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Mainstream, VOL LVI No 38 New Delhi September 8, 2018

Army Officers soliciting Judicial Protection during Operations in Good Faith

Sunday 9 September 2018

by Gautam Sen

In an unprecedented move, over 300 Indian Army officers have approached the Supreme Court of India on August 14 this year with a writ petition, posing a question on whether a soldier‘s discretion under operational conditions can be put under legal scrutiny. The move is in the backdrop of the investigation instituted by the Central Bureau of Investigation (CBI), at the behest of the highest judiciary, against some Army and State Police functionaries in certain cases emanating from alleged human rights violations based on prima facie evidence.

The Army officers have made a submission to the Supreme Court for issuing a writ of mandamus or any appropriate writ laying down specific guidelines to protect the bonafide action of soldiers under the Armed Forces Special Powers Act (AFSPA) so that no soldier is harassed by initiation of criminal proceedings for actions undertaken in good faith in exercise of their duties, as mandated by the Union of India, in protection of the sovereignty, integrity and dignity of the country.

The plea of the officers has neither been approved nor opposed by their higher Service echelons. It is therefore apparent that the petition of the officers has tacit support of their Service Headquarters. It is, however, not clear whether the Ministry of Defence was consulted by the Service Headquarters before they adopted their benign and virtually supportive posture towards the litigant officers. The Army officers’ move, though in their personal capacity, is against the Union of India, the entity they serve under and questions the directives, Acts and Rules promulgated by the latter, and under which they have certain legal and administrative commitments and norms to observe.

A view could be taken to the effect that the litigant Army officers desire to function in a totally unfettered operational condition, beyond any parameter legally specified by the highest judiciary even under other-than-emergency conditions. The judicial challenge to the Union Government‘s authority is setting a dangerous precedent, undermining democratic governance and virtually the Constitution and permitting an erosion of its authority by those whose duty is to uphold it. Acts of the judiciary have also been challenged by virtue of the question raised on the CBI investigation ordered by the Supreme Court in certain cases of public outcry and where prima facie evidence seems to exist of high-handed action beyond the mandate and essence of the AFSPA.

The import of the petition is significant as well as ominous. First and foremost, it is the Union Government, and particularly its Ministry of Home Affairs, which administers the AFSPA, and also the Ministry of Defence to an extent, that are to blame for allowing the grievances of the Army officers to arise as has been evident not now, but over quite some time. There is absolutely no justification for allowing the AFSPA to remain promulgated over wide areas of the North-East and also the entire Jammu and Kashmir.

A former Union Home Secretary, Shri Gopal Krishna Pillai, an empathetic officer with wide experience in developmental and security matters in the affected areas, had questioned the rationale of the AFSPA as it has been executed and allowed to continue. In case of Nagaland, the officer had specifically questioned the rationale of the AFSPA in the entire State when the need for using the instrumentality of this statute did not exist in the context of the law and order and insurgency-related milieu prevailing there for quite some time, after the ceasefire of 1997. However, the same may not be the case in other areas within the ambit of the AFSPA.

The point for consideration is whether the shield of this Act should not be used very selectively and in a monitorable manner so that aberrations do not occur and public confidence in the armed forces is not eroded. The AFSPA is intended for special situations and particularly where intense anti-national, violent insurgent actions are anticipated, and the normal law and order machinery is affected or substantially incapacitated. In such a scenario, the AFSPA is undoubtedly required.

However, there is a need to have an internal control mechanism within its purview that critically and unbiasedly enables probes in cases of alleged excesses committed by the operating officers and lower personnel. The Army officers, who have approached the highest judiciary, seem to have lost faith in the existing system, thereby requesting for an unfettered scope to operate in defence of national security, sovereignty and dignity.

The essence of the matter is that the sovereign Indian state should function and also be seen to function in a benevolent manner towards its citizens upholding their basic rights, while protecting national sovereignty and honour in an assured manner. These attributes of the nation-state has to be felt and perceived by its citizens and all stakeholders. When this is not so, unusual institutions like the AFSPA become necessary.

A temporary palliative, which the AFSPA should have been, when converted to a long-term measure, results in undesirable consequences. The existing political elite, of different political orientations, have been resorting to such unusual measures and deploying the armed forces, particularly the Army, rampantly albeit brazenly, to deal with socio-economic, political and ethnic unrest, which should have been dealt with political instruments and the civic machinery of the state. Undue stressful conditions are concomitantly being created on the armed forces, leading to aberrations, and mostly unintended excesses. This phenomenon has to be controlled. Selective use of such coercive instruments of the state against its own people should be the norm rather than the extended applications noticed over the past two decades.

Moreover, in supreme national interest, the Services should be deployed in the rarest of rare cases empowered with the AFSPA, and then too under modified arrangements which enable magisterial accompaniment to such forces operating on internal security duties and counter-insurgency operations, particularly in traditional civilian areas away from the borders. There is also a need to have a suitable civil element with appropriate experience of service in areas and operations under consideration, functioning with the Services and other armed forces in operational mode and not for liaison only, which enables an empathetic under-standing of the milieu in which our Services and armed forces have been operating.

Needless to emphasise, moderating the existing institutions has become difficult over the years, owing to gradual erosion of trust between the civilian authorities, particularly the civil bureaucracy, and the military hierarchy. Though the two elements of the state have risen to the occasion during national emergencies, they have not functioned as a part of a continuum under many circumstances, particularly when long-drawn low intensity conflicts or insurgency conditions have prevailed.

This backdrop explains the recent pheno-menon of a large number of Army officers approaching the Supreme Court of India for their grievance redressal invoking judicial intervention for acts in good faith during internal operations. However, red lines are required to be placed before the Services hierarchy as well MOD, not to take a casual view of the recent development pertaining to the writ filed before the Supreme Court, which actually poses a challenge before the Indian state and its institutions.

If the democratic ethos of the Indian nation-state is not to be undermined and its institutions subverted, a channel is required to be put in place at the earliest, if required even independent of the MOD and the Service Headquarters, which can deal with and decide on such grievances within the constitutional framework, in a manner that engenders confidence of our Service and other operating personnel. Persons of eminence along with Service officers of appropriate temperament, predilection and experience should be an integral component of such an arrangement if at all it can be so evolved.

The author is a retired IDAS officer who has served in senior appointments with the Government of India and is presently Adviser to a North-East State Government.

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