A petition by 356 Army officers to the Supreme Court against any move to dilute the controversial Armed Forces Special Powers Act, AFSPA, brings to the fore once again some of the vexed issues associated with this Act and its application. In a somewhat related way, this is also another reminder to the Indian state to begin reimagining the role of the military. That is, if full-scale war becomes redundant, as it indeed seems to have, what are the new roles the military should be made to shoulder?
The Army officers’ petition comes in the wake of an SC ruling of July 8, 2016 which said the shield against legal prosecution provided by the AFSPA to Army officers for their actions under the Act cannot be to all extent and must yield to the universal standards of human rights.
The AFSPA also gives sweeping powers to Army personnel acting under it, including to kill on suspicion, enter homes and search without warrant, destroy structures on suspicion they are hideouts of militants, over and above the impunity clause. This SC ruling was in a case filed by the Extra Judicial Execution Victim Families Association Manipur, EEVFAM, seeking an inquiry into the alleged 1,528 fake encounter killings in the state by the Army and the state police in the name of counterinsurgency during the period between 2000 and 2012.
Earlier, in January 2013, taking cognizance of the gravity of the case, the SC had constituted a committee headed by a retired SC judge, Santosh Hegde, to do an initial probe. Former Chief Election Commissioner JM Lyngdoh and former Karnataka DGP Ajay Kumar Singh were other members of the committee. The committee picked up six of the 1,528 cases at random and held hearings in Imphal, and at the end of it concluded that all six were killed in custody and that none of the victims had criminal records.
On July 14, 2017, another ruling of the SC ordered the CBI to form a team and thoroughly investigate the cases. After being severely reprimanded by the SC for dragging its feet on the matter, the CBI has now begun investigating in earnest. Amidst the heat generated, whistle-blowers from within the Army and police establishments have come out in public claiming they are witnesses to many of these executions. The sensational revelation of custodial torture, killings and extortions by a unit of the 3 Corps’ Intelligence and Surveillance Unit, 3-CISU, last month by Lt. Col. Dharamvir Singh,in particular would have shaken up the Army establishment. Col. Singh’s own petition is now pending in the Manipur High Court.
It is against this backdrop that the current petition by the army officers has come. The argument is, the Army is trained to fight enemies in war and not for civil policing duties, and if it is called upon to do the latter, it has to be given the powers and impunity that the AFSPA guarantees. Furthermore, the Army has entered these conflict theatres not out of choice but because the civil authorities invited it, and if the civil authorities do not want it, it would be happy to go back to its barracks.
Dissent against the AFSPA is often misinterpreted as dissent against the Army, therefore this clarification at this point that the two are not the same. The point of contention here is definitely the AFSPA, but not necessarily the Army.
Nobody will dispute that the Army is trained to fight wars and guard the nation’s borders, but should a situation arise that the civil authorities need the Army’s firepower to meet internal challenges, it is obliged to obey, after all, India is a republic where civil authority is supreme and definitely above that of the military. It is no coincidence that the Supreme Commander of the Indian Army is a civilian—the President of India. By the same logic, if the Supreme Court wants the Army to not transgress the international principles of human rights, the Army is again obliged to abide by the directive.
In any case, the AFSPA does not indicate any allowance for custodial killings or torture, except, perhaps, the ambiguous phrase that the Army is empowered to “use force as may be necessary”. Otherwise, any person the Army takes into custody is to be handed over to the police in the shortest time possible. The AFSPA also mentions nothing of civil crimes such as rape, theft, torture or extortion, and if such crimes do come to be committed by Army personnel, it would only be natural for relevant civil laws to arbitrate.
There is a larger issue here.
The last declared full-scale war India fought was nearly 50 years ago, in 1971, and quite likely it may never fight another such war again. Under the circumstances, the Army’s role may be restricted to only deterrence. Should this be enough purpose, or should other gainful responsibilities be thought of for the Army? It is quite likely such a new role will more likely be duties akin to policing, perhaps in the nature of UN peacekeeping forces—not fighting enemies or wars but assisting in upkeep of civil order. For instance, there are reports that in China their army is being used to fight the challenges of pollution. Would it not be appropriate then for India to start conceiving of legislation that can live up to the expectations of such a future, and not be stuck with undemocratic, colonial legacies such as the draconian AFSPA?
The other false argument often forwarded to debunk criticism of the AFSPA is that there is an ulterior motive in such criticism. It is contended that human rights activists and the media are too quick to attack state forces for alleged human rights violations but are unwilling to charge the militants of the same violations when they commit atrocities. The truth is, this is exactly as per the mandate of the UN’s Universal Declaration of Human Rights, 1948.
The human rights movement was born in the aftermath of World War II, and in acknowledgment that the state can be a serious violator of individual rights. However, especially in the wake of the LTTE, which was a virtual state once, there was an attempt to give parity to both kinds of atrocities with the introduction of the Geneva Conventions Protocol-II, 1977. Unfortunately, most countries with radical internal dissents refused to ratify it as this would give the challengers the status of putative states. Until such a protocol comes to be adopted as an international law then, atrocities by state forces will remain human rights violations and those by militants law and order problems for the state to resolve.
Pradip Phanjoubam
phanjoubam@gmail.com
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