12/07/2019 7:26 AM IST | Updated 12/07/2019 7:28 AM IST

UN Criticises Indian Army For Dodging RTI About Fake Encounter In Kashmir

HuffPost India previously revealed the Indian Army’s efforts to cover up documents about a trial in which six army officials were convicted for a fake encounter in Macchil, Kashmir.

NurPhoto via Getty Images
An Indian army soldier checks his rifle near the gun-battle site in Checkpora area of Budgam district on June 28, 2019.

NEW DELHI—The Indian Army’s stubborn, and so far successful, efforts to prevent the release of documents relating to a trial that found six army men guilty of an extra-judicial killing of three Kashmiri civilians in 2010 has been criticised in a United Nations report released this week.

The report, on the state of human rights in Kashmir, mentions the Army’s attempts to block an RTI request on information about the Macchil fake encounter trial in a list of incidents of “impunity for human rights violations” by the security forces. It notes that the Indian Army has been “resisting efforts to release details of trials conducted by military courts” in cases like Macchil, where soldiers were initially found guilty and given life sentences for their crimes but later released by a higher military tribunal. 

HuffPost India had reported in August last year that the Army had filed a petition in the Delhi high court to set aside an order passed by the Central Information Commission (CIC) in November 2016 ordering it to disclose information about the trial. In the petition, the Army had argued that releasing the details served no public interest, was an “unwarranted invasion of the privacy” of the accused, and would result in public outrage that would “affect the security, sovereignty and integrity of India”, and hamper military operations in the state.

In an interim order, the Delhi high court stayed the CIC order but is yet to give a final decision on the Army’s plea. 

The case has since been adjourned several times and is expected to come up for consideration next month.  

The UN document—prepared by the Office of the United Nations High Commissioner for Human Rights and a follow-up to its first report released last year—notes these facts and amplifies the criticism lobbied by activists, saying that “neither the state nor central authorities have challenged the Armed Forces Tribunal’s order” suspending the life sentences of the men who had been found guilty.

The report, which points out that accountability for violations committed by Army personnel in Kashmir is “non-existent”, has been met with resistance by the Indian government, which has called it a continuation of a “false and motivated” narrative.

Information block

The 2016 CIC order had been issued by Central Information Commissioner Divya Prakash Sinha in response to an appeal filed by activist Venkatesh Nayak after the Army denied the latter’s requests for information on the trial under the RTI Act. 

In his January 2015 RTI request, Nayak, who is coordinator of the Access to Information programme of the Commonwealth Human Rights Initiative (CHRI),  had asked for copies of five 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 share the information, saying that at that time, the cases were yet to be adjudicated completely. 

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. But in 2017, 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.

Nayak approached the CIC in September 2015, pointing out that the army court had completed trial and sentenced the accused to a life term and that hence, its grounds for denying the information were unfounded.

As a member of the UN Human Rights Council...the Government’s responsibility to ensure the highest degree of protection for people’s fundamental rights, particularly in the troubled State of J&K, cannot be made contingent to the handling of the challenges posed by militant groups."Venkatesh Nayak

The inclusion of this case in the UN report is significant, Nayak told HuffPost India.  “As a member of the UN Human Rights Council and having contested to its membership after making voluntary pledges to ensure promotion, protection and fulfilment of human rights standards domestically, the Government’s responsibility to ensure the highest degree of protection for people’s fundamental rights, particularly in the troubled State of J&K, cannot be made contingent to the handling of the challenges posed by militant groups,” he said. 

An Indian Army spokesperson was not available for comment until the time of publication. This story will be updated with their response if and when they respond. 

What is the Macchil fake 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 called to the Army camp, ostensibly to work as porters but instead killed in a fake encounter and declared foreign insurgents. 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 occurred in 2010, the army men were sentenced to life imprisonment in 2014 and their sentence suspended pending trial by an army tribunal in 2017. The ‘guilty’ verdict was a rare instance of army men being convicted for an extra judicial killing, even though all six are currently out on bail. 

Second report, same response

The second UN report about the state of human rights in Kashmir on both sides of the Line of Control follows developments from May 2018 to April 2019. 

The first report was released last year and scrutinised events from June 2016 to April 2018. The Macchil killing case was recorded in that report as well, though the RTI-related cases in the CIC and the Delhi HC were not mentioned or remarked upon. 

One of the key observations in the first report, released on 14 June 2018, was, “Impunity for human rights violations and lack of access to justice are key human rights challenges in the Indian state of Jammu and Kashmir”. It included the Macchil incident under a section with a telling sub-head: “Military courts and tribunals impeding access to justice.” 

In an interview with this reporter at the time for Frontline, Zeid Ra’ad Al Hussein, who was then the United Nations High Commissioner for Human Rights, had said that “accountability for human rights abuses and violations cannot be indefinitely suspended while we wait for a political solution. It is by adhering to human rights principles that tensions can be reduced and the ground prepared for a sustainable solution”. 

After the latest report was released by the United Nations Office of the High Commissioner on Human Rights on July 8, India’s official response was critical and dismissed the concerns raised in it. 

In an official statement, the Narendra Modi-led government’s external affairs ministry said, “The update of the Report of the OHCHR is merely a continuation of the earlier false and motivated narrative on the situation in the Indian state of Jammu and Kashmir. Its assertions are in violation of India’s sovereignty and territorial integrity and ignore the core issue of cross-border terrorism.” 

The Modi government’s official response last year was similar. It had said in a statement, “India rejects the report. It is fallacious, tendentious and motivated. We question the intent in bringing out such a report.” 

Nayak of the CHRI, however, raised a cautionary note about the dismissive approach, saying that Indians needed to take the report seriously. 

“India is not only a founding member of the UN but also contributed to the development of the human rights discourse and standards setting since 1948. The very first line of the Universal Declaration of Human Rights, 1948, had to be changed to how it reads now thanks to the intervention of the Indian delegate, Dr. Hansa Mehta, who spoke for gender parity.