The Machchil fake encounter case is the exception that proves the rule; justice cannot be served when the security apparatus is above the law

The army’s decision to court martial six of its men for their involvement in the 2010 Machchil fake encounter case is both welcome and open to interpretation. Justice for the cold-blooded murder of Reyaz Ahmed Lone, Shahzad Ahmad Khan and Mohmmad Shafi by army men is in itself an unalloyed good. But the tricky part is liable to come when the court martial is used to bolster the argument that it is possible for the army to police its own, as it inevitably will be. The corollary, of course, is that justice can be served within the framework of the Armed Forces Special Powers Act (AFSPA). That is a mug’s game. Machchil is not an indicator of the army in Jammu & Kashmir and the northeast becoming more accountable. It is, if anything, the exception that proves the rule.

Consider the fact that Machchil is the first instance of major action being taken against a serving army official for involvement in human rights violations. This when AFSPA has been in effect in various parts of the country since 1958. Pathribal, Chattisinghpora, Sopore, Shopian and any number of such instances bear testament to the manner in which Kashmiris have been systematically alienated. The International People’s Tribunal on Human Rights and Justice pegs the number of people gone missing in the state since 1989 at over 8,000. From international bodies such as Human Rights Watch and Amnesty International to domestic activists, observers hold the instances of rape and extrajudicial killings as numbering in the tens of thousands. And this is one state. Look further east and there is the 2004 Manorama Devi incident, while a case concerning 1,528 alleged fake encounter deaths in Manipur is now before the Supreme Court.

AFSPA draws upon the antecedent of Section 197 of the Criminal Procedure Code, 1898 — a handy little piece of legislation introduced by the British to protect their officials engaged in the imperial endeavour. It doesn’t take any great stretch of imagination to see the symbolism inherent in now using such a law against people on the fringes of the Indian state. A democratic nation is founded on the principle of equality before law. When a vast section of the security apparatus in parts of the country is exempt from this principle, what remains is, by definition, no longer democracy. And the military’s logic — that AFSPA is essential to fighting militancy — is deeply flawed. Instilling a siege mentality in the people of a state does not tamp down such sentiments; it feeds them.

The various organs of the Indian State have flubbed every opportunity to bring about a change.

From Prime Minister Manmohan Singh to then-Home Minister P Chidambaram, various members of the executive have spoken of the need to take another look at AFSPA — and left it at that. The SC buckled in the Pathribal case last year when it upheld the AFSPA provision that the prosecution of army personnel in states where the act is in effect must be sanctioned by the government. Given political exigencies, that is as good as granting immunity. Earlier this month, Lt Gen Gurmit Singh, commander of 15 Corps of the army’s Northern Command had said: “I don’t want any such person in the Indian Army who is found guilty of rights violation and any such official, whosoever he may be, will be prosecuted.” An admirable sentiment — but the only way in which it will be fulfilled is if the country’s civilian authorities rediscover their spine and democratic principles and move to repeal AFSPA.