Governance and the Armed Forces

“Indian Army, Rape Us”

The naked protest by women in Imphal, Manipur, on July 19, 2004, in front of the Assam Rifles Headquarters was in righteous protest against the custodial rape and murder of Thanjiam Manorama allegedly by Assam Rifles personnel. The protesting women held a banner that read, “INDIAN ARMY RAPE US” and “INDIAN ARMY TAKES OUR FLESH” [http://www.commondreams.org/headlines04/0719-03.htm ; Accessed on 19.3.2011]. While crimes by Indian Army personnel should never be excused or go unpunished, it is unfair that crimes by Assam Rifles personnel, who are not soldiers of the Indian Army, are publicized as committed by the Indian Army. This has occurred because of confusion in public perception about the Indian Army, its role, and the Armed Forces Special Powers Act (AFSP Act). The present article attempts to provide clarifications and discusses the folly of long-term army deployment to solve politically-created social problems.

Law and order and the police

Misconceptions exist concerning terms like “security forces”, “Armed Forces”, and “soldiers”, resulting in the wrong use of these terms by the print and electronic media, leading to confusion among the public. The physical force that central or state governments possess in order to enforce internal law and order is vested in the police. State police personnel who may be unarmed or armed are under the control of State governments, and cannot be deployed outside of the respective states. Paramilitary forces such as the Assam Rifles, ITBF, BSF and CRPF are controlled by the Ministry of Home Affairs. They are not soldiers of the Indian Army, which is controlled by the Ministry of Defence. Paramilitary forces can be deployed anywhere within India, with the concurrence or at the request of the state government(s), to enforce law and order when state police forces fail. All police personnel enjoy the rights of any citizen under the Constitution of India.

Military and police forces are distinct

It is important to note that all police or paramilitary uniformed personnel who are armed are not “Armed Forces”. The reason for highlighting this distinction is connected with the Constitution of India and a central legislation called the Armed Forces Special Powers Act (AFSP Act), which is being strongly opposed by many people especially in the northeast states and Kashmir, epitomised by the principled and courageous 10-years-long, on-going fast by Irom Sharmila.

A soldier, which term here includes all military ranks, is a trained member of the army subject to civil and criminal law like any citizen, but additionally governed under military law through the centrally legislated Army Act (along with the Army Rules and Defence Service Regulations) for disciplinary and administrative purposes. Under military law, soldiers are denied certain fundamental rights available to all citizens under the Constitution of India. These are the right to freedom of speech and expression (Art.19(1)(a)) and the right to form associations or unions (Art.19(1)(c)). Thus, soldiers are uniquely, constitutionally and legally handicapped citizens, and the army, navy and air force, together known as the military or the Armed Forces or the Defence Forces have as their supreme commander, the President of India.

The Constitution of India makes a distinction between “the members of the Armed Forces” (Art.33(a)) meaning soldiers, and “members of the Forces charged with the maintenance of public order” (Art.33(b)) meaning police personnel. Thus the term “Armed Forces” (proper noun) or “armed forces” (common noun) should not be applied to just any body of uniformed armed persons (such as police or paramilitary who may be authorized and trained to use firearms), but only to the soldiers of India’s military.

Roles and responsibilities
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India’s Armed Forces have the primary role of defending India against external threat or attack by armed aggression and are responsible to protect the territorial integrity and sovereignty of the Union of India. The Armed Forces may also be requisitioned by a state government to assist its police personnel and paramilitary personnel, with the concurrence of the Ministry of Defence. This is the secondary role of the armed forces in “aid of the civil power” under the Seventh Schedule (Art.246) of the Constitution of India. This may include rescue and relief operations in natural or man-made disasters (including rescuing children from borewells, which apparently is not within the competence of the civilian administration) or maintaining law and order (internal security or IS duties) or combatting insurgency (counter-insurgency or CI duties). All of these are the primary role and responsibility of the state and central government administrations using all resources at their command including all state and central police forces. The army components and police forces on IS or CI duties may operate independently or form a composite force sometimes referred to as “security forces”.

Reports in the media sometimes confuse the army with the police because of ignorance, but also often enough because the olive green colour camouflage pattern combat dress uniforms worn by both are almost indistinguishable to the average citizen. It is not generally known (and unfortunately not being insisted upon by the army) that army uniforms or uniforms made to appear like army uniforms, and army badges of rank are not to be worn by any force or person who is not serving in the army. Restriction on use of military uniform extends even to retired Armed Forces personnel who cannot wear their service uniforms except on specified few occasions.

Military under civilian control

When the armed forces are deployed on IS duties, a soldier cannot open fire on civilians without the written permission of the civil administration represented by an accompanying civilian official not below the position of a magistrate. In default, the soldier is liable to disciplinary action by court-martial. This restriction does not apply to the police, which is part and parcel of the civil administration.

When the law and order problem (social unrest including insurgency) is widespread within a state, the state may call for the army in “aid of the civil power” for IS or CI operations. But since the army cannot fire on civilians without written permission from civilian authority, the state government invokes the Armed Forces Special Powers Act (AFSP Act) after issuing a government order formally declaring the state or specific part(s) of it as “disturbed area(s)”, since it cannot provide a magistrate to accompany every army sub-unit or detachment.

Thus the AFSP Act, a central legislation, is intended to enable soldiers on IS or CI duties to perform their secondary role when requisitioned by the state government. If the AFSP Act is not invoked, the army cannot function in this role.

Failed state

It is well recognized that social unrest and most law and order situations have been caused due to non-governance, mis-governance or active mal-governance and endemic (now epidemic) corruption by central and/or state governments. Historically, there has never been a stable military solution to political problems. If long-term solutions are genuinely desired, such politically-created situations should only be tackled politically. Decades-long army deployments have not provided a solution. The people of these “disturbed” areas are disgusted with governance through dishonest politics including misusing the army, and people are beginning to suspect that the army has a stake in IS or CI deployment. This is untrue, since the army is deployed on the specific requirement of the state government. The army needs to be withdrawn from IS and CI operations except in the rarest of rare circumstances. Rather than demanding repeal of the AFSPA, the people’s demand should be for governments to perform their primary duty of democratic governance in the national and public interest, and revert the Army to its primary duty on the borders. With the army’s withdrawal from IS or CI duties, the need for the AFSP Act will vanish. State governments have been calling for the army in “aid of the civil power” because of their abject failure to govern democratically using the administrative machinery which includes state force represented by the police and paramilitary. Continuous deployment of state force including the army to suppress people’s voices and dissent is admission of a failed democracy, and portends ill for the Union of India.

**Maj Gen S.G.Vombatkere retired as Additional DG (Discipline & Vigilance) from AG’s Branch, Army HQ, New Delhi. He is a member of the National Alliance of People’s Movements (NAPM) and People’s Union for Civil Liberties (PUCL). He may be contacted at:

475, 7th Main Road // Vijayanagar 1st Stage // Mysore-570017

Tel: 0821-2515187

E-mail: sg9kere[at]live.com