The Governor General’s Files: Caught in the act

The Armed Forces (Special Powers) Act (AFSPA) has become a very controversial issue. It gives special powers to the armed forces to deal with insurgency and low-intensity conflicts generated from across our national borders. Separatists and their co-travellers have been carrying out a relentless campaign against it and so have human rights activists.

Politicians, with an eye on their vote banks, also toe the same line. It is unfortunate that a speeding car going past an Army checkpost had to be fired upon, resulting in the deaths of three young boys at Badgam, Jammu and Kashmir.

This incident has to be viewed in the correct context. There had been a red alert in the state against terrorist activities during the ongoing state Assembly elections.

Intelligence had been circulated that terrorists travelling in cars may carry out suicide attacks. Army checkposts had been alerted about this.

The corps commander acted rightly in visiting the family of the young boys to condole. At this stage to state that action against soldiers will be taken will have an adverse effect on soldiers facing an unseen enemy round the clock, in very difficult circumstances. Such accidents take place both in war and peace.

There was a provision for martial law in the British era when the civil administration could be superseded and taken over by the military.

This happened in 1857, and during the Jallianwala Bagh massacre. The last time the British imposed martial law in India was during the Hur rebellion of 1942 in Sindh.

In Pakistan this provision has continued and there have been several instances of martial law. AFSPA is a substitute for martial law without undermining the authority of the civil administration.

The chief minister of the state heads the joint command group conducting operations in areas where AFSPA operates. It has an enabling provision for the military to function in an effective manner for national security.

The Army does not have the powers of search and arrest. This act gives it the authority to do so. There is no requirement for a magistrate to hand out approval for arrest and search.

Without this authorisation it is well nigh impossible for the Army to conduct counter-insurgency operations.

After the Jallianwala Bagh massacre, the British introduced the four principles of necessity, minimum force, impartiality and good faith to guide the actions of troops acting in aid to civil authority.

Minimum force is related to the type of opposition being faced by the troops in this role. It is interesting that whereas Pakistan in Baluchistan and Waziristan and the US in Vietnam used artillery and air power, we in India have never used air power or artillery in dealing with insurgency, whether in the Northeast or in Kashmir.

We have also been using psychological initiatives to win the hearts and minds of the people. In this we were particularly successful in bringing back the alienated insurgents of Assam to the mainstream.

In the monogram for study prepared at the National War College in the US, the counter-insurgency operations conducted in Assam have been described as a success story of the century.

An Indian Army Major was accused of raping a local woman and her daughter in Jammu and Kashmir. The latter raised a hue and cry. Villagers responded, caught the major and took him to the police station.

The whole Valley was on fire for two months with strikes and demonstrations. Even People’s Democratic Party ministers, who were in power in the state under a coalition government led by the Congress, started boycotting Cabinet meetings.

They demanded that the Indian Army quit Kashmir. We held a court martial charging the major with rape and a second charge of conduct unbecoming of an officer.

Neither forensic evidence nor other evidence could establish the rape charge. It was found that the major had been visiting the woman’s house frequently. He was dismissed from service for conduct unbecoming of an Army officer.

A Pakistan Army Major was accused of raping a lady doctor in a Quetta hospital. Neither did the civil administration allow an FIR to be lodged nor did the Army do anything in the matter.

There was widespread violence in the province which was quelled by the Army. The lady doctor and her husband migrated to Canada in disgust.

At about the same time President Pervez Musharraf was on a visit to the US. When the press asked him about this incident, he replied, “It is simple: get money, get raped, and get a visa to Canada.”

Syed Ali Shah Geelani, the veteran separatist leader in Kashmir, was suffering from liver cancer. He applied for a visa to go for treatment to the US, which the latter denied him because of his terrorist links.

The state government sent him in a special aircraft to Mumbai where a Kashmiri Hindu doctor of a refugee family successfully performed the life-saving surgery.

He returned cured to Kashmir and his first public statement on arrival was that India was in illegal possession of Kashmir. In Baluchistan, veteran separatist leader Nawab Akbar Bugti was in his hideout in the mountains.

When President Musharraf got to know about his location, he ordered an air strike as a result of which Bugti was killed.

It is difficult to totally eliminate human rights violations in counter-insurgency operations where troops are fighting an unseen enemy for long periods of time.

There have been some bad cases in which our soldiers were found guilty of crimes like rape, molestation, using third-degree torture leading to deaths, as also units trying to hush up crimes in the mistaken belief of preserving their unit’s name.

With strict discipline and the efforts of commanders this has been kept to the minimum. In the last 10 years in Kashmir, troops found guilty of such misconduct have faced disciplinary action in 61 cases where they have been duly punished.

They have mostly been dismissed from service and given jail sentences varying from one year to 14 years, depending upon the gravity of the offence.

The demand for scrapping AFSPA is ill conceived. What is required is not to do away with it so long as the Army is employed in counter-insurgency operations but to ensure that as far as possible human rights violations are not allowed to occur and, when they do take place, they are dealt with in an exemplary manner.

Police excesses and atrocities occur almost every day. There is no demand for disbanding the police or repealing the Code of Criminal Procedure or Indian Penal Code.

Similarly, there is no justification for doing away with AFSPA even when reprehensible cases like the Machill fake encounter case. It is important on such occasions that exemplary punishment is given promptly.

In the Machill case it took four years to do so. On the civil side, delay in giving justice may be common, but a delay of four years, as in this case, reflects poorly on our military legal system.

The writer, a retired lieutenant-general, was Vice-Chief of Army Staff and has served as governor of Assam and Jammu and Kashmir