Major Aditya case triggers AFSPA debate again in Kashmir

As the Supreme Court put an interim stay on criminal proceedings against Major Aditya Kumar of 10 Garhwal Rifles, a debate has erupted again in Kashmir over the impunity enjoyed by the armed forces from ever having to answer for their alleged abuse of power. The apex court also directed that no coercive action be taken against Major Aditya in connection with the incident in which three alleged stone pelters were killed and nine others injured in army firing in southern Shopian district of the Valley on January 27.

Jammu and Kashmir police had filed an FIR against Major Aditya and his unit under sections 302 (murder) and 307 (attempt to murder) of the Ranbir Penal Code (RPC) on the directions of Chief Minister Mehbooba Mufti for opening fire on around 120-150 protesters, who had attacked a military convoy in the area.

The apex court order came in response to a petition filed by Major Aditya's father Lt. Col (retired) Karamveer Singh, demanding that an FIR registered against his son be quashed. Singh, in his petition, said that his son was just doing his "bonafide duties".

Like many other issues, the filing of the FIR against the army exposed the fault lines in the BJP-PDP alliance in J&K. As the Assembly session was in progress, a slugfest erupted between the allies' legislators in the House. While BJP legislators demanded that Major Aditya's name be dropped from the FIR, saying the move would demoralise the armed forces, Chief Minister Mehbooba Mufti rejected the demand, saying that the state government had already ordered a magisterial probe into the incident and asserted that the probe would be taken to its logical end. She justified the FIR against Major Aditya by saying, "The army would not be demoralised by an FIR. There can be black sheep in the army also."

The opposition National Conference (NC) and the ruling PDP were on the same page over the issue, with subtle support from Congress legislators. One could assume that the public posturing over the issue between the BJP and the PDP was intended primarily for their respective constituencies.

It is not the first time that an FIR has been lodged against the armed forces operating in violence-hit Kashmir. The Central Bureau of Investigation (CBI) had filed an FIR against five army officers in connection with the killing of five civilians in March 2000 in Pathribal when the AB Vajpayee government was ruling in Delhi.

The CBI even confirmed the encounter as fake through a detailed investigation. The CBI charge sheet had shown that the army story of an encounter with Pakistani militants was a lie and it had fudged records and attempted a cover-up. However, after exercising the option of trial by court martial, the army held a court of inquiry and dismissed all proceedings citing lack of evidence.

Similar was the fate of the 2010 Machil fake encounter case in which three civilians were killed by the army near the Line of Control and later branded as foreign militants for brass medals and cash rewards. A case was going on against the accused in a local court in Sopore. The army got it transferred for court martial and, after years of delay, six army personnel, including two senior officers, were sentenced to life in November 2014. However, the Armed Forces Tribunal suspended the sentence in July 2017.

Major Aditya's case could end up no different from Pathribal, Machil and other similar cases. Even if the apex court hadn't intervened on the petition of the accused officer's father, the pattern of previous such cases shows that it does not necessarily mean that army men charged by police will necessarily have to face the court. The armed forces, including army, BSF and CRPF, while operating in disturbed areas, are protected by provisions of the Armed Forces Special Powers Act (AFSPA), under which bonafide mistakes committed while "acting in good faith" do not attract "prosecution, suit or other legal proceedings, except with the sanction of the Defence ministry in the case of the army, and Home ministry in case of paramilitary forces".

50 requests, 47 denied

According to official figures, between 2001 and 2016, the Defence ministry received 50 requests for sanction for prosecution against armed forces personnel involved in alleged rights violations from the J&K government. Sanction was denied in 47, while three cases are still pending.

However, there are instances where the state government has prosecuted and convicted police personnel, including officers, involved in the killing of civilians in fake encounters carried out jointly by the police and the army, though the soldiers couldn't be tried, due to AFSPA. Hans Raj Parihar, a senior superintendent of police (SSP) level officer, was arrested and prosecuted by the state in 2007 for picking up a number of civilians, murdering them in staged gunfights and passing them off as militants for money and awards.

Apart from Parihar, a DSP, an ASI, four constables, and a driver were also arrested and charge sheeted in these cases. However, no action could be taken against a Colonel, two Majors, a JCO and several other soldiers whom the police investigation had indicted in the same cases.

While different voices have been emanating in favour of and against AFSPA in Kashmir, there is no doubt that the Act has been misused by the armed forces. Its removal from some parts of the Valley could be the beginning of a new era of peace. The strong argument in repealing the draconian law could be that without AFSPA, the Army staged many successful counter-terrorism operations in Jammu province before the Act was imposed there, too, in 2001.