Particularly horrifying incidents of custodial violence by the Indian military have recently come to light, with videos showing civilians from the Gujjar community in the Indian-administered territory of Jammu and Kashmir being inflicted with torture by military authorities. These included instances of chili powder being applied to injured areas of persons’ bodies. Three civilians from the Gujjar community who were ‘suspected’ of causing violence in Poonch died while in military custody, and others suffered grave injuries. These videos came to light days after the Supreme Court upheld the constitutionality of the Indian government’s abrogation of Article 370 of the Indian Constitution, which previously allowed Jammu and Kashmir to have a special status, constitution, and state flag. The Supreme Court’s verdict erased this autonomous status, leading to increased political, military, and social tensions.

The government’s response to the reported incidents of custodial violence has been inadequate. No independent inquiry was undertaken, and the concerned officers are yet to face legal action under any court of law for the deaths. Instead, the response primarily involved investigating the matter without revealing many details to the public, transferring the officers, shutting off the internet temporarily in the area, and offering monetary compensation to the victims. This highlights the lacunae in the Indian justice system regarding custodial violence by the military and the urgent need to make substantial legal reforms.

The Existing Gaps in the Justice System

Currently, India does not have sufficient statutory protections against custodial violence. This is clear from the justice system’s persistent failure to hold the relevant authorities accountable and the shockingly low number of convictions despite rising custodial violence. The current statutory provisions largely focus on police or judicial custody and ignore the custodial violence committed in military custody. Section 4(a) of the Armed Forces Special Protection Act 1958, for example, offers immunity to army officers who perpetrate violence under the veil of discharging an official duty, such as shooting based on ‘suspicion’. In addition, investigations are often carried out by the same authority (i.e. the army) that has been accused of custodial violence, resulting in a biased and non-transparent process. For example, in the recent instance of custodial violence in Kashmir, the State has released very few details concerning the outcomes of the legal and medical reports and it is the army that has ordered an investigation.

Is Ratifying UNCAT an Answer to Military Custodial Violence? 

It is critical that India materialises its commitment to the prevention of torture by ratifying the United Nations Convention against Torture, and Other Cruel, Inhuman and Degrading Treatment (UNCAT). The ratification and adoption of this Convention into domestic law would be an important first step towards solving the existing problems. Firstly, under Article 1 of the Convention, the law applies to all ‘public officials’ or anyone carrying out an official duty. This would allow for equal scrutiny of the military’s actions. Secondly, under Article 2(2) of the Convention, the military or any state authority would be unable to invoke political or social disturbances as a justification for not respecting the rights of the accused. This would prevent the military from using violence against civilians taken into custody in conflict-prone areas such as Jammu and Kashmir and the Northeast. Furthermore, the adoption of the Convention would make even an ‘attempt of torture’ (under Article 4 of the Convention) unlawful and provide greater protection to civilians in the areas where the military exercises greater control.

When State authorities perpetuate violence and go unpunished, it further alienates the State from its people.  Especially after the abrogation of Article 370, which went against the demands of the people, the government has repeatedly overstepped its powers for ‘maintaining public order’. These incidents of custodial violence reveal how imperative it is for India to take affirmative steps to minimise the State-perpetrated terror and violence in Jammu and Kashmir. The ratification and adoption of UNCAT would certainly be a good place to start.