India: The army cannot interfere in political decisions

The Telegraph, November 4, 2011

THE RIGHT TO DISINVITE
— The army cannot interfere in political decisions

Cutting Corners - Ashok Mitra

In the general reckoning of the country’s politicians, Kashmir is an inalienable part of India, no further questions are to be entertained. This assertion has a coating of opportunism, for the same politicians are wondrously absentminded over the unearthing of more than two thousand unmarked graves across the valley: it is as if it was too small a matter to detain them. These graves, overwhelming sections of Kashmiris are convinced, are of young men killed by Indian armed forces in fake encounters. The outcry of angry protest has reached a crescendo in the valley. The harassed state chief minister, otherwise a near-puppet in the hands of the Centre, had no alternative but to identify himself with the sentiments that are being expressed. He has gone to the length of describing the graves as telltale evidence of the gross excesses committed by the occupying army personnel, who, he has charged, are trigger-happy and have got habituated to shooting down in cold blood Kashmiri youths at the least provocation and often without any provocation.

The army is in Jammu and Kashmir because of the dispensation of the Armed Forces (Special Powers) Act. The statute allows the armed forces a free rein over the lives and limbs of residents of the area where it is enforced. Even if marginal credibility is granted to constantly aired complaints, depredations by army personnel must have reached extreme proportions. Barring the Congress — and of course the Bharatiya Janata Party — all other political formations in Jammu and Kashmir, including the National Conference, the major parties in the ruling coalition, have chosen to align themselves with the protesting populace. The chief minister has been demanding for some months the revocation of the AFSPA, or at least annulment of its purview over parts of the valley. The Centre has been a most reluctant listener. The chief minister has persisted. Roughly a fortnight ago he went on to promise a formal announcement to withdraw the operation of the act in some regions of the state. He, it was assumed, had finally succeeded in making the Centre see his point of view. Days have passed, the promised announcement has not come. While the chief minister claims to have kept the ministry of home affairs informed about what he proposed to do, he obviously did not have the prior nod from New Delhi when he made his statement. A final decision is still pending.

Thereby hangs a complex, winding tale. Controversy over the necessity — particularly the ambit — of the AFSPA has been raging for quite a while and not just in Jammu and Kashmir. States in the Northeast — where the act has been operational in a number of cases for more than three decades — are equally in ferment. Irom Sharmila’s ongoing indefinite fast in the relative obscurity of Imphal seeking withdrawal of the act from Manipur and neighbouring states has attracted only limited attention in the national media. That hardly diminishes its significance. The strong support which provides her the sustenance to go on mirrors the sullen anger of large masses in the Northeast at what they consider to be bestiality on the part of rampaging army personnel and para-military forces over the years under the cover of the AFSPA. There are any number of stories of rapes, beatings, arbitrary arrests and, of course, encounter killings, the authenticity of which seems unimpeachable. The demand for the revocation of the AFSPA has reached a peak in the region and threatens to stay there. The response from the authorities continues to be discouraging.

The core of the problem is as much supposed security concerns as the sensitive issue of Centre-state relations. Maintenance of law and order is in the sphere of responsibility of states; that is what the Constitution says. The defence forces are there solely for the purpose of tackling external threats to the country’s security, they are not intended to be deployed to cope with situations where law and order have broken down within any part or parts of the country. But difficulties soon arose. Political authorities in this or that state failed to deal adequately with recurring incidents of widespread violence and defiance of law within their territory. As the frequency of such occurrences grew, the Centre persuaded the states to agree to the enactment of the Armed Forces (Special Powers) Act allowing the army to step in to quell internal disturbances.

The AFSPA was legislated by Parliament. A political decision led to its enactment; the legislation also makes it explicit that it can be enforced in a state, or in any part of it, only with the approval of the state government. Whether the act should be abolished or modified or revoked from — or extended to — a particular state or any part of it is again a decision to be arrived at at the political level. The army itself can have no role in these proceedings. The Constitution does not give the defence forces any mandate to decide which country to invade, or try to defeat what other country’s army. The president of the country is in overall command of its defence services. He/she acts at the discretion of the Union council of ministers. The Union government, through the instrumentality of the ministry of defence, decides the nation’s defence policy and the manner in which the various wings of the defence forces is to be deployed. Neither the army, nor the navy nor the air force is an independent entity. India is a democracy. The armed forces must know their place in a democracy.

It was therefore extraordinarily odd that once reports of army excesses in Manipur as well as Jammu and Kashmir became a live subject for public discussion and led to a debate on the pros and cons of the AFSPA, army bosses thought it proper to chip in and talk to the press, giving their views in the matter. They were, not surprisingly, eloquent over the supposed virtues of the act and were unreservedly for the continuance of the operation of the act in the two states. They went further and openly contested the view of the Jammu and Kashmir chief minister which favoured either abolishing or amending the act. Were they not speaking out of turn? Perhaps, because the ministry of defence, as far as is known, did not care to warn them to behave, they have kept infringing the code of discipline, pretending to enjoy the same prerogatives as those that belong to politicians and public men. True, a large number of the country’s politicians have, through their recent acts of omission and commission, succeeded in besmirching their reputation. They have naturally been the target of vicious attack from different sections and not altogether without cause. This development might have emboldened the army brass to join the fun and games of lambasting politicians. India, they deserve to be reminded, is no Pakistan or Thailand. Army officers, unlike in these countries, have no business here to openly debate issues with politicians. Their duty is to carry out decisions reached by politicians elected to office by the people. If they have any special love for the AFSPA and dearly want it to continue in this or that state, they should explain their position to the ministry of defence. Their role ends there. The ministry of defence, too, needs to accept the reality that the debate around the AFSPA has in the end to be decided on political considerations, taking into account overall national interests, and that it would be absurd to permit the army brass to exercise a veto over this decision. A veto of this nature should rather be the prerogative of the chief minister of the state concerned, since the act can, in the first instance, be made operational in a state only on the approval of the state regime. If it lies with a chief minister to invite the troops in, he/she should be equally privileged to disinvite them. This is why one feels particular disquiet at a report that formal ratification of the Jammu and Kashmir chief minister’s desire to liberate certain areas of the valley from the purview of the act is held up because of intransigence on the part of the army.

If true, it could set up a dangerous precedent. For the temptation on the part of officialdom to sit on judgment on decisions reached at the political level — and get away with it — can be contaminating; it is possible to quote one very recent instance of this tendency. In the wake of the discussions over the functions and responsibilities to be assigned to the proposed lok pal, some controversy has taken place over whether the Central Bureau of Investigation should or should not be transferred from the formal aegis of the ministry of home affairs to that of the lok pal; one or two suggestions have also emanated to bifurcate the agency with a substantial chunk of its work transferred to the lok pal’s ambit. Those serving in the CBI may have their own views in the matter, even strong views, but such views they can at most convey to their higher authorities, including to the minister in charge. But it would be totally out of order for them to claim the privilege of publicly airing their private views. This is precisely what the current director of the CBI has done. He dislikes the idea of bifurcation of the organization and has rushed to the press with a statement detailing his reasons for opposing the proposal.

The CBI director has violated discipline. If Indian democracy is to be salvaged even at this stage, this kind of misconduct on the part of senior serving officers needs be censured. Otherwise there will be deeper trouble ahead. And it would be equally disastrous if the army were to overrule a state chief minister’s resolve to bid adieu to the AFSPA.