Supreme Court Declines to Unshackle the Security Forces
Major General Mrinal
Suman
Last week was very painful. Death
of 25 CRPF personnel in a Maoist ambush at Sukma was soon followed by the
martyrdom of three soldiers in a terrorist attack at Pulwama. Heart-rending TV
clips of wailing widows and orphaned children were highly disconcerting. Far
too many lives are being lost. Continued inadequacy of Indian response to the
long drawn challenges became evident once again.
However, it was the ruling of
the Supreme Court that caused the maximum pain. On April 27, it rejected the
curative petition of the government and upheld its earlier direction of July 8, 2016 wherein registration of FIR against armed forces
personnel, even in disturbed areas under Armed Forces Special Power Act
(AFSPA), had been made mandatory for every encounter death. Repeated pleas of
the government that the said order would one day make it well-nigh impossible
to maintain peace and security failed to convince the Court.
The decision to dismiss the curative petition was taken in a
chamber hearing without the presence of the law officers for the government. Apparently,
the judges were so convinced of the soundness of their earlier order that they
felt no need for further arguments.
As a veteran, one has experienced the trauma of losing
colleagues to terrorist bullets in counter-insurgency operations in Nagaland
and counter-terrorist operations in Punjab. Therefore, one felt highly let down
by the Court ruling. With one stroke, the Court has deprived the armed forces
of the protection against prosecution provided to them under AFSPA, thereby
throwing up a number of issues that are critical for the security and integrity
of the country.
AFSPA
was enacted in 1958 to bring under control what the government of India
considered disturbed areas. AFSPA was first applied to the internal
disturbances in the North East in 1958. It was promulgated in Punjab from 1983
to 1997 to control the turmoil and has been in force in Jammu and Kashmir since
1990.
Two
points need to be flagged here. One, the efficacy of AFSPA stands proved by the
fact that India continues to survive as a nation despite numerous insurgencies
seeking secession from the Indian Union. AFSPA prevented balkanisation of the
country by allowing the security forces to focus on tackling insurgents without
any fear of subsequent inquests. Officers
enjoyed legal protection as long as they acted in good faith which is held to
mean ‘with due care and attention’.
Two,
AFSPA has been repeatedly subjected to legal scrutiny at various levels since
its enactment. Every dispensation has accepted its essentiality. What new
developments have taken place in the recent past to warrant a fresh ruling by
the Court, except that the anti-national activists have become more strident in
their false accusations?
As
a matter of fact, situation in the Kashmir valley has deteriorated considerably.
Security forces are being subjected to unprecedented ordeals. They face death
at every step while engaged in combat operations against highly indoctrinated
jihadis armed with sophisticated weapons. Hence, the requirement for legal
protection to carry out the unenviable task has acquired increased criticality.
Sadly,
the Supreme Court has overlooked the fact that Kashmir is a not an ordinary law
& order issue. A war is being waged there – an asymmetrical war wherein the
jihadi forces are seeking to fragment the country and wreak havoc on the
country’s social fabric through fidayeen attacks. They give no quarter. It is a
fight unto death – either the security forces kill the jihadis or else suffer
casualties. It is a matter of split-second response.
To
prevent fidayeen attacks, the security forces have to seek the jihadis out and
eliminate them. For that, police parties invariably accompany them. All efforts
are made to minimise collateral damage. Terrorists exploit this self-imposed
restraint of the security forces and take shelter in populated areas and summon
stone-pelters to help breach cordons. Removal of protection of AFSPA will
further embolden the jihadis. Wonder if the jihadi organisations have passed a
vote of thanks for our Supreme Court!
The
security forces are striving to keep the country secure. The Court has imposed
most unwarranted caution on the soldiers. They will have to think of legal
consequences before killing a terrorist. Some may consider it more prudent to
let him slip-away to avoid FIR.
India must be the only country where killing of the enemies
of the nation is subjected to judicial reviews. For such shameful state of
affairs, the country needs to thank the human rights activists, pseudo-secularists,
presstitutes and other anti-national elements. Unfortunately, the Supreme Court
has got carried away with their perverse logic. As one veteran has suggested, all
judges should be asked to stay in military camps in Kashmir for a week to get a
true sense of the trepidations and threats to life that the soldiers endure for
months at a stretch.
Another veteran, who lost a family member to a militant’s
bullet, has raised an agonising poser to the Supreme Court, “How much do you
know about the brutality of war? How many of you have sent your progeny to the
armed forces? Have you ever lost a family member in the defence of the country?
Do you know the pain of losing a young son or having a widowed daughter or seeing
your grandchildren grow up without their father? If not, please do not impede
our war effort. Human rights sound very nice when you and your families are
safely ensconced in secure air-conditioned homes.”
Applying
the Court directions to the Pulwama incident, an FIR will be lodged against
Gunner Rishi Kumar who risked his life and killed two terrorists despite being hit on his headgear. Police
investigations will carry on for years haunting him even when posted to other
places in India. Courts will issue summons and demand his presence. He will be accused
of depriving the ‘innocent’ jihadis of their human rights and asked to justify
the killings. He will be queried, “Are you sure they were terrorists? They did
not kill you, why did you kill them? Did you give them adequate opportunity to
surrender and reform themselves? Did you give them a fair chance to escape? Did
you fire warning shots in the air?” Instead of lauding his bravery, he will be
subjected to judicial witch-hunt. What a disgrace for the nation!
Subjecting active military operations
to judicial review is an outlandish idea. Whereas all nations empower their soldiers
to vanquish enemies of the state, India takes pride in shackling them. While addressing the U.S. Naval
Academy in April 2010, Secretary of Defence Robert M Gates said, “You have
answered the trumpet call. For my part, I consider myself personally
responsible for each and every one of you as though you were my own sons and
daughters. And when I send you in harm’s way, as I will, I will do everything
in my power to see that you have what you need to accomplish your mission – and
come home safely.”
Apparently, India’s Supreme
Court thinks differently. Human rights of the enemies of the state appear to be
far more important than the security of the country.
Finally, as a serving officer
commented wryly, “The Supreme Court has given us two options – ‘get killed and
the country will honour your martyrdom’ or ‘kill the terrorist and face
police/judicial investigations for years’.” His apprehensions are genuine and
shared by the most. Wonder which soldier will look forward to serving in such
antagonistic environment!
However, the security forces are
still hopeful that the Supreme Court will reconsider the issue and appreciate
its gravity.
