On January 23, the Indian Army passed a not-guilty ruling in the Pathribal Case of 2000 in which five civilians were executed in Indian-occupied Kashmir by the Indian Army and passed off as dreaded militants. The somewhat resigned silence, even among Kashmiris, over the ruling begs a few essential and profound questions. First of all, how did we get to a situation where it's perfectly alright for a state to allow its soldiers to go scot-free after it's been established that they committed premeditated murder?

The facts of the case have been clear and simple for years. On March 25, 2000, five men were picked up by the officers of the Indian Army's Rashtriya Rifles in a conspiracy to display a quick breakthrough in the Chittisingh Pora massacre of March 20, in which 36 Sikhs were gunned down by gunmen - possibly from the Lashkar-e-Toiba or possibly not, as the two Lashkar suspects were acquitted in 2011. The massacre took place at the time of US President Bill Clinton's India visit. All accounts from the time and thereafter, including a blow-by-blow charge sheet submitted by the Central Bureau of Investigation (CBI), and DNA analyses, suggest the five men - two farmers, both named Jumma Khan, goatherds Bashir Ahmed Butt and Mohammad Yusuf Malik, and Zahoor Dalal, a cloth merchant - were innocent and were executed, their bodies mauled and in one case decapitated, and then burned to eliminate all vestiges of their identity.

Let me quote verbatim from the CBI charge-sheet, extracts of which were published in the Indian Express:

"The Army Unit of 7 RR… was under tremendous psychological pressure to show some results…The then Col Ajay Saxena, the then Major B P Singh, Maj Sourabh Sharma, Subedar Idrees Khan and other personnel… hatched a criminal conspiracy to pick up some innocent persons and stage-manage an encounter to create an impression that the militants responsible for the Chhittisingh Pora killings had been neutralised."

The CBI told the Supreme Court of India that the killings were "cold-blooded murders".

The five men, according to the script, were dressed up as terrorists and paraded in front of the world, an acquiescent media on hand and all too keen to help the state. The disfigured victims were branded as Pakistan-based Lashkar-e-Toiba militants responsible for the massacre of Sikhs and were buried in unmarked graves in two villages. LK Advani, India's home minister at the time, was part of the breakthrough showcase, and declared that the terrorists responsible for the killings had been shot dead in an "encounter" with the Indian Army.

The state showed its brutal impulse yet again when on April 3, the police killed eight people in Brakpora who were protesting against the Pathribal killings.

A long and crushing battle

Since then it's been a long and crushing battle for the families and supporters of the murdered of Pathribal. This was neither the first such "fake encounter" (a loathsome term possibly borrowed from B-grade gangster movies) nor the last. The entitlement to kill has seeped so deep into the security system deployed to run Kashmir that euphemism after euphemism, "aberration" being a fasionable one these days, is used in communique and in the Indian press, most of which employs the same language.

People in India may talk about the military court ruling being a matter of law, of procedure, of how the system operates, but the fact of the matter is that to the citizens of Kashmir, it does not make any difference. For them, the military, the judiciary, and the government of India are one and the same thing, different faces of the same aggressor. Pathribal - and other such incidences of extra judicial killings of Kashmiris - constitute an act of brutal aggression. India may appear as a democracy to outsiders, but to those whose kin are spent as fuel for the dirty war in Kashmir, it only appears as one thing: a ruthless empire.

India may appear as a democracy to outsiders, but to those whose kin are spent as fuel for the dirty war in Kashmir, it only appears as one thing: A ruthless empire.

In 2012, Ghulam Nabi Malik, whose brother Muhammad Yousuf Malik of Kapran was one of the five civilians slaughtered, had portentously said: "If the army is honest in trying its soldiers for the murders, why is it reluctant to shift the case to Kashmir, instead of making us travel 300 km to Jammu?"

There is both precedent and pattern to this. Let us just cite one example. In 1993, the Border Security Force(BSF), a force notorious among Kashmiris for its involvement in massacres, acts of large-scale punitive arson, and summary extra-judicial executions in the 1990s, killed at least 37 unarmed protesters in the town of Bijbehara who were angry at the siege of Hazratbal, the holiest shrine of Kashmir. An inquiry into the Bijbehara Massacre indicted the BSF and charged 13 officers with murder - but a subsequent, non-public General Security Force Court acquitted all the officers. Pathribal, too, will be entered into the long list of stark reminders of that darkest of decades, the 1990s, in Kashmir's history, and of the total impunity the perpetrators of these crimes enjoy under the dark law AFSPA (Armed Forces Special Powers Act).

The Kashmiri people have suffered and witnessed this before, in a crushing and continuous cycle of violence against them.

The pattern that follows is despairingly predictable: There are protests by a hapless civilian population; the state announces ex-gratia relief at the going rate for the kin of the deceased and inquiries that, as a rule, almost never punish the guilty. At the end of it all, victims and survivors both are left staring endlessly into a legal black hole.



The Pathribal ruling has little to do with legality - if you care to view it as part of a series of horrific crimes that have and, sadly, will go unpunished. But it has all to do with India's system of rule of over Kashmir which, if it has to succeed, must at all times remain categorically prejudiced against Kashmiris. It's germane to military rule that the occupying state sees the place only as territorial property.

Collective conscience

Why would the supreme court of India give the army an option to choose? The obvious answer might be that it is a procedural matter. But did the overwhelming evidence of murder not stir its conscience or reawaken its duty as arbiters of the "collective conscience" of India? (Upholding the death sentence against Afzal Guru convicted for his involvement in the Parliament Attack of 2001, the SC while admitting the evidence was circumstantial had said: "Collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender...")

Clearly not, because, quite simply, much like the other arms of the Indian state, it too, on balance, perhaps thinks of Kashmiris as an expendable commodity.

Pathribal and last year's hanging of Afzal Guru in Delhi's Tihar Jail are closely linked. The same principle of the expendable Kashmiri was at work when the same court decided to hang Afzal Guru even though his involvement in the deadly attack on the Indian parliament in 2001 was not proved beyond reasonable doubt. If there was not, according to Indian courts, enough conclusive evidence in either of the cases, why the opposite, and blatantly contradictory verdicts then?

Time and again, India seems to say to Kashmiris that their home is a territory of conquest: We will do as we please. There has never been a more tyrannous mood on display in India's dealings with Kashmir, as there has been in the last few years during which Kashmiris have once again came out in force against Indian rule after a relative lull.

The soldier deployed among a people who have never accepted Indian sovereignty is always seen as an alien aggressor in Kashmir. It is the weight of that otherness, that militarily enforced and tenuous link between the occupier and the occupied, which bears heavily on both the trigger of the soldier, and on the pen of the adjudicator.

Mirza Waheed was born and brought up in Kashmir. His debut novel The Collaborator was shortlisted for the Guardian First Book Award and the Shakti Bhat Prize, and longlisted for the Desmond Elliott Prize.