One’s Right to Live Pre-supposes One’s Duty to Respect Other’s Right to Live
- Swami Vivekananda
1. Human Rights ideology postulates human dignity and recognizes that every human being irrespective of race, religion colour or sex, is born equal and entitled to rights as a human being. The ancient Indian Concept of Dharma embodied Human Rights consciousness in our civilization. The Indian Constitution, in its Preamble, Fundamental Rights and Directive Principles provides for Human Rights of the people of India.
2. There are, however, instances when the State is compelled to impose certain restrictions on the freedom of its citizens, when a society is insecure and affected by law and order problems, internal dissent or sudden changes in established social and economic structures. While dissent is intrinsic to democratic norms and practices, when dissent turns violent, is combined with demands for secession and internal violence is abetted by external agencies, the state tends to rely on its security forces to restore public order. The use of force or the threat of use of force, implied by deployment of State forces in disturbed areas, results in infringements and restrictions on normal routine of common citizens causing friction and resentment in sections of the population.
Indian Army in Counter Insurgency Operations
3. The Indian Army has been deployed in Counter Insurgency and Counter Terrorist Operations in J&K since 1990. The internal security situation in J&K during the last two decades has been dynamic and constantly changing with sponsorship of terrorism in different forms from across our borders being the only constant factor. During this period the Army as the last bastion of national security has been called upon to counter situations varying from mass armed insurrection seeking secession from India to hard core terrorism to more subtle yet dangerous threats to public order and subversion of the people of J&K.4. Counter Proxy War Operations conducted by the Army in J&K extend across the entire region and includes counter infiltration operations on the Line of Control and large uninhabited forest areas abutting the LOC to counter terrorist operations in villages and towns and securing lines of communication leading from the hinterland to the borders. CI /CT operations involve conduct of operations against an armed and mostly invisible opponent operating in the proximity or within civilian inhabited areas which requires imposing certain restrictions on routine civilian activities in the form of population control measures. These measures along with occasional collateral damage to civilian property or loss of life in cross fire between terrorists and security forces form the basis of most allegations of HR violations against the Army.Human Rights and the Northern Army
5. The Army in Northern Command follows a policy of Zero Tolerance for Human Rights Violations. The ‘Awaam’ of the State is the centre of gravity of operations conducted by the Army and winning their hearts and minds is vital to isolate them from terrorists and wean them away from secessionist elements . As men in uniform and the last instrument of the State, the Army is conscious of the fact that its actions in counter terrorist operations are under constant scrutiny and open to criticism by the citizens of J&K and the Country, media and Human Rights activists and organizations both within and outside India.
6. The Basic Values. The Army has evolved over the years. The sub conventional doctrine termed IRON FIST IN VELVET GLOVE summarizes its philosophy of dealing with insurgencies and terrorism while upholding the values of human rights. By and large, the basic instinct and reaction of an Indian soldier, in most situations, is to protect human rights and uphold human dignity. Some of the factors responsible for development of this attitude and reaction are: -
(a) Military Discipline. The strict military discipline deters any “wrong-doing”, by a soldier. A soldier is trained to do that what is correct and proper, from the time he is enrolled into the service. It is almost second nature to him and the only way he knows to operate. Any violation is strictly dealt with by the superior authorities. (b) Treat Everyone Alike. The armed forces are an all India cadre, without any caste, religion or regional biases and treat everyone alike. This contributes in upholding human dignity and human rights of persons belonging to all communities and regions. (c) Apolitical Entity. The armed forces are not politically aligned with any ideology or party. They serve the state and uphold the fundamental rights of individuals as enshrined in the Constitution.(d) Creation of Goodwill. The Armed Forces know it too well that their functioning can be optimized during peace and war, if the civilian population is with them in their ‘endeavour’. This need of the Armed Forces, thus, makes them more considerate to civilian needs and human rights.
Institutional Measures to Uphold and Protect Human Rights7. In keeping with the changing internal security situation in J&K, the Army has constantly endeavoured to modulate its rules of engagement to prevent / minimize collateral damage during operations. This is evident from the sharp decline in the No of allegations of Human Rights violations against the Army in the recent years. Operations are launched only on specific hard intelligence and invariably carried out in the presence of police representatives. The Army has reduced its footprint by moving out of major cities / towns and handing over responsibility of securing the National Highway to the CRPF.8. Training. Training and education on Human Rights has been formalized and institutionalised in Northern Command. All troops inducted into the Command theatre for duties on the Line of Control and hinterland undergo training on Human Rights and observance of correct rules of engagement prior to their deployment on operational tasks. Regular briefing and informal talks are organized to sensitize troops and reiterate the importance of upholding HR of the local population during operations. Interactive sessions and seminars are regularly organized where Human Rights Activists, media representatives, and members of NHRC and SHRC are invited to share their views with the Army.9. Human Rights Cell. A Human Rights Cell exists in Headquarters Northern Command with similar Cells established in subordinate formations up to Divisional Headquarters. The Human Rights Cell at Headquarters Northern Command issues policy guidelines on Human Rights issues to troops of all units and formations in the Command and is responsible for processing complaints of Human Rights violations against the Army received form MoD, MHA and NHRC. Suo Moto cognizance and investigation of cases is also undertaken based on media reports /intimation by NGOs about alleged excesses by the Army. The SHRC (J&K) is not empowered to investigate or call for Report on allegations of HR violations against the Indian Army being a subject matter of List I of the Seventh Schedule to the Indian Constitution (Para 21(5) and 29(d) of The Protection of Human Rights Act, 1993 and Para 24(2) of the J&K Protection of Human Rights Act 1997, SHRC (J&K) refers). 10. Investigations. All allegations of violation of Human Rights are investigated by an independent and unbiased Inquiry ordered by a higher formation headquarters. During the course of investigations, the Inquiry Committee, comprising members from Units other than the one against whom allegations are raised, examines civilian witnesses and documentary evidence from civil police and civil administration officials. The Detailed Investigation Report submitted by the Inquiry Committee is scrutinized by Commanders in successive formation headquarters in the hierarchy and finally forwarded to Army headquarters with recommendations of Headquarters Northern Comd. 11. HR Statistics 2007-2011. Statistics of complaints of HR violation against the Army in Northern Command for the last five years is given below:-
(a) 2007 - 13 ( Including death of serving soldier in police custody in Leh).(b) 2008 - 10 (Including two cases seeking compensation for soldiers killed in operations, one case seeking compensation for property damaged in operation and one case of non receipt of legal fees by defense counsel).(c) 2009 - 09 (Including one civilian girl killed in MT accident by Army vehicle).(d) 2010 - 06 (Including complaint of harassment of a soldier under trial for anti national activities).(e) 2011- 04 (Including false allegation of rape of woman in Kulgam and one complaint of harassment of serving Army soldier in the Unit filed by his ex serviceman father).
12. Punishments. The Army takes prompt action in cases where allegations of Human Rights violation against its personnel are proven to be true. The guilty are tried under the Army Act and punished for their misdeeds. 104 Army personnel including 39 Officers, 09 JCOs and 56 Other Ranks have been awarded various punishments ranging from cashiering, rigorous imprisonment in civil jails, dismissal from service, reprimands and censures for various HR violations since 1990.AFSPA 13. An Enabling Act. The Armed Forces Special Powers Act enacted by the Parliament of India provides certain special powers to the Army to carry out operations in J&K. The provisions of the Act wrongly termed as draconian by vested interests merely give certain additional powers and immunity from prosecution akin to those enjoyed by police Force under CrPC to armed forces personnel deployed in counter terrorist operations. The fact that the Armed Forces were called upon to assist the State administration in restoring normalcy when the situation was beyond the control of police forces at the disposal of the State dictates that the Armed Forces, should enjoy at least similar powers as the Police force. A perusal of the various powers available to the Police authorities under the provisions of the CrPC vis-a-vis those available to Armed Forces under AFSPA would reveal that the police authorities still enjoy wider powers relating to arrest, search, seizure, summoning of witnesses, preventive detention etc than the powers enjoyed by the Armed Forces14. Self imposed Restrictions. The Army with a view to ensuring that the powers enshrined in the AFSPA are not misused has laid down certain restrictions and guidelines in the form of Do’s and Don’ts for troops operating in CI /CT operations. These Do’s and Don’ts along with the Ten Commandments of the COAS have been approved by the Supreme Court of India which has made their implementation binding on troops.Misc Issues15. Casualties in Operations. The security forces have lost more than 4000 trained personnel during counter terrorist operations in J&K in the last two decades. The loss of lives of such a large No of trained personnel vindicates the Army’s commitment to upholding the principle of use of minimum force and avoiding civilian causalities and collateral damage during operations. Several more have sustained injuries in operations, many of whom carry lifelong disabilities. The human rights of these soldiers and the great multitude who have served and continue to serve in counter terrorist operations, silently braving privations of harsh terrain, hostile weather and prolonged separation from their families is seldom given a thought.16. Frivolous Complaints and False Allegations. A No of complaints of HR violations against the Army have been found to be false and instigated by inimical elements. A No of such complaints are initiated several years after occurrence of the alleged incident with no formal police complaint in the form of an FIR. Such complaints are aimed at maligning the Army and embroiling it in legal tangles and provide ripe fodder for various HR activists and separatist organizations to subvert the minds of the general population.17. Anti terror Laws in Other Countries. The brute force used by nations in our neighborhood to quell homegrown insurgencies as also mass civilian causalities and collateral damage caused by armies of Western democracies in their GWOT is well known and needs no reiteration. Some powers enjoyed by the Pak army operating against its own citizens on its Western borders in the newly enacted (Jun 2010) “Action in aid of civil power, FATA,PATA” are :-
(a) Power to detain any person for as long as 120 days.
(b) Imprison any person in tribal areas indefinitely.
(c) Conduct a trial awarding death or life imprisonment to any one accused of terrorism or collaborating with terrorists.
(d) Testimony of any military officer would be deemed sufficient to prove a person’s guilt.
18. Civic Action. The Army has undertaken a No of initiatives to provide succor to civilians in remote areas lacking basic facilities. A No of projects for providing education, health care, Computer literacy, youth and women empowerment, employment generation, sports and games to improve the quality of life of people in J&K. The commitment of the Army to upholding human dignity and promoting universal brotherhood is clearly evident in the plethora of welfare and development projects executed in the State.Conclusion19. The Indian Army has an institutional ethos in upholding Human Rights. In fact, it is the only Organisation, wherein all ranks at the time of commission/attestation take an oath to uphold the ‘Constitution of India’, which in itself is an epitome of Human Rights. The concept of truthfulness, righteousness and dignity of human beings, is deeply embedded in the psyche of all ranks of the Indian Army. Aberrations aside, the Indian Army can be justifiably proud of its ‘Human Rights’ track record, when compared to other professional Armed Forces of the world.
COAS TEN COMMANDMENTS (1993)
1. No rape.
2. No molestation.
3. No torture resulting in death or maiming.
4. No military disgrace.
5. No meddling in civil administration.
6. Competence in platoon/company level tactics in counter insurgency operations.
7. Willingly carry out civic action with innovations.
8. Develop media interaction.
9. Respect Human Rights.
10. Only fear God, uphold Dharma and enjoy serving the country.
SUPPLEMENTARY COMMANDMENTS (2005)
1. Remember that people you are dealing with are your own countrymen. All your conduct must be dictated by this one significant consideration.
2. Operations must be people friendly, using minimum force and avoiding collateral damage - restraint must be the key.
3. Good intelligence is the key to success - the thrust of your operations must be intelligence based and must include the militant leadership.
4. Be compassionate, help the people and win their hearts and minds. Employ all resources under your command to improve their living conditions.
5. No operations without police representative where possible. No operations against women cadres under any circumstances without Mahila Police. Operations against women insurgents be preferably carried out by police.
6. Be truthful, honest and maintain highest standards of integrity, honour, discipline, courage and sacrifice.
7. Sustain physical and moral strength, mental robustness and motivation.
8. Train hard, be vigilant and maintain highest standards of military professionalism.
9. Synergise your actions with the civil administration and other security forces.
10. Uphold Dharma and take pride in your Country and the Army.
DO’S AND DON’TS WHILE ACTING UNDER THEARMED FORCES SPECIAL POWERS ACT
• Establish clear need for opening fire.
• Arrest only persons who have committed or are strongly suspected of committing cognizable offence.
• Search of premises only based on definite information.
• Use ‘minimum force’. Open fire only after due warning.
• Conduct ‘Search’ in presence of two or more independent local witnesses.
• Maintain proper record of arrest and release of individuals.
• No undue harassment of innocents / destruction of public property.
• Handover arrested individuals (within 24 hrs) and seized property to Police.
• Ensure medical aid to injured persons.
• Maintain record of all operations conducted.DON’Ts
• Do NOT keep any person in custody for more than 24 hrs.
• NO use of third degree methods.
• NO use of force against arrested persons.
• NO direct release of apprehended persons. Always release through police.
• Do NOT take back person once handed over to police.
• Do NOT tamper official records.
Ms Vrinda Grover, Human Rights lawyer & Activist, Justice BC Patel, member NHRC, Justice Bashiruddin, Chairman SHRC J&K, Lt Gen Prakash Menon (retd), Secy National Security Commission and Shri S M Sahai, IPS, IGP J&K Police at Human Rights Seminar organized by Army in December 2011
Hon’ble Justice Shri BC Patel, Member, NHRC Addressing Human Rights Seminar
Senior Army Officers attending Seminar on Human Rights
School Students at Human Rights Seminar organized by Army
Ms Vrinda Grover, HR Activist and Lawyer speaking at the Human Rights Seminar
Hon’ble Justice Syed Bashiruddin, former Chairman, SHRC(J&K) at the Seminar
Distinguished Panelists at Human Rights Seminar - 20 Dec 11
Hon’ble Justice BC PATEL, Member NHRC penning his views at the HR Seminar
Mr Nitin Gokhale, Senior Editor, NDTV speaking on role of Media in Counter Terrorist Operations