Indian Defence Review

Before becoming Chief Minister in the PDP-BJP government in J&K, Mehbooba Mufti sitting in opposition was actively demonstrating for removal of the Armed Forces Special Powers Act (AFSPA). She mustered support from various NGOs and human rights activists, and was obviously being propped up and financed by the ISI to do so – one of the factors why PDP won elections with Hijbul Mujahiddeen (HuM) support. But after she became Chief Minister, calls by the opposition for removal of AFSPA fell on her deaf ears, because she knew the danger to her own chair. This has been the case of all State Governments where calls are raised for removal of AFSPA by vested interests.  

For the ignorant, AFSPA provides extraordinary powers to Army soldiers deployed in disturbed areas, but neither the Army called for AFSPA nor drafted this  Act. Instead, this was discussed and debated by various Parliaments and passed to ensure that the Army can function effectively in the designated disturbed area when deployed; where the State Administration has gone defunct or cannot function properly in its jurisdiction. Therefore, it must be noted that the deployment of Army in the hinterland and application of AFSPA comes only ‘after’ the said area is declared disturbed under the ‘Disturbed Area Act’. An area is declared ‘disturbed’ when the state machinery is unable to function and calls in the Army for support. Therefore, any dilution of AFSPA then would mean diluted effectiveness of the Army in counter insurgency or counter terrorism and personnel getting involved in litigation consistently.

A Disturbed Area Act passed on September 11, 1958 was applied to the seven northeast states. A similar act passed in 1983 was applied to Punjab and Chandigarh, which was withdrawn in 1997. A similar act was applied to J&K in 1990 and has been in force since. Neither does the Army ask for deployment in the hinterland, nor does it enjoy when forced to act against its own Indian brethren when deployed in disturbed areas – its primary task being against the enemy and defending the borders. As importantly, in an insurgency environment, the Army can only keep violence levels at manageable levels whereas the balance must be taken on by the state administration; where state administrations have consistently failed.

So when Mehbooba became Chief Minister and opposition raised cries of removing AFSPA, she wouldn’t budge, but whether on advice of ISI or otherwise, she hit upon the plan of filing FIRs against Army’s actions in counter insurgency. It may be recalled that in J&K, an FIR was filed by the J&K police under sections 302 (murder) and 307 (attempt to murder) of the IPC against Major Aditya and his unit of the 10 Garhwal Rifles over the Shopian firing incident of January 27, 2018,  when three civilians were killed after Army personnel fired at a stone-pelting 200-strong mob of protestors in J&K’s Shopian district. The Army was forced to fire in self defence after the marauding mob injured Army personnel, tried to lynch a Junior Commissioned Officer and set fire to Army vehicles. The ironical part was that Mehbooba spoke to Defence Minister Nirmala Sitharaman before giving green signal for filing the FIR, to which latter bviously acceded to. This reflects poorly on the Defence Minister, not that much can be expected from her since (MoD) including its Department of Ex-Servicemen Welfare (DESW) do their level best to work opposite to welfare of military personnel and their families.

Now in an unprecedented move on eve of Independence Day (August 14, 2018),  356 serving Army-men, in personal capacity, have moved a writ petition to the Supreme Court on 14 August 2018 over their fundamental rights, asking whether a soldier’s discretion can be put under legal scrutiny. The writ petition, which has been admitted by the SC, raises a number of questions, among which are, ‘Can the discretion of a soldier be put under legal scrutiny?’ and ‘Can anything be above national security?’ The petition includes: whether the rights of a soldier has been violated in the probe, given the trying circumstances under which the officers serve in their aim to curb militancy and terrorism in order to protect the interests of the country; whether members of an institution with a glorious history of martyrdom and sacrifice should serve under the threat of being tried under court martial if they don’t follow orders and prosecuted by the criminal justice system if they do; whether anything can be put above national security; won’t this affect their morale; whether the court applying a murder charge even while the investigations were ongoing is right, and; whether it would prejudice agencies in the matter.

Significantly, the Supreme Court is currently hearing the plea of Major Aditya’s father, Lt Col Karamveer Singh, seeking to quash the FIR against his son. Lt Col Singh had said in his petition that Major Aditya was “wrongly and arbitrarily” named in the FIR as the incident relates to an Army convoy that was on bonafide military duty in an area under AFSPA. It is a blot on the government and the Army Chief that serving Army men have to approach the SC against unwarranted and arbitrary dilution of the AFSPA. Ironically, all this is happening concurrent to MoS (Defence) telling Parliament that the Army has deficiency of over 9000 officers; 7,986 in Indian Army and 1,256 in the Navy as of January 2018.  Why should youth not join police instead of Army which the government is trying its level best to degrade below the police? Have we not turned India into a banana republic that the police can indulge in killings anywhere pan-India without FIRs against them but Army personnel in counter insurgency environment have to face FIR even though covered by AFSPA?

Since AFSPA was enacted by Parliament, can it be diluted on the whims and fancy of a Chief Minister or any Court? Take the parallel case of a petition discussed on August 9, 2018, in SC seeking directions to debar candidates with criminal background from contesting elections, wherein the SC bench headed by the CJI ruled that constitutional courts only declare the law and not legislate; direction from the court to debar tainted candidates from contesting polls would amount to legislation. SC ruled that Article 102 of the Constitution and Provisions of the People’s Act provided grounds for disqualification from contesting polls and empowered only Parliament to add to it, even as SC recognized there was a geievance among citizens that criminalization of poliics was on the rise – this in backdrop of last year’s count of 4120 MLA’s and 462 MLCs (total 4582), 1,581 lawmakers (including 228 MPs) faced serious criminal charges; implying one-third of the so called political cream of India are scoundrels. And the number may have gone up with all political parties fielding candidates with criminal records in recently held Karnataka elections.

It needs to be appreciated that these 356 serving soldiers and officers of the Indian Army, which include a Brigadier and number of Colonels, though knocking on the SC door in private capacity, indirectly represent the 1.4 million troops of the  Army, Navy and the Air Force. Why have we come to such situation is because of two reasons, succinctly described by a senior veteran: first, “because the General in question, the Chief Of Army Staff will not take the responsibility for his men’s actions and is willing to let an agency which does not even know the business end of a rifle decide on the SOPs”; second, “the milords have failed to make the politician, the babu, and the policeman work according to constitutional norms. Every institution under the government has been corrupted and now they are trying to do this with the Armed Forces, which are working under constitutional norms and well aware of its obligations to the nation”.

Logically, the SC ruling should be: one, those who are against AFSPA should take up for removal of ‘Disturbed Area Act’, which will automatically remove AFSPA, and; two, dilution of AFSPA in unacceptable because it will reduce Army functioning in counter-insurgency areas akin to police or even lower than police because policemen don’t face FIR when they open fire. The question is will SC give such ruling – that is the million dollar question? It is no secret that the judiciary too is influenced by incumbent governments, Besides, they too have to survive in the same murky waters and look up to post retirement employment as well. The stance of the present government towards Armed Forces too is in public domain. It would not be, therefore, surprising if SC rules that FIR is a state subject, and dilution / amendment of AFSPA is legislation – job of Parliament. Hence SC hands are tied as they cannot cross the ‘Lakshman Rekha’ of amending AFSPA – akin to what it said in the case of barring criminals from contesting elections. End of story! The media cells will as usual propagate nothing much can be expected from Congress- appointed judges. The judiciary, politicians and bureaucracy will all rejoice. That will be an even sadder day for the country, the consequences of which the public can speculate upon.