The plea in the Supreme Court against the possible “chilling and numbing effect” on the serving military in the Armed Forces (Special Powers) Act (Afspa) by over 350 military personnel is symptomatic of a far deeper, psychological and irretrievable concern that goes beyond the legalistic, constitutional and administrative concerns that are specific to this case. A foreboding sense of the unending “tightening-of-hands” in the face of mounting military casualties in J&K and parts of the Northeast is giving way to a dreary belief of apathy, indifference and casualness when it comes to matters pertaining to the “voiceless” institution (by tradition) of the Indian armed forces, who in a democratic framework are rightfully beholden to the civilian rule. Somewhere, beyond the condescending platitudes, clichés and photo-ops, the armed forces are only getting acknowledged, revered and requisitioned in moments of ceremonies, political opportunities or unmanageable tribulations. The supposed “last resort” of the nation is no longer the “last” in terms of getting requisitioned in internal insurgencies like J&K, civic disturbances like Panchkula, or in providing relief operations in flood-hit Kerala — it is only becoming “last” in the precedence of officialdom with the ever-growing portents of “tightening-of-hands” with impunity and in the sad know that the institution will “fall in line” as always.
The most imposing irony in the Afspa case is that the Indian military, which is not supposed to be handling internal strife as that is the domain of the respective state police forces, intelligence agencies and the concerned Central Armed Police Forces (wrongly called “paramilitary”), is sought to be brought under the “operational policing” by the very same institutions that have failed their own primary mandate, and the Indian military is tasked additionally to do their job of countering internal disturbances. The second fundamental issue of the flawed Afspa narrative is the ignorant perception, where an operational imperative and cover (as extended to any military in “disturbed areas” across the world) is perceived as a privilege, and worse, an unmitigated right to “plunder, kill and loot” as it pleases! The edifice of the Indian military and its operational sub-components in the form of commands, corps, divisions, brigades and units do not have the right to any individual interpretation and thinking, other than what is sanctified as the objective, method and means that are approved by the sovereign. There is also no additional rupee in the soldier’s pay structure, owing to working under Afspa-covered areas, exclusively. Third, the prevalent perspective ignores the existence of military laws, procedural checks and balances and the undeniable institutional commitment of “safeguarding” all citizens, irrespective of religion, caste, sect or region. Unlike a mercenary or a terrorist — a soldier of the Indian Army does not wish to spend one extra day in the domestic insurgency-affected area, other than as warranted by his or her posting or that of their regiment. The Indian military would prefer to stick to its core role of safeguarding the sovereign borders and when required to undertake blunt “kinetic” operations against the enemies that exist on the other side of the border, and not in “policing roles” within the country, and getting questioned on its “intent” for Afspa retention.
The military like any other institution is not perfect and is susceptible to odd operational mistakes. However, to attribute either a pattern or even a sinister “intent” in its workings is absolutely incorrect and lazy extrapolation. Pertinent to the state, that amongst all the governmental institutions it is the closest to “compliance” or “non-failure”. Matters of individual failure or even culpability cannot be ascribed on the totality of the institution, much unlike Pakistan where the military does have a “voice” and a “mind” that is independent of the state itself (“state within a state”).
In the Panchkula mob fury case, the ultimate deployment of six military columns did what the entirety of the Haryana police struggled to control — the efficacy of the military is guaranteed and imposed by its blunt training and conduct that does the needful, even at the potential cost of paying the “ultimate price” by its personnel.
In instances of individual/unit level dereliction of duty, the military courts pass the requisite punitive orders that are both time-bound and of the required severity. In some cases the opinions on the operational and circumstantial conduct are possibly questionable and require adequate introspection and internal-debate to handle for posterity. However, for combatants it is also incumbent to know the “right” conduct, where an act like in the specific case of the “human shield” could have been undertaken to protect the lives of both civilians as well as combatants in the given situation. So far, there has been no workable alternative suggested that could have been undertaken to avoid loss of lives, given the specifics and constraints in this case. Equally important is to ensure that situation or circumstantial conduct does not get glorified, institutionalised and defended in all circumstances, as the environment concerning the “disturbed areas” is asymmetric, non-linear and unique that practically warrants a certain outlook that is inherent in the spirit behind the Afspa. Therefore, the operational sensibilities governing Afspa areas are not applicable in non-Afspa areas for the military.
The Indian military is a “blunt” institution towards the enemy, and equally importantly, towards itself. It intrinsically does not tolerate “non-compliance”. Therefore, it would be prudent on the courts to strengthen its internal legal framework of auto-correction within the military law and control, as opposed to injecting the services and intrusions of those very institutions that have failed the situation in the first place. Today military is an omnipresent institution that is in the thick of all national calamities and rising to the occasion to cherry-pick and weaken the last standing bastion of sovereign resolve, duty and honour would tantamount to unimaginable disservice to the institution, and to the nation. The sense of institutional-isolation from the daily optics of engagements with the politicians, civil bureaucrats, police services, etc, is unmistakable and unforgivable.
