While Ms. Sitharaman’s flip-flops have seriously damaged the credibility of the Central Government, sadly the wishy-washy comments of the Northern Army Commander, as well as the lack of any public statement from the Army Chief in support of his troops, has not helped matters.
If verbal gymnastics was an Olympic sport, there is little doubt that Ms. Nirmala Sitharaman, the Raksha Mantri, would win the Gold Medal hands down.
One minute, in a confidential conversation with Ms. Mehbooba Mufti, the Jammu and Kashmir Chief Minister, she is supportive of the Chief Minister’s intention to file an FIR against the Army unit that fired in self-defence in the Shopian incident, for "carelessness" on their part. Ten days later as the Supreme Court stays the FIR, the RM unashamedly does a perfect verbal somersault and publicly states that the Supreme Court’s directions were expected and that the Central Government supports our “brave soldiers”! One would not blame the military if it concluded that with friends like her, who needs enemies?
At the outset it needs to be clarified that despite all the brouhaha in the media, the military veteran community and even among prominent members of the BJP and RSS, for instance, Mr. Subramanium Swamy, the Police can lodge an FIR against the Army, even in a disturbed area where AFSPA is in force if it concludes that a cognizable crime has been committed.
While AFSPA, in essence, gives the Army operating in disturbed areas police powers of arrest and search without a warrant, given the hostile environment they are required to operate in, Section 7 of the Act only prevents prosecution of Army personnel without the sanction of the Central Government. Even a layman is conversant with the fact that filing of an FIR implies only commencement of an investigation.
Thus, the filing of the FIR in such circumstances means little and would not in any way adversely impact the morale of personnel, provided they have organisational support. While Ms. Sitharaman’s flip-flops have seriously damaged the credibility of the Central Government, sadly the wishy-washy comments of the Northern Army Commander, as well as the lack of any public statement from the Army Chief in support of his troops, has not helped matters. It is probably this perceived lack of organisational support that forced Major Aditya Kumar’s father to approach the Supreme Court with the plea to quash the FIR.
While Mehbooba Mufti could well be ignorant, the Police are certainly fully aware that an FIR can only be lodged against an individual or group when a cognizable offence has been committed by them. In all other circumstances, a Police Report needs to be filed and the case brought before a Magistrate who then directs whether an FIR needs to be filed or not based on the evidence available.
In the present instance, it needs only a superficial understanding of the law to conclude that firing in self-defence against a mob intent on lynching soldiers, snatching their arms, destroying government property and preventing them from carrying out their duties can hardly be considered a cognizable offence. As a matter of fact, the Police had failed in its duties by not lodging an FIR against the mob and arresting those involved. It is incumbent on the authorities to hold to account those officers responsible for this lapse.
In any case if there was any doubt as to what exactly occurred and in the version of events brought out by the Army, a Magisterial Enquiry on the basis of a Police Report would have been sufficient to place the facts on record and that would have allowed the authorities to proceed with the case on its merit. Incidentally, the State Government also simultaneously ordered a Magisterial Enquiry along with the FIR, though this Enquiry will have little credibility given the circumstances.
There is a problem in the manner in which this incident has been dealt with. Clearly, there has been unwarranted and unethical attempts by both the ruling alliance and the opposition in the State to politicise the issue and curry favour with the people. Mehbooba Mufti’s assertion in the Assembly while defending the police action of lodging an FIR against the Army by suggesting that "black sheep can be anywhere", without waiting for a report from an impartial investigator clearly suggests blatant bias against the Army as well as efforts on her Governments part to exert pressure on the Police to target the Army.
More worrisome is the fact that thanks to judicial activism, AFSPA has lost much of its effectiveness and this has greatly restricted the Army’s ability to respond robustly and proactively to security threats for fear of subsequent criminal cases against them. Moreover, the State Government has been excessively lenient towards citizens indulging in acts of stone pelting and other violent activities. As a result, the Army finds it extremely difficult to carry out area domination patrols, especially in rural areas, due to attacks on them by unrestrained mobs. The Army, thus, finds itself losing control of the countryside, a critical element in any counter-insurgency strategy, if it is to succeed.
There is little doubt that politicians are targeting the military for their own selfish reasons. As we are well aware, no insurgency can be resolved without a political solution being implemented. Unfortunately, in our case, neither the State nor the Central Government is willing to put forward a solution that can help resolve the issue. In such circumstances, the Army will continue to pay the price unless it takes drastic action and refuses to be played.
The worry is that if the military hierarchy refuses to stand up and confront the political leadership, it is only a matter of time before the rank and file, who bear the brunt of such operations, may take matters into their own hands. That would disastrous for the military.
Finally, of course, this government does have another option; it could arrange to hand over the situation to Mr. Bhagwat and his merry band of volunteers in khaki who believe they can achieve in three days what the Army hasn’t in three decades. If nothing else this ludicrous suggestion may lead to the death of separatists from laughing too much and that wouldn’t count as murder would it?
This commentary originally appeared in WION News.
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Brig. Deepak Sinha (Retd.) was Visiting Fellow at ORF. Brig. Sinha is a second-generation paratrooper. During his service, he held varied command, staff and instructional appointments, ...
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