Supreme Court directions for CBI enquiry into alleged fake encounter killings in Manipur July 19, 2017, 9:43 am IST V Mahalingam -Are we being fair to the Security Forces? The claimed fake encounter cases in Manipur are very old, probably involving some who might have already retired. Officials involved and those who were assigned to supervise the operations too would have been posted out and might not even remember the basic details of the cases. Such delayed enquiries place tremendous disadvantage on a soldier in terms of collecting evidences, witnesses and defending himself.

in In Search of Propriety | India | TOI “The Supreme Court may not trust individual soldiers but do they not have faith in the Army as an organisation? How come, the country and the SC have no problems entrusting the country’s external defence and with it, the integrity of the nation to the army? No one comes to the border to adjudicate matters or be with us under adverse circumstances”. “With the stigma of arrests, going to the civil court, or being punished who will marry our daughters?” “Till now we were living with the fear of the bullet throughout the service of our husbands and from now on one will have to live a life of anxiety that husbands do not get involved in court cases related to their duty and get jailed” These were some of the reactions of a group of disabled soldiers, their wives and relatives who had accompanied them to a War Disabled Rally held at Pune on May 06, 2017 when told about the SC judgement. The SC on 14 July 2017 has come out with yet another direction ordering CBI to probe into 98 alleged fake encounter killings purportedly committed in Manipur by the security forces which includes the Army, Assam Rifles, CRPF, BSF and Police. Looking at the trend, the next step may be the registration of FIR based on fake complaints of rape and molestation of women by some militant sympathiser to target the soldiers. Are we being fair to the Security Forces? The claimed fake encounter cases in Manipur are very old, probably involving some who might have already retired. Officials involved and those who were assigned to supervise the operations too would have been posted out and might not even remember the basic details of the cases. Such delayed enquiries place tremendous disadvantage on a soldier in terms of collecting evidences, witnesses and defending himself. At this belated stage, who would come forward to support the soldier against a complaint made by some militant sympathiser? On the other hand do we not realise that there would be no dearth of people coming forward to depose against him? Would that be fair to someone who had risked his life to defend the integrity of the country? If it was felt that the alleged encounters were fake, why weren’t they acted upon right then? Why did the Extra Judicial Execution Victim Families Association (EEVFAM) which has now filed a writ petition alleging 1528 fake encounter deaths in Manipur in the last decade with a demand for a probe by a special investigation team wait all these days and not act when the incidents took place which would have rendered investigations much easier? News about fake encounter if any would have been in the air and probably in local newspapers at the time of the incident. What prevented the Police or the lower courts take suo moto cognisance of the wrong doings and act on them then? Coming after so many years, are these cases an effort to castigate the security forces and lower their morale? To be fair to the security forces the concerned may like to study the 2009 Shopian double rape-cum-murder case (Don’t miss the article) involving Asiya Jan and her sister-in-law Nilofer Jan, the two women, the security personnel were accused of raping and killing. The security personnel were arrested on charges of rape. The outcry, the unabated stone pelting for 47 days, the fudging of postmortem reports by two government hospitals and their doctors in Shopian and Pulwama who were expected to exhibit certain codes of morality and ethics amply illustrates how the soldiers are targeted when it comes to enquiries and court cases in an insurgency affected area where they are operating. Today, if at all, the situation has gone worse when compared to 2009. One needs to serve in the insurgency affected areas to understand the business of tarnishing the image of security forces that goes on and the way the people are misinformed and misguided by elements inimical to the Government and the security forces. Are soldiers not humans and are they not entitled to Human Rights? Human Rights organisations unfortunately do not consider the security personnel as humans and till date have not brought out any worthwhile case of human Rights violations with respect to the soldiering community by terror groups or even local civilians in insurgency areas. Are they not aware of over ground workers providing shelter, assist militants to smuggle weapons and other war like stores, store them in their houses and provide them information to target soldiers and kill them? Why are they blind when it comes to civilians pelting stones at soldiers and even insulting them right under public view? Why not investigate such cases too? While investigating cases, do they ever bother to go up to the concerned military unit and talk to the people concerned? Or is it too much of a bother for them to get out of their cozy abode and would rather write a report based on a one sided version of some militant sympathiser and sensationalise it to retain their relevance? It may be an eye opener obtaining data pertaining to number of soldiers killed and wounded in encounters, FIRs filed and numbers punished. Are we aware of the tons of weapons, ammunition and explosives recovered in insurgency affected areas? Are they not meant to kill soldiers? Are human rights of soldiers being protected by killing them using these weapons and ammunition? Regretfully today the country treats the soldiers as expendable. Doesn’t a soldier have the right to due justice? Are these organisations not accountable to soldiers’rights as humans? Army and its accountability to troops The situation that has emerged as a result of the two significant ruling by the SC is clear. Make no mistakes, the AFSPA has been muted by these SC orders and it has lost the basic elements that support and protect the soldiers from bogus made-up litigation in an insurgency area. The army hierarchy can no longer leave the situation to the lower formations and units to handle. Army needs to examine the consequences of these rulings on the conduct of operations and issue clear cut directions on the red lines and the limits in the conduct of operations. It must be made clear to all concerned that violation of the directions may land them in courts and subsequently in jail whether the case filed is true or otherwise. The role of the Army in insurgency operations will have to be limited to containing violence to an acceptable level in the area of responsibility of the force. Capture of weapons and killing militants in encounters will have to be taken as an incidental gain subject to the soldier or the sub – unit being able to prove beyond doubt that the death of the individual be it a militant or a civilian was a result of an encounter or in self defence. The system of higher commanders complimenting individuals and sub – units for capturing weapons and killing militants need to be prohibited emphatically and should have no bearing in the rating in annual confidential reports or in promotions both in the case of officers and other ranks. Prepare for a legal battle of the future Each unit will have to have trained legal teams at the scale of one per sub unit who would be responsible to take necessary photographs and video evidences, record statements of witnesses present in the area of operations in the presence of a magistrate as required by law. Evidences including weapons and other war like stores, used cartridges, finger prints etc. recovered from militants killed / caught will have to be collected immediately after the operations, appropriately labelled and records created as required for fighting a legal case. These evidences with photographs of the concerned will have to be handed over on proper receipts to the Police / maintained in the units besides filing necessary FIR as per law. Fired cases and other evidences which need to be sent for forensic examination will have to be collected and handed over to the appropriate agency or its team to be located within the area of operations. No doubt the legal aspects will drown the importance of military operations, the very purpose for which the Army has been preferred in place of Police Forces and deployed. Make no mistakes, these distractions will diminish the motivation and the import attached to operations. If that is what the country and the people want, so be it. Need for a Magistrate to accompany military columns in Insurgency areas According to the Instructions on Aid to the Civil Authorities by the Armed Forces, 1970, the District Magistrate (DM) accompanies the army column and is required to give instructions to the Army for the deployment and provide written approval to open fire. Since the truthfulness, integrity, the Army’s commitment to justice and propriety and that of its officers are being questioned today a case will have to be taken up with the Government for the provision of Magistrates to army columns operating in Insurgency areas. The system cannot absolve itself of accountability, play safe and make the soldier pay for it. Effect on Unit/ Sub – Unit Cohesion In an encounter where the soldiers’ lives are at stake, a hostile target may be engaged by more than one group positioned widely separated. The sub groups may be reserves meant to outflank the ambush party from a different direction or support groups positioned exclusively to retrieve soldiers under fire from militants. In such encounters casualties are bound to occur on both sides. The question is how does one get to know as to whose bullet killed the militant? Wouldn’t then the tendency be to disown one’s own part resulting in the killing of the militant or some civilian in the vicinity? The resulting set back to sub – unit cohesion and its effect on combat effectiveness can only be realised by people who have handled troops. This cannot be allowed to happen at any cost. Need to enact Law Under the present circumstances would it not be appropriate to enact a law which prohibits people from converging on to areas where military operations are underway for whatever purpose? Should the people not be told that individuals will themselves be accountable for casualties occurring in such areas? In any case what business any one has in areas where military operations are in progress? Seeking Encounters Very few in our country are aware that militants do not stay in their houses but move from one village to the other and are dependent on the logistic arrangements made by the over ground workers controlled by separatists for their stay and food. There are no addresses where they can be located or traced. The militants go by their pseudo names called the code name and there are no means to identify or locate them. In whichever village they are spending their day or night, they hide their weapons in difficult to locate places and merge with the locals so as to prevent getting caught with the weapon in the event of a raid by the security forces. Under such circumstances how is one expected to identify, obtain arrest or search warrants against the miscreants or their hidden weapon dumps? To overcome the difficulty, the Army risks its soldiers’ lives and seek encounter by employing deliberate tactical movements in areas where information about militants’ presence has been reported. Suitably composed small tactical teams (3 to 4 men) are made to move consciously with the hope that the militants will open fire. Reserves and Support elements are prepositioned to quickly close in with the militants once they open fire to catch them with their weapons which will force the militants to give information regarding the location of the other militants belonging to the party and places where the weapons have been hidden. Quick Reaction Teams (QRT) are then sent along with the captured militant who acts as a guide to get hold of the remaining militants and recover the weapons after necessary search. It is quite possible that some of the militants or even some civilians may be injured or killed in such operations. If FIRs are to be lodged in such cases, Army will have no option but to abandon such maneuvers. The Army then will be no different from the local police. Why employ the Army then? Which soldier will ever get involved in risking his life and genuinely carrying out such tasks? Conclusion Let it be clear to one and all. The soldiers are not fighting an insurgency war because they generated the situation. They are there to clean up the mess created by the Government and the administration. They have no interest or motive to go to such difficult places and getting themselves killed leave alone involving in fake encounters and killing innocent civilians. If people cannot support the security forces in their efforts to fight militancy and bring down violence to an acceptable level they might as well be withdrawn and the situation handled the way they wish to. Laws created at a time when things were different cannot be interpreted and applied without due relevance to the prevailing context. Use of artillery, helicopter gunships and the Air arm against radicals living amongst harmless civilians beyond a country’s borders would have never been contemplated a couple of decades ago. Today the world is witnessing use of these instruments of war in Afghanistan, Pakistan, Iraq, Syria and Yemen amongst many other places in the world. Human rights are a forgotten concept in these areas not because the world wants to kill innocent people but because the situation and the context of earlier hypotheses have changed. Mind you these are not fake encounter killings instead they are open and deliberate massacres. While the courts have no option but to go by the prevailing laws, it is for the law makers to take note of changed situations and update the existing laws to meet the current needs