Patriotism no more a shield for Army against accusing fingers Read more: Patriotism no more a shield for Army against accusing fingers

- The Times of India .

The Army has always been a role model for the youth. Disciplined, apolitical, hardy and above all willing to sacrifice self for the country are a few qualities which over the years came to be identified with Army and its personnel, endearing them to every citizen.

The jawans have not lost a war. Yet, suddenly there are murmurs about corruption in the Army. The Adarsh Society scam has opened the cupboards and what tumbled out was an apparent deep nexus between some top Army officials and politicians who allegedly cornered flats for themselves or their relatives. And those who lost out were the war widows of personnel who sacrificed their lives on the heights of Kargil while driving out intruders from Indian soil.

The Army and its top brass were mostly apolitical till the 1980s. From among the Army chiefs prior to 1980, only Gen S M Srinagesh appears to have been dear to the political set-up, for he was appointed governor of Assam, Andhra Pradesh and Mysore (later Karnataka) between 1959 till 1965. But the major shake-up in the apolitical image came in the 1980s and has since stayed with the Army top brass.

Gen K V Krishna Rao, while addressing NDA cadets as Army chief at a time when the nation was witnessing tumultuous post-Janata Dal coalition times, had exhorted them to do their duty without being affected by politics. Immediately after retirement, he got affected and was duly appointed governor, a post which he held in many states from 1984 till 1990.

At present, there are four Army generals -- Gen J J Singh, Gen S F Rodrigues, Lt Gen Bhopinder Singh and Lt Gen M M Lakhera -- who are either governors or Lt-Governors. There is nothing wrong in Army generals getting appointed as governors purely on the basis of their knowledge of the Constitution and its working vis-a-vis a multi-party democracy. But given the politics that get attached to the appointment of governor as well as his working in a state, one wonders whether the generals had an active political mind which suddenly came to the fore immediately after their retirement.

The manner in which the Supreme Court described the role of governor in its famous Bommai judgment [1994 SCC (3) 1] leaves little doubt that it has to be a political appointment. After examining the way governors had behaved and testing it against the constitutional touchstone, it had said, "The key actor in the Centre-state relationship is the governor, a bridge between the Union and the States."

Given the politics played by the ruling party in the Centre against the states governed by Opposition, there has been little secret about the role governors played blatantly toeing the political line.

Many times people had started debating about the role of the Army top brass in many of the scandals that had haunted the armed forces. But most of these debates were brought to an abrupt end by bringing in patriotism. Those not in favour of opening the cupboards would invariably put forth the argument that questioning Army would invariably lower the morale of the jawans which would translate into a grave security threat to the nation. No more. For, the people have for the last quarter of a century seen the manner in which some of the Army brass have curried political favours.

And now the Adarsh Society scam has blown the lid off the nexus between the politicians and some of the top Army officials. There is no point in stopping this debate from reaching its logical conclusion. It had to happen some day. The shield of patriotism should not be used by black sheep to protect themselves from public scrutiny.

The apex court had in A R Antulay vs R S Nayak case aptly summarised this phenomenon, "If something that did not happen in the past is to be the sole reliable guide so as to deny any such thing happening in the future, then law would be rendered static and slowly wither away."

So, before anything withers away or even remotely affects the morale of the Army, the black sheep need to be quickly identified and their nexus with politicians exposed.

AFSPA doesn’t need change Harsh law helps in the fight against insurgents

by Lt-Gen Harwant Singh ( retd )

HUMAN rights activists and some political parties, both in J and K and the North-East, have been demanding scrapping of the Armed Forces Special Powers Act (AFSPA). Under pressure from these groups, the government is considering removing or amending some of the provisions in the Act which are considered offensive. It is also being projected that of the 160-odd cases taken up for the prosecution of military personnel involved in human rights violations. The Government of India has not given sanction even in one case.

As a result of prolonged agitation in Manipur, the government appointed Justice Reddy Commission to examine the need for abrogating the AFSPA. The commission did recommend that the Act should be scrapped and in its place some provisions such as immunity to security personnel against arrest be incorporated in the Unlawful Activities Act. While these recommendation(s) were not accepted, the need for making the Act humane appeared acceptable. The Prime Minister announced this while speaking at a function at the Kalinga Fort in Imphal.

The AFSPA, was promulgated to combat Naga insurgency in the North-East more than half a century ago. Later, when insurgency surfaced in J and K, its application was extended to that state too. Causes of insurgency in the North-East lay in complex and intractable politico-socio-economic areas, which led to the feeling of alienation among the people of the region. The underlying causes for the insurgency in J and K are altogether of a different genre. When appropriate measures are not taken in time in a comprehensive and vigorous manner, disenchantment and disaffection can spread among most sections of society. Where terrain favours insurgency and outside help is at hand, the problem can take a virulent form, making the task of the security forces all the more difficult.

It is not to argue that there have been no human rights violations by security forces, but invariably the issues have been sensationalised out of proportion by the media, more so by TV channels. Intense competition among them adds urgency to such news. Added to this is the lack of knowledge and understanding of the very nature of the fight against a brutal insurgency. The vicious nature of counter-insurgency operations carried out by the Indian Army is best judged by the fact that it has lost over 560 officers and more than 8500 troops in these operations.

Two incidents, one from the North-East and another from J and K which received vide publicity, would make the issue of false propaganda apparent. It may be recalled that a few years ago the incident of death of Manorma coincided with the extension of the AFSPA in Manipur. Secessionist elements linking the two incidents levelled all manner of allegations against the military (Assam Rifles). Manorma was a PLA member involved in terrorist acts of laying IEDs (improvised explosive devices) spread over a period of two years, leading to the death of six civilians and two military personnel. At the time of her arrest, a transmitter and grenade were recovered from her. While two independent autopsies ruled out rape and torture, the charge of rape against the security personnel was persistently being made out in the media. The nature of her bullet injuries confirmed the escape story.

The second, an equally sensational case, relates to the death of two women at Shopian in J and K, which kicked up great uproar in the valley and saw political skullduggery of the worst kind. The charge of murder and rape was pinned on the security forces. Local doctors, who performed the initial autopsies, confirmed rape and murder. Yet when these bodies were exhumed and an independent group of doctors performed the second set of autopsies, murder and rape were ruled out and death was attributed to drowning. In J and K the causes of alleged disaffection are entirely political. It suits the political class and fundamentalist to sustain the climate of uncertainty, and some in Delhi too have vested interests in continuing with this state of affairs.

In an insurgency environment, miscreants and their sympathisers are always out to discredit the security forces and that way they give further boost to the alienation of the people by portraying security forces as oppressive and anti-people. Where the exchange of fire between the security forces and insurgents take place in populated areas, civilians do sometimes get in the line of fire. In such situations often the insurgents inflict casualties on innocents caught in the crossfire in the sure belief that the blame for such casualties will invariably be pinned on the security forces.

The military, when called upon to combat insurgency, does not have even police powers. Without the AFSPA the military would be rendered toothless. It would find itself dragged into unending litigation on often trumped-up charges. Since action against insurgents is carried out at the section/platoon and even company level, an alleged fake encounter or human rights violation, the case in a civil court will tie all of them up for years in legal battle: some as accused and others as witnesses. Faced with such a prospect, too much caution and prevarication will come into play and success will invariably elude the military.

In a counter-insurgency setting the environment is akin to a war zone, yet in the midst of own people where either one kills first or gets killed. When death lurks around every corner and is only one false step away and such a state prevails for long periods, it can turn men into monsters. It is only the iron discipline and effective leadership, which is up-front and shares the same set of dangers as the men, that retraint is exercised and excesses don’t take place.

Counter-insurgency operations are a messy affair and under certain circumstances, collateral damage is inevitable. Sometimes this can be due to the error of judgment and at other times because of the need for immediate elimination of insurgents. In an insurgency environment, the line between an insurgent and a peaceful citizen can be hazy, especially where intelligence is poor or faulty, which is often the case. An insurgent can just drop a weapon in a bush and pose as a peaceful citizen. Troops often face such dilemmas.

It would be incorrect to contend that troops never indulge in human rights violations. Though Indian troops are God-fearing, religious and refrain from inhuman acts, there have been a few cases of killings, torture and custodial deaths, both in the North-East and J and K. The military authorities do not accept the violation of human rights by their officers and troops even against insurgents. Every case of alleged violation of human rights is fully investigated through the military’s own internal mechanism. During the last 15 years, 1400 cases of violation of human rights were reported against the Army. From detailed investigations of these, it transpired that only 54 had some substance. This resulted in a large number of court-marshals where the punishment ranged from life imprisonment to termination of services. As many as 37 officers were punished.

Abrogating the AFSPA or removing some of its key provisions in an attempt to make it “humane” could place the security forces at a great disadvantage in their fight against a vicious insurgency. Any watering down of the Act will result in de-motivating the troops whose lawful actions may expose them to decades of litigation in civil courts. Violent nature of counter-insurgency operations, the Army’s own casualties and its action against those found violating human rights should give some comfort to the votaries of human rights. Human Rights activists target only the military. The nation should be aware of the sacrifices made by our troops daily to combat this scourge. Altering the basic structure of the AFSPA in an effort to make it “humane” will place the troops in a most unenviable position and will be a de-motivating factor in the fight against insurgency.

Revisiting AFSPA Don’t blame it for Kashmir problems

by Gen (retd) V P Malik

KASHMIR is burning. Political leaders from the state, civil and human rightists, even the media will have you believe that the Armed Forces (Special Powers) Act 1958 (AFSPA) is responsible for this situation and should be revoked or diluted to help resolve the crisis. The Centre, after looking at the situation in a holistic manner and listening to the armed forces’ advice, finds it difficult to decide.

What is the AFSPA? Why is this Act necessary? But first, let me narrate a real situation that took place 20 years ago. In early 1990 I was commanding a division that had troops deployed for counter-insurgency operations in Manipur, Nagaland and a part of Arunachal Pradesh. During the run-up to the Manipur Assembly elections, a political party leader, in order to garner students’ support and votes, made the removal of the AFSPA a major electoral issue. When he won the elections and became the Chief Minister, I went to call on him. I asked him what he planned to do about the AFSPA. He said that in view of the “popular demand”, he would write to the Home Ministry and have it removed from the state. I told the Chief Minister that it was OK with me. I will pull out troops from the 60-odd posts, concentrate them outside Manipur and train them for their primary role of fighting a conventional war.

“But you cannot do that! What will happen to the law and order situation?” he said. I appreciated his concern and told him politely but firmly that I couldn’t help him to maintain that without a proper legal cover. I said: “I cannot have my subordinates hold me responsible for giving them any unlawful command.” Then, very respectfully I stated, “Sir, the best way out is to create conditions in the state wherein the AFSPA is not necessary. If you and the Centre do not consider and declare Manipur state to be a ‘disturbed area’, the AFSPA cannot be applied. Please do not blame the AFSPA for the problems of Manipur. The fact is that despite several elections in the state, we have not been able to create conditions when this Act need not be applied in Manipur. The armed forces cannot create those conditions. These are primarily of political, ethnic and socio-economic nature, under your charge now.”

The AFSPA was enacted by Parliament in 1958 for the “disturbed areas” of the North-East. Later, it was extended to “disturbed areas” declared anywhere in India. It has four essential paragraphs. Para 3 states that if the Governor of a state/Union Territory or the Central Government is of the opinion that the whole or any part of the state/Union Territory is in such a disturbed or dangerous condition that the use of the armed forces in aid of the civil power is necessary, the government by an official gazette notification may declare the whole or affected part to be a “disturbed area”. Para 4 states that “a commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces in a disturbed area may:

• Fire upon/use force, even causing death, against any person contravening law and order or carrying weapons, ammunition or explosives, if in his opinion it is necessary for maintenance of law and order and after giving due warning.
• Destroy an armed dump or fortified position or a shelter from which armed attacks can be made or can be used for training by hostiles, if necessary to do so.
• Arrest without warrant any person who has committed a cognizable offence and may use suitable force, if necessary to do so.
• Enter any premises without a warrant to arrest a terrorist/suspect, or to recover a wrongfully confined person, stolen property, or arms/explosives wrongfully kept.

Para 5 of the Act lays down that the arrested persons will be handed over to the nearest police station “with the least possible delay”. Para 6 states that “no prosecution, suit or other legal proceeding shall be instituted except with the previous sanction of the Central Government, against any person in respect of anything done under this Act”.

The need for the AFSPA for counter-insurgency and counter-terrorist operations is unquestionable. The 1958 Act may have been described as a ‘special power’. But those of us who have commanded troops in such situations have always looked upon it as a legal protection to conduct effective operations.

Terrorists’ activities in J & K have been curtailed substantially but their attempts to infiltrate from POK and cause mayhem in the Valley and elsewhere continue. It is the public order which has become fragile in the last four months due to street protests, stone throwing by mobs and casualties due to firing by the police. In that, there has been no involvement of the Army except on one occasion when troops going in a convoy had to return fire in self-defence. The Army is not deployed operationally in Srinagar. It operates there only when called upon to assist the police in a counter-terrorist action.

The J&K crisis is primarily political in nature caused due to political confrontation, separatists’ increased influence and lack of engagement with sections of the populace and of governance. The problem is not the AFSPA but the excessive and prolonged deployment of security forces, particularly in the urban areas. Their number and visibility goes up further during the Amarnath Yatra period. The policemen and Army personnel wear similar combat uniforms and badges of rank (despite repeated protests by Army HQ) and are clubbed as security forces. Since the real thorn in the flesh of the terrorists and separatists is the Army, they deflect public anger to it and the AFSPA.

A dilution of the AFSPA, which will require Parliament’s approval, is bound to affect operational effectiveness. Revoking it in districts like Srinagar and Gandarbal will have the following security implications:

• These areas are likely to become a safe haven for terrorists. After carrying out activities in areas outside, the terrorists may escape to find shelter in such areas.
• Many Army units are located in Srinagar. There is a frequent movement of troops and convoys within and outside the city. Convoys to Kargil and Leh have to pass through Gandarbal. In the event of any terrorist act, troops will not be able to conduct a seamless operation.

Due to its prolonged promulgation in the North-East and J&K, people often ask as to what has been achieved with the AFSPA. We must understand that the AFSPA is not and cannot be a solution to our internal security caused by ethnic, social and governance problems. It is only a political instrument to enable the armed forces to bring the level of insurgency or terrorism under sufficient control. When such a situation is achieved, it is for the political authority to negotiate a conflict resolution as has been done in the North-East and Punjab. In J&K it has enabled us to create conditions wherein we could hold free and fair elections and allow the state to be run by its elected representatives. And what if such military operations had not been possible or successful?

Defending the need for the AFSPA does not mean that anyone should condone human rights violations anywhere. If any such acts are committed, it would be in the interest of the armed forces to take strict disciplinary action against the offenders as prescribed by the civil and military laws. The military law is prompt and strict in meting out punishment to the guilty.

AFSPA doesn’t need change Harsh law helps in the fight against insurgents

By Lt-Gen Harwant Singh ( retd )

HUMAN rights activists and some political parties, both in J and K and the North-East, have been demanding scrapping of the Armed Forces Special Powers Act (AFSPA). Under pressure from these groups, the government is considering removing or amending some of the provisions in the Act which are considered offensive. It is also being projected that of the 160-odd cases taken up for the prosecution of military personnel involved in human rights violations. The Government of India has not given sanction even in one case.

As a result of prolonged agitation in Manipur, the government appointed Justice Reddy Commission to examine the need for abrogating the AFSPA. The commission did recommend that the Act should be scrapped and in its place some provisions such as immunity to security personnel against arrest be incorporated in the Unlawful Activities Act. While these recommendation(s) were not accepted, the need for making the Act humane appeared acceptable. The Prime Minister announced this while speaking at a function at the Kalinga Fort in Imphal.

The AFSPA, was promulgated to combat Naga insurgency in the North-East more than half a century ago. Later, when insurgency surfaced in J and K, its application was extended to that state too. Causes of insurgency in the North-East lay in complex and intractable politico-socio-economic areas, which led to the feeling of alienation among the people of the region. The underlying causes for the insurgency in J and K are altogether of a different genre. When appropriate measures are not taken in time in a comprehensive and vigorous manner, disenchantment and disaffection can spread among most sections of society. Where terrain favours insurgency and outside help is at hand, the problem can take a virulent form, making the task of the security forces all the more difficult.

It is not to argue that there have been no human rights violations by security forces, but invariably the issues have been sensationalised out of proportion by the media, more so by TV channels. Intense competition among them adds urgency to such news. Added to this is the lack of knowledge and understanding of the very nature of the fight against a brutal insurgency. The vicious nature of counter-insurgency operations carried out by the Indian Army is best judged by the fact that it has lost over 560 officers and more than 8500 troops in these operations.

Two incidents, one from the North-East and another from J and K which received vide publicity, would make the issue of false propaganda apparent. It may be recalled that a few years ago the incident of death of Manorma coincided with the extension of the AFSPA in Manipur. Secessionist elements linking the two incidents levelled all manner of allegations against the military (Assam Rifles). Manorma was a PLA member involved in terrorist acts of laying IEDs (improvised explosive devices) spread over a period of two years, leading to the death of six civilians and two military personnel. At the time of her arrest, a transmitter and grenade were recovered from her. While two independent autopsies ruled out rape and torture, the charge of rape against the security personnel was persistently being made out in the media. The nature of her bullet injuries confirmed the escape story.

The second, an equally sensational case, relates to the death of two women at Shopian in J and K, which kicked up great uproar in the valley and saw political skullduggery of the worst kind. The charge of murder and rape was pinned on the security forces. Local doctors, who performed the initial autopsies, confirmed rape and murder. Yet when these bodies were exhumed and an independent group of doctors performed the second set of autopsies, murder and rape were ruled out and death was attributed to drowning. In J and K the causes of alleged disaffection are entirely political. It suits the political class and fundamentalist to sustain the climate of uncertainty, and some in Delhi too have vested interests in continuing with this state of affairs.

In an insurgency environment, miscreants and their sympathisers are always out to discredit the security forces and that way they give further boost to the alienation of the people by portraying security forces as oppressive and anti-people. Where the exchange of fire between the security forces and insurgents take place in populated areas, civilians do sometimes get in the line of fire. In such situations often the insurgents inflict casualties on innocents caught in the crossfire in the sure belief that the blame for such casualties will invariably be pinned on the security forces.

The military, when called upon to combat insurgency, does not have even police powers. Without the AFSPA the military would be rendered toothless. It would find itself dragged into unending litigation on often trumped-up charges. Since action against insurgents is carried out at the section/platoon and even company level, an alleged fake encounter or human rights violation, the case in a civil court will tie all of them up for years in legal battle: some as accused and others as witnesses. Faced with such a prospect, too much caution and prevarication will come into play and success will invariably elude the military.

In a counter-insurgency setting the environment is akin to a war zone, yet in the midst of own people where either one kills first or gets killed. When death lurks around every corner and is only one false step away and such a state prevails for long periods, it can turn men into monsters. It is only the iron discipline and effective leadership, which is up-front and shares the same set of dangers as the men, that retraint is exercised and excesses don’t take place.

Counter-insurgency operations are a messy affair and under certain circumstances, collateral damage is inevitable. Sometimes this can be due to the error of judgment and at other times because of the need for immediate elimination of insurgents. In an insurgency environment, the line between an insurgent and a peaceful citizen can be hazy, especially where intelligence is poor or faulty, which is often the case. An insurgent can just drop a weapon in a bush and pose as a peaceful citizen. Troops often face such dilemmas.

It would be incorrect to contend that troops never indulge in human rights violations. Though Indian troops are God-fearing, religious and refrain from inhuman acts, there have been a few cases of killings, torture and custodial deaths, both in the North-East and J and K. The military authorities do not accept the violation of human rights by their officers and troops even against insurgents. Every case of alleged violation of human rights is fully investigated through the military’s own internal mechanism. During the last 15 years, 1400 cases of violation of human rights were reported against the Army. From detailed investigations of these, it transpired that only 54 had some substance. This resulted in a large number of court-marshals where the punishment ranged from life imprisonment to termination of services. As many as 37 officers were punished.

Abrogating the AFSPA or removing some of its key provisions in an attempt to make it “humane” could place the security forces at a great disadvantage in their fight against a vicious insurgency. Any watering down of the Act will result in de-motivating the troops whose lawful actions may expose them to decades of litigation in civil courts. Violent nature of counter-insurgency operations, the Army’s own casualties and its action against those found violating human rights should give some comfort to the votaries of human rights. Human Rights activists target only the military. The nation should be aware of the sacrifices made by our troops daily to combat this scourge. Altering the basic structure of the AFSPA in an effort to make it “humane” will place the troops in a most unenviable position and will be a de-motivating factor in the fight against insurgency.

AFSPA in Kashmir Review the Act, don’t dilute it

THE disconcerting chorus from the Kashmir valley for the withdrawal of the Armed Forces Special Powers Act (AFSPA), or diluting some of its allegedly draconian provisions, calls for a closer scrutiny. It is certainly a matter of concern that the demand, which is at the core of the seperatists’ agenda, has been co-opted by not only the main opposition party in the state, the PDP, but also by the Chief Minister, Mr Omar Abdullah. Both the mainstream parties, the National Conference and the PDP, seem to be vying with each other to take the credit as and when the Act is partially or fully withdrawn from the state. There is thus a remarkable convergence of views on the AFSPA between hardliners like Syed Ali Shah Geelani and moderates like Mirwaiz Umar Farooq on the one hand and between Ms Mehbooba Mufti and the Chief Minister on the other. All of them now say that some dramatic concessions on the AFSPA must be made before peace is restored and dialogue resumes in the valley.

The AFSPA can, however, be withdrawn from the state only if the government withdraws the “disturbed area” tag from it. Given the current situation in the state, it will be foolish to do any such thing. And as for diluting its provisions, only Parliament has the authority to do so. With most political parties in Parliament firmly opposed to any dilution in the Act, it again appears an unlikely possibility. More importantly, the demand appears designed to deflect attention from core issues. The Army, for example, has played no role whatsoever in the disturbances which have rocked the state in recent months. Indeed, the Army has been involved in only one or two clashes in the cities during this period. Most of the time it was the state police and paramilitary forces, to whom the AFSPA does not apply, which opened fire on stone-pelting mobs.

No decision on the AFSPA should, therefore, be taken in haste or on emotional or political grounds. While the armed forces must ensure zero tolerance to the abuse of the Act, the state government cannot allow the street and the Hurriyat to set the political agenda. It must address the governance deficit and trust deficit that precipitated the crisis in the first place and stop using the AFSPA as a pretext for its inaction.

Source : The Tribune - 22 Sept -2010