http://www.thehindu.com/opinion/op-ed/Don%E2%80%99t-let-messengers-shoot-themselves/article17051085.ece?homepage=true
JANUARY 18, 2017
How India treats its armed forces is rarely revealed by soldiers at the lowest ranks. Little attention is paid to serious concerns about the systems of military justice. While delays in the judicial system are notorious, delays for the armed forces can turn fatal in the form of suicide and fratricide (also called “fragging” — where a serviceman kills his brothers-in-arms). Answers in the Rajya Sabha and to the Parliamentary Standing Committee on Defence, from 2003-2013 (data for some years are missing), state that there have been at least 1,666 suicides in the armed forces and 109 cases of fratricide.
“An army marches on its stomach”, a quote famously attributed to Napoleon Bonaparte, was unwittingly brought into the spotlight by Border Security Force (BSF) constable Tej Bahadur Yadav’s videos about tasteless dal and half-burnt parathas. However, this has not been the first time that food has left a bad taste for the military justice system. In 1985, Signalman Ranjit Thakur refused food while serving 28 days’ imprisonment for overriding the hierarchy and making representations directly to senior officers about ill treatment. A summary court martial was conducted for his act of disobeying the order to eat. He pleaded guilty and was sentenced to one year rigorous imprisonment, dismissal from the Army, and disqualification from civilian service. Fortunately for him, the Supreme Court found this sentence to be grossly disproportionate and reinstated him with full pay and benefits.
Existential questions
The BSF’s woes extend much further than merely bad food. The force has faced existential questions ever since it sought legislative recognition. Introducing the Border Security Force Bill, 1968, the then Home Minister, Yashwantrao Chavan, told the Rajya Sabha: “Popularly it is called Border Security Police, but its function is not policing, it is something more than that. Though it is functioning on the borders, it is not the Army. The task of this Force is such that it is something between the Army and the Police Force.” In the now-forgotten traditions of parliamentary debate, opponents of the Bill asked why there was nothing in the Bill requiring the force to serve on the “border”, or why a central police force which was “neither fish nor fowl” was necessary when police was a State subject.
A concern amongst even the Bill’s supporters was that there was a disparity between the Army and the BSF in terms of pay, service conditions, grievance redress mechanisms and deployments to forward areas. Rejecting these concerns and refusing to refer the Bill to a Parliamentary Select Committee, the Bill was passed and independent India’s first paramilitary force was born. The concerns of stepmotherly treatment in service conditions exist even today across all paramilitary forces in India as later videos by other servicemen have demonstrated.
Today, no less than seven paramilitary forces exist, each created with less parliamentary debate than the previous one. These forces are all under the Home Ministry in contrast to the Army, Air Force, Navy and Coast Guard which are under the Defence Ministry. The Assam Rifles has changed hands between Home, External Affairs and Defence Ministries and is currently under the Home Ministry while under the Defence Ministry’s operational control.
The military justice system does not believe that it is required to be equal for all and creates peculiar distinctions between the Army, Navy and Air Force on the one hand and the paramilitary forces and the Coast Guard on the other.
The Armed Forces Tribunal came into being in 2007, 25 years after the Supreme Court made scathing remarks about the military justice system in Lt. Col. Prithi Pal Singh Bedi v. Union of India (1982) for not having even one layer of judicial scrutiny, for unchecked command influence in decision-making, and for absence of recorded reasons in final judgments. In 1999, the Law Commission’s 169th Report stated that disciplinary and service matters required quick resolution and proposed a special tribunal for the military and paramilitary forces. However, the Armed Forces Tribunal Bill was steered through Parliament only by the Defence Ministry, leaving paramilitary forces, even the Assam Rifles and the Coast Guard, outside the tribunal’s purview.
Despite court martial systems within the military being reformed and judicial scrutiny now being available, paramilitary forces continue to follow a court martial-like system called the Security Force Court with less legal safeguards than those found inadequate by the Supreme Court. Yet, like in court martial proceedings, penalties including the death sentence can be imposed. With no process of appeal other than statutory petitions, often before the Home Minister, the only recourse left is expensive and time-consuming writ petitions. Even here, the fundamental rights of armed forces personnel are expressly limited under Article 33 of the Constitution which makes approaching civilian judicial systems a challenge.
The system under the Army, though, is also not foolproof. In at least one case of fratricide, the serviceman concerned is languishing in jail for 25 years awaiting a decision on the sentence. The case has gone from an Army court martial to the Supreme Court and all the way back again to the Armed Forces Tribunal.
In a written answer before the Rajya Sabha, the Home Minister (MoS) in 2012 said that the reasons for suicide and fratricide amongst paramilitary forces are “…personal/domestic problems, illness, mental stress, alcoholic dependence, marital affairs and financial crisis of concerned individual. Despite taking all necessary steps, some discontented individuals are not able to control their emotions and tend to take such extreme steps due to the above said reasons.” The Minister also stated that better dispute resolution, communication facilities in field areas, yoga, and increased interaction between jawans and officers were part of the 14 measures undertaken to boost morale.
Affecting troop morale
The secrecy surrounding these issues is curious. A report by the Institute of Defence Studies and Analysis titled ‘Addressing Stress-Related Issues in the Army’ quotes two studies, one on stress management and the other on suicide and fratricide, both conducted by the Defence Institute of Psychological Research under the Defence Research and Development Organisation. When the issue was being examined by the Parliamentary Standing Committee on Defence, just one copy of each of these the Defence Institute of Psychological Research marked “secret” was submitted to it. When the committee asked why it should not be published, the government’s reply was that sensationalisation or selective publicity of these reports would affect troop morale.
In the BSF constable’s case, the Home Ministry is in damage control mode. While it has made statements about rationing policies and operational control of the post by the Army, no further comment has been made except that the constable has a history of drunkenness and insubordination. The Ministry would do well not to shoot the messenger, but instead focus on taking steps to prevent messengers from paramilitary forces from shooting themselves.
Nishant Gokhale is an Associate with the Centre on the Death Penalty at the National Law University.
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