NEWS
21/08/2018 10:44 AM IST | Updated 21/08/2018 1:51 PM IST

Why Is The Indian Army Desperate To Suppress Details Of A Fake Encounter In Kashmir?

The Army has told Delhi HC that disclosing details of the trial that found six army men guilty in the Macchil fake encounter in Kashmir served no public interest.

Danish Ismail / Reuters
Indian army soldiers patrol a street near a site of a gunbattle between Indian security forces and suspected militants in Khudwani village of South Kashmir's Kulgam district, April 11, 2018. REUTERS/Danish Ismail

NEW DELHI -- The Indian Army is using all available legal means to suppress the public release of documents relating to the trial that found six army personnel guilty of killing three Kashmiri civilians in the Macchil fake encounter, HuffPost India has found.

Releasing the information, the army has argued in a Delhi high court petition exclusively accessed by HuffPost India, served no public interest, was an "unwarranted invasion of the privacy" of the accused, and would result in public outrage that would "prejudicially affect the security, sovereignty and integrity of India", and affect military operations in the state.

In September 2015, the Northern Army Commander had confirmed the life sentence awarded by the Court Martial earlier, paving the way for the convicts to be handed over to jail authorities. Last year, the Armed Forces Tribunal (AFT) suspended the sentences of five of the six accused (one person was already out on bail by then).The trial has not concluded yet.

The army's refusal to provide information related to the Macchil trial is despite the Central Information Commission (CIC) ruling it was "inappropriate" to do so.

HuffPost India has reached out to the Army's spokesperson and will update this story if he responds.

Granting such immunity from scrutiny to the armed forces, civil liberties activists have long held, has contributed to the cycle of violence and unrest in troubled areas like Kashmir by allowing individual soldiers to act with impunity.

Advocate Anjana Gosain, who is representing the army in the high court, declined to comment on the case. "The case is sub judice, so I cannot comment on it," she said.

The army's refusal to explain how it acts on allegations of human rights abuses by its personnel is significant in the context of an unprecedented Supreme Court petition, filed by 300 serving Army officers, seeking protection from prosecution of armed forces personnel by civilian courts and law enforcement agencies in insurgency-hit areas.

Granting such immunity from scrutiny to the armed forces, civil liberties activists have long held, has contributed to the cycle of violence and unrest in troubled areas like Kashmir by allowing individual soldiers to act with impunity.

"Impunity for human rights violations and lack of access to justice are key human rights challenges in the Indian state of Jammu and Kashmir," notes a recently published report by the Office of the United Nations High Commissioner for Human Rights. "Special laws in force in the state, such as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 and the Jammu and Kashmir Public Safety Act, 1978 have created structures that obstruct the normal course of law, impede accountability and jeopardise the right to remedy for victims of human rights violations."

A timeline of the army's persistent opposition to the Right to Information (RTI) request seeking details on the Macchil encounter, pieced together by HuffPost India, reveals just how difficult it is to seek justice for the families of those killed in fake encounters by the military, and the lengths to which Indian armed forces are prepared to resist the constitutional authority of the CIC.

Venkatesh Nayak, coordinator of the Access to Information programme of the Commonwealth Human Rights Initiative (CHRI), who filed the RTI, said the grounds for denial of information, "seem to be an afterthought aimed at preventing public access to crucial documents that throw light on the events that resulted in the deaths of three civilians at Macchil".

Mukesh Gupta / Reuters
Indian army soldiers stand guard outside an army camp after suspected militants attacked the camp, in Jammu, February 10, 2018. REUTERS/Mukesh Gupta

MACCHIL ENCOUNTER

In 2014, a Court Martial found Col. Dinesh Pathania, Capt. Upendra Singh, Havaldar Davender, Lance Naik Lakhmi, Lance Naik Arun Kumar and Rifleman Abbas Hussain guilty of killing Shahzad Ahmad Khan, Mohammad Shafi Lone and Riyaz Ahmad Lone in a staged encounter in the Macchil area of Kupwara district in Kashmir.

The three Kashmiri men had been lured to an army camp to ostensibly work as porters, but were passed off as foreign insurgents and killed in return for promotions and honours. One of the men, a subsequent police investigation revealed, was so young that the accused painted a beard on his face to make him look like a militant. The incident, which came to be known as the Macchil encounter, occurred in 2010.

The 'guilty' verdict marked a rare occasion when serving senior military officers were convicted for a staged encounter. However, in 2017, the AFT suspended the sentence and granted bail to five of the six accused.

REQUEST FOR INFORMATION

In January 2015, Nayak from the CHRI filed an RTI request for copies of five specific sets of documents:

· The findings of the Court Martial in relation to the conviction of six army personnel for the killings committed at Macchil.

· The charge sheet filed before the Court Martial in relation to the case.

· The sentence awarded to the convicted army personnel by the Court Martial.

· Communication, along with annexures, pertaining to the case.

· A photocopy of proceedings of another Court of Inquiry which apparently enquired into the killings of five persons in Pathribal in the Kashmir valley in 2000.

The Army refused to part with any information, citing exemption from disclosure under Section 8 (1)(h) of the RTI Act, 2005, which pertains to cases that are still under investigation or under prosecution.

"Disclosure of such sensitive information would result in public outrage. Hence keeping in view of public interest and security, it was decided not to implement it."

Further, to Nayak's surprise, the Army noted they could not share information on the Pathribal case as a Court of Inquiry was never held.

In September 2015, Nayak appealed to the CIC, the top adjudicating authority for the RTI. The army court had completed trial and sentenced the accused to a life term in the Macchil case, Nayak noted—hence the case was no longer under investigation, the prosecution process was complete and the Army's grounds for denying the information were unfounded.

The CIC bench of Information Commissioner Divya Prakash Sinha agreed.

"Commission observes from the further submissions of the CPIO that there are no tenable grounds for invoking Section 8(1)(h)," the CIC order dated November 2016 said. "In the absence of any plausible justification for invoking the exemption of Section 8(1)(h), Commission finds it inappropriate on the part of the CPIO to have denied the information."

"CPIO" refers to the Army's Central Public Information Officer.

The CIC also directed the army to respond in 15 days, but it didn't.

So, in February 2017, Nayak wrote to the CIC again. The CIC wrote to the army the same month, asking that its orders be followed.

In May 2017, the army filed a writ petition through an 'urgent application' in the Delhi High Court to set aside the CIC order. In July 2017, the HC stayed the CIC order but has not given a final decision on the army petition yet.

NATIONAL SECURITY

The army has used grounds of national security to deny information that reveals just how the military judges their own officers and soldiers accused of heinous crimes.

"Disclosure of such sensitive information would result in public outrage," the army petition states. "Hence keeping in view of public interest and security, it was decided not to implement it."

Sharing this information, the petition claims, "would prejudicially affect the security, sovereignty and integrity of India, and shall further have national and international ramifications. It further might create unrest in the State of Jammu and Kashmir, affecting the law and order situation, which would in turn affect the National Security".

"This issue (Macchil encounter) or any other issue related to... sentiments of people, there should always be transparency in these matters. Unless the documents are related to the security of the nation and are classified, there is no harm if they release it," Nasir Sogami, who was Jammu and Kashmir's minister of state (home), from 2011-12, told HuffPost India.