Indian military enjoys unparalleled support and affection for the citizenry. The military is often rated as the most trusted institution in the country. The unwritten social contract between soldier and state mandates that in return for unquestionable faith in the uniform, a soldier would uphold the values of the nation and defend the ideals of the state, even to the peril of his life.
The soldier trusts the citizen to respect his sacrifice, and the citizens expect the soldier to respect and protect their way of life. The social contract is written in ‘trust’. When a soldier indulges in wrongdoing against a citizen, it’s not just a case of misdemeanour or misconduct. It is a criminal breach of trust. Such cases bring infamy to the individual and cause severe damage to institutional reputation.
The military is the last argument of the state; there is no option beyond that. Usually, the military is brought in when conventional methods of maintaining order have failed. The military’s arrival indicates failure or helplessness of civil administration. Under normal circumstances, written orders from a judicial officer are required before the army could use lethal force on civilians.
In an area infested with the armed citizenry, challenging the authority of the state, would be difficult and at times even impossible to find a judicial officer. In such circumstances, it was felt necessary to provide some legal rights to the soldier. Armed Forces Special Powers Act (AFSPA) came into force in 1958. The act was initially applied to ‘disturbed areas’ in Northeast India and was later extended to Jammu and Kashmir in 1990.
Two particular sections of the act merit some explanations. Section 4 authorizes the military officer, including a JCO, to arrest any person against whom there is a reasonable suspicion that he is about to commit a cognizable offence. The same section grants special powers to the military to destroy structures that could be used as hideouts, or training camps, or a place from where attacks can be launched. Armed forces are allowed to open fire, irrespective of consequences, if prohibitory orders banning the assemblage of five or more persons, or carrying of arms and weapons are in force in the prohibited area.
Section 6 gives immunity to the armed forces discharging duties under the act from prosecution, or other legal proceedings, except with the written permission of the Central government. The bottom line is: the military officer on the spot has been authorized to make a subjective assessment which could mean loss of life for possible innocents. If the officers’ judgment turns out to be erroneous, prosecuting him would require prior permission from the central government.
Many instances have come to light where the enabling provisions of the law were misused to hide offences against women. Issues came to the fore, where despite alleged crimes being reported in media, the sanction for prosecution was not granted by the government. Even outside of disturbed areas, women have to overcome a series of obstacles to seek justice in cases involving rape, molestation, or harassment. Besides the patriarchal nature of society, the reasons include social stigma, the burden of proof, male-dominated police force, and the slow pace of justice. In disturbed areas, there is an additional risk of physical security when the crime has been allegedly committed by the defenders of the law. There is no denying, that the shadow of the act was used to commit and later shield the perpetrators of crimes against women.
Every story has two sides; while the misuse of law is often highlighted and exaggerated in media, the dark necessity of the law and the compulsions under which troops have to operate are ignored. Another assumption, often made, is that people living in disturbed areas would want the law to be repealed. For many years Irom Sharmila was the lightning rod for people speaking against AFSPA. Bestowed with many national and international awards, many cited the widespread support she enjoyed with civil society, to argue against the act. In reality, when she contested the elections in 2016, she could muster only 90 votes.
While the opposition to the act may not be as widespread as reported, the reportage on the issue is almost always negative. In today’s hyper-information age; perception matters as much as facts. In the early years of the act, the senior leadership of the armed forces did not pay adequate attention to this aspect. Commenting on a report submitted by amicus curiae Maneka Guruswamy, on atrocities perpetrated by members of the armed forces in Manipur, Supreme Court asked a question that would trouble the collective conscious of the Indian military forever: “Do you have rapists in uniform?”
The highest court in our land is expected to protect the rights of our citizens; even in disturbed areas and even in the most exacting situations. However, we must remember that often the alleged cases of rape or molestation are used by interested parties to further their political agenda. The truth lies somewhere in between.
In 2010, Shopian (Kashmir) burned for 47 days. There were pitched battles between stone-pelting mobs and the security forces, with rampant secessionist sloganeering on the streets. A security personnel was accused of rape and murder that later turned out to be fake and based on doctored evidence.
The times are changing; for the better. The advent of social media has ensured that alleged crimes get reported widely and quickly; though not always accurately. Military leadership has started to take reported cases of crime against women very seriously. This is reflected in negligible instances of such cases in the recent past. Armed forces are extremely sensitive to their image. Contrary to what many are led to believe, the punishment for a crime against women, even in areas covered by AFSPA is very severe and swift. Army takes its officers and men to the task even for an alleged misdemeanour.
Institutionally, the army objects to criticism of AFSPA, because the enabling act allows the army the operational freedom that it requires to execute the tasks assigned. Institutional support for the act does not translate to support for crimes committed under the shadow of the act by uniformed soldiers. A field court-marshal would usually arrive at the sentence earlier than it would have taken civil police to file a charge-sheet. Troops being deployed to disturbed areas are trained about the limits of the act, and strict guidelines are laid to ensure the enablers are not misused. An honest mistake committed under exacting operational conditions gets a sympathetic consideration from the senior leadership; while, an infringement invites severe and swift retribution. Officers are even tested during promotional exams on the provisions of the act.
The army was quick to punish Major Leetul Gogoi, who was at the center of the 2017 ‘human shield’ controversy. His crime: “fraternizing” with a local woman in Srinagar. Even though the relationship was consensual, the army would not tolerate even a whiff of misconduct against women.
Notwithstanding, it is absolutely necessary to learn from past failings. A case like the rape and murder of Manorma by Assam Rifle troops is a big blot on the army. Such things must never happen; at least they cause people to lose faith in the military. Therefore, it is incumbent on the military leadership to pay more attention to alleged crimes by troops deployed in disturbed areas. The military should take the lead in reporting and later prosecuting the perpetrators. It would do a lot of good to the military’s image, if the entire process of military-justice-system, in such cases, is laid open to public scrutiny via media.
Efforts must also be made in engaging with local NGOs and other women’s help groups, especially those protesting the presence of the army in their region. Hopefully, the planned induction of women soldiers would bring greater gender sensitivity in our troops; while making it easier for the women to come forward and report cases of mistreatment. At a more fundamental level, the military should review the necessity of AFSPA, and consider the option of other existing laws that would enable forces to execute the mission as effectively.
(The author is a former Indian Air Force officer with a long and varied experience as a leader, fighter pilot, instructor and administrator with international exposure. Keenly interested in matters concerning national security and strategic affairs)