In defence of the defender

No one loves a warrior till the enemy is at the gate. War, internal law and order, floods, bridge collapse in Mumbai or elsewhere, child stuck in a drain – call in the military. The organization, discipline and procedures of the military ensures that succour is provided in the least possible time without meddling or posturing.

But with the latest set of actions against the military by India’s courts and political parties, this is about to change. Three examples illustrate why:

In August 2018 for the first time in recent history, 356 army personnel serving on counter-insurgency duties have felt so abandoned by the State and their own hierarchy that they have, each in their personal capacity filed a petition in the Supreme Court seeking relief from “‘persecution and prosecution’ for performing their ‘bona fide duties carried out in good faith’”.
In Jan 2018, the Jammu & Kashmir (J&K) police filed an FIR (First Information Report) against Major Aditya Singh and the infantry battalion 10 Garhwal Rifles when two stone-pelters died after the army fired in self-defence. The Major’s father, himself a retired army office, has filed a writ petition against this FIR. The J&K government told the Supreme Court of India that there is no prohibition on filing an FIR and conducting a probe against military personnel performing their duty.
In July 2016, Justices Madan B. Lokur and Uday Umesh Lalit of the Supreme Court gave a judgement against the armed forces and other forces (WRIT PETITION (CRIMINAL) NO.129 OF 2012 Extra Judicial Execution Victim Families Association (EEVFAM) & Anr. (Petitioners) Vs Union of India & Anr. (Respondents)) fighting in a counter-terrorism/counter-insurgent (CI/CT) environment in Manipur. The Indian Army, Assam Rifles and the Manipur Police have been accused of fake encounter killings from 2000 to 2012 in the insurgency-hit state. The CBI SIT is to investigate this. The judges perhaps were not explained correctly how the military operates in a CT/CI affected area. Consequently a Special Investigation Team (SIT) of the CBI was then constituted by the Supreme Court in July 2017.

These actions by the government, the judiciary and the armed forces sets a very dangerous precedent, and poses provocative questions:

Is the rule of requiring Central Government sanction to prosecute one of its employees in bona fide discharge of their duties, not valid, as has been stated in the petition by the army officers and manifest by the J&K government in their actions against the 10 Garhwal Rifles?
How many bureaucrats and state administrators been proceeded against legally by either the government or the courts because they allowed terrorism to take root in areas administered by them?
Is AFSPA being invoked to cloak a lack of governance and fig leaf to blanket a series of unlawful commands by the government, political parties and bureaucrats?
The Police/CBI are required to investigate alleged atrocities by the Armed Forces as mandated by the SC or the J&K government. But this poses a contradiction: because the police have failed, the Army is brought in to combat CT/CI. Is this a case of vindictiveness of a failed organization investigating the military?
As increasingly security forces personnel are being targeted while on leave, particularly in J&K, CI/CT operations by the military will have to be done under conditions of masked anonymity as is being done at many places worldwide. In such cases can the military be ordered to reveal names of personnel participating, thus playing into the hands of terrorists?
Lastly, what is to prevent, in the future, officers and men from challenging in court the decisions of military superiors in war?

As the answer to each of these questions is being intensely debated, it is not intended to discuss them here.

But consider the following to understand that:

The AFSPA is not a requirement of the Army; it is a constitutional necessity. Gateway House wrote about it in 2012 in their article AFSPA – National Necessity or Human Rights Violations
There are three ways to handle a counter-insurgency:

The government has raised a very large number of Central Armed Police Forces (CAPF) as the counter-insurgency arm of the government. Deploy them, and there is no need for the military to be brought in.
Have a magistrate accompany each body of troops all the time; the troops then use force or open fire only on written instructions of the magistrate. This was done during the riots in Ahmedabad in the late 1970’s.
The government declares the area a disturbed area, deploys the military and invokes AFSPA in keeping with the constitution on using the military against citizens of India.

It is important to remember that anti-national groups have unfettered access to the media and will use them in any way they can to restrain the usually successful military. Terrorism has often been labelled a “proxy war”, not without reason. Political, executive and judicial leaders should be very careful in that they do not inadvertently abet such a war.

The fundamental failure is the continued deployment of the military under AFSPA and the lack of support by the government and military hierarchy in a very difficult situation. This will lead to the erosion of morale and lack of efficacy by the military in combating a grave danger of proxy war that India faces today.

The military is equipped and trained to respond with greater effectiveness than the police, this is the very reason that it is called in when local law and order agencies fail. To penalize them for this very effectiveness is unfair and dangerous; it will blunt the state’s weapon of last resort.

The August 2018 Writ Petition has been filed collectively by the Soldiers and serving Officers of Indian Army for protecting the sovereignty, integrity, security and dignity of the nation and restoring the confidence and morale of the soldiers of the Indian Army. If our Armed Forces are not given the protection they require to engage with the enemies at our frontiers and within – and this includes laying down their lives in the line of duty – it will endanger our very existence as a Constitutional Sovereign Democratic Republic.

Unless we are very careful, very soon, the enemy at the gates will surely enter.

Xerxes Adrianwalla is a retired Brigadier of the Indian Army and a regular contributor to Gateway House: Indian Council on Global Relations.

This blog was written exclusively for Gateway House: Indian Council on Global Relations. You can read more exclusive features here.

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