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AFSPA wives’ SC petition is embarrassing for Modi govt. MoD, Army must get their act together

The MoD and the armed forces haven't gotten their act together—the delay in the sanction for prosecution shows it. It will compound into a total loss of faith.

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There are the conventional pacifists and others who go by the outcomes of extraordinary circumstances, holding the view that the Indian armed forces are a necessary evil. Yet, in the context of their actions undertaken and the commitment shown in defence of the country whenever called upon for counter-insurgency operations, the people’s veneration towards them never dies of starvation. Only sometimes do they suffer setbacks in isolated areas through the tragic loss of innocent lives.

Such a setback happened in December 2021, when 13 innocent civilian lives were lost in a counter-insurgency operation by a detachment led by a Major of 21 Para (Special Forces) in the Mon district of Nagaland. Justice has been awaiting deliverance.

On 20 July, the Supreme Court, after hearing a petition filed by the wives of the army personnel, stayed all further legal proceedings that were based on the report of the Special Investigation Team (SIT) constituted by the state police. It evoked a legal necessity enshrined in the Armed Forces Special Powers Act (AFSPA) that prosecution can be carried out only with the Central government’s sanction. Such a sanction was requested by Nagaland in April 2022 but has, thus far, met with silence from the Ministry of Defence (MoD).

Relying on my experience in counter-insurgency operations, I expect that the sanction for prosecution is unlikely to be forthcoming. The prime reason for protecting the soldiers would, in all probability, be that they had acted in good faith while carrying out an operational mission. That the mission was based on intelligence inputs from government agencies and the firing resulted because the vehicle refused to stop in an ambience of a conflict zone loaded with the expectation of contact with insurgents.

The stance of the Central government favouring the soldiers often reveals differences with the state governments that can maintain that the troops are culpable and violated Standard Operating Procedures (SOPs) and should not, therefore, enjoy the protection clauses of the AFSPA.

Also Read: Only dialogue, not Army, can stop targeting of Kashmiri Pandits. But make J&K a state first

A brief history

AFSPA is a child of Parliament and the parent of violence aimed at enabling the armed forces to protect India from its enemies. The necessity to deploy the military arises as the police forces are unable to manage the security situation independently.  Ideally, the Army should not be involved in stabilising the internal security situation. Yet, despite the phenomenal growth of the Central Armed Police Forces, the continued deployment of the Army in Jammu and Kashmir and some areas of the Northeast is likely to endure.

Notably, it was due to the disturbed situation in Nagaland in the early 1950s when the Army was first deployed, and seven decades have passed without hardly diluting the need for the armed forces. This is because both J&K and Nagaland are frontier regions where the external and the internal vectors of inimical forces intermingle. The threat manifestation is internal while the sources are both internal and external. The Ministry of Home Affairs (MHA) and the MoD have to, therefore, jointly tackle the situation. Structurally, the armed forces operate under the control of the Centre and work jointly with the state government.

Deemed transgressions of the law, committed by the armed forces personnel, can only be punished by the Central government. The state can only investigate. This protection is given in the AFPSA and the Army, Air Force, and Navy Acts.

An act that has transgressed the law, even if it takes innocent lives, can be pardoned by the Centre if the circumstances are deemed beyond human control. The armed forces are trusted to investigate and judge this key aspect and make recommendations to the MoD. The peculiar nature of the conflict zone and its impact on the soldiers makes this necessary. The MoD normally does not differ from the Armed Forces, primarily the Army.

Also Read: Not just AFSPA, India must reboot counter-insurgency strategy & free Army from it

Coming with good intentions

AFSPA is effectuated in a conflict zone that brings together civil society and government machinery in a common geographic space. Civil society’s support for the government is the higher political objective to be achieved to deal with the conflict. Such support is weakened through incidents like the one that took place in the Mon district. But incidents can still happen. The Army’s legal framework is the best mechanism to decide culpability and speedy punishment. It is, therefore, important that such a legal process is speedily completed and the soldiers are either punished or absolved of blame. Delays punish the soldiers in particular and also keep the animosity of the civil society on the boil.

On 9 May 2022, the Chief of Army Staff General Manoj Pande confirmed to the media that the enquiry had been completed and is undergoing legal scrutiny. He assured that the guilty, if any, would be punished. In the MoD, the Department of Military Affairs (DMA) should have already taken a call on it.

It is ironic that the wives of the army personnel have had to approach the highest court because of the delay in what is, in essence, a legal matter to be interpreted through the operational lens of conflict. The civil society of Nagaland may interpret the SC judgement as a cause of obstruction or delay in obtaining justice. But it need not be so as long as the DMA and the armed forces get their act together. That they have not is exposed by the delay to decide on approving or denying the sanction for prosecution.

It should be an embarrassment for the military and political leadership that the wives have gone to the SC. It reflects a loss of faith in the government. In terms of the strategic outlook, it adds to a similar loss of faith by the civil society. Ultimately, it will negatively impact the overall efforts to deal with insurgent elements.

There may not be easy political solutions to ensure peace. But the government should not add to the cup of woes nursed by different elements in the conflict zone. India’s cup of national security woes appears to be filling up fast in nearly all its domains. The Mon incident and its aftermath must be viewed as symptoms of a larger disease of delaying decisions on matters impacting national security. The National Security Strategy and the non-appointment of the CDS may be frontrunners, but the list is long.

Lt Gen (Dr) Prakash Menon (retd) is Director, Strategic Studies Programme, Takshashila Institution; former military adviser, National Security Council Secretariat. He tweets @prakashmenon51. Views are personal.

(Edited by Humra Laeeq)

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