300 ODD ARMY OFFICERS IN SUPREME COURT OF INDIA FOR UPHOLDING AFSPA

(Personal Views of the Author. Reproduction in full or part is illegal. All Copy Rights are With The Author. Painting and Photo Credits are to the Painters, Photographers & Statisticians)

1. The News doing rounds on the Print, Digital Media & Social Media is disturbing at best.
Prelude
2. AFSPA is a very important “Last Option of All Options” available to the Constitutional Government of India to wrest the initiative from any internal rebellion, adversary or situation at any cost – An extreme measure at best.
Authority
3. It is a constitutional instrument & draws it’s authority from the Constitution of India, to take charge of a situation gone beyond all possible available control at the disposal of the Constitutional Government, at any cost.
Powers
4. It is for those situations alone that the AFSPA is meant to be used and has provisions that do not allow any civilian questioning at all in the line of duty in National interest, until the Civil Administration is back in control.
How Are The Defence Forces Called In & AFSPA Applied
5. When ever the local administration feels that the local law & order situation for any reason, is out of control of the local security resources like the Rural, Urban, Special, Armed, Police Forces as well as Central Police Forces such as the CRPF & the BSF or the ITBP or SSB etc, then and only then are they required to call in the Defence Forces.
6. Reasons for this caution are in the following facts:
• It is clear that the situation is so bad all the armed Police Forces have not been able to quell it with all the force at their disposal.
•The State & Central Intelligence Services have advised the local Polity, Administration & the Police about the likely extension of the gravity of the situation to warrant deployment of the Army.
• The Defence Forces are trained to Kill the enemy and cannot be expected to have the same level of sensitivities that a Policeman would be trained for and the civil population would expect.
• Due to the above and the fact that the Defence Services Troops will have to operate under their own procedures & drills suitable to their training, the Command & Control of the Situation has to be “Handed Over” to the Defence Forces.
• However the District Magistrate is expected to be available and present on the site of every encounter as a witness and the representative of the Indian Penal Code (IPC) where ever the Defence Forces are expected to open fire or take preventive action. Unfortunately this rarely happens, except when forced.
• To cater for the use of this exceptional force, the Defence Forces have to be given special powers that provide use of force and immunity to the users far in excess of that contained in the Police Act.
• This is where AFSPA come into play and is applied by the Local Administration & Police under the advice of the State & Central Government before handing over the situation to the Army.
• In a Federal Democracy that India is this is never the best option, hence very deep deliberation is expected from the local polity governing or in opposition, the administration and the local Police.
• Such requisitioning of the Defence Forces has to be done by a Judicial Officer of the minimum rank of a Class III Judicial Magistrate (DM), or the District Collector (DC) after due consultation with the Chief Secretary (CS)of the State Government and never without the total consent & knowledge of the Chief Minister (CM) and the Central Home Minister (HM).
• Thus everyone in the Civil Administration from the Sarpanch, Station House Officer (SHO), DC, DM,S of Police (SP) to the CS, Director General of Police (DG), CM at the State level & the HM in Central Government know exactly what they are bargaining & asking for.
• There is no doubt in any ones mind at all about the terms of engagement & the shortcomings, except in the minds of the unawares innocent local population, education of which is the basic duty of the Civil Administration.
Misuse
7. The Defence Forces & the AFSPA is misused in many ways and basically & mostly by the Polity, Administration as explained below:
• The first instance of the misuse of AFSPA is by the entire Civilian Administration mentioned above using the Defence Services under AFSPA by not doing enough to avoid any uprising at all, peaceful or otherwise.
• The second instance is in their not trying enough, to deal with the situation on their own thus requisitioning the Defence Forces directly to control situations that basically need civil administrative & legal intervention not military.
• Most if not all situations where Defence Forces are deployed are caused due to Civil Administrative & maintenance of Law-Order failures, such as issues of development, education, disbursement of rations, water, jobs etc.
• To keep themselves & their careers safe from situations and locations that they finds challenging even in normal conditions that the local population live in, the Civil Administration hands over the situation to the Defence Forces, at the first sight of trouble.
• The above is the actual & the very first step of the misuse of AFSPA & Defence Forces all other aspects flow out of this ill-conceived goals for the Defence Forces, who can at best only provide a cooling off period between the two conflicting sides.
8. The State Governments too, are very happy to “use” the Defence Forces because it saves them their funds & a lot of blame that would be other wise be responsible for. Some of these are:
• Payment of Police Forces (City/State/SRPs/BSF/CRPFetc) which they keep to the minimum and bolster their Police Forces on requirement basis with casually temporarily & rotationally employed “Wardens” at cheaper rates.
• The Stores, accommodation, rations, extra duty & over time allowances, etc.
•Allied costs and costs for equipment.
• It also kind of loosely absolves them of the responsibility & accountability of the situation. It allows the Administration to slip the negative fallouts of situations arising in such areas, on to the doorstep of the Defence Forces overtly or surreptitiously.
• This kind of an employment of AFSPA is contentious at the best.
What Does Employment Of AFSPA Mean
9. AFSPA is a tool, employment of which indicates that a State & the Centre has failed least at these levels:
• District & State Administration.
•District & State Law Enforcing Machinery.
•State & Central Government’s Intelligence.
•Central Government’s will to stem a rising challenge in time.
• Else, in an federal democracy there should have been no reason for asking the Military to take charge of some areas of a State or a whole State itself!
Implications Of AFSPA on Defence Forces Themselves
10. AFSPA is a very dangerous double edged instrument for the Defence Services themselves, because:
• It erodes the deterrence value of the Defence Forces in the Civil Population undermining the principal of use of minimum force. Today Defence Forces are being challenged by grenades or stones strategically, forcing the Defence Forces to open fire more often and then slapping them with Human Rights (HR) abuses as a potent weapon dug deep and twisted the way the wielders feel best serves their purposes, be it the local HR organisations or International.
•It erodes the support base that the Defence Forces must enjoy for protracted engagements internally or externally.
•It also diminishes it’s recruitment base in both the ORs & Officers ranks.
•It results in reduced disciplined behaviour within its rank & file as more & more junior ranks have to be given more & more powers to perform more & more, with reduced supervision thus increasing their contact with not just regular corruption in the civil spheres but highly motivated anti- national subversive contact.
•It should also, be expected that there would be larger numbers than normal transgressions of good disciplined behaviour and law & order amongst the rank & file that go unreported.
• All these have very grave effect on the conventional operational efficiency of the Defence Forces which is their primary role.
Misconceptions
11. AFSPA, does not and cannot provide immunity to any one against motivated “offences against civilians” as is popularly believed as given below:
• A propaganda seems to have caught the fancy of many that Defence Forces Personnel are not subject to “Civilian Laws”.
• It is inconceivable that any citizen of India, at point of time from birth to death is, not subject to it’s laws directly or indirectly.
• In fact the Defence Forces Personnel are subject not only to the IPC & all other Laws applicable to any normal citizen, but they are also in addition subject to more stringently laws like the Army Act or the Air Force & Naval Acts read in conjunction with the Regulations of the Army or Regulations of the Air Force & Navy.
• This double Legal bonding is the harness under which Defence Forces Personnel are sworn to, not just during service but some of these provisions also apply to them after retirement upto a period of three years.
• Defence Forces personnel remain subject to the Indian Army/Air Force/Naval Act and through section 80 & other sections of that act they remain subject to the IPC & all other laws in the Constitution of India.
12. The Defence Forces have an extremely robust law enforcement and punishment system in place with a very severe but good reputation. The strict Military Law helps the Defence Forces keep its flock focused on matters military and immunises them from unnecessary vagaries of the open market civil environment.
• Errant personnel are first tried under these laws after a detailed Court of Enquiry followed by a Summary of Evidence if required and a Court Martial (There are Three different kinds based on the gravity of the offence) or Administrative action for minor offences.
• At any stage if the personnel are found guilty Section 80 of the Army Act is immediately applied and they are handed over to the civil Police for further legal procedures.
13. However AFSPA does immunise soldiers from accidental collateral damage when operating in good faith.
• The dividing line is as thin as integrity & belief of the rank & file amongst themselves as well as between the Civil Administration & Defence Forces.
Fall Out of Longer Deployment of Defence Forces
14. Longer deployments of Defence Forces under AFSPA, apart from the internal ills mentioned earlier, makes the Defence Forces a contender in the conflict that was neither of their making nor would the outcome help them in any way other returning to peaceful barracks.
15. In long protracted deployments Defence Forces are increasingly seen as “The Administration” / “The Government” which they are not, but are forced to act for, by hapless civilians living between the Forces & Insurgents in the absence of Civil Administration & Police.
16. Junior officers & ranks of the Defence Forces deployed for long periods, with additional powers, enjoy & exercise this power with reducing supervision.
17. This less supervised power, is as dangerous a mix under AFSPA, as it is within the service without it.
18. It also works both ways – well supervised it provides superb & immediate results or it creates major disasters for cover-ups by the Defence Forces.
19. There have been cases of Officers taking matters into own hands and also many instances of Anti National Elements implicating innocent service officers & men in motivated cases.
Hierarchical Fault Lines
20. Pyramidal military hierarchies play a big role in the ills of deployment under AFSPA for prolonged periods.
21. The desire of some Senior Officers to make it to the top of the “Greased Malkhamb Pole Hierarchy” looks for results every 11-18 months. This makes them look away from illegalities & in many cases encouraging them to get more & more “Results” to reach the top of the “Greased Malkhamb Pole” themselves,
leading to more transgressions of Law.
Fallout Of Excesses in Prolonged Deployments
22. Nothing ever goes unnoticed.
• It’s just the unawareness in the area of Operations that may give an errant soldier a lease of blameless existence.
• When blamed, civilians remember / recognise only the men on the spot, not the ones ordering them or those whose criminal incompetence & deliberate lackadaisical corrupt attitude led to the creation of the situation that had to be dealt with a hammer instead of platitudes or at the maximum a sensitively handled scalpel.
• There are times when the “Ordering Authority” within the Defence Forces, feigns ignorance & refuses to recognise the defaulters when things go out of hand. After all it’s a game of climbing the “Greased Malkhamb Pole”, ‘bottom up’.
• Further, to “Contain” the unsavoury, everyone beyond the rank blamed, backs off leaving the blamed helpless, dejected, betrayed & alone.
23. On the other hand, the only recourse to a civilian harmed in such a conflict is an FIR.
• Nothing else.
• The Administration, to keep the focus away from itself and onto the Defence Forces, encourages the aggrieved civilian to take the legal recourse, leading to friction between the Civil Administration and the very Defence Forces they requisitioned to contain their situation.
• This surely would be encouraged by the subversives too within or outside the administration.
• For the accused Defence Forces personnel, it’s nearly impossible to attend courts in remote areas or hold court orders in contempt.
• Within the services apart from lip service such personal are treated like plague by other “Greased Malkhamb Pole Climbers” for their own sakes & maybe rightly so for their own careers & family.
• Finally these “Defence Forces Orphans” both, Good & Bad (I can’t say all are framed, some may be guilty as charged too) have no other option, except clutch at straws to save themselves.
24. All of the above will result in the following very severe disabling effects on the Defence Forces that no Nation can afford :
• Lowered trust & respect along the hierarchy & leadership.
• Lack of discipline.
• Lowered morale.
• Reduced efficiency.
• Lack of initiative at the lowest level.
• Deep sense of insecurity in the security providers.
•Reduced fighting capabilities.
The Case In Supreme Court
25. The ongoing & raging debate on AFSPA & it’s dilution is a “log raft” not a “straw”, that may help many soldiers of good faith find solid bearing & dry land once again, accompanied by maybe some not so deserving.
26. The damage to the Defence Services as given above has been done in any case over 70 odd years of Internal Security Services.
27. The halo around the Defence Forces is melting and that is not good because the Nation needs the provisions of AFSPA much more today in the face of the enemy within, propelled by a philosophy of a “Thousand Cuts” or “Wahhabi” interpretations of a Sect or some other deeper yet to manifest threat, lurking deep within our poverty stricken diversity.
Remedies
28. Remedial actions are required to be taken immediately at the highest levels.
• Question the competence of the individual Administrator, Police Officer & Politician requisitioning the Defence Forces.
• Suspend with immediate effect all local Administrative Officers & Politicians who were unable to predict and contain the growing unstable situation, well in time for Armed Police Forces to be deployed.
• Politically, the State must be first held responsible, accountable for failure of its Administrators, Police & Intelligence and then alone should the Defence Forces called in or sent by the MoD.
• Orders for withdrawal of Army from all areas disturbed in a phased manner must be given with a last date, even before the engagement is accepted by the Central Government or Ministry of Defence with SOPs sent outlining clear mandates to contain the situation within a fixed time frame, specifically extendable under clearly laid down rules.
• In addition, all State Governments must be informed under Constitutional provisions to pay for the deployment of the Army.
• With this, all State funds meant for Security & ancillaries should be withdrawn by the Central Government.
• Judicial enquiries must be simultaneously instituted to enquire into the failure of the State Governments to keep the situation under its own control, that led to developing of such a grave situation that Defence Forces under AFSPA had to be deployed.
• Results must be made public within a stipulated period.
29. It is also time for the Centre and the States to start questioning the undermentioned and make public their findings, so that the accountable officials turned beneficiaries from such situations are exposed to their local constituency and National public:
• Sarpanches, MLCs, MLAs,
•All Political Party local Leaders,
• The IAS- DCs, Secretaries etc,
•The IPS- SHOs & SPs to DGs,
in the areas where Defence Forces are deployed.
30.The Army must be consulted by the Central Government about the intent of deployment and in turn the Army must apprise the Central Governments in clear terms about the implications to the Civilian setup and it’s own main tasks.
• The Army’s refusal to send troops into the “Red Corridor” Bihar-Chhattisgarh-SW Orissa-Eastern Maharashtra-Andhra Pradesh-Karnataka-TN-Kerala, that led to deployment of CRPF by raising additional units and expansion for Chhattisgarh, is one such instance.
31. The other way to stop misuse of AFSPA, is to question the reasons for deployment of the Defence Forces as the failure of the Administration and link it to questioning the misuse of funds that the States should have used to quell the disturbance on its own without the Defence Forces.
• Heads of the officials, in the disturbed areas whose irresponsible professional behaviour created the fermenting of the situation to its locally uncontrollable level, must roll before the Army rolls in.
• Obviously such funds are diverted, but shared too with others in the Centre? Else how can so many States have some Districts or the whole States under AFSPA for so many years with the entire civilian administration from Sarpanch & SHO to the Chief Secretary & DG Police to the Chief Minister of the State and the Home Minister at the Centre be comfortable with the status quo?
32. These are their glaring failures that should be stated, along with the achievements that are touted like the odd road building, house construction etc activities which involve middle-men & contractors!
33. There could be many more ways to deal with this scrooge, other than first allowing the situation to decay, excesses committed and then blaming the lowest man in the reverse hierarchy of chaos .
Conclusion
34. The first step to demolish the strongest & India’s only internal security mechanism AFSPA is under way – This Should Stop.
35. The Constitutional Government of India, placed between the markets of Central Asia, the West & the logistic routes through the Indian Ocean; existing in an era of growing competitiveness across the Thar, Riverine Plains of Punjab & West Bengal, High Altitude Himalayas & the Densely Forested Hill, has a definite military threat for which India can only be foolish at its own peril not be prepared for, very well to deliver the power it is known to have & it wishes to project strategically & tactically.
36. The strength of India itself is also its achilles heel. Instead of engaging the Indian economic and military strength on its borders and expected terrain in protracted costly conventional wars, the internal threats are more real & immediate.
37. These threats will need provisions of the AFSPA.
38. The provisions of this most important act AFSPA 39have been misused, abused by incompetent State & Central Government Politicians, IAS, IPS & some in the Defence Services too and now it stands to be modified or worse marginalised or abrogated .
Epilogue
39. If the problem in Defence Services is the “Greased Malkhamb Pole Climb”, on retirement it’s the tether of a pension, tied to the same Pole that keeps even the Veterans straight-jacketed, silently remorseful & uncompromising, while the Politicians, Administrators, Policemen & now even Civilians with vested interests enjoy beating down the only saviours they have to preserve their democracy.
40. Unfortunately the only use our Nation’s Political Masters seem to have for the Defence Forces is only to provide publicity or strut around ceremoniously, with their hard earned medals jangling a sad cacophony of achievements from remote frontiers.
– Colonel Dilip Kumar Sharma (Veteran)

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