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.*****

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