"Military Justice in a political season"

The Hindu has a powerful op-ed with this title by Indian barrister and political analyst Suchitra Vijayan. Excerpts:

The Indian Army last week sentenced five of its personnel, including two officers, to life imprisonment for staging the killing of three Kashmiri civilians in the Macchil fake encounter case in 2010 and branding them as foreign militants for rewards and remunerations. Soon after, Jammu and Kashmir Chief Minister Omar Abdullah welcomed the decision calling it a “watershed moment.”

The Indian Army’s court martial verdict presents us with an indictment of state brutality, while simultaneously inviting us to consider the vacillations of those who peddle the promise of a more benign, transformed rule in Kashmir. The verdict is not a watershed moment, but indicative of the manner in which political considerations and interests of the Army override larger principles of justice and accountability. Rogue elements in the Macchil fake encounter were not driven to these acts for professional advancement. The encounter is not an aberration, but a deliberate enactment of the unfettered power and lawlessness of the state. It is reflective of the cash-for-kill policy that has institutionalised the incentivisation of encounter killings.

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The military justice system in India remains opaque, procedurally long-winded, antiquated and unable to serve the end goal of justice. It is incompatible with the fundamental rights that collectively constitute the right to due process in India. Rather than aid the system of checks and balances that impose accountability, court martials have become a distinctive tool; kangaroo courts that aid in the fiction of state accountability, while legitimising violence and counterinsurgency operations.

Every now and again, security forces green light court martials in carefully chosen cases in the guise of accountability. Of particular note are two cases of rape, one against Captain Ravinder Singh Tewatia in 2000 and the other against Major Rehman Hussain in 2004. Captain Tewatia was convicted by the court martial and sentenced to imprisonment for seven years. Major Hussain was dismissed from service. Both the accused challenged their decisions in the Jammu and Kashmir High Court and in both the instances, the court overturned the court martial’s verdict. While the Captain Tewatia case is still awaiting further legal challenge, Major Hussain is reported to have returned to service.

While the court martial decision in Macchil has been announced, the conviction remains to be confirmed by the Northern Army Commander. This might take up to two to three months. Whether the perpetrators will be held accountable remains to be seen. The court martial verdict by itself is not an administration of justice. A few inconsequential punishments will not lead to justice when there is an entire chain of command and a vicious structure in place that makes these encounters, disappearances and everyday violence a norm. An unjust law and a flawed court of justice in itself is a species of violence. Systemic unaccountability for its breach is more so.