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HindustanTimes Wed,30 Jul 2014
To secure Kashmir, India should sacrifice the guilty
Samar Halarnkar, Hindustan Times
New Delhi, January 29, 2014
First Published: 20:54 IST(29/1/2014)
Last Updated: 22:28 IST(29/1/2014)

This is not a column about a solution to the intractable problem of Kashmir. It is not about the oppressed Muslim majority, most of which has no love lost for India, or about the terrorised Hindu minority, most of which either fled or was forced out. 

This is about right and wrong, about a nation that has lost its moral compass and does not now hesitate to substitute democracy with deceit and hypocrisy — as the Indian Army’s unwillingness to take responsibility for killing five villagers near the village of Pathribal 14 years ago reveals.

In the matter of killing innocents, there is no place in violence-prone India more tragic than Kashmir. The official death toll in nearly a quarter century of unrest and insurgency is about 50,000, half the unofficial figure. Even if, as officials say, about 20,000 were slain militants, that leaves thousands missing or dead — innocents sacrificed in either keeping Kashmir with India (or trying to extricate it).

Isn’t it time some of the guilty were sacrificed instead?

Save for stray newspaper editorials, outrage against the army’s shielding of its own has been markedly muted outside Kashmir. This is not surprising. Anything related to the killing of innocents in Kashmir becomes part of a conspiracy of silence that allows soldiers and other security officials to commit excesses and get away with it.

To many Indians, innocents who die are collateral damage. The popular Indian contention: the Kashmiris create trouble, so too bad if innocents are sacrificed. The security forces, the argument continues, are patriots doing a difficult job in a place they are hated, and so they need special protection, such as the Armed Forces Special Powers Act (Afspa), a law in force only in Kashmir and Manipur. The Afspa allows legal immunity for soldiers in “disturbed areas”. Even if accused of murder and rape, they can be prosecuted only if Delhi permits.

Pathribal is a fit case for such prosecution because the army consistently obstructed justice, first lying about the killings, claiming five terrorists had been shot dead. When the bodies — some shoddily burned, obviously in an attempt to conceal their identities — were later exhumed after local protests and, despite attempts to fudge evidence, found to be of five missing villagers, the army still did nothing. When a Central Bureau of Investigation (CBI) probe in 2006 described the killings as “cold-blooded murder” and held five soldiers (a major general, two colonels, a Lieutenant colonel and a non-commissioned officer) responsible, the army, instead of at least investigating the case, moved the Supreme Court, arguing that the CBI had no jurisdiction. Legally, the army was right. The SC told the army to either submit to a public trial or set up a military court.

Now, the army simply says there is “no evidence” to indict its soldiers. We could, perhaps, accept this argument if the army told us how it came to this conclusion. It does not. The army declaration to Srinagar’s chief judicial magistrate exonerating its soldiers is — including honorifics, reference to context and signature — just 382 words long. It tells us that 55 prosecution witnesses were examined, including local police, CBI officers and families of the murdered men, but it does not tell us what they said and on what basis this extensive testimony was rejected.

This cannot be how justice is delivered in a country that boasts of equality and democracy.

Can you imagine the outcry if the Delhi Police had picked up five villagers from rural Delhi, shot them execution-style and burned and buried their bodies — and then been caught out? The country would be in ferment, the mass media would be at their high-decibel and investigative best, and the full force of the law — and then some — would be brought to bear on those guilty of such an outrage. No official authority would dare protect them.

There are other Pathribals in Kashmir, killings where security forces were implicated but blatantly protected from prosecution. It is nobody’s case that army and paramilitary soldiers have it easy in a land where they are the subject of hate and hostility, their lives sometimes given in defence of the idea of India. But their morale will not — and must not — be maintained by allowing them to commit the kind of atrocities committed by the terrorists they hunt. 

What is unacceptable in mainland India should not be acceptable in Kashmir. The reason why those of the Kashmir Valley grow ever cynical about India, their ambivalence over the years turning to antipathy and hate, is because, let alone expecting justice, they no longer even expect the process of justice. “From day one, we knew it was a fixed match,” Abdul Rashid Khan, whose father was one of the five dead, told The Hindu two days ago.

Too much of this behaviour has been condoned over the years by arguing the army operates under stress and constraint. The result has been the creation of an ever-widening cycle of atrocity, retribution and hate. The cycle is so well-established now that the funeral procession of every militant is greeted with freedom slogans and a rage that only undermines India's hold on Kashmir. Delhi forgets that, for all their doubts about being Indian, Kashmiris helped the army repel invaders in 1947 and 1965. Fixed matches ensure slim chances of a repeat.  

The cycle of hate, however entrenched, can fray over time if justice — or even a glimmer of it — is proffered. The army provided such a glimmer last month when it announced that, notwithstanding Afspa, six soldiers accused of killing three unemployed men in 2010 and passing them off as Pakistani terrorists, would be court-martialed. After the Pathribal decision, that court-martial, whatever its outcome, is likely to be viewed with understandable cynicism. In today's Kashmir, a straw in the wind will never be misunderstood as the wind itself.

Samar Halarnkar is a Bangalore-based journalist. The views expressed by the author are personal.


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