Punish the guilty of Poonch civilian killing, but also punish the others guilty of custodial deaths

Selective application of law enforcement is always hideous

Col Alok Asthana (retd)

The recent incident of Poonch has been quite explosive in many ways, Troops of an Rashtriya Rifles (RR) unit suffered 4 dead and 3 injured in an ambush by militant. This was followed up by troops picking up some civilians for interrogation. Of these, dead bodies of 3 were later handed over to the locals. A video then appeared in the media which purports to show the civilians being thrashed badly inside some army camp. The army or the government has not denied the allegation that those who died were severely tortured inside the camp. Moreover, some conciliatory action has started. The army announced that it will cooperate with any probe to hold the guilty accountable, a Court of Enquiry has been ordered at the army level as well as one by the government, promises have been made to offer government jobs and money to the families of the deceased, and the Chief of the Army Staff and the Defence Minister have visited the area. “Expeditious probe of alleged civilian torture by security forces will “culminate” in justice”, the Defence minister says.

It seems that the government is determined to hold some soldiers and officers guilty and punish them. Some officers, including the Brigade Commander, have already been removed and attached elsewhere. This is a welcome step. However, the actions being taken or contemplated now, must not be too different from those taken elsewhere in similar cases.

What is the case? Simply one of custodial death.

This is not the first time that troops or policemen have harmed innocent citizens during operations. This is just another form of misuse of power. Custodial deaths at the hands of government agencies are quite the norm in India. Police custody records show 146 cases of death in 2017-2018, 136 in 2018-2019, 112 in 2019-2020, 100 in 2020-2021, 175 in 2021-2022. This is no mean matter – the figure in a year has never gone below 100 and has gone as high as 175. According to the Ministry of Home Affairs (MHA) in the last five years, the highest number of custodial deaths have been reported in Gujarat at 80. These deaths are increasing at an alarming rate. The number of deaths in police custody witnessed a nearly 60% increase over the last three years and 75% over the last two years across the country.

However, disciplinary action has been initiated in just 1 case. Yes, just one case initiated for 669 deaths. Just initiated - since last many years! Where that case will end is anyone’s guess. With this record of ‘expeditious action’ on custodial deaths across India, would it be right to come down too harshly on the troops and officers of the RR unit?

The argument that the ethical standards expected of a soldier must be higher than those from the police is flawed. This is not a question of ethics, but of equal applicability of law across India. How the state wants to act in this case - As it does for Indian police, or as it wants to deal with Indian army? -will result in either life of death for the accused here. Citizens, belonging to all organizations or communities, must be served with the same severity of law enforcement. It would be blatantly wrong to punish one segment more severely than some other.

If the soldiers are expected to be that much a model for others, how one wishes this also showed up in their salaries vis-a-vis others.

This display of uneven justice plays out within different cases of the army itself. Here the Defence minister seems keen to see expeditious justice served to errant soldiers. However, in another case, the government has directly intervened to protect alleged killers of civilians from even facing the law.

In the case of troops of a Para Special Forces (SF) unit killing innocent and unarmed Nagas, at Mon district in these very days of Christmas in 2021, the government used its powers to save the accused. It has denied sanction to let the case go to court. The severity of the case was clear. It was not a simple case of right intentions but a wrong outcome, solely due to chance. Special Investigation Team (SIT) has accused the team commander of “deliberate omissions” and willful suppression on information about the violent actions and cover-ups that claimed the lives of 13 tribal Nagas. All victims, the SIT claims, were shot at “with a clear intention to kill”. Almost all deceased persons were shot at multiple times, from close range, and suffered injuries to their upper bodies, the forensic report has ascertained. But the government was not moved. So, what is so different now? Is it that the political situation in Kashmir is more fragile than was in Nagaland? Civil unrest there was manageable there, but is not so here.

It is not being recommended that these men be protected because others too have been protected. The recommendation is that all accused be treated alike. Whether they are guilty or not is a matter to be decided by the legal authorities. However, it is the administrative authorities that get to decide whether they should face the court at all, or not. This discretion itself is wrong.

There is always some trigger/intention behind the violence and subsequent custodial deaths. In cases of police custodial deaths, it can be claimed that the trigger is usually a desire to extract information about the criminals. The same, however, can be claimed by troops of the RR unit, seeking to find the location of militants. As a matter of fact, they were under the additional trauma of seeing their brother not only killed, but also decapitated. In the case of the killing of Naga civilians by the SF unit, the trigger could be ‘misinformation’. All are different but the administrative authorities cannot decide which one is justified and which is not. That is a matter to be decided only by a judge, who looks more at the nature of crime and not the lineage of the alleged culprits.

The Poonch case has started heated arguments within several WhatsApp groups of veterans. One interesting offshoot is their reactions to an article by an Air Force veteran – Poonch shows why officers must be gentlemen. Several army veterans feel insulted at an Air Force officer telling them that they are not gentlemen. This is hilarious. Army, Navy and Air Force, are all equally part of India’s proud Defence Forces. All of them need to be professional warriors first and gentlemen later. Similarly, rest of Indians also needs to be gentlemen, if not warriors. No country can have a gentlemanly defence force, serving a collection of those not so.

Let this case go to court. And so should all other such cases. Selective application of law enforcement is always hideous. This evokes the same sense of outrage as does use of government enforcement machinery (ED, CBI, IT etc.) only in non-BJP states. More than moral outrage, unequal application of law is legally invalid.