Impact of Supreme Court directions

Harsha Kakar

The appeal requesting for the recuse of the bench hearing the Manipur ‘so called’ extra-judicial encounters case, by over seven hundred serving and retired military personnel, was turned down. While rejecting the appeal, the court had stated, ‘In any event, in our opinion, it should be clear to everyone, that officers and personnel of the Indian army, paramilitary forces and the state police are made of much sterner stuff than is sought to be projected and they can hardly be demoralised by observations said to have been made by anybody…. To contend that some observations said to have been made by this Court have demoralised the Indian army, the paramilitary forces and the Manipur police, is suggestive of a weakness in them.’
The appeal followed the court’s remarks to the CBI on why custodial interrogation of the men of the armed forces who have been charged had not been done. The court had also remarked that while murderers were ‘roaming’ freely, survivors were living in fear. Most cases are on disproportionate use of force. The basic question which arises is who should determine the correct use of force?
Manipur faces an insurgency, wherein an insurgent melts into the population as also remerges from there, since he is part and parcel of them and surviving with local support. Therefore, all action taken by security forces against insurgents would be viewed negatively, since it implies targeting locals. During an earlier hearing the supreme court had rejected the government’s contention that disturbed area (insurgency or militancy dominated) is akin to a war like situation.
Support by the local population to insurgents who attacked and killed soldiers remains unaddressed. The role of those who were aware of the movement of insurgents when they were deployed to ambushed the army and other police personnel,yet refused to share the information, remains unquestioned. Those who provided insurgents shelter remain unchallenged. Only security forces personnel who fought under daily pressures and tensions are being charged.
Operating in an insurgency or militancy area requires immediate and split-second decisions. If the soldier delays opening fire, the target may disappear. If he fires and it may not be his target, there could be an innocent death, but such cases are rare, not intentional, but inadvertent. There are occasions when a delay in decision making has led to loss of own lives.
AFSPA is not only an enabler for the army to regain control of the situation but also to assist it to function in an area where locals hate its presence, support those operating against it and consider it an occupying force. In an environment where insurgents or its supporters are an inherent part of the population differentiating, especially during a firefight or in pursuit, is difficult. In insurgency areas like Manipur and Nagaland and presently in J&K, Army personnel are alone, disliked and ignored.
No nation has ever restricted its armed forces the way India has done. Its forces only employ personal weapons, risking their lives even more, as these weapons can only engage anti-nationals from close range. They have faced mass casualties in IED blasts and ambushes all of which has been done with the knowledge of the local population but have never targeted them in revenge. Never has the army lodged FIRs against local village heads who would have been aware of militant actions, as they have considered them as their own citizens.
Manipur is neither the first, nor would it be the last where insurgency or militancy has reigned nor would reign. Kashmir and parts of the North East continue to face the same. Every area where troops are deployed in an anti-insurgency or anti-militancy role, they would always have doubts on the support they are likely to receive from the nation.
The Army chief had recently stated in a press interview that those filing cases are not the first relatives of those impacted by the army actions, but NGOs, who are third party. He felt that such actions impact military operations and hence their antecedents and reasons for filing must be investigated. The impact of the court case on operations is now becoming visible.
A report in the Times of India of 9 September this year stated that the ‘Army is looking at recalibrating its counter-insurgency strategy in the North East in the wake of an ‘over cautious’ approach being adopted by its field units following the Supreme Courts strict orders to the CBI probing a number of cases of alleged extra-judicial killings in Manipur’. The report added that the army HQs was ‘deeply worried’ over the rising casualty figures on the part of the army as well as a marked slowdown in its intensity of operations. The state still has 10 major militant groups active.
The figures released by the report states that till Aug this year five army men were killed and seventeen injured against three militants.
A soldier seeks support from the nation when he operates in difficult areas. He hopes that his actions, based on good faith are respected by the nation and his deeds not questioned. If decades after he has acted, he is asked to justify his actions, he would only be able to explain the circumstances not his internal feelings.
The fear of loss of limb or life of his or his comrades every time he left his base, the attitude of the locals who supported militants or insurgents and taunted him as he went about his duty, all of which added to his pressures are not an aspect which can be explained verbally in an airconditioned court. It can only be experienced on the ground, by a soldier in combat.
His actions during combat were guided by instinct, by his training and his perception of right or wrong. These also cannot be explained in a courtroom, especially to those who have never served in such an environment.
While the military may be made of ‘sterner stuff’, as the Supreme Court stated, the results on ground seem to indicate the reverse. The fear of being prosecuted and charged decades after having operated has severely impacted the efficiency of the forces. It may lead to a reverse trend in operations, in the days ahead, adding to national security issues.There would be no easy solution unless soldiers operating in harsh conditions are supported. It is for those in authority in the nation to understand the circumstances under which our soldiers operate, the risks they take only to ensure that India remains a nation-state.
(The author is former Major General)