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Why six Army men sentenced to life in Machil fake encounter case means little for Kashmiris

What the people need is a more effective mechanism to bring justice to crimes committed during the conflict period, most of them executed in the name or nationalism or belief.



In one of such first instance since militancy erupted in Kashmir, an Army court martial has awarded life sentence to six of its personnel, found guilty of the horrendous 2010 Machil fake encounter. Those sentenced were Colonel Dinesh Pathania, Captain Opendra, Havildar Devender Kumar, Lance Naik Lakhmi, Lance Naik Arun Kumar and rifleman Abas Hussain. Even though the court martial verdict was delivered in December 2014, its confirmation only came yesterday.

The Machil fake encounter, as was also proven later, had been driven by greed and ambition of military officials, who used strife as an opportunity for self gain. It all started when the 4th Rajput battalion, which had “achieved” zero figures in capturing or killing any militants, along with zero seizure of any weapons during its posting, in early May 2010 was due to be shifted from the LOC. This “zero achievement” in “kills or capture” was seen to harm the promotion chances of its officers, till the Machil fake encounter was executed on April 30. After this fake encounter the unit is reported to have received a reward of 600,000 rupees in addition to bolstering the case of promotion for involved officials. Three locals, who lured the victims on the pretext of providing temporary employment as laborers and then “sold” them to army officials, were also inducted in the gruesome crime.

As with sparks igniting bigger fires, this incident of rights abuses led to protests followed by more human rights abuses and protests. In early 2010, when protests against Machil fake encounter were confronted with undue force, it resulted in more deaths which escalated to more protests. This uncontrolled cycle, pushed by the indifference of then dispensation, consumed more than 120 innocent lives, most of them kids, making it one of the bloodiest summers in Kashmir. Not only did the failure of 2010, in addressing anger and redress of rights abuse result in anger on ground, in later years this disconnect nourished the growing anti state sentiment among youth, many of whom had not even been born when insurgency erupted in Kashmir.

Just before the Machil case, an RTI query made to the Ministry of Defence, Government of India had revealed that only one army man has been prosecuted in Jammu and Kashmir during the past 22 years, against the 44 cases that were received for sanction of prosecution from 1990 to 2011. That meant sanction was not granted in almost 98 per cent of recommended cases (97.73 per cent). In all the cases of rights abuses the controversial AFSPA was invoked to shield the accused. And all these 44 cases are the ones forwarded by the state government for sanction for prosecution from MOD against rights abuses in Kashmir. Although the number of cases filed against the armed forces could be much higher on ground.

In every likelihood the Machil verdict will be used by hawks in India to justify continuation of AFSPA, claiming that since the Indian forces in Kashmir have “abided by rules” and followed on “justice dispensing mechanisms”, the clamour against AFSPA is unjustified. But this argument of the hawks (including most in Indian media) will not only serve to demolish any hope the Machil verdict would have rekindled among victims of other excesses, it will also bring the army civilian relationship back to where it was pre Machil verdict, that of total distrust. People will continue to ask “do actions of premeditated murder for personal rewards fall under a legal blanket, the cover of ‘acted in good faith’?” This is exactly what the additional advocate general of Jammu and Kaskmir state submitted before the High Court (in February 2012) when pleading the Machil fake encounter case “The writ petitioners being respectable army officers should have protected the people instead of killing them in fake encounter just to gain rewards and promotions, which are unfortunately being conferred without any verification”. The same can then hold true for many other cases including Pathribal, Bomai, Rafiabad, Shopian etc where the guilt of officers stands proven beyond doubt. Common people would then ask, what pushed Machil, which could not push other cases?

While this verdict against army officials might be claimed as a break from the past, it will not be seen as a rule by common Kashmiris, who have been equating it with other cases when justice was willfully eroded. Even as Indian commentators would like us to believe that “the Machil verdict is a turning point” for justice delivery in Kashmir, none of this will mean anything unless other cases of human rights abuses are followed up to conclusion by the same institutions.

What Kashmir needs is a more effective mechanism to bring justice to crimes committed during the conflict period, crimes against all sections of Kashmiri society, most of them executed in the name or nationalism or belief. By allowing open scrutiny of crimes and atrocities, a much needed healing process will begin. While justice does not have to be retributive, it should act as a prelude to the restoration of rights, imbalances and exclusions. Till that happens on a larger scale, the Machil verdict will only be a drop against an ocean.

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