One of the key recommendations of the Justice J S Verma Committee has been that sexual offences by armed forces personnel be brought under ordinary criminal law.
In Kashmir, the armed forces have frequently sought — and got — immunity from prosecution in civilian courts after their personnel have had rape charges levelled against them. Conducting their own probes, the forces have at times quashed the charges and at times found their personnel guilty. Chief Minister Omar Abdullah and his party frequently raise withdrawal of the Armed Forces (Special Powers) Act as a political issue but the government’s own record has been poor, with police probes often moving at snail’s pace and the use of the immunity clause going unchallenged in courts.
In submissions to the Verma panel, activists and lawyers such as Vrinda Grover had suggested deletion of the requirement of sanction for prosecution under CrPC section 197 and similar provisions of the AFSPA. The AFSPA’s immunity clause is circumscribed by “good faith’’, which means it should come into play only when personnel make a “bonafide mistake’’ during operations. That has not stopped the armed forces from invoking it in rape cases. And whenever the state government has approached the defence ministry (in cases involving the army) or the home ministry (central forces) for the mandatory sanction to prosecute the accused, the Centre has turned it down.
Some of the cases of rape and sexual assault against personnel of the Army and central forces in Kashmir:
January 3, 1997: A family comprising a 60-year-old, his two daughters and a grandson were preparing to go to bed at Manzgam, Kokernag, when some soldiers allegedly broke in. They were allegedly led by Major Arora of 5 Rashtriya Rifles. “He slapped me and dragged my younger sister (then 16) into a room and raped her,” the elder daughter told The Indian Express recently. The elder daughter’s husband had joined the Hizbul Mujahideen and the local army unit would often raid her father’s house. The day of the alleged rape, the Army allegedly picked up the father, who remains untraced 15 years on. The younger sister is now married with children, the elder one said, while her own husband surrendered surrendered to the army, divorced her and remarried.
The police registered a case of rape at Anantnag and the government sought the defence ministry’s sanction to prosecute the officer. In an affidavit in the J&K High Court on June 5, 2009, then defence secretary Ajay Tirkey said the ministry received the request in December 2006 and it is “under consideration in army headquarters/Ministry of Defence”. On January 10, 2012, the ministry, responding to an RTI query, said permission was denied on April 21, 2007. “There were a number of inconsistencies in the statements of witnesses... The lady was forced to lodge a false allegation by anti-national elements,” the MoD said.
December 5, 1999: Army men led by Major Aman Yadav of 28 Rashtriya Rifles, along with a few counter-insurgents, raided a house at Norpora, Kitter Dhaji, in Rafiabad. The officer allegedly raped a housewife, whose husband wasn’t home, while his men allegedly robbed the house. The family later left the village.
On January 4, 2000, based on a complaint by the victim’s husband, Panzala police lodged an FIR, one of the charges being rape. In an affidavit to the high court on June 5, 2009, then defence secretary Tirkey said the ministry received the request for sanction in January 2009 and “the case is under consideration in Army headquarters/Ministry of Defence”. In response to a separate RTI query, the MoD said sanction was denied on September 23, 2010. It has argued the allegations are “baseless and framed with mala fide intentions to put army on the defensive” Intriguingly, the ministry has cited it as a case of torture leading to death. Calling the allegations “mala fide” was effectively an indictment of J&K police, for it was on the basis of the police probe’s outcome that sanction was denied. There was, however, no follow-up government action. In response to an RTI application, police said they closed the case on August 19, 2011, having declared the accused “untraced”.
May 15, 1994: Rashtriya Rifles men entered the house of a couple and took the husband to Qazigund Hospital. When he returned the next morning, his wife told him she had been gangraped. A case of rape an other charges was filed at Qazigund police station. Responding to an RTI application, the home department said it sought sanction on January 23, 2006, to prosecute the Army men and have not yet got it. In a 2009 affidavit in the high court, the defence ministry said the state was informed that both accused, Nk Harbajan Singh and Rfn Gurtej Singh, had been tried by a summary general court-martial for rape, sentenced to rigorous imprisonment for 10 years and dismissed from service. “A retrial for the same offence will be in contravention to Article 20 (2) of the Constitution,” it argued.
November 6, 2004: Troops of 30 RR raided the home of a horsecart driver at Badhra Payeen village in Handwara at night. The man’s younger brother said, “The officer went into my brother’s room and pushed him out.” “He dragged my daughter (then 10) into the kitchen,” the wife of the targeted man this correspondent, adding the officer left and returned after an hour. This time, the woman alleged, she was raped in the kitchen.
The police registered a rape case and the district administration ordered a magisterial inquiry. The Army invoked the AFSPA . The accused officer, Major Rehman Hussain, was tried by a general court martial, which absolved him of rape. He was, however, found “guilty of using criminal force with the intent of outraging the modesty” of the 10-year-old girl and dismissed from service. But he challenged the decision in court and returned to service.
February 14, 2000: Captain Ravinder Singh Tewatia and three special police officials allegedly entered a house at night in Nowgam, Banihal. Captain Tewatia and one of the SPOs allegedly raped a mother and her daughter in separate rooms. A case of rape was filed in the Banihal police station. Two chargesheets were prepared for house trespass, assault, wrongful restraint and rape, and submitted to the Banihal chief judicial magistrate’s court on April 1, 2000.
According to information gathered by rights group International People’s Tribunal on Human Rights and Justice through RTI applications, the case was split between a court-martial and criminal courts (in Banihal, Ramban and Jammu). The court-martial found Tewatia guilty of rape, sentenced him to seven years of imprisonment and dismissed him from service. He challenged the findings on October 1, 2000. On December, 31, 2002, the high court set aside the court-martial’s ruling. In 2003, the defence ministry filed a letter patent appeal in the high court, where it is pending. The state government didn’t challenge the high court order.
February 23, 1991: That night, soldiers of 4 Raj Rifles cordoned Kunan Poshpora village of Kupwara, allegedly forced men out of their homes at and allegedly gangraped 36 women. Trehgam police lodged a complaint. Then deputy commissioner S M Yasin confirmed mass rape while then divisional commissioner Wajahat Habibullah doubted the veracity of the complaint but sought a probe nevertheless. The Army asked the Press Council of India to probe the allegations. A team headed by B G Verghese found “inconsistencies” in the women’s testimonies and termed the charges a “well-concocted bundle of fabricated lies”. The police closed the case after eight months without any probe, the ground being “untraced”.
In 2004, the women approached the State Human Rights Commission, which in October 2011 recommended that the government reopen the case, compensate the victims and initiate proceedings against the then director, prosecution. A year on, the government is yet to accept or reject the commission’s recommendations.
April 18, 2002: Personnel of the BSF’s 58 Battalion allegedly gangraped a 17-year-old in front of her mother, relatives and neighbours, all held hostage at gunpoint in Kullar, Pahalgam. Some 15 or 16 men in a BSF patrol party, passing through their village, had been beating up the girl’s uncle and she had tried to rescue him. A medical examination confirmed rape, while then BSF inspector general (Kashmir Frontiers) G S Gill, too, conceded that BSF personnel had committed rape. The girl identified three men at a parade. The same day, a case of rape was registered at Pahalgam police station. The police say that they submitted a chargesheet before the chief judicial magistrate in Anantnag. There hasn’t been any progress since.
— With inputs from Bashaarat Masood in Srinagar