In 2020, three men were killed in the Amshipora village of Jammu and Kashmir's Shopian district. It was later discovered that the killings were staged and the army was involved.
After a Court of Inquiry (CoI) and summary of the evidence, an Army court-martialled a Captain involved in the staged killings. The court has now recommended life imprisonment for the Captain. However, this sentence will be final only after it is confirmed by the Northern Army Commander.
The Army court found that troops under the Captain's command had exceeded their powers under the Armed Forces (Special Powers) Act. The court-martial of the Captain is a significant development in the case, as it sends a strong message that the army will not tolerate any misconduct by its personnel.
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The Armed Forces (Special Powers) Act (AFSPA) is a law that gives the armed forces and central armed police forces deployed in "disturbed areas" in India broad powers to arrest, search, and use force against individuals suspected of acting against the law without a warrant and with protection from prosecution and legal suits.
The law was first introduced in 1958 to quell uprisings in the Northeast, and was subsequently extended to other states. Some states have revoked the law in recent years, but it remains in effect in parts of Assam, Nagaland, Manipur and Arunachal Pradesh.
The Armed Forces (Special Powers) Act gives the armed forces extensive powers to maintain public order in areas declared as "disturbed." The act has been criticized by human rights groups for its potential to be misused, and there have been numerous allegations of human rights violations by the armed forces under this act.
The process of a Court Martial begins with the setting up of a Court of Inquiry (CoI) by the Army to investigate any allegation against its personnel. This is similar to the police registering a First Information Report (FIR).
However, the CoI does not have the authority to award any punishment. Its purpose is to gather evidence and record the statements of witnesses, much like a police officer examining witnesses under Section 161 of the Code of Criminal Procedure (CrPC).
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Once the CoI completes its investigation, the commanding officer of the accused officer drafts a tentative charge sheet based on the findings. The charges are then heard, and a summary of the evidence is recorded.
This process is similar to the initial summoning of an accused by the magistrate in a case involving civilians.
After the above process is completed, a General Court Martial (GCM) is ordered. This is similar to the conduct of a trial by a judicial court for civilian matters. The GCM is conducted by a panel of officers appointed by the convening authority.
The accused officer is provided with legal representation, and witnesses are called to give evidence. If the accused officer is found guilty, the GCM can award a punishment
If military personnel is accused of a crime under the Army Act 1950, they have legal recourse available to them. They can file a pre-confirmation petition and a post-confirmation petition.
The pre-confirmation petition goes to the Army Commander, who can consider its merits, while the post-confirmation petition must be filed with the government.
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If the accused has exhausted these options, they can approach the Armed Forces Tribunal, which has the power to suspend the sentence.
In the Machil fake encounter case of 2010, for example, the Tribunal suspended the life sentences of five Army personnel, including two officers.
It's important to note that if an officer is cashiered, their ranks are removed, and they are dismissed from service after confirmation of the sentence by the Army commander, reports The Indian Express.
