The Battle for Peace

March 2000: Unknown people come into a village located in Anantnag district, Kashmir. They round up the Sikh men and massacre 36 of them. Five days later, military forces state that five “foreign militants” responsible for the crime have been gunned down. After allegations of DNA cover-ups and a long-drawn out case, it is proved that this was a “false encounter”. In 2006, five Indian army personnel are found guilty. March 2010: Three civilians are killed in an encounter in Machil sector of Kupwara district along the Line of Control. Shown as an incident of terrorist infiltration, later inquiries by the army itself reveal the culpability of at least two officers along with a Special Police Officer in a case of innocents being killed. The Army conveys its readiness to act against the concerned personnel, however, the state government wishes to try them in a civil court. December 2010: Lt Gen Syed Ata Hasnain takes charge of 15 Corps in Srinagar and declares the year 2011 ‘Year of the Kashmiri Awam’. He holds public sunwais, organises sports tournaments and invites locals to iftaar parties. The atmosphere between the military and civilians warms up. October 2011: In the midst of talks between the Chief Minister of Jammu and Kashmir and the Centre on the partial removal of the Armed Forces (Special Powers) Act — or AFSPA — three successive grenade attacks injure Central Reserve Police Force (CRPF) personnel. They disrupt the valley after a long time of peace.

These are incidents picked at random from decades of military presence in civilian areas along the borders of India. This is also the atmosphere in which the AFSPA is being hotly contested and defended. From politicians to journalists and military forces to human rights organisations, everyone is part of the debate. In times when traditional warfare has been replaced by cross-border infiltration and terrorism, it is no easy matter to decide whether the presence of the army — and therefore, the Act under which it functions — is a draconian measure or a functional necessity. The AFSPA was passed in September 1958 for seven North Eastern states — Arunachal Pradesh, Mizoram, Assam, Manipur, Meghalaya, Nagaland and Tripura. It was later extended to Jammu and Kashmir in 1990. In essence, the Act provided army officers and other senior ranks special powers. The provisions in the Act are commensurate with many provisions of the Criminal Procedure Code (CrPC) provided to police personnel. However, the Act also states that no prosecution or other legal proceedings can be instituted except with the previous sanction of the Central Government, against any person for anything done in the exercise of the powers conferred by this Act. This clause has been the most vigorously attacked by civil rights groups and the most strenuously defended by the army. DW spoke to a government interlocutor and experts from the Centre for Land Warfare Studies (jointly) for their perspectives on the Issue of the month.

This is a phase in which the army has progressively withdrawn from many of the domestic duties in J&K. That is good news and it is a fact that militant attacks are at an all-time low compared to even five years ago. You could argue that the state is prepared to move into a peace-building phase. But when it comes to the partial removal of the AFSPA, there’s no doubt that the army is justified in having operational concerns. If the army has to pursue counter-insurgency, then it has to be understood that it is not limited to one area alone. In principle, I do believe that armies, by virtue of the nature of their profession in democratic countries, have the right to special protection. But they have to be seen to be completely fair in taking up cases of human rights abuses and other offences, which it has not proven itself to be thus far. The army has also perhaps been maligned to some extent, but it will still have to do better. At the high point of the armed conflict, it would be unrealistic to expect that there would not be all sorts of violations. But in the present case, while we know that infiltration has increased this year, you do not have much armed conflict. Therefore, it would be possible to make sure that there are absolutely no human rights violations. It is a fact that they have done between 80-100 courts martial, approximately, in J&K alone. That’s a very large number for any army and is something to be justifiably proud of. But it’s also true that there are famous cases of people who are at large. The army has been a little slow in trying two very famous ‘fake encounter’ cases — the one in Pathribal and the one in Machil. They are now stuck because the cases are in the civil courts and they are not being allowed to do the courts martial. In recent times, Gen Hasnain’s hearts and minds policy in the valley has won enormous support and the army is now focusing on developmental activities. Also, they do take action on complaints of human rights violations almost immediately. So this year you have hardly had any as far as the army is concerned. But you have still had two or three and the army needs to think about how to avoid even those. It’s true that other wings of the security forces are equally bad. Last year’s tragic deaths occurred at the hands of the police and initially the CRPF. Though for the CRPF it was 17, the J&K police was more than a hundred. But that was also because they were not trained to deal with this situation, they did not anticipate it and thus panicked. So yes, you would need to have a legal framework for the army to operate but it could be tighter and also, could be in the form of temporary agreements like special orders or some such instrument. The AFSPA was passed by Indian parliament so it is up to them to amend or repeal it. Now comes the other problem. My impression is that the people of J&K definitely want counter-insurgency operations to continue. In J&K, like Manipur, you don’t have the armed groups agreeing formally to end the armed conflict. And it does pose risks that if you cease or withdraw all operations, will you have a remobilisation of armed groups? It’s a complicated business but the AFSPA needs a separate review. The recommendations made by the Jeevan Reddy Commission need to be revisited. It would help a great deal if the army was allowed to do the court martial in the Machil, to give exemplary punishment and to be very transparent and time-bound. Gross cases could be taken up at the civil court level, but it would be tricky if made into a daily practice. A political settlement is the crux of the issue and the military questions are ancillary. My two colleagues and I believe a solution could be found if there were compromises from all sides. It’s not very clear to me that the political will is present for it within the state and in mainland India. Attention is divided among so many problems that it is difficult to reach a consensus. And then, there is the whole Pakistan question. After all, quite a large part of the state is under Pakistani administration and that has to be a part of it if you want a lasting solution. I still think it can all be done if you are ready to accept a working beginning. It comes right back to this — develop the political will to start from the common areas of consensus and push for it.

 Brig Kanwal// All aid to civil authority rendered by the army is at the specific request of the state government. They send a request to the Ministry of Defence, which has to approve it. If it involves counter-insurgency operations, like in Kashmir and the North-East, then the area has to be declared disturbed and the AFSPA has to be invoked. In India, we have been in counter-insurgency operations for 50 years and we have not had a massacre like Mai Lai (during the Vietnam war). We don’t have prisons like Abu Ghraib or Guantanamo Bay, where the army can interrogate civilians and keep them under detention at will. Given the Indian army ethos, we don’t see it going terribly wrong. However, there are aberrations and when they occur, the violator is taken to task. He is court martialed and given the most severe punishment. And this justice is meted out in a week at most. The perception that the Act allows army men to do what they like is wrong. In fact, the Indian army is one that has suffered the maximum officer casualties. Troops are under very strict supervision, they have very high levels of training and are given all kinds of briefings. I think the AFSPA has got a bad name due to aberrations like Pathribal and Machil. And these trials are held up not because the army is not willing to try them. It’s because the civilian court is not willing to hand over the case. I don’t quite see, then, how the laws are permitting excessive use of force or why civilians should oppose them. The National Human Rights Commission has undertaken to investigate every single act that has been reported and out of over 1,100 such incidents which were investigated, 35 were found to be genuine, and 64 personnel had been court martialed. In Kashmir, one of the three government interlocutors told us that the people are, by and large, in favour of the deployment of the army. So it is more a political issue than a social one. Ten years ago the government, through a decision of the cabinet committee on security, approved the Central Reserve Police Force (CRPF) as the primary strike force for counter-insurgency operations. The CRPF has raised umpteen new battalions. What have they done with that? Why is there no accountability? They need to upgrade their standards of junior leadership, levels of training and the equipment they hold. There used to be a Frontier Administrative Service in the North-East. Why was it done away with when it was doing a good job? The primary role of the Indian army is defence of the land borders and that is what it wants to train and prepare for. If you call the army in for internal security then it should have the protection that the police forces have through the CrPC, and it must be given. Now if you want to do away with the AFSPA and incorporate those provisions within the Army Act of 1950, then it’s even better. But without protection, it cannot operate.

 Lt Gen Katoch// When the constitution was made by the founding fathers, they did not visualise a situation in the country where the army would be required to operate against its own people. Now when the phenomenon of counter-insurgency came in and the army had to be deployed, there was no constitutional power given to the army to act. Every country requires a legal framework for the army to operate and in India this was given under the AFSPA. When it comes to those opposing the Act, I think someone like Irom Sharmila deserves great respect and we do not doubt her commitment or beliefs. The AFSPA has been removed from Imphal, but if people feel that things have since then got better, then it is an incorrect statement. In that particular situation, the police are in a position to control what is happening and in many ways it has become survival of the fittest. The Act has nothing to do with violations per se. In a million strong army, there will be some occasions where things go wrong. To the best of my knowledge, when the cases have come to the army, it has never been lax in taking action. There have been very few times when action was not taken. No other organisation has shown so much commitment. The bigger problem is that if people have been put behind bars, dismissed from service, etc., it doesn’t make it to the national news because the army does not publicise it. Perhaps the army could look into perception management and let people be informed. Compared to the most advanced armies in the world, our human rights record is a thousand times better. If people call this Act Draconian, I disagree with them. Even if you look at what happened at Pathribal, the army was accused of killing innocent civilians. But what actually took place on the ground? There were intelligence officers and police personnel who told the army post that there were militants in that particular area. You blame the army, but where are those police officers? And there is this sentiment that ‘this law protects army personnel so that they can just go in and shoot anyone and nothing will happen’. That is not true. The provision is only in case you are absolutely certain that you are going to be attacked; that people are coming with weapons; and that is the only time you can open fire. You do not find a situation where a cordon and search is taking place, someone is dragged out, shot dead and is still protected from that. This protection only exists where you take these actions on a bona fide duty. The army came because the local police failed, the armed police failed and perhaps the BSF or the CRPF also failed. The terrorists have complete control over the polity, economics and many aspects of society. That is when you call in the army. I am absolutely certain that civilians will be inconvenienced but weren’t they being inconvenienced by the terrorists? I think the time has come to reorganise the way this country is administered and policed. You need to change the Indian Administrative Service and the Indian Police Service in their culture and their method of recruitment. The system of having IPS officers in its present form must be done away with. The local state police forces should be recruited there, manned by their own cadre and should retire from there. That way they have continuity of their own area and the central police officers should be organised accordingly. With regard to the IAS, you need to put in professionals who know how to administer. It is a shame that Jammu and Kashmir, Northeast and 169 districts are affected by extremism. All of them have a District Commissioner, an IAS officer and a Superintendent of Police who are from the Administrative services. They have failed in their duties and we need to consider a new model of administration before the whole country gets engulfed.