By Inderjit Singh Jaijee
During his recent visit to Jammu and Kashmir Army Chief Gen Bipin Rawat awarded the Army Chief Commendation Card to Major Leetul Gogoi, the 53 Rashtriya Rifles officer who, on April 9, tied a man to the bonnet of a jeep as a ‘shield’ against stone-pelting mob in Badgam. A video of this incident posted on social media went viral: the tactic has been deplored by some and praised by others. Obviously, the Army has approved and members of the Union government have also appreciated Gogoi’s action.
How does the use of a human shield fit in with the Union government’s strategy for keeping Kashmir in the Indian Union? Indeed, what is India’s strategy for Kashmir? If the idea is to gain the allegiance of Kashmiris, did Major Gogoi’s response help or hinder?
Whether Major Gogoi acted rightly or wrongly, it cannot be denied that he acted within the law. In fact, he could do just about anything and still be within the law because an Army officer enjoys legal immunity for his actions. Gogoi is a Major, but even if he were a non-commissioned officer, under AFSPA he would still has the right to do anything he deems necessary to “maintain the public order. What to speak of tying a man to a jeep, he could shoot a man dead on mere suspicion. Every soldier is given unrestricted and unaccounted power: there can be no prosecution, suit or any other legal proceeding against him.
The Union government declares a state a Disturbed Area and AFSPA comes into force. No one – not even the Supreme Court – can question the government’s decision to declare an area disturbed. Even the assessment of the state government counts for nothing: The state governments can suggest whether the act is required to be enforced or not but under Section (3) of the Act, the state’s opinion can be overruled by the state governor or the Centre.
As for AFSPA, the Supreme Court can express its disapproval, but it cannot strike down this law, or interpret it. It is possible for a person to file suit against a member of the Armed Forces for abuses under AFSPA, but to do so he must first get the permission of the Central Government. Has the Central Government ever given such permission?
Thirteen years ago, responding to the worsening situation in Manipur, the UPA government led by Dr Manmohan Singh, set up a five-member committee under former Supreme Court judge Jeevan Reddy to review the Armed Forces Special Powers Act. This committee, which included retired General Lt Gen V R Raghavan, recommended repeal of the Act. But the government declined to even place the committee’s report before Parliament, much less act on the recommendation.
Last year, in a strongly worded 85-page judgement, Supreme Court Justices Madan B. Lokur and U.U. Lalit ruled that the Armed Forces cannot escape investigation for excesses. They wrote: “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both… This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties.”
But no matter what the Supreme Court thinks, only Parliament can repeal AFSPA and there is no sign that Parliament has any such intention. The Defence Ministry is adamant on keeping it and the Army insists on it too.
Where does that leave the citizens of India – especially those residing in “disturbed” Jammu and Kashmir, Assam, Nagaland, Manipur, Arunachal Pradesh, and Meghalaya ? Where does that leave India in the comity of nations?
Despite the opposition of the Defence Ministry and the Army there are many reasons why the AFSPA should be repealed.
AFSPA contravenes the Constitution of India, specifically Article 21 (Right to Life), Article 22 (Protection against arrest and detention) and Section 32(1) (Guarantee of the right to move the Supreme Court by appropriate proceedings for the enforcement of rights)
AFSPA does not guarantee internal security but jeopardises it and provokes more violence. It’s use pushes the demand for more autonomy and boosts the desire to secede.
AFSPA is a draconian law and is antithetical to our democratic principles and ideals
AFSPA is inconsistent with India’s commitment to human rights
AFSPA embarrasses India internationally. It is unbecoming for a country that aspires to be a permanent member of the U.N. Security Council. In its just-published 2017 report the UN Human Rights Commission has strongly criticised human rights violations in India.
AFSPA is counter-productive. A government defeats insurgents by showing that it is superior as a wise, just and humane administration; that it espouses the well-being of the people more than the insurgents do.
British officers – never more than 3,500 men — governed a country of millions for 250 years. They could do so because many people were happy with British rule. During World War I (1914–18) more than one million Indians (including Gandhi-ji) fought in the British Army. Indians thought that support for the war effort would earn them greater representation in government; when this did not happen, anti-British sentiment gathered strength. At the end of the war, the good work of British administrators still counted for something – but all that changed in 10 minutes with one decision by one Army officer. On the order of then Lt Gen REH Dyer, 50 troops fired on a non-violent gathering of unarmed civilians. Baisakhi Day, 1919, Jallianwalla Bagh, 1000 dead, beginning of the end of British rule.
The Jallianwala Bagh example illustrates how quickly injudicious use of military force can undo the efforts of even good administrators. Overwhelming force may conquer but it cannot rule – and certainly not when the force is unleashed on the country’s own citizens. Wherever AFSPA is in force the level of violence spirals upward and the chance of normalising a sensitive situation recedes.
Providing blanket immunity to the Army removes any reason for the Army to strive to be more intelligent than its opponent or to behave professionally. A brutalised Army secure under AFSPA, exacerbates the alienation of citizens from the government.
Veteran Army commanders are themselves critical of the way the Army has been used.
“The large presence of the Indian army in the hinterland is not only unwarranted militarily, it is leading to complacency and resultant casualties. Given the current situation, a change in military strategy with a focus on counter-infiltration, a reduced but adequate deployment grid to act as a reserve and imaginative, selective and gradual lifting of the AFSPA will not only facilitate political strategy but also make the CI [Counter-Insurgency] campaign more efficient.”
Lt. Gen. H.S. Panag, former GOC-in-C of the Northern Command, writing in The Indian Express of January 10, 2014
Take away AFSPA and questionable tactics and practices will be curbed. The Army will be motivated to add brainpower to firepower. Always it should be remembered that the Army’s purpose is to defend the country from external aggression, not to suppress internal conflicts. Maintaining order within the country under the letter and spirit of the Constitution is the job of the police.
Granted that achieving peace in Kashmir is complicated: there is also foreign interference to be neutralised. This complication explains why the Army is in Kashmir. But taking the objective of settling Kashmir as a part of the Indian Union as primary, it is clear that military force — particularly unrestrained and unaccountable military force — is not the way forward. Resolving political conflicts in a democracy means negotiation: the citizens of the state and Central Government thrash out their issues and come to an understanding. Negotiation has succeeded in Nagaland and it can succeed in Kashmir too.