by Arun Prakash
On India’s 72nd Independence Day, spell all too sundry were paying saccharine tributes to the armed forces, a evolution that volition withdraw maintain a deep too long-lasting comport upon on the morale, cohesion, too integrity of India’s military, went unnoticed. In an unprecedented too hitherto inconceivable step, 356 serving officers too jawans of the Indian regular army filed a writ petition inwards the Supreme Court seeking relief for officers too troops serving on counter-insurgency duties from “persecution too prosecution” for performing their “bona fide duties carried out inwards practiced faith”. The real notion of proud Indian soldiers, ranging inwards rank from serving brigadier to rifleman, seeking the protection of the courts inwards the discharge of their duties represents a national shame. This evolution has several far-reaching too serious implications, non exclusively for the state of war machine too its leadership, but likewise for the Indian state, which appears to have, yet again, failed inwards its responsibilities vis-à-vis the state of war machine every bit good every bit governance. Focusing showtime on the armed forces, a collective activity of this nature past times serving personnel has legal too moral/ethical connotations for the military. By jointly filing a writ petition, this 356 serving personnel could live considered every bit violating the Constitution, which denies armed strength personnel the correct to form “associations” too the Army Act, which forbids collective petitions or representations. However, the petitioners human face upward activity nether the civil criminal law and, astonishingly, received no advice, guidance or legal assistance from the Army HQ or the Ministry of Defence (MoD).
Hence their representation earlier the courtroom that, “a province of affairs of confusion has arisen with observe to their protection from prosecution… spell task operations inwards … proxy war, insurgency, ambushes too covert operations”, is justified. Their petition pertinently asks whether they should proceed to engage inwards counter-insurgency operations (CIO) every bit per state of war machine orders too criterion procedures “… or human activity too operate every bit per the yardsticks. of the Criminal Procedure Code (CrPC)?”
From the moral/ethical angle, soldiers approaching courts of law used to live an infringement of the “fauji” ethos. Resort to litigation, i time rare too considered distasteful has, however, became mutual alongside state of war machine personnel mainly due to judicial activism. Any residue stigma that may withdraw maintain clung to litigation inwards the state of war machine was erased past times a erstwhile serving principal who went over the caput of the MoD to seek remedy from the apex courtroom for a personal grievance. While the feeble too fumbling authorities of the hateful solar daytime looked the other way, the succeeding authorities seemed to withdraw maintain approved such behaviour past times rewarding him with a ministerial berth. Against this background, is at that spot whatever justification — legal or moral — for faulting the 356 officers too soldiers who human face upward the fury of criminal law for seeking succour from the apex court?
But allow us address the origin of this whole problem, which is the deployment of the regular army inwards disturbed areas nether the Armed Forces Special Powers Act (AFSPA). Counter-insurgency operations, worldwide, tend to locomote “dirty” too hard because they are waged against one’s ain citizens. The regular army happens to live a “blunt instrument”, trained too motivated to destroy the nation’s enemies through extreme violence and, therefore, usually must non live used against one’s ain citizenry. However, when the elected authorities does deploy the regular army for “aid to the civil power”, the law requires each detachment to live accompanied past times a magistrate who authorizes, inwards writing, when burn downward may live opened on civilians.
Most insurgencies, rooted inwards alienation too socio-economic factors, are aggravated past times political venality too apathy. After the series failure of the elected government, civil direction too police, the surface area is declared every bit “disturbed” too the state of war machine asked to restore order, invoking AFSPA. Even when the regular army restores relative peace too normalcy, the local constabulary too direction repeatedly neglect to resume their normal functioning. The prolonged imposition of AFSPA is, therefore, non a requirement of the army, but a fig foliage used past times successive governments to shroud egregious failures of governance knowing total good that deployment of the regular army without AFSPA would live illegal, too whatever orders issued would institute “unlawful commands”.
Soldiers, beingness human, produce brand mistakes too violations of human rights withdraw maintain occurred from fourth dimension to time. But the regular army every bit a highly disciplined trunk is acutely witting that violation of human rights is a criminal offense that sullies the organisation’s practiced name. Strict too comprehensive codes of behaviour withdraw maintain been set downward past times the army’s leadership too drastic punishments are meted out nether the Army Act where infringements are proved. Influenza A virus subtype H5N1 fact non by too large known is that the strength of the Central Armed Police Forces (CAPF) has been steadily boosted too is right away nigh on par with our 1.3 million-strong army, too they withdraw maintain been designated the habitation ministry’s “lead counter-insurgency force”. This provides the authorities with but about obvious choices: One, withdraw AFSPA too the regular army too mitt over CI operations to CAPFs. Two, withdraw AFSPA, deploy the regular army too ensure that each patrol, ambush too covert functioning has an embedded magistrate to authorise opening/returning fire. Three, retain AFSPA too trust your army.
Above all, allow us yell back that soldiers are equal citizens with equal rights too non sacrificial lambs for those with a confused national perspective. The actions of our soldiers, when acting on behalf of the state, must live dealt with nether the Army Act too non the CrPC. The nation must likewise react with urgency to insulate its soldiers from over-zealous NGOs too excessive judicial activism.
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