Sanjoy Hazarika1 and Walter Fernandes2 bring out the justifiable opposition to AFSPA felt by people from our northeastern states where it was first imposed in 1958. The provocation for both articles is Mr. P. Chidambaram (PC, hereinafter) stating on February 6, 2013, at the Institute of Defence Studies, that government would like to make AFSPA “more humanitarian”, but accusing the army of being an obstacle to that proposal. Also both writers have focussed on rape offences following the Justice Verma Commission on women’s safety, which opined that a soldier (which means any member of any rank in the three armed forces) committing rape should be tried under the same law as civilians. But both articles contain misconceptions about the law, governance and the army’s functioning notwithstanding that Hazarika (SH) and Fernandes (WF) have wide experience in the northeast and are highly respected.
Chidambaram’s remarks are grossly unfair to the army which cannot respond in the media to state its position on AFSPA.
Targetting the army
PC’s remarks are grossly unfair to the army which cannot respond in the media to state its position on AFSPA. Even though PC is well versed in law, the politician in him appears to have overcome his sense of justice to provide the “accused” opportunity to respond, knowing well that it cannot do so because of legal restraint. Accusing the army of wanting imposition of AFSPA is political chicanery to divert attention from and shift blame for decades of political and administrative failure and corruption through a toxic combination of mal-governance, misgovernance and non-governance in the northeast and Kashmir, that is the primary cause for social disaffection and unarmed and armed militancy in those states. The same irresponsible political-bureaucratic approach, independent of political ideology but surely centred on corruption and sell-out to corporate interests, exacerbates poverty and is responsible for growing militancy in other states of the Indian union. This has even been stated by a high-power committee set up in 2006 by the Planning Commission of India.a Shifting blame to the army is unwise, politically short-sighted and unbecoming of a seasoned politician.
SH writes about PC, “Like a clever politician, he tossed the issue squarely into the lap of the Army and the MoD, saying they were unambiguously opposed to any change and that ‘you should ask the question to the armed forces and ask why are they so opposed to even some amendment to AFSPA which will make [it] more humanitarian. We have [the] Jeevan Reddy Committee report but yet if the Army takes a very strong stand against any dilution or any amendment to AFSPA, it is difficult for a civil government to move forward’ ”. In this, though SH brings out PC’s clever political manouvre, he fails to understand that MoD controls the Army, while the Army can only advise MoD.
WF asks, “Who rules India: The elected representatives or the Army?”, as if the only aspect of “ruling” India is ASFPA, and as if India is not a democracy ruled, howsoever inadequately, unjustly and unfairly, by the constitutional state and central executives and legislatures. WF also quotes R.N.Ravi, former head of IB for the Northeast as going on record to say that “the AFSPA is the biggest obstacle to peace in the region”. Mr.Ravi should know that AFSPA is invoked by government after notifying the area as “disturbed”, and because government is unable or unwilling or incompetent to handle the unrest using the political tools of dialogue, debate and negotiation, and the administrative tools of state and central police. Indeed, calling the army in aid to civil power (whether for internal security (IS), natural disaster, accident or even rescuing kids from borewells) is implicit admission of political-administrative failure and incompetence. This is borne out in a news item by Sandeep Joshi on page 14 of The Hindu dated 28.2.2013, tellingly titled “Timely Army deployment could have checked Assam violence”. He reports the plea of Assam state for immediate army deployment and lack of “early warning signals”, detection of which, Mr.Ravi would know, is the task of the IB. It is facile to blame the army.
Rape is the outcome of the depraved male need for expressing domination and control on a soft target like a girl or woman. Rape is about exercising power through violence to subjugate and humiliate.
Without in any manner making excuses for crimes (especially rape) committed by soldiers while operating under AFSPA, it is necessary to point out that these worthies target the army out of ignorance or deliberately, to cover decades of bad governance. However, without denying the need to amend AFSPA, a suggestion for which is made later, it is well to see the “why” of AFSPA, and the “when” and “how” of army deployment for IS duties. But before that, it is necessary to discuss crimes, especially rape, that soldiers may commit during the course of their duties.
Rape, ground realities and due process
Over the centuries, soldiers of armies with preponderance of power have committed crimes of all sorts, especially including rape of women. There are documented cases of mass murder of civilians and rape of women during the US military action in Vietnam (the My Lai massacre, for instance), and in East Pakistan during 1970-71 by the Pakistan Army. But this is not peculiar to the US or Pakistan Army. There are cases in which a soldier objected to his colleagues committing rape and murder of civilians, and became a victim of his colleagues wrath.
Without at all justifying rape, let us see when a soldier deployed on IS duties might commit rape. One circumstance is when he has noticed a woman, and when he is next on duty in the same area, creates the conditions for raping her. This, being pre-meditated, is especially condemnable. Another circumstance is when a soldier comes across a woman and, with his sense of power in the circumstance overcoming his better sense and judgment, something snaps within him and he commits molestation or rape. Rape is the outcome of the depraved male need for expressing domination and control on a soft target like a girl or woman. Rape is about exercising power through violence to subjugate and humiliate. 3 The fact of AFSPA being in force has nothing to do with these condemnable acts, just as criminal law being in force has nothing to do with rape crimes all over the country.
When rape is committed, whether by one or more soldiers, there could be at least one from among them who may not have himself committed rape. The duty of any person and especially a soldier, is to try to prevent a criminal act and if unable to prevent it, to report it to superior authority. But when doing this duty of preventing or reporting crime can bring his colleagues’ wrath upon himself (especially including getting killed, remembering that all are armed), the man who stood apart, too shocked or afraid to speak or act at that time, would remain fearfully silent even after the crime. His silence born of fear would effectively be participation in his erring colleagues’ cover-up acts, which could extend to murder of the rape victim, making him an accessory after the fact of the crime. His own fearful silence damns him to continue his offence of failure to prevent or report the rape. (If all the soldiers in the group have committed rape, they would surely collude to cover-up the crime).
In any case, AFSPA being in force is not the cause for his committing crime, and cannot be viewed as a facilitator for crime.
When the complaint of rape reaches the unit commander, his first action would be to assemble the sub-unit or unit to find out who among his men could have committed the rape. But the silence of witnesses would have already been ensured and rarely if ever, are the rapists identified, unless there is evidence such as weapon or equipment or other item inadvertently left behind at the scene of rape, traceable to a soldier or sub-unit. Most unit commanders confronted with such a situation would opt for denial rather than be accused of incompetence or command failure of “not knowing the men in his command” and not being able to identify the offenders. Notwithstanding, the strict discipline system and the importance given to command responsibility in the army is such that the rape incident would at the very least get reflected in the unit commander’s confidential report with immediate or long-term career consequences, or result in administrative or disciplinary action against him, with similar but more certain consequences.
The rapist may be identified by unit investigation or by an identification parade with civil administration officials present, following civil-military liaison. But whether the rapist is identified or not, the fact of rape is to be established by medical examination of the victim by a civil surgeon. After the facts of rape and of the unit operating at the material time and place are both established, if a unit commander is still unable to identify the offender, there should be no objection to handing over investigation to the civil police, including questioning suspects who remain available to the police while remaining in a military unit.
According to the Army Act, 1950 (AA, herein after), a soldier committing a rape crime is charged with committing a “civil offence” which means an offence triable by a criminal court. A soldier who commits a civil offence while on active service as when operating under AFSPA, is first taken into military custody for examination of the facts of the case by a Court of Inquiry (C-of-I).[b] But unless the rapist has been arrested by civil police when committing the crime (very unlikely when AFSPA is in force), convening and conducting a C-of-I is necessary before a soldier is tried by court-martial or handed over to civil authority for prosecution under criminal law.
Disturbance of law and order usually happens because of conflict of interests within civil society, caused by inappropriate laws and/or unfair policies and/or poor or ill-motivated implementation – in short, mal-administration.
According to AA Sec.69 “Civil offences” and AA Sec.70 “Civil offence not triable by court-martial” read together, a soldier who commits rape (or murder or culpable homicide not amounting to murder) of a civilian will not be tried by a court-martial unless he is on active service, or at any place outside India, or at a frontier post. In any case, AFSPA being in force is not the cause for his committing crime, and cannot be viewed as a facilitator for crime. But repealing AFSPA would cause AA Sec.70 to become inapplicable, making the soldier liable for trial by criminal law – and this is really the cause for the demand for repealing AFSPA.
Government, Parliament and the Army
Government can function in the interest of people when there is peace and order in society, functionaries in power use people-oriented politics, and the rule of law prevails among all sections of society. Providing security and public order by fair and just enforcement of extant laws, and maintenance of supplies and services essential to the public, is the primary task of governance by the civil administration, which is the combination of the powers, roles and functions of people’s elected representatives, bureaucrats and integral police forces.
Disturbance of law and order usually happens because of conflict of interests within civil society, caused by inappropriate laws and/or unfair policies and/or poor or ill-motivated implementation – in short, mal-administration. When law and order, and peace in society is disturbed and is beyond political resolution, governance calls for using the force of the state and/or central police. When law and order breaks down despite deploying state and central police or because of their misuse, it can only be restored by deployment of the army on IS duties. Government has no other option.