Pushback on the AFT's interim Machil fake encounter rulings

There is frustration in Kashmir over the Armed Forces Tribunal's decision to suspend the judgments in the Macil "fake encounter" case and release the defendants on bail. The Kashmir Observer has this lengthy article on the subject. Excerpt:

“They have a right of appeal, to the chief of army staff and to the Centre” said HS Panag, former general officer commanding of the army’s Northern Command and former member of the Armed Forces Tribunal. “After they have exhausted these appeals, they can go to the Armed Forces Tribunal.” Hearings in the case would go on, Panag said, and a verdict would be reached in two or three months. The tribunal had even been known to enhance sentences in some cases, he said. 

In Kashmir, however, hopes of jusitce in the case are dimming. “They will never get justice,” said Parveena Ahanger, chairperson of the Association of the Parents of Disappeared Persons, Kashmir. “No one will listen, they will only listen to the army men.” 

Parvez Imroz, a human rights lawyer in the Valley, called it yet another instance of the “impunity which the army and other institutions of state are enjoying.” Bitterness about the new turn in the Machil case has now opened up old grievances about military courts and the justice system as a whole.

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Yet the military court has drawn flak from both the tribunal and human rights groups. The tribunal reportedly found the military court’s judgment flawed as it “failed to establish the chain of evidences to confirm the circumstantial evidence which was relied upon by the Army court martial to convict the personnel”. 

Imroz feels the military court had no jurisdiction in the matter. “The army cannot try civil offences,” he said. “It can only try intra-army offences - indiscipline, fratricide.” Section 70 of the Army Act, 1950, he pointed out, states that court martials did not have the power to try cases of murder, culpable homicide or rape by armed forces personnel if the victim was “a person not subject to military, naval or air force law”. 

It does, however, make exceptions. The first of these says that military courts can try their personnel for such offences if they took place “while on active service”. Back in 2011, the army had reportedly contended that forces in Jammu and Kashmir were considered to be “in active service” all the time.