Is the Indian Army competent to receive and use "Special Powers" ?

Dr Laifungbam Debabrata Roy *

Student's stage sit-in protest in front of Kangla Gate Imphal for AFSPA repeal on Nov 5 2011 :: Pix - Bullu Raj

The 'rights and interests of the citizens' is arguably a complicated question. Are we to be inclusive in its interpretation? India, after all, is a member of the United Nations Organisation (UNO), a state that is on its second term in the Human Rights Council and presently vying hard to become a permanent member of the Security Council. But more importantly, the question I raise is whether the Indian Armed Forces, trained to defend the country from external aggression and threats, is competent to deal with the question of rights and interests of citizens, which are the domain of civil, political, economic, social and cultural affairs. My answer is no, the Indian Armed Forces do not have the competence or the expertise to use the 'special powers' given to them by AFSPA.

Ever since the AFSPA was promulgated way back in 1958, there have been no formal and specialised training programmes established for the Indian Armed Forces personnel or officers who are to serve in the units stationed in the so-called "disturbed area" of Jammu and Kashmir or the North East region. In the aid of civilian government and the police, the Armed Forces have, over the decades, undertaken various extremely complex and challenging tasks in counter-insurgency warfare. Counter-insurgency operations in aid of State police forces, under the overall authority of the State governments, require very specialised and sensitive work because these duties involve action in the very same areas within the nation where citizens of the country reside. These are "domestic" duties which are the exclusive domain of the Ministry of Home Affairs of each State.

The AFSPA endows the Indian Armed Forces with extraordinary rights, known as "special powers". Special powers come with a special role and special responsibilities. For example, the police in India are given certain powers under the laws of the land. They are not only to function under these laws but require focused training in special schools before the police personnel are entrusted with law enforcement duties. Junior police officers as well as those from the Indian Police Service (IPS) are required to serve a probation period even after their training period has been completed. Normal policing work and decision-making, including the use of fire-arms, are not entrusted to these probationers till this period is completed. These are important checks and balances established into our law enforcement system and institutions, in recognition of the special powers in the use of force given to the police.

The Indian Army, which has been given "special powers", has no established and demonstrable competency in the use of such powers. And if such a competency in policing work is neither proven nor institutionally addressed, how can the Ministry of Defence "defend" an opinion that the AFSPA should stay? What is the worth of such an opinion as expressed by the GOC, 17 Mountain Division in 2004 justifying the "special powers" given to the Armed Forces of the Union by Parliament? Nothing. We need to examine these questions carefully before we plead to the Ministry of Defence to respond to proposals that have great import to internal security.

Too much on too little a plate

If we look at the history, our history, of experiences with the Indian military under AFSPA from the early time, what we see is a steady pattern of violations of the trust with which "special powers" were given by the state. We need to re-visit these "special powers". Over the long years, AFSPA has become a symbolic icon to rally together against a colonial law, a draconian law, an undemocratic law, an anti-people law, a discriminatory law, a law that directly contravenes international human rights law, and an unfair and oppressive imposition of state supremacy on its citizens. Too little attention has been paid to the Act's provisions in a manner consistent with the campaign for its repeal.

What condition necessitates the use of the Indian military to aid civilian authority is left deliberately blurred in clauses 2 (b) and 3 as these leave the important definition of a "disturbed area" imprecise, merely at the discretion of the State government (1958 Act) extended to the Central Government and the Governor of the State (1972 amendment)? There is no scope of a judicial review of the decisions made by the government official. The State government's opinion can be overridden by the Central government. It has happened in Tripura, when the Central Government declared Tripura a disturbed area, over the opposition of the State Government. In Manipur, after the shameful ineffectiveness of the Thangjam Manorama incident, the Municipal limits of Imphal were arbitrarily declared as ceasing to be "disturbed". Yet, we recall that it was in Imphal that the massive public disturbances occurred. In so creating this overriding power, the Defence Ministry's opinion per se is again irrelevant because its competence is not established by AFSPA.

The decision to establish the only justification for introducing the Armed Forces of the Union to a State in the region in aid of civil authority is not within the purview or jurisdiction of the Defence Ministry or the Armed Forces. Their competence in such a decision does not arise; therefore, their opinion with regard to these clauses is immaterial.

Clause 4 of the Act is extremely pertinent to an opinion regarding competence to receive and exercise "special powers" by the Armed Forces. Clause 4(a) clearly does not accord the power to shoot to a 'jawan' (private) of the Armed Forces. However, in every case of killing by the personnel of the Armed Forces, no identification of the officer who shot the person is made mandatory to ensure that the restriction is strictly complied with. This "special power" is given to the commissioned officer, warrant officer, or non-commissioned officer without clearly establishing competence or any check as to whether the decision to open fire to extent of killing is a correct one. A derogation of a human being, a citizen's fundamental right to life is effected without clear jurisprudence to establish competence.

In a genuine fire-fight encounter with opposing non-state forces, clause 4(a) loses its relevance absolutely. The purpose of the Act seems to be a dominant but old notion that a 'misbehaving' and 'misguided' citizenry needs to be punished and taught a lesson for 'disturbing the peace'; nothing more. So, let in the army to do some bloody bullying.

Clause 4 (c) says that the army can arrest anyone without a warrant who has committed, is suspected of having committed or of being about to commit, a cognisable offense and use any amount of force "necessary to effect the arrest". Do the 'jawans' and non-commissioned officers ('havildar') of the Armed Forces who are operating know what a "cognisable offense" under the Indian Penal Code is? The Act is silent, leaving it open to the interpretation that a mere private or a havildar of the Indian Army without any formal legal training is required to distinguish a "cognisable offense" and act upon his ignorance.

Let's face it squarely. Where are the jawans of the army recruited from, and how? According to the "Join Indian Army" official website, the normal minimum educational qualifications for a soldier (general duty, all arms) are SSLC/Matric with 45% marks in aggregate and 32% in each subject. No percentage is considered in case the candidate has passed higher qualification i.e. 10+2 and above. The qualifying age criterion for entry into the army is 17 ½ - 21 years. The same webpage also says that the minimum qualification required for a general duty soldier is dispensed with to set it at 10th Simple pass for certain areas of India. Such areas are the most marginalised with economically underserved communities. This norm has been further relaxed to Class VIII pass for some areas in Jammu & Kashmir, Sikkim, Andaman & Nicobar Group of Islands, Lakshadweep & Nicobar Group of Islands; NE States of Manipur, Mizoram, Nagaland and Arunachal Pradesh; and all Scheduled Tribes from all States of India.

It wouldn't be an inaccuracy to state that the soldiers of the Indian Army are drawn largely from minimally educated young persons, often under-aged, from the most backward parts of the country, from among those who have no skills or other job opportunities and specifically belonging to tribal groups. How are they different from the Salwa Judum? No wonder then that clause 6 establishes that no legal proceeding can be brought against any member of the Armed Forces acting under the AFSPA, without the permission of the Central Government. Such permission has never been given since the Act was promulgated. The Act gives "special powers" to members of an Armed Force of the Union whose only qualification is that they carry a gun, and protects them from legal proceedings. A basically unskilled person has been elevated to an unequal powerful position under the law, which is applicable to every citizen of India.

Incompetence and abuse

Well established documentation of serious violations including rape and other forms of sexual abuse, torture and other ill-treatment, sodomy, and a litany of extreme forms in the use of force in their conduct over the decades, only prove that the Armed Forces of the Union have never established their competence to the use of the "special powers" given by AFSPA. Nor has the Union government made any effort to impart the necessary and important competence to the personnel of Armed Forces in how to conduct themselves during policing duties. By keeping the Armed Forces beyond the view of the laws of the land, their incompetence is willfully sought to be covered up.

Do's and Don'ts do not replace competence in law. Extraordinary powers are extended to a force that has no competence to regulate itself in policing work in civilian areas of the country, thereby also giving the State police a proxy power to use extraordinary and extrajudicial force in the name of "combined forces". To expect the Defence Ministry or its forces to express an unbiased and informed opinion on the AFSPA and its justifiability is a preposterous notion.

Further, the continuance of the use of the Armed Forces of the Union in situations of internal armed conflicts under the guise of policing work would also constitute the perpetuation of their misuse and exploitation for political exigencies of the state. The long-standing abuse of the India's Armed Forces in fighting a war against its own citizens has raised frightening risks and consequences for these forces and their discipline. Corruption at all levels is eating into the heart of the Armed Forces.

After giving them a carte blanche, the state seems to have abandoned all responsibility for their ultimate welfare and conduct in the field. Definitely, the situation in the States of our region where AFSPA is applied has not fared any better; the role, responsibilities and authority of the States have suffered adversely; governance is at an abysmal low and socio-economic progress for the people is a mere chimera.

"All is fair in love and war," it has been said. The only thing left for the Government of India is to declare openly that a state of war exists in the North East region, as well as in Jammu and Kashmir. Is that an unfair plea?