The killing of three civilians in army firing in Shopian on January 27 was not the first incident of its kind in Kashmir in which the state police registered an FIR against the Army. From 2001 to 2016, the Jammu and Kashmir government sent 50 requests to the Ministry of Defence for prosecution of soldiers in various cases — custodial deaths, killing of civilians, disappearances, rape and molestation.
The government told the Rajya Sabha earlier this year that the MoD refused sanction in 47 cases, three are awaiting a decision. What this means is that in Kashmir, the filing of an FIR is not unusual, and the dead-end every FIR runs into a certainty. This is because the Army and paramilitary forces are protected by the immunity provisions of the Armed Forces Special Powers Act. The protection has been invoked even in rape cases. In a rare case or two, the Army has conducted court-martial proceedings against errant soldiers. The Shopian FIR would have run the same course as its predecessors, hit the same dead-end.
Now the Supreme Court, acting on a petition by the officer’s father, has stayed the investigation until final orders on April 24. As a report in this newspaper has detailed, every request by the J&K police to the Army to co-operate in the investigation so far has been stonewalled. In Kashmir, it is an open secret that soldiers will never be prosecuted.
But in a general climate of alienation, an FIR and an investigation against a soldier involved in an episode of questionable civilian deaths hold the symbolic promise of due process, if nothing else. In Kashmir, as Chief Minister Mehbooba Mufti rightly pointed out, peace and justice are two sides of the same coin. In this sense, the SC’s stay seems both unnecessary and unfortunate.
The petition clearly has purchase among those who seek to conflate an individual soldier’s actions with the interests of the nation, as in the case of the incident in which another major tied a civilian to an army vehicle and used him as a human shield in April 2017. The opposition by the BJP, a partner in the J&K ruling coalition, to the registration of the FIR, gave just one indication of the way in which it seeks to project the Army’s role in Kashmir.
Unwittingly, though, the petition has also brought to the attention of the highest court in the country, the question of due process, and the accountability of soldiers deployed in restive territory. These go to the heart of the debate on AFSPA and the calls to amend the law, if not do away with it altogether. In a judgment in July 2016, the SC criticised AFSPA as “symbolising a failure of the civil administration and the armed forces”.
The case before the SC will be watched for any implication it might have for this law, which is in force not just in Kashmir, but also in the Northeast, especially in Manipur, where military impunity for excesses against civilians has created a huge reservoir of resentment.