Poonch incident should encourage military justice review. Bring one law for three Services

The Army’s image took a severe beating because of the torture videos from Poonch. Even Defence Minister Rajnath Singh stressed the importance of Army winning the hearts and minds of people.

LT GENERAL PRAKASH MENON

The frequency of terrorist violence in the Rajouri-Poonch districts in the Jammu division of Jammu and Kashmir has remained a cause for concern for over two years. This is in contrast to the decline of terrorism in the Kashmir Valley during the same period. A combination of mountainous terrain, jungles and contiguity with the Line of Control makes the area suitable for hit and run attacks. Pakistan’s hand is obvious and the time period also overlaps with the thinning out of the Rashtriya Rifles, a counter-terrorism force, post China’s aggressive manoeuvres in Ladakh in 2020.

The latest ambush of two vehicles in the Bafliaz area of Poonch on 21 December resulted in fatalities of four personnel of 48 Rashtriya Rifles Battalion and injuries to three others. Two of them were beheaded and their arms and ammunition taken away. The People’s Anti-Fascist Front (PAFP), a proxy of the Jaish-e-Mohammed terror outfit, claimed responsibility. Photographs of the incident were soon uploaded on social media. It bears a close resemblance to an incident that took place on 20 April 2023, when the ambush of an Army vehicle resulted in five fatalities in Poonch District. The PAFP had claimed responsibility for this too and video of the incident was uploaded on social media.

The local people in these areas are mostly from the Bakarwal and Gujjar communities and have been traditionally supportive of India. Yet, despite the lack of local support, which is the oxygen necessary for militancy to survive, the attacks continue. It is obvious that the PAFP seems to be active in the area, well trained and equipped, and remains beyond the reach of the Army. Their mentors in Pakistan seem to be keeping the area in a ‘slow boil’ stage.

What gives the latest incident a different hue is what happened as a reaction to it. Ten persons from a nearby village were picked up by 48 RR and subjected to torture. It resulted in two persons’ death and the other eight required hospitalisation. Intriguingly, a short video of the torture appeared on social media. Protests were staged in the Kashmir Valley. The image of the Army took a severe beating and one can expect it to have some effect on the local support for them. The importance of winning hearts and minds and preserving local support was later emphasised by Defence Minister Rajnath Singh when he visited Jammu last week.

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Military professionalism & politics

The reaction of the troops betrays unacceptable standards of professionalism, a point emphasised by the Chief of Army Staff General Manoj Pande during his recent visit to the Jammu region. It also suggests that with the long-term and deepened interaction with the police forces, there has been a seepage of police practices into the cultural fabric of RR units. Such seepage is to be stemmed by the leadership, which in this case seems to be complicit in the most regrettable incident.

Reportedly, four officers including the Sector Commander, a Brigadier, the Commanding Officer, and two other officers have been removed from their posts. It is difficult to fathom why the Sector Commander, who is not directly in command of the erring troops, would meet the same fate of the Commanding Officer. It seems to be a politically induced reaction that mirrors standard practice to deal with wrongdoings by the police. A reaction that is more about appearing politically active than a pursuit of justice.

The political hand, if true, is concerning. The military hierarchy when it cedes its professional space to politicians not only sets a wrong precedent but it also weakens the trust of the rank and file. It could have a demoralising effect. The reportedly heated exchange between the Israeli national security minister Itamar Ben Gvir over the action taken by the Chief of staff of the Israel Defence Forces Lt Gen Herzi Halevi against some troops who had filmed themselves reciting Jewish prayers in a mosque in Jenin is worth mentioning here.

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Public perception & military justice

For people in insurgency affected areas, actions taken by the government such as payment of compensation and employment for the next of kin are duplicitous as they believe that the guilty military personnel will not be punished.

The present case of torture has therefore been linked to the case of Captain Bhoopendra Singh, who engineered a false encounter in the Shopian area of Kashmir and killed three innocent labourers belonging to the Rajouri-Poonch area in 2020. Though Singh was convicted to life imprisonment by a Summary General Court Martial, he was later granted temporary relief by the Armed Forces Tribunal, which found the evidence was not admissible under the Evidence Act 1872. Apparently, the legal advice of the representative of the Judge Advocate General’s branch, who is the legal expert advising the members of the court martial, was either faulty or his advice ignored.

Lawyers Navdeep Singh and Eugene Fidell made a case for reform of the military justice system in a 2021 ThePrint article. They recommended an independent prosecutorial authority without any link in the chain of command. The article suggests that commanders should no longer decide who gets prosecuted for what. That power, they say, should be transferred to the legally trained independent prosecutors. I disagree.

The existing military justice system empowers commanders to take expeditious legal action. However, when it comes to combat-related cases, and especially insurgency, there is a clear need for the judges to have a professional insight into the operational environment. While no formal war is declared, for the troops operating in the fields, it is still a form of combat with rules and restrictions imposed. The judgement of actions undertaken is better perceived by commanders who have experience and knowledge of such incidents.

Yes, they may lack the legal acumen but that is why all courts martials, except the Summary Court Martial where the Commanding Officer is solely empowered, has a legal expert for advice. Populating Court Martial Boards with only legal experts will deprive the board of an understanding of combat nuances that could adversely impact the delivery of justice.

Perhaps, the Judge Advocate General (JAG) department should be strengthened, which is understaffed and probably has training deficiencies. In any case, all court martial judgments are subject to internal review as well as civil court approval. Adequate checks and balances exist. However, it is not a perfect system and can be undermined by misuse of power by the military hierarchy.

There is a case for a holistic review of the military justice system, particularly to establish a common legal code for the three Services currently governed by separate Acts. Steps toward a review were initiated and approved by the former Defence Minister, Manohar Parrikar. However, after he left the office, the initiative was quietly buried.

May the regrettable Poonch incident serve the purpose of disabusing the public perception that military personnel typically get away with murder in insurgency areas. The irony is that, more often than not, it is an erroneous impression. Instead, exceptions carry the day and bring a bad name to the Indian Armed Forces. The Army as an institution certainly deserves better.

Lt Gen (Dr) Prakash Menon (retd) is Director, Strategic Studies Programme, Takshashila Institution; former military adviser, National Security Council Secretariat. He tweets @prakashmenon51. Views are personal.

(Edited by Ratan Priya)

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