17 January 2014

Dilution is no answer

January 17, 2014
Wajahat Habibullah


If the army feels it requires continuation of the AFSPA to discharge its responsibilities, no other agency is qualified to credibly challenge that view.

Shekhar Gupta (‘Disarming Kashmir’, December 7) questioned the role and presence of the army in J&K. Lt Gen Syed Ata Hasnain, former corps commander in Kashmir, wrote back, saying that ‘victory’ had to be defined before the army’s role could be determined (‘‘Victory’ in the Valley’, December 11). Lt Gen H.S. Panag joined the debate, arguing that military strategy is contingent on political direction that is lacking in Kashmir (‘The drift in the Valley’, December 18). Taking the debate forward:

This is in response to Shekhar Gupta’s recent article in The Indian Express, ‘Disarming Kashmir’ (National Interest, December 7). He argues that with peace and normalcy returning on the ground, there is scope for a partial thinning of the army presence in the Valley and some symbolic dilution of the AFSPA. In the process, he has made certain observations, like the presence of half a million Indian soldiers protected by the most illiberal of laws fighting in the Valley, a new factor in Indian policymaking by way of a veto power for the army, etc. All merit serious analysis to reach the right conclusion.

The issue of Kashmir provides a wicket that, in cricketing parlance, is called a spinner’s delight. It is so easy to give twists and turns to these issues, however fickle the supporting facts. To get the right answers, it is essential to get basic facts right. The myth about the presence of half a million army boots in the state is off the mark. The army has for some time now adopted a posture of added emphasis towards maintaining the sanctity of the Line of Control and the counter-infiltration grid, and is already very thin in the hinterland. Only the reserve brigades of the 3 Corps and 62 battalions of the Rashtriya Rifles are deployed in the hinterland on the counter-insurgency grid, with an optimal strength of approximately 55,000-60,000 army troops. This is a far cry from the oft-quoted figure of half a million. By quoting erroneous figures, we only end up providing a handle to our adversaries.

Yes, the proxy war situation has improved considerably with the majority of terrorists eliminated, but there are still a large number of them in the staging areas across the LoC, awaiting their turn to infiltrate. Even more importantly at the strategic level, the overall security matrix in Afghanistan merits consideration. As the American-led Nato forces prepare to withdraw in 2014, if the Taliban gets even partial control of Afghanistan with Pakistan’s support, it is possible that these radicalised jihadis may be directed against India in Kashmir. With this uncertainty, we would be better advised to keep our security posture intact and the contingency plans worked out.

This brings me to the alleged “veto power” acquired by the army. Nothing could be more preposterous and farther from the truth. The problem is that, as George Tanham has stated, “India lacks strategic culture”. We have virtually no institutionalised processes of long-term thinking and planning by a balanced group of experts, and the armed forces are generally kept out of the decision-making loop.

Moreover, has the government even articulated its political aim and strategic objectives anywhere in the insurgency belt, starting from the Northeast to J&K? The army is thus left with no choice but to evolve its own approach and they have done it very well. The lack of a regular dialogue between the government and the commanders has been a major shortcoming since Independence. As a matter of fact, the entire higher defence management apparatus has been asking for major changes, and it was so recommended by the group of ministers after the Kargil War.

It is the duty of the armed forces to offer frank professional advice to the government on national security matters. If a difference of opinion and professional judgement is to be construed as an assumption of “veto power” by the army, it is most unfortunate. Because of the trust deficit with Pakistan, the army has always been against finalising any arrangement in Siachen wherein we can easily be surprised and left in a hopeless operational situation.

This has been our consistent stance for over a decade-plus now. Similarly, in Kashmir, it is time for us to consolidate our gains rather than thin out. It is difficult to fathom as to why anybody would want the army to shy away from its duty to tender its best professional judgement to the government. It is for the government to accept or reject this advice. Rather than blaming the army unfairly, we should work towards structural improvement in our security structure.

Now coming to the sensitive issue that the AFSPA is anti-people and provides the army the licence to act with impunity and without accountability. The key issue is that the AFSPA comes into effect only after the government declares a state, or parts of it, disturbed, meaning that the normal functioning of the government has broken down and there is no choice but to induct the army to restore normalcy. Unfortunately, once a state is declared as disturbed, it continues to be classified so, even when the situation has improved considerably or hostilities have been suspended. On the contrary, the army must be deployed judiciously and strictly for limited periods only. Nagaland and Assam are examples of unwarranted application.

The removal of AFSPA in such cases would be a rational approach, and the army has always promoted this. The strong resistance of the army to the clamour for its induction into Naxal-affected areas amply proves its sensitivity and respect for this principle of civil governance.
On the other hand, if the operational situation in a state is delicately poised, it is time to stand firm. The answer at such junctures does not lie in what has been called a symbolic dilution of the act, because that would risk exposing the security forces to thin legal protection. It must be emphasised that the army tries to set strict standards of discipline for itself and leaves no genuine case uninvestigated.

The army’s decision to start court martial proceedings against six personnel accused in the Machil area is a case in point. It would be the last to deny that there has been the odd mistake. Thus there is a constant effort to improve. This is obvious from a marked decline in allegations, from as many as 1,170 between 1990-99 to 226 between 2000-04, to 54 during 2005-06, nine in 2009, six in 2010 and only four in 2011. Post 2014-15, if the security situation improves further, the AFSPA could be selectively removed from some areas along the international border. But dilution is not the answer.

Finally, the last and the most important question is: At what stage can we consider that peace has genuinely been restored in J&K? Will it be when there is maximum tourism, say over 6-8 million tourists per year, or when the Valley is free of violence to a degree wherein Kashmiri Pandits will feel confident enough to return? To my mind, the return of Kashmiri Pandits should be our real objective.

N.C. Vij. The writer is the 21st chief of army staff.

Rethink and redeploy

General Hasnain, in his closely argued “‘Victory’ in the Valley” (IE, December 11), has contended that “Kashmir is far too complex for inexperienced minds to fully comprehend and there are so many stakeholders, it confounds even those who have a semblance of an idea.” True enough, if one is seeking to master the Kashmir “issue”. Except that, the issue under discussion is simple: it has to do with the heavy army deployment in civilian areas in Kashmir when the need for it is long past. And that stands tacitly acknowledged by the army in resolutely, and to my mind, wisely, having refused to intervene more than staging a march on the outskirts of Srinagar when a desperate state government pleaded for it, with the Valley roiled in civil turmoil in 2010.

But the simplistic assertion by Shekhar Gupta (‘Disarming Kashmir’, National Interest, IE, December 7) that the issue in Kashmir is one of a (won) proxy war is in denial of the fact that the outbreak of 1989, which persisted into the late 1990s, was a civil insurgency stemming from the widespread frustration of Kashmiri youth with what they perceived to be the purloining of democratic freedoms promised in the state’s accession. This insurgency was indeed defeated by the army. But the question now must be: Does that call for disarming Kashmir? In specific terms, should that mean withdrawing laws like the AFSPA that, put bluntly, allow free exercise of power to the army? Does failure to withdraw amount to conferring the right to veto on the army?

While explicating the AFSPA bill in the Lok Sabha in 1958, the then Union home minister stated that the act was subject to the provisions of the Constitution and the CrPC. If that was to be the case, then why was the AFSPA not drafted to say “use of minimum force” as in the CrPC? If the government truly meant to have the armed forces comply with democratic norms, then the AFSPA should have had a specific clause enunciating compliance with the CrPC. But this law overrides the CrPC. A Kashmiri under the AFSPA is actually deprived of Article 21 of the Constitution, the fundamental right to life. Although it cannot be so construed legally, the public is convinced that this has allowed the army to overlook alleged custodial killing of the kind perpetrated in Machil, which triggered the disturbance in J&K in 2010. Only at the close of 2013 did the army, in a decision lauded as a break from its past record in Kashmir, bring the case to court martial.

Because of features that directly contravene democratic policy, there would be a good case for the complete revocation of the AFSPA. The changing situation of J&K would also merit such consideration. However, in that state, the government continues to persist with its own Public Security Act, 1982 (PSA) — a law enacted on the basis of the allowance that the state enjoys under Article 370 — which is of more universal application than AFSPA. This PSA is also the most draconian of its kind in India, although there have been recent amendments to debar its application to minors.

Nonetheless, it cannot be denied that, given the concentration of security forces on both sides of the Line of Control, continuing infiltration — even though diminished — and an increasing military presence of China’s People’s Liberation Army in the northern areas of J&K, there would be a case for continuation of army deployment at present levels, if the military so judges. If the army feels it requires continuation of the AFSPA to discharge its responsibilities, no other agency is qualified to credibly challenge that view. However, if it is decided that the operation of the law must continue, it is essential that the process followed in applying that law must be spelt out, as in any other law, with details of how the powers conferred by it are to be exercised.

It is by this means that the army presence, if it is to be retained at present levels, must be brought into full conformity with the principles that must dictate its functioning, including adherence to the practice of common law. Although the army may have instructions or general orders on how powers under the AFSPA must be exercised, these can hardly be a substitute for statutory rules enforceable by courts of law.

The army’s legal branch is working on formulating rules notified by the law. But to conform to the Constitution, just as it is the responsibility of the state government to withdraw its own laws that contravene the principles of democracy, it will also be necessary for the ministry of home affairs (MHA) to review its functioning in relation to the prosecutions permissible under the AFSPA. Members of the military are in any case protected from arrest for anything done within the line of duty under Section 45 of the CrPC. Section 6 of the AFSPA, however, provides what amounts to total immunity. To prosecute against a member of the armed forces for abuses under the AFSPA, permission must be sought first from the Central government. The record shows that such permission has not been given, even when the case is clearly one of fake encounter established by premier investigative agencies. The MHA is committed to reviewing its procedures relating to this. But this is an area that must also be covered by rules to ensure that permission, if not refused in a given timeframe, will be presumed to have been given.

It must be conceded that in reducing the military presence in the state, the army’s opinion must prevail. The civilian authority might weigh the necessity of assigning this task to the army, which is beyond an army’s regular responsibility of defending borders. This does not confer a veto, but simply applies a basic principle of management. The armed forces must be convinced by government and representatives of the public of the arguments to rescind the AFSPA, given the protection already extended to them by existing law.

But there is an alternative. The deployment of the army extensively in civilian areas in Kashmir is a hangover from the demands of the war of 1947-48. This explains why there is heavy deployment in Pattan, on the crossroads between Baramulla and Sopore, in Palhalan, located on the karewa (highland), and Shalteng, once on Srinagar’s outskirts and today a suburb.

Clearly, the premier threat today of war between two nuclear armed states is no longer a military assault through a march along the highway on Jammu or Srinagar; it is infiltration. So, the army would do well to consider redeployment along the more vulnerable areas along the LoC, in areas with a scattered population comprised mainly of Gujjars migrating seasonally to the highland pastures. Tensions between the army and local civilian populations — characteristic of the Valley in these civilian areas but not along the LoC, where the need for deployment is understood by civilians as necessary for their protection — spring from the feeling amongst civilians that the army is an occupation force, despite laboured efforts by military authorities to dispel such an image. Nor is the army presence here required for maintenance of law and order.

Such redeployment will require heavy financial investment. But surely the need to allow India’s citizens in J&K the exercise of fullest constitutional freedoms must be the paramount consideration, as it is my view that there is no other means of bringing the conflict to a close. It is only by giving the Kashmiris a sense of being a free people, guaranteed to them under India’s Constitution, Article 370 notwithstanding, that we might truly capitalise on the army’s “victory”.

Wajahat Habibullah. The writer is chairperson of the National Commission on Minorities

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