AFSPA and internal security Army needs a legal cover to carry out counter-insurgency operations

Gen V P Malik (retd)

Army needs a legal cover to carry out counter-insurgency operations

LAST month three significant incidents took place in the election-charged state of Jammu and Kashmir, which could make policy-makers in New Delhi reflect once again on the deployment of the army on internal security duty.

On the November 3 night an army patrol deployed on a checkpoint in Budgam district fired on a Maruti 800 car in which five boys were travelling. This resulted in the unfortunate death of two boys and injuries to three others. The injured boys were evacuated to the army base hospital in Srinagar by the very patrol that had fired on the car. According to some eyewitnesses, the car when stopped skidded off the road. The army patrol version is that the car did not stop at the checkpoint and tried to escape. The police registered a case of 'criminal intent to kill'. The army, as it usually does in such incidents, ordered a court of inquiry. Somewhat unusually, however, the Defence Minister and the Northern Army Commander took responsibility for the incident, apologised and promised to take action against the patrol. 53 Rashtriya Rifles, whose patrol was deployed at the checkpoint, was moved out. It was replaced with another battalion.

On November 12 a General Court Martial brought the Machil incident to an end (pending approval of the Army Commander) by recommending life sentence to army personnel, including a Commanding Officer (Colonel) and a Captain, after finding them guilty. These army personnel were involved in the killing of three civilians in a fake encounter in Machil four years ago.

Chief Minister Omar Abdullah called this decision as a ‘watershed moment’. A national daily editoralised it as 'a glimmer of justice' and went on to ask many questions, including “Is it (army) willing to accept the extent to which it has alienated the people of Kashmir and work towards redressing the sense of injury?” Implied in these statements is the accusation that (a) there is a widespread violation of human rights which till now has been overlooked by the army, and (b) the army is responsible for alienating the people of Kashmir.

No one can deny that a few incidents of human rights violation (like Pathribal) continue to rankle. But such a serious accusation does not take into account the regular investigations and justice done by the army in human rights violations. Four years ago, I was given statistics related to human rights violations between 1990 and August 2011 in 15 Corps Zone (J & K Valley) by the Army HQ. These were (a) Total cases received and investigated — 1,485 (b) Cases proved false — 1,439 (c) Personnel punished in cases proved true — 96. These included four officers cashiered and awarded rigorous imprisonment, 31 officers and other personnel dismissed from service and awarded rigorous imprisonment, 17 personnel reduced to ranks and awarded rigorous imprisonment in military custody, and the remaining (including 32 officers) awarded forfeiture of service for promotion/severe reprimand/ severe displeasure and so on. The Army HQ should make such information public from time to time. The fact is that the army cannot compromise in its discipline or human rights violations.

Within days of the Court Martial award in the Machil incident, Mr Chidambaram, who has been a Cabinet minister in many governments, called the Armed Forces Special Powers Act (AFSPA) ‘an obnoxious Act’. This has reignited misgivings, public anger and resentment on the already demonised AFSPA at an inopportune moment.

By repealing AFSPA we would be doing a great disservice to the army in the performance of its internal security role, and thus to the nation. Demanding army personnel to carry out counter-insurgency/ militancy /anti-terrorist operations without adequate legal cover will result in frequent challenge or disobedience of orders by subordinates and will make army operations in such circumstances ineffective. According to the army leadership, its application needs to continue because (a) the Pakistan army-aided proxy war with 30 to 40 active militant training camps in Occupied Kashmir continues in J&K, and (b) the army garrison/strategic assets spread all over J & K with logistic arteries passing through population centres remain vulnerable.

These events when looked at holistically lead to the macro-level question on the role of the army in assisting the state governments in internal security duties.

The protracted and excessive employment of the army leads to laws of diminishing returns. The reasons are (a) over-dependence on the army reflects lack of trust and faith in the capability of the state and central armed police and para-military forces (b) after a while, locals start treating the army as another police force (c) such deployments and prolonged duties have an adverse impact on the army's discipline, morale and operational effectiveness, and (d) during a war/war-like situation the army needs public support. It cannot afford to alienate the local population.

In earlier days when there were no insurgencies, no militancy and AFSPA, the army was not allowed to be deployed for more than 10 days at a time. Any extension in its deployment had to be approved by the Ministry of Defence.

The army now has been deployed for internal security duties in J&K and the North-East for decades. Despite an improvement in the security situation and the holding of elections several times in these states, neither the civil administration nor the army is prepared to take the risk of taking it off these duties or even reducing its deployment. In 1993-94, after the security situation in Punjab started improving, whenever we moved troops from internal security deployment to the cantonments, the Chief Minister and the DGP would try and dissuade us from doing so. Even army officers would protest sometimes. They had to be convinced that internal security was only a temporary mission. Unless we fade away when the situation has improved, the civil administration cannot assert itself and bring about normalcy.

The fact is that when large numbers of troops remain deployed for decades in such situations, despite intense training and a stringent code of conduct, some aberrations are bound to occur. Although most desirable, it is almost impossible to maintain a zero error human rights track record in such deployments.

The army must not remain deployed for decades and decades, as is happening currently. A reduction in the army deployment would be possible if we can revamp our para-military, central and state police forces: modernise them and improve their leadership, training and man management. But whenever the army is deployed, even for short periods, it will require a legal cover like AFSPA. The AFSPA contents, except for some minor tweaking, should not be discarded.