The Army’s clean chit to the accused in the Pathribal fake encounter case is an insult to the sacrifices made by its men in Kashmir

Let us not go to Pathribal first. Let us go to Shopian instead, not very far from Pathribal. In May 2009, two women went to work in their orchard in this town in south Kashmir and did not return till late in the night. In the ensuing search, the two were found dead by a rivulet. The separatist machinery in the Kashmir Valley was quick to cash in on this tragedy. The deaths were immediately dubbed as rape and murder, committed by — who else? — the Indian security forces. Jammu and Kashmir Chief Minister Omar Abdullah had assumed office only a few months before and he was keen to prove that he meant business. He issued orders in haste. Four police officers were suspended and later jailed for almost two months.

It was a CBI investigation that brought out the truth after a few months. The investigation revealed that the two women had drowned in the flooded rivulet while they were attempting to cross it. The CBI filed a charge sheet against six doctors and others, including the brother of one of the deceased, for fabricating evidence. One of the doctors, the CBI found, had fudged the vaginal swab samples to prove that the women were raped.

The fake murder case had led to violent protests across Kashmir Valley. But, in the wake of the CBI charge sheet the separatist propaganda rang hollow. Though once in a while, the Delhi lobby of sympathisers still brings it up in TV discussions.

Around three years before its investigation in the Shopian incident, the CBI filed a charge sheet against seven men of the Army’s 7 Rashtriya Rifles unit, accusing them of killing in cold blood five innocent villagers and passing them off as foreign militants. On the night of March 20, 2000, the eve of American President Bill Clinton’s visit to India, suspected militants of Lashkar-e-Taiba had shot dead 35 Sikhs in the village of Chittisinghpora, near Pathribal. Five days later, the Army said that it had, in a joint operation with the police in Pathribal, eliminated five foreign militants responsible for the Chittisinghpora massacre. Prior to this, five men had been picked up from villages around Pathribal on the nights of March 23 and 24, 2000. The picking up of youth by various security agencies was a routine practice those days in Kashmir. But the families of the five missing men got suspicious after the Army’s press conference on the encounter. Subsequent protests forced the State government to orderan exhumation of the bodies of the ‘foreign militants’. It was done two weeks after the killings. They turned out to be the bodies of the five missing men. Apart from being shot, the bodies were badly charred and their body parts were chopped off.

In May 2006, the CBI completed its investigation and found the five Army men guilty of “cold-blooded murder”. It sought trial for “exemplary punishment” of the accused. The CBI investigation exonerated the police chief of the area based on a letter written by an Army major to the police, asking them to file an FIR in an encounter they had conducted in Pathribal. According to standard operating procedure, if it were a joint operation, there would have been no need to ask the police to file an FIR; they would have done it on their own.

The Army challenged the CBI charge sheet in the court, claiming immunity under the Armed Forces (Special Powers) Act. The CBI counsel argued that the accused could only seek immunity if there were discharging duty, and in Pathribal it was clear that they were not. In 2012, the Supreme Court gave the Army the option of trying the accused on its own or through a civil court. The Army chose the former and on June 29, 2012, it announced that court martial proceedings would be initiated against the five officers named in the CBI charge sheet.

But the family members of the victims had no faith in the Army’s justice system, especially after it sent summons to the father of one of the victims who had passed away six years before the fake encounter.

On January 23, the Army gave a clean chit to the accused, saying it could not establish a prima-facie case against any of them. It declared the killing of the five innocent men as “closed”.

The people of Kashmir have heard multiple sermons over the last two decades on how they are a part of India. From prime ministers to army chiefs, they have heard it from everyone: there will be zero tolerance against human rights violations. But time and again their rights are violated. In the murky underworld of counter-insurgency, nobody thinks much of a little blood spilled for a medal or a cash reward. But tombstones do not remain mute. They may not come to a court room to testify. But the judgment they pronounce leaves its scar on the nation. They leave stains on the righteousness of other men; they are like razor cuts slashing through this righteousness.

Think of a young man from a humble background who went to a school meant for children so poor that they could not afford uniforms. Through sheer grit and determination he made it to the final steps of the Chetwood Hall at the Indian Military Academy. He fought wars for India — from Sri Lanka to Sopore. His record was unmatchable. In his long stint in the Kashmir Valley, he and his friends from the Army’s elite 9 Para eliminated hundreds of terrorists, many of them foreign mercenaries. During the Kargil war in 1999, he led his men in an assault on the Zulu ridge in the Mashkoh Valley. When the then Army chief V.P. Malik, whose aide-de-camp he had served as earlier, called him up and asked him why he went to lead the assault without acclimatisation, he laughed and replied: “Sir, I am from the hills, I don’t need to be acclimatised.” He was awarded the Vir Chakra for his courage. A month later, on August 29, 1999, the officer led a group of five commandos, on a “search and destroy” mission against a group of foreign terrorists in the Hafruda forests of Kupwara. He jumped in front of their sentries, taking them by surprise and neutralised them. But in the ensuing gunfight, he was shot in his stomach. In spite of this grave injury, he kept on directing his men and refused to be evacuated. By the time he was, it was too late. Major Sudhir Kumar Walia was posthumously awarded the country’s highest peacetime gallantry award, the Ashok Chakra. General Malik and his wife flew in an army helicopter to Palampur in Himachal Pradesh to be with his family.

The events of Pathribal are an insult to the memory of Major Walia and hundreds of other men like him who fell in Kashmir. And no “Operation Sadbhavna” can rectify it. A certain set of retired Army officers may rough it out in TV studios — especially those who maintain a certain kind of moustache — and defend actions like the one in Pathribal.

The current Army chief, General Bikram Singh, has spilled his blood in Kashmir in a terrorist attack. It is he who should, at this time, remember Howard Zinn’s lines: “There is no flag large enough to cover the shame of killing innocent people.”

(The writer is Associate Editor, Open Magazine )