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Wednesday, May 08, 2013

Countering insurgency and sexual violence
By Firdaus Ahmed

The Indian Army's powers under Armed Forces Special Powers Act have rightly figured in the debate surrounding sexual violence particularly since the barbaric rape in New Delhi early this year. To the pro-army side, the army is self-regulating and any incidents that do take place are 'aberrations'. To the activists, the army is high on testosterone all the while in counterinsurgency and therefore requires its powers clipped. The army's own position when faced with allegations of sexual transgressions in operational areas by its members is that it takes action where warranted but notes that most accusations are propaganda of anti-national forces. The truth is, as is usually the case, somewhere in between.
The debate understandably was taken on board by the Justice Verma Committee and the outcome has figured in its speedily arrived at recommendations. Justice JS Verma requires that the infamous provision of the AFSPA that calls for sanction by the central government for initiating prosecution against armed forces personnel be removed where a sexual offence is alleged. This has something for both supporters of the army and its critics. It does not degrade the powers the military thinks it needs in such areas. But it does remove the cover of impunity that critics of the military argue allows the military to get away.
However, the army's view that it would open the army up to false allegations needs to be taken on board. The counter insurgency environment is considerably complex. The insurgents have an active body of over ground workers who can be deployed as a dirty tricks department. Once in the dragnet of the Indian court system, particularly one subject to militant intimidation, well meaning soldiers acting in good faith could find themselves on the firing line. Truth will be the first casualty and morale the second. Vindication, after the better part of youth has been expended fighting off the allegation, is hardly the fate a nation would want for those who have signed up to defend it to the peril of their lives. If soldiers are sent into such environments by a government, all they ask is a fair cover.
Such cover from military excesses no doubt must be afforded citizens in the affected areas also. Justice Verma's second point on 'command responsibility', a senior's duty to prevent and take action in such cases, is pertinent here. If the senior leadership sets a command climate that encourages juniors to take an unfair advantage of additional powers, the central government must demand of the military hierarchy the reason why it has not proceeded with prosecution on its own under the Army Act. Tactical level commanders such as the infamous Major Avatar Singh are as much a product of the command climate set by their seniors as they are subject to their inner psychological pathologies. Where explanation offered by the army is found wanting, it must be entered into confidential records of culpable commanders under supervision of the ministry and where necessary administrative, and depending on the gravity, criminal proceedings be launched against erring commanders. Merely shifting them out to other assignments as was the case with the division commander in the Pathribal incident is not enough. That this was done in the case suggests that the state had much to hide and could not risk having its officials prosecuted, lest they spill the beans.
Command climate, the degree of permissiveness (or otherwise) of violations in conducting counter insurgency operations, is perhaps the most significant variable that either promotes or deters violations. A command climate is permissive when it allows greater leeway to tactical commanders in pursuit of quantifiable 'results' such as militants killed. The tacit bargain is in the commander overlooking cutting of corners in such pursuit so long as 'results' in terms of statistics of militants killed keep rolling in. Such commanders end up having to look the other way in cases of transgressions since they would be implicated for abetting short cuts in means and methods in case they quarrel with their tools.
The infamous Manorama Devi case is apt example. Why did the army defend the indefensible? The popular narrative of the case holds water. Believing Manorama Devi to be an explosives expert, the army had ordered her elimination in custody, lest she be let off by the courts. Obviously, those the army ordered to carry out the killing took advantage of the situation. Fearing that the officer would spill the beans if tried for rape and custodial death, the hierarchy had to protect him and the troops involved. The logic in higher command echelons was perhaps that the image of the army was more important than justice. The government for its part, equally privy to the facts of the case, and unwilling to face down the army or face uproar in the North East, played for time by ordering a committee on AFSPA, the BP Jeevan Reddy Committee, and having outlasted the agitations, dispensed with the committee's recommendations.
Even where the command climate is strictly professional, as was the case in Kashmir in the early nineties, a Kunan Poshpora can yet occur. At the time the commanding general in the Valley was MA Zaki, described by Manoj Joshi in his book Lost Rebellion as: 'fortunately for India the man commanding the Indian Army's 15th Corps was a cool professional soldier, a Hyderabadi Muslim who had served the Army with distinction. The courageous and deeply religious officer was fated to play a major role in the affairs of the state.' MA Zaki later led Jamia Millia Islamia out of troubled times in the late nineties. That Kunan Poshpora dates to his tenure suggests that there is more to the case than the cult status the case has through its retelling become as one of a mass rape.
Reputed bureaucrat, Wajahat Habibullah, divisional commissioner in the Valley when the incident occurred, refers to it in his book on Kashmir, Kashmir: The Dying of the Light, informing that he had recommended an inquiry in his preliminary inquiry report. The government instead had the then chairperson of the Press Trust of India, BG Verghese, look into the incident as part of his remit that had wider terms of reference. That the press was exploited by the over ground militants to replicate their narrative of Kunan Poshpora was one reason why BG Verghese headed to Kashmir. In his autobiography, First Draft, Verghese recounts that he was provided with the fullest access by Zaki to all relevant actors including officers and soldiers of the offending infantry unit. He was unable to find evidence either of the act or of an attempted cover up.
In the event, the brigade commander had ordered search operations at night against explicit orders in the corps zone, thereby creating conditions in which sexual assault could occur. The opportunity was seized on by the militant sympathisers irrespective of the facts of the case and the long term implications for the lives of the women of the village. Blowing the case out of proportion in an information war campaign, truth was lost and so was justice. Had Wajahat Habibullah been more assertive then or not moved out of the Valley to a post in Delhi, a separate inquiry could have established the truth. The army was open to this.
Tavleen Singh in her book, Kashmir: A Tragedy of Errors, recounts how Zaki reacted to her critical questioning of an incident of army high handedness in early 1990 resulting in civilian deaths. Zaki had admitted to it being 'unfortunate'. There was no attempt to underplay or avoid it. This indicates that an incident of the proportions of Kunan Poshpora could not have escaped Zaki's professional eye, particularly due to his renown as a commander leading from the front. Incidentally, he suffered a graze to his head in a fire fight with militants in one such encounter as head of the army in the Valley. Given such a record of integrity and grit, insinuations as attend the Kunan Poshpora now need revisiting. Stridency does not alone make for truth. It instead has the effect of the army's case becoming more plausible in their pointing out the perils of ambush by litigation.
Siddharth Varadarajan has suggested an improvement to deter the government from sitting on decisions or denying clearances altogether, while preserving the provision of prior governmental permission. The government must be required, by an amendment to the Act, to furnish reasons for refusal for prosecution. Its reason must also be subject to judicial review. In case the court decides that the evidence outweighs the reason given, it can either override the government or, where reasons of national security and state are furnished, it could order the army to exercise military justice. This has precedence in the Pathribal killings case in which the army has been asked by the court to proceed with the court martial of those who killed innocent civilians to pass off the killings as those of militants involved in the Chittisingpora incident. That in its judgment the court has upheld the cover from prosecution in the Act implies that the provision is here to stay. Therefore, ensuring accountability of the ministry in its power to withhold or grant sanctions for prosecution must be built into the Act through amendment.
Justice Verma's third point on review of the AFSPA in areas where it is applicable adds to the weighty voices against AFSPA. Yet, despite the solid case against the law and the credentials of those, such as late Justice Verma, arrayed against is, it appears set to stay on. Clearly, India is not out of the woods yet in terms of armed challenges to the state that require an armed response. What Justice Verma's report succeeds in doing is to push the argument past the tipping point that the law must be amended. Even then the law by itself is not enough. The command climate in the theatre of operations must - and can be - such as to make the law's existence irrelevant.

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