Three civilians from the marginalized-nomadic Gujjar and Bakerwal community designated as a Schedule Tribe under Article 342 of the constitution of India were tortured to death while being in army custody of the 48th Rashtriya Rifles in Bafflliaz area of Poonch district of India, which is close to the highly militarized line of control region dividing the borders between Indian and Pakistan. A total of 8 civilians were detained for questioning a day after 4 Soldiers of the Indian Army received martyrdom and many others sustained injuries at the hands of infiltrators who ambushed 2 army vehicles on 21st December 2023.
A video has been circulated of the events which transpired in the army custody wherein the locals who were taken for interrogation can be seen being lathi-charged (crowd control using batons) by the Army personnel. The family members of the civilians have attested that their dead bodies bore marks of third-degree torture and electrocution.
Administrative response
After this incident, Internet services were cut off in the Poonch and bordering Rajouri region, a decision taken to discourage the dissemination of misinformation and to maintain law and order. It is important to note that India ranks second in the world in terms of internet shutdowns costing its economy around $1.9 Billion from just January to June 2023.
Attempts have been made by the local administration to alleviate the situation and appropriate authorities have initiated legal action by registering a case under Section 302 of the Indian Penal Code against the defence personnel. The government has also announced compensation for each of the deceased and offered a compassionate appointment to the next of kin as reported by the Information and PR department of J&K on X (formerly Twitter). Further, the Indian army has also stated that it is committed to extending full support and cooperation in conducting investigations. The Army has initiated a court of inquiry and even the Chief of Army Staff General Manoj Pandey has visited the area to take stock of the situation and has exhorted commanders operating on the ground to conduct the operations most professionally. The Defence Minister of India, Shri Rajnath Singh also visited the area on 27th December and urged soldiers to avoid committing such mistakes in their operations and achieve the larger goal of “winning the hearts of our countrymen”.
While it is appreciated that the State government and the Indian army had taken prompt action against such misconduct of the defense personnel resulting in the grossest violation of Human Rights, efforts should be made to ensure that no illegal custodial deaths and detentions take place because failing to do so will increase distrust amongst the common masses and create a false precedent that security forces can operate without restraint. Even in 2020, an Army officer extrajudicially killed three young men in a staged gunbattle. Following a public outcry, court martial proceedings were initiated finding the officer guilty of exceeding the powers vested under the Armed Forces Special Powers Act, 1958 (Now, AFSPA) and sentenced to life imprisonment. However, his sentence was suspended and the Armed Forces Tribunal gave him conditional bail.
Legal precedents
The use of third-degree torture and custodial deaths to extract information have been recognized as violative of Article 21 of the constitution of India which guarantees the Protection of life and personal liberty and includes under its ambit right to live with dignity as has been recognized in the case of D K. Basu v. State of West Bengal. The Supreme Court, in this case, established certain requirements for all instances of detention in police custody. These include the detainee’s right to inform a friend, relative, or someone known to have interest in their welfare about their detention, and the obligation to inform the detainee of this right. Additionally, a record must be made in the detention location's diary, specifying details of both the detained person and the police officials responsible for custody. Furthermore, every 48 hours, the detainee must undergo an examination by a qualified doctor approved by the relevant State or Union Territory. In the case of Nilabati Behera v. State of Orissa, the Apex Court further held that in cases of custodial death, the State would be strictly liable and the defense of sovereign immunity would not apply and compensation was awarded to the mother of the deceased who died in custody.
There is a need to make these requirements mandatory even for detention and custodial deaths in the custody of the armed forces. The Security forces have been insulated by Section 6 of the AFSPA which gives legal impunity from any prosecution, suit, or legal proceeding against any person acting in furtherance of the exercise of powers conferred by this act in “disturbed areas”, Jammu and Kashmir being one of them. AFSPA is contrary to Article 22 of the constitution which provides for Protection against preventive and punitive detention in certain cases and mandatorily requires the detained persons to be informed of the grounds for such detention and they shall be produced before the nearest magistrate within twenty-four hours. Section 6 of AFSPA is also contrary to Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which states that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”. Despite being a signatory since 1997, India still has not ratified this convention, and despite the 2017 Law Commission’s proposal of an anti-torture law, India does not have any which is one of the main reasons behind the failure to reduce instances of custodial torture and death in India. This incident is also antithetical to Article 5 of the Universal Declaration of Human Rights which states that “No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.”
The division bench of the Hon’ble Supreme Court has also cracked down on the powers of the armed forces in the case of EEVFAM v. Union of India held that “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both…this is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties.” The judgment lifts the veil of secrecy surrounding unaccounted deaths involving security forces in troubled areas and establishes a legal precedent to protect civilian and human rights in military-controlled areas since “there is no concept of absolute immunity from trial by the criminal court” if any offense is committed by an Army personnel. For this, a thorough enquiry should be conducted in custodial killings in disturbed areas because “ the alleged ‘enemy’ in this case is a citizen of our country entitled to all fundamental rights including under Article 21 of the Constitution.” This incident is a testament that excessive retaliatory force was used by the armed forces which has been held not to be permissible in the case of Naga People's Movement v. Union Of India.
Conclusion
Zero tolerance for terror must be followed by zero tolerance for violation of fundamental human rights. Local parties have sought exemplary punishment for the perpetrators which will raise the faith of the locals in the armed forces. There is a need to provide for procedural safeguards in the conduct of the armed forces in disturbed areas and illegal detention leading to custodial deaths should invoke accountability, even for the armed forces. Failing to do so would be against the longstanding jurisprudence of the Supreme Court, International Conventions and violative of Article 21 and Article 22 of the Constitution.
