Brigadier V Mahalingam (Retired)
Based on the recommendations of the Justice Jeevan Reddy Committee and the Second Administrative Reform Commission, the Government attempted to replace the Armed Forces Special Powers Act (AFSPA) with a law which it felt would be more humane than the existing one. With the Army and the Ministry of Defence opposing the move vehemently, the proposal was put on cold storage only to be revived after a statement by the Chief Minister of J & K to the effect that the Act will be revoked from certain parts of the State.
Withdrawing the AFSPA from some parts of the State presupposes that the security situation in the areas so selected is manageable by the State with its own law enforcement resources. If that be so, even with the AFSPA on, what prevents the State Government from ensuring that the army is not deployed or requisitioned in these areas is a big mystery. By adopting such a resolve, it may well be possible to test the efficacy of the Chief Minister’s proposal before a final decision is taken.
The Chief Minister is well within his right to demand the annulment of AFSPA from which ever part of the State as deemed fit by him provided the Army is not called upon to act or be requisitioned in these areas. The Government needs to understand that making a soldier act in an insurgency situation without the AFSPA will be considered an act of betrayal besides adversely affecting the morale of the services as a whole. Needless to say, the political hierarchy ought to bear in mind that national security cannot be bartered for petty political gains.
The subject matter one hopes will be discussed in the Parliament and the country will adopt a deliberate and a well calculated measure. The Parliament has the obligation to make certain that its citizens have a safe and a secure environment to live in. While employing the Armed Forces in an insurgency situation, the moral responsibility of the Parliament is no less in ensuring that the Armed Forces are not pushed into action with all the operational and legal impediments intact. To that end AFSPA is a suitable legal framework created by the Parliament. It now intends to repel or replace it with a new law under pressure from the state governments, human right activities and political parties. In this issue, the ground realities confronting a soldier are compelling and needs precedence over intellectual opinion. The Parliament therefore needs to understand the practicalities of military operations and evaluate the implications without any vote bank or other partisan considerations.
Legal Powers
Armed Forces need the legal authority to conduct operations involving entry, search of premises and arrest of individuals without warrants. Authorization to use force including opening effective fire, seize weapons, military hardware and explosives, destroy armed camps and military stocks held by militants are a must. They need legal safeguards against motivated accusations and long winded legal action. Without this authority, the Armed Forces will be acting exactly like the Police which obviously are not the intention. They are not meant to perform police duties or adopt their methodology.
The Milieu
When the army is requisitioned for counter insurgency operations, there is a total intelligence vacuum. The locals are not prepared to cooperate or provide information for fear of the gun or ideological reasons. The enemy that the Army is chasing is an invisible one and has no addresses or identity to locate or arrest from. The militants are constantly on the move from one village to the other and the locals are forcibly made to provide shelter and feed them by over ground workers. Some are foreign mercenaries. Under these circumstances, what search or arrest warrant can be obtained and against whom?
The presence of the Army restricts the movements and activities of the militants and they want the Army to go. A smear campaign against the Army, they hope, will have them returned to their barracks. The militants and the locals identify the army with the government and are hell bent on discrediting them as a part of their political campaign to claim legitimacy for their criminal activities.
There are no courts or police stations in the remote areas where operations are conducted. Access to these establishments will involve movement through militant infested areas which may have been mined or an ambush kept in waiting. Accordingly, road opening and convoy protection will have to be undertaken before any such movement, a massive effort indeed. Under such circumstances, where does one obtain an arrest warrant or a search warrant from and for whom or which premises? Can these be done without jeopardizing the lives of the soldiers?
Obtaining a search or an arrest warrant will involve processing or at least the papers being moved through more than a single individual. It is our experience that, any contemplated action against the militants or their hideouts if provided to civilians or even local police invariably gets leaked out jeopardizing the entire effort, and the lives of the personnel. This being the operational constraints, should arrest warrants or search warrants be obtained prior to such action?
Operational Setting
How does the Army carry out its operations? Based on broad spectrum information on the movements and activities of the militants in the area, a number of area domination patrols led by Non Commissioned Officers (NCO) and Junior Commissioned officers (JCO) are sent out to seek encounter. Interrogations of captured militants from such encounters are the primary source of information. Information thus obtained regarding the hideouts is effective only for a limited period. Such information will therefore have to be acted upon immediately by dispatching an independent detachment commanded by a NCO or a JCO for the purpose. In these circumstances, who should have the powers to order opening of fire? After the incident who will give evidence to the effect that the fire was opened in self-defence? How does one obtain a search or arrest warrant and from whom?
Militants engage army columns by small arms or rocket fire throw hand grenades or activate IEDs either remotely or by powering it from a distance. Such engagements are carried out from within or close to habitation so as be in a position to have an easy get away and quick merger with the local population, their human shield. When fired upon, the security force detachment returns fire. Being close to habitation, it may injure or kill any civilian who happens to be in the
path of the bullet. When civilian casualty thus occurs, who will come forward to give evidence in favour of the army? In such a situation, how many rounds should a soldier fire? What is the minimum force? Should he wait for orders to fire at all? When search is carried out to trace the culprit, can search or arrest warrants be obtained?
Soldier in a Legal Battle?
The Armed Forces belong to the nation and a soldier is not a party to the dispute. He operates under conditions where the Police forces are politicized and corrupt. The nexus between the politician and the criminals besides the finesse with which evidences and witnesses including postmortem and other reports are manufactured should leave no one in doubt with regard to the facility with which a soldier can be falsely implicated. Considering the endemic delays in our legal procedures, how long will a soldier fight a legal battle? Does he have the financial and other resources to fight a criminal case especially after his arrest or retirement? Should he be harassed just because he did what was right for the country? Why should a soldier’s family suffer with the head of the family running around courts and police stations to defend himself for no fault of his? Why then should a soldier sacrifice his life and clean up a mess created mostly due to political and administrative mismanagement? Will he do that?
While supporting the retention of AFSPA no one is suggesting that human rights violations are not taking place or should be condoned. The Armed Forces’ legal system has time and again proved much faster than the civil courts in providing justice. They should continue to act decisively against the culprits. The Army on its part needs to understand and educate their troops that their role is limited to restricting the violence to an acceptable level and nothing more or less. Incentives for capturing weapons, killing militants etc have over the period proved counterproductive and needs to be stopped. The Government on its part should to be fair, just and honest in its dealings. It also needs to get its act together to find a political solution without dragging its feet endlessly.
Conclusion
AFSPA has been created to accomplish a certain purpose under certain conditions. If it is repealed, and subsequently the Armed Forces made to act in an insurgency situation, the very decision to create the Act and its purpose gets obliterated. The question is, will the Parliament, the Government and the country raise above petty politics and support the Armed Forces to achieve the aim for which it may be requisitioned or deployed? Would the Armed Forces be able to carry out its operations with the impact and freedom which is very necessary to bring down the level of violence in the affected region? Or will the Armed Forces like the police forces of the country be conditioned by the politician bureaucrat combine to make it yet another police force without a back bone? It is time to decide.
The writer, a retired Brigadier, is a veteran of the 1971 Indo – Pak war and an ex Force Commander of the National Security Guard (Black Cat Commandos)
Based on the recommendations of the Justice Jeevan Reddy Committee and the Second Administrative Reform Commission, the Government attempted to replace the Armed Forces Special Powers Act (AFSPA) with a law which it felt would be more humane than the existing one. With the Army and the Ministry of Defence opposing the move vehemently, the proposal was put on cold storage only to be revived after a statement by the Chief Minister of J & K to the effect that the Act will be revoked from certain parts of the State.
Withdrawing the AFSPA from some parts of the State presupposes that the security situation in the areas so selected is manageable by the State with its own law enforcement resources. If that be so, even with the AFSPA on, what prevents the State Government from ensuring that the army is not deployed or requisitioned in these areas is a big mystery. By adopting such a resolve, it may well be possible to test the efficacy of the Chief Minister’s proposal before a final decision is taken.
The Chief Minister is well within his right to demand the annulment of AFSPA from which ever part of the State as deemed fit by him provided the Army is not called upon to act or be requisitioned in these areas. The Government needs to understand that making a soldier act in an insurgency situation without the AFSPA will be considered an act of betrayal besides adversely affecting the morale of the services as a whole. Needless to say, the political hierarchy ought to bear in mind that national security cannot be bartered for petty political gains.
The subject matter one hopes will be discussed in the Parliament and the country will adopt a deliberate and a well calculated measure. The Parliament has the obligation to make certain that its citizens have a safe and a secure environment to live in. While employing the Armed Forces in an insurgency situation, the moral responsibility of the Parliament is no less in ensuring that the Armed Forces are not pushed into action with all the operational and legal impediments intact. To that end AFSPA is a suitable legal framework created by the Parliament. It now intends to repel or replace it with a new law under pressure from the state governments, human right activities and political parties. In this issue, the ground realities confronting a soldier are compelling and needs precedence over intellectual opinion. The Parliament therefore needs to understand the practicalities of military operations and evaluate the implications without any vote bank or other partisan considerations.
Legal Powers
Armed Forces need the legal authority to conduct operations involving entry, search of premises and arrest of individuals without warrants. Authorization to use force including opening effective fire, seize weapons, military hardware and explosives, destroy armed camps and military stocks held by militants are a must. They need legal safeguards against motivated accusations and long winded legal action. Without this authority, the Armed Forces will be acting exactly like the Police which obviously are not the intention. They are not meant to perform police duties or adopt their methodology.
The Milieu
When the army is requisitioned for counter insurgency operations, there is a total intelligence vacuum. The locals are not prepared to cooperate or provide information for fear of the gun or ideological reasons. The enemy that the Army is chasing is an invisible one and has no addresses or identity to locate or arrest from. The militants are constantly on the move from one village to the other and the locals are forcibly made to provide shelter and feed them by over ground workers. Some are foreign mercenaries. Under these circumstances, what search or arrest warrant can be obtained and against whom?
The presence of the Army restricts the movements and activities of the militants and they want the Army to go. A smear campaign against the Army, they hope, will have them returned to their barracks. The militants and the locals identify the army with the government and are hell bent on discrediting them as a part of their political campaign to claim legitimacy for their criminal activities.
There are no courts or police stations in the remote areas where operations are conducted. Access to these establishments will involve movement through militant infested areas which may have been mined or an ambush kept in waiting. Accordingly, road opening and convoy protection will have to be undertaken before any such movement, a massive effort indeed. Under such circumstances, where does one obtain an arrest warrant or a search warrant from and for whom or which premises? Can these be done without jeopardizing the lives of the soldiers?
Obtaining a search or an arrest warrant will involve processing or at least the papers being moved through more than a single individual. It is our experience that, any contemplated action against the militants or their hideouts if provided to civilians or even local police invariably gets leaked out jeopardizing the entire effort, and the lives of the personnel. This being the operational constraints, should arrest warrants or search warrants be obtained prior to such action?
Operational Setting
How does the Army carry out its operations? Based on broad spectrum information on the movements and activities of the militants in the area, a number of area domination patrols led by Non Commissioned Officers (NCO) and Junior Commissioned officers (JCO) are sent out to seek encounter. Interrogations of captured militants from such encounters are the primary source of information. Information thus obtained regarding the hideouts is effective only for a limited period. Such information will therefore have to be acted upon immediately by dispatching an independent detachment commanded by a NCO or a JCO for the purpose. In these circumstances, who should have the powers to order opening of fire? After the incident who will give evidence to the effect that the fire was opened in self-defence? How does one obtain a search or arrest warrant and from whom?
Militants engage army columns by small arms or rocket fire throw hand grenades or activate IEDs either remotely or by powering it from a distance. Such engagements are carried out from within or close to habitation so as be in a position to have an easy get away and quick merger with the local population, their human shield. When fired upon, the security force detachment returns fire. Being close to habitation, it may injure or kill any civilian who happens to be in the
path of the bullet. When civilian casualty thus occurs, who will come forward to give evidence in favour of the army? In such a situation, how many rounds should a soldier fire? What is the minimum force? Should he wait for orders to fire at all? When search is carried out to trace the culprit, can search or arrest warrants be obtained?
Soldier in a Legal Battle?
The Armed Forces belong to the nation and a soldier is not a party to the dispute. He operates under conditions where the Police forces are politicized and corrupt. The nexus between the politician and the criminals besides the finesse with which evidences and witnesses including postmortem and other reports are manufactured should leave no one in doubt with regard to the facility with which a soldier can be falsely implicated. Considering the endemic delays in our legal procedures, how long will a soldier fight a legal battle? Does he have the financial and other resources to fight a criminal case especially after his arrest or retirement? Should he be harassed just because he did what was right for the country? Why should a soldier’s family suffer with the head of the family running around courts and police stations to defend himself for no fault of his? Why then should a soldier sacrifice his life and clean up a mess created mostly due to political and administrative mismanagement? Will he do that?
While supporting the retention of AFSPA no one is suggesting that human rights violations are not taking place or should be condoned. The Armed Forces’ legal system has time and again proved much faster than the civil courts in providing justice. They should continue to act decisively against the culprits. The Army on its part needs to understand and educate their troops that their role is limited to restricting the violence to an acceptable level and nothing more or less. Incentives for capturing weapons, killing militants etc have over the period proved counterproductive and needs to be stopped. The Government on its part should to be fair, just and honest in its dealings. It also needs to get its act together to find a political solution without dragging its feet endlessly.
Conclusion
AFSPA has been created to accomplish a certain purpose under certain conditions. If it is repealed, and subsequently the Armed Forces made to act in an insurgency situation, the very decision to create the Act and its purpose gets obliterated. The question is, will the Parliament, the Government and the country raise above petty politics and support the Armed Forces to achieve the aim for which it may be requisitioned or deployed? Would the Armed Forces be able to carry out its operations with the impact and freedom which is very necessary to bring down the level of violence in the affected region? Or will the Armed Forces like the police forces of the country be conditioned by the politician bureaucrat combine to make it yet another police force without a back bone? It is time to decide.
The writer, a retired Brigadier, is a veteran of the 1971 Indo – Pak war and an ex Force Commander of the National Security Guard (Black Cat Commandos)
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