
The AFT concluded that the findings recorded by the SGCM were “perverse” and “improper” because they failed to consider the evidence in totality and, instead, took a selective approach to hold the accused guilty. The evidence on record does not prove any motive for killing the three civilians and conducting such an operation without the knowledge of his superior officer.
The statement of the accused during a court of inquiry, conducted while he was in close arrest, cannot be used as evidence to incriminate him, according to the Indian Evidence Act. The exception provided in Section 27 of the Act has to be supported by other evidence. Similarly, the statement of co-accused Bilal Ahmed, who later turned approver and was pardoned, cannot be relied upon to convict the accused.
The statement of the Commanding Officer that he was unaware of the operation was totally untrustworthy based on other evidence on record. In my view, this weakened the case of the prosecution, which built up the case of a standalone rogue action by the accused. In a nutshell, the observations of the AFT at this stage indicate that the case is unlikely to withstand legal scrutiny during the detailed appeal hearing, potentially leading to the accused’s acquittal.
Avoidable lapses
All the infirmities in the investigation and prosecution of the case were avoidable.
In my 15 October 2020 article covering the incident, I cautioned that the “court martial must be methodically carried out, so that it withstands legal scrutiny by the Armed Forces Tribunal and the Supreme Court”.
On 21 January 2021, I highlighted that the hierarchy had become complicit by design or due to incompetence. “Yet, only Captain (Bhoopendra) Singh is being charged along with two civilians. In my view, disciplinary/administrative action is warranted against Commanding Officer 62 RR, Commander 12 Sector RR, and General Officer Commanding Victor Force,” I wrote.
It is inexplicable how their complicity or incompetence was overlooked during investigations. Disregarding the fundamentals of the Indian Evidence Act only highlights the incompetence of the Judge Advocate General (an officer of the JAG branch or any other legally qualified officer) who not only acts as the prosecutor but also advises the court during the conduct of a court martial. This also underscores the need for legally qualified judges to preside over the court martial rather than unqualified officers relying solely on military experience.
There have been several other high-profile cases that failed to withstand legal scrutiny. In the Machil fake encounter case, the AFT suspended the life sentence awarded to a Commanding Officer and four other personnel and granted them bail. In all likelihood, the accused will be acquitted once the appeal is heard.
In the Dangari fake encounter case, the government/Ministry of Defence/Army deliberately misled the Supreme Court to take over the case for trial by court martial after 18 years. They were well aware that a court martial was categorically time-barred under Section 122 of the Army Act. Adding to this, a court martial was also conducted and life sentences awarded to seven retired Army personnel, including a Major General. The authorities knew fully well that the court martial was illegal and the accused would be acquitted at the appeal stage by the AFT/Supreme Court.
Also Read: How independent is Armed Forces Tribunal? Army colonel’s SC plea questions defence ministry control
Military justice system needs urgent reforms
The Indian military justice system is a legacy of the British Indian Army, suited for colonial times when there was little or no need for civil judicial oversight. After independence, the Army Act of 1911 was adapted for the needs of the armed forces with only cosmetic changes. It is ill-suited for an egalitarian democracy in which judicial oversight by the AFT/High Courts/ Supreme Court is the norm.
The military has no independent investigation and prosecution agencies. Instead, all these functions are handled by senior colleagues of the accused, who operate under commanders with vested interests in the prosecution’s outcome.
There are no standing or independent courts. The members of court martial, functioning as the court, are senior colleagues who are not legally qualified and are also vulnerable to command influence.
Over a century old military laws and procedures, while fair and just in principle, have not kept pace with times and have largely been jettisoned by most armed forces. In India, there is a marked resistance to change and all reforms have been imposed by High Courts or the Supreme Court.
There is an urgent requirement for an independent investigative agency to handle major crimes in the armed forces. The Corps of Military Police and equivalent organisations in the other two services, along with legal backing, can be reorganised for this purpose. There is also a need for a permanent independent prosecution agency and standing courts with legally qualified judges. The entire military justice system must be insulated from command influence and aligned with the country’s criminal justice system. It is also time for a common Act to codify laws, rules and procedures for the three services rather than separate Acts as is this case at present.
The rank and file must be educated to imbibe the concept of independence of judicial functioning and separation of powers. More than that, both the military hierarchy and the rank and file must understand that the aim of the military justice system is not merely to secure convictions but to ensure that justice is delivered.
Lt Gen H S Panag PVSM, AVSM (R) served in the Indian Army for 40 years. He was GOC in C Northern Command and Central Command. Post-retirement, he was a Member of the Armed Forces Tribunal. Views are personal.
(Edited by Asavari Singh)