SRINAGAR: The assertion of Chief Minister Mehbooba Mufti that she will take investigations into the killings of three youth in army firing in Shiopian to their “logical conclusion” does not seem to make any sense, in view of the impunity granted by laws such as AFSPA to the army and open political support from the Indian mainland for the army. According to both lawyers and police officers who have been investigating cases against army personnel, the J&K government is “helpless” before the army. “Can somebody explain to us what she means by logical conclusion?” High Court lawyer Zaffar Shah said of Mehbooba Mufti’s statement. “The political interference from New Delhi, by which I mean the ruling BJP, has strongly supported the army. Then there is power and legal codes favouring the army. The outcome of the investigations are already known to us.”
Shah added that there is no time frame for the completion of investigations. “Even if the investigations proceed, there will be resistance by the army as has happened in the past,” he said. “The police are always helpless in such cases. They will summon the soldier, but the army will not produce him. The police have the power to arrest the accused, but they do not have the courage to do it.”
Shah said it is practically difficult and almost impossible to prosecute a soldier in Kashmir. “Tomorrow the army can produce the argument that it will not cooperate with the police as it comprises of local men who are biased. The media and political pressure on the investigating agencies will call for the army to take action, rather than the police or the civilian government of Kashmir,” he said.
The Bharatiya Janata Party (BJP) has already thrown its weight behind the accused army men, saying they have been given full powers in Kashmir to control the “situation”. The party has also demanded the withdrawal of the FIR filed against the army men.
Police have registered an FIR under Sections 302 (murder) and 307 (attempt to murder) of the Ranbir Penal Code against personnel of the 10, Garhwal unit, of the Army.
A top police officer who has investigated cases involving the army said that by filing FIRs, the only thing the civil administration achieves is that it puts the matter on record.
“You make a statement that the army has been indicted in a civil offence,” the officer said. “But in technicality, it is not offence for the army as they are protected by the laws.”
The officer said that Sections 69 and 70 of the Military Act clearly outline that offences committed by the army will be dealt with by military courts.
“However, this act does not apply to murder and rape,” the police officer said. “However, the Armed Forces Special Powers Act (AFSPA) turns even these civil offences committed by the army into military offences.”
As such, the officer said, in almost all cases against the army, the Ministry of Home Affairs denied sanction for prosecution to cases sent by the state to them.
“The Ministry of Defence invokes AFSPA and says that due to lack of evidence, a particular rape and murder case cannot be verified,” the officer said.
“Whenever the police complete their investigations and furnish evidence to indict armymen for crimes like rape and murder, the ministry of defence usually says that these crimes cannot be carried out by armymen and somebody is trying to malign the image of Indian armed forces,” the police officer said.
“Even if the police complete investigation in the Shopian case, it is highly unlikely that the army men involved in the shooting of civilians will be tried in a court of law. The civilian courts need sanction from the military authorities who are protected by the law,” the officer said.