‘The integrity and sovereignty of the country is on a higher pedestal than even the Constitution which the judges take oath to protect.’ (Source: PIL filed by 356 army men in the Supreme Court.)
It is really shocking that the security forces, working in most difficult conditions and sacrificing their lives to defend the country from the external and internal enemies, have also to face humiliations and judicial restrictions on their duties.
After the ‘surgical strike’ in September 2016, almost all opposition politicians united to question its veracity, as if they had got a ‘cause’ to form a grand alliance against Prime Minister Modi. Not satisfied with disbelieving the Government and the Army, in July 2017, Congress leader Sandeep Dixit called army chief a sadak ka goonda (‘goon on the street’). In June this year, without any basis, Congress leader Ghulam Nabi Azad declared that Army operations in Jammu & Kashmir killed more civilians than terrorists. He said, “They (forces) take action against four terrorists and kill 20 civilians.”
On January 27, 2018, when a security force convoy passing through Ganovpora village in Shopian district of Kashmir opened firing in self-defence to stop stone-petters (the incident resulting in some casualties) the then Mehbooba Mufti government filed FIRs against some army personnel. Not only the separatists, several so-called human right activists and politicians feel more disturbed when stone-petters are stopped, not when terrorists and infiltrators kill the men of the security forces and civilians.
We should salute the security forces and the Army Chief who quietly swallowed these insults and continued to perform their duty to defend the country.
However, the actions being taken by the Supreme Court (SC) of India may exhaust their patience.
For the last few years, the Supreme Court has been hearing a PIL filed by the Extra-Judicial Execution Victims Families Association Manipur (EVFAM), an association of wives and mothers of persons who were killed by the security forces during anti-insurgency operations, formed in July 2009. The EVFAM claims that between 1979 and 2012, 1528 civilians were ‘extra-judicially’ killed by the Manipur police and the security forces (mainly the Assam Rifles and the Army) in Manipur. In 2012, EEVFAM and a sister organisation, Human Rights Alert, filed a PIL before the SC seeking investigations into all 1528 cases.
In July 2017, the SC ordered the CBI (Central Bureau of Investigation) to investigate over 90 cases. The CBI investigated some cases and filed charge-sheets. On July 31 this year (2018) the SC had called and pulled up the CBI Director for the delay in filing of FIRs against the Manipur police commandos and armed forces personnel allegedly involved in ‘extra-judicial killings’. Justice Madan B Lokur asked why the CBI was not arresting those charge-sheeted. His exact words were: “according to you, there are 14 murderers in these cases and they are loafing around Manipur freely. You have not arrested any of them. What happens to society? If somebody commits rape, what is there to recover? So you (CBI) will allow him to roam free?” The CBI Director’s reply that after the agency filed its charge-sheets, the trial court concerned has to decide whether to grant the accused bail or send them to judicial custody, did not satisfy the Court.
Disturbed by these developments, on August 14 this year, 356 army me, including 75 officers — a brigadier, 29 colonels, 15 lieutenant colonels, 19 majors and 11 captains — who command thousands of soldiers in anti-militancy and anti-insurgency operations in the disturbed areas of the northeast and J& K filed a PIL in the SC to register their protest against the Court’s order to the CBI. They have said that they have been constrained to file the petition in view of an extremely hostile situation on the ground due to the prosecution of officers and soldiers for bona fide actions during military operations. Their fear that is that the Court order to the CBI amounts to taking away the shield provided by the Armed Forces Special Powers Act (AFSPA) in force in Assam and Manipur that protected them from any legal action for anti-insurgency operations.
In the PIL, they have expressed their deep anguish, raised some very valid issues and asked some disturbing questions with far-reaching consequences for the defence of the country.
§ “Soldiers never hesitate to lay down their lives in the line of duty in order to uphold the dignity of the Indian flag. However, the extraordinary circumstances in which their colleagues are being persecuted and prosecuted for carrying out their bona fide duties, without making any distinction or determination whether the acts in question were done in good faith, without any criminal intent.”
§ “A country that doubts its soldiers and their martyrdom is bound to lead to a collapse of its sovereignty and integrity. Questioning honest actions has a demoralising effect on officers and soldiers deployed in disturbed areas for counter-terrorism and counter-insurgency operations in J&K and northeastern states.”
§ “If the armed forces were not given the protection they required to engage with enemies at the frontiers and within in actions that could mean dying in the line of duty, there would be grave peril to national sovereignty, endangering India’s existence as a constitutional sovereign democratic republic.”
§ “When soldiers get ambushed, they have to make split-second decisions to protect the integrity and sovereignty of the country, which is on a higher pedestal than even the Constitution which the judges take oath to protect.
§ The soldiers “are asking their commanders whether they should continue to fight against militants and insurgents engaged in proxy war against India or operate as per peace time yardsticks guided by the Criminal Procedure Code.”
They have a point. The government asked them to act and gave them protection from any legal action against excesses committed during operational exigencies and now the court has withdrawn that with retrospective effect.
A bench headed by Chief Justice Dipak Misra has agreed to hear the petition on August 20 after counsel Aishwarya Bhati said the matter required urgent adjudication as the issues raised affected the morale of armed forces, tasked to maintain security and integrity of the nation.
Separately, Six Manipur police commandos facing prosecution have also moved a petition before the Supreme Court. They are apprehending that notwithstanding several SC orders that free and fair trial was part of an accused person’s right to life guaranteed under Article 21 of the Constitution, they may not get a fair trial. They are aggrieved by what Justice Lokur told the CBI director on July 31 last. They too have read flagged some thought-provoking issues.
§ They are accused of ‘fake encounters’ by vested interest groups. They have stated that, “Calling the members of armed forces and police force ‘murderers’ and comparing them with rapists has dealt a serious blow to the morale of the forces and their families, little realising that (responsibility to maintain) sovereignty and security of the nation is placed on the shoulders of these members of the forces, who very often lay down their lives for the safety and security of the motherland and its citizenry.”
§ “With hostile neighbours around, the country can ill-afford to have a demoralised, confused and low morale force that may imperil the very existence of the nation, its Constitution, the rule of law and fair and impartial administration of criminal justice system of the country.”
In the interest of fair trial, they want the case to be referred to a five-judge bench excluding Justice Lokur.
As if the action already being taken by the SC is not enough to demoralise and weaken the security forces, Dr. E. A. S. Sarma, a retired IAS officer and a former Secretary, Department of Economic Affairs and a former Director, Administrative Staff College of India, Hyderabad, has filed a PIL accusing the security forces of “cold-blooded fake encounter killing of two suspected members of National Democratic Front of Bodoland (Songbijit) faction” on March 30 , 2017 in Assam’s Simalguri village. The PIL is based on a newspaper report and has sought a thorough probe into the allegation.
A Supreme Court bench headed by Chief Justice has issued notices to all the authorities concerned as well as the Human Rights Commission.
I have no idea of Sarma’s real agenda but readers should know that he was one of the 49 retired civil servants who wrote a letter to the Prime Minister on April 16, 2018, about rapes in Kathua (Jammu) and Unnao (Uttar Pradesh). They described the prevailing environment as “our darkest hour” in post-Independence India. They blamed the Sangh Parivar for the culture of majoritarian belligerence and aggression in Kathua. Some passages from the letter need to be re-read. They called upon the Prime Minister
§ ‘to reach out to the families of the victims of rape in Unnao and Kathua and seek their forgiveness’
§ “to offer special protection to Muslims, to Dalits, to members of other minority communities, to women and children so that they need not fear for their life and liberty and any threat to these will be extinguished with the full force of State authority.”
Ask anyone to read these passages without mentioning who the authors are, the first impression would be that all these words have been spoken by the Congress President Rahul Gandhi. The political overtone the letter is so blatant. I had written a blog to reply to that politically motivated letter.
I wish I had resources to hire a Supreme Court advocate to file a PIL to demand an enquiry into sources of finance for all the campaigns and PILs against the security forces.
Perhaps, it is for the first time that in any country the security forces are fighting a legal battle to do their duty.
The SC has to give its verdict on whether the Criminal Procedure Code is above the integrity and sovereignty of the country, whether the democratic constitutional system of the country can survive if the security forces are not given respect and support to carry out their duties.
If the SC verdict goes against the security forces, the consequences could be disastrous. What if the jawans refuse to work? The Army rules provide for their court-martial but how many persons can be court-martialed? What if their revolt takes an ugly turn? Two joint PILs mean already serving officers have formed some sort of unions to protect their interest.
The apprehensions should not be dismissed as hypothetical baseless. In 1946, the revolt of the Navy had frightened the colonial rulers of India and probably hastened their departure.
Hope, we do not prove German philosopher and historian G. W. F. Hegel (1770-1831) once again right. He has said: “What experience and history teach is this – technicians and governments have never learned anything from history, or acted upon any lessons they might have drawn from it.” (Lectures on the Philosophy of World History, 1830).
Don’t push the security forces in a corner. It can be disastrous for the country.