INDIAN ARMED FORCES

PERSPECTIVE IN THE BACKGROUND OF

LOW INTENSITY CONFLICTS IN THE FORM OF COUNTER

INSURGENCY, COUNTER TERRORISM, AND PEACE KEEPING

OPERATIONS

PRESENTATIONBY

MAJ. GEN. NILENDRA KUMAR

LEGITIMACY,

LEGAL

DEVELOPMENT

AND

CHARTER

PANEL ON RULE OF LAW CIVIL AFFAIRS

DOCTRINE &

STABILITY OPERATIONS

INDIA

A COUNTRY OF CONTINENTAL SIZE WITH

LAND BORDERS SHARED WITH CHINA, PAKISTAN,

BANGLADESH, NEPAL, BHUTAN, 1197 ISLAND

AND COAST LINE OF 7516 KMS WITH A VAST

EXCLUSIVE ECONOMIC ZONE

INDIAN SCENARIOSIGNIFICANT FEATURES

LARGEST FUNCTIONAL DEMOCRACY

MULTI LINGUAL, MULTI RELIGIOUS & MULTI ETHNIC

SUPREMACY OF THE CONSTITUTION

INDEPENDENT JUDICIARY

UNMATCHED CONTRIBUTION TO THE JURISPRUDENCE ON

THE RIGHTS OF INDIVIDUALS

STABLE & EFFECTIVE GOVERNMENT

VIGILANT MEDIA

SECURITY ENVIRONMENT

1. TWO UNSETTLED BORDERS

2. EXPERIENCED FOUR MAJOR CONVENTIONAL BORDERS WARS

3. ONE UNDECLARED WAR IN KARGIL (1999)

4. ENGAGED IN AN EXTERNALLY ABETTED PROXY WAR FOR SEVERAL YEARS IN J&K

5. COMBATING TERRORISM PERPETUATED BY MILITANT AND TERRORIST GROUPS SPONSORED BY A FOREIGN STATE.

6. TACKLING A NUMBER OF INSURGENCIES, SPURRED BY TRIBAL AND ETHNIC ASPIRATIONS AND LEFT WING IDEOLOGIES.

7. HAS A NUMBER OF NUCLEAR WEAPON STATES IN ITS

NEIGHBOURHOOD

TRANSITION

MILITANCY

INSURGENCY

TERRORISM

RELEVANT DATA : J&KYEAR TERRORISTS

KILLED IN ACTION

TERRORISTS APPREHENDED

CIVS FATAL

CIVS INJURED

WPNS RECOVERED

AMNRECOVERED

GRENADES RECOVERED

EXPLOSIVES RECOVERED (IN KGS)

2000 1432 274 630 817 1872 3,15,958 8773 3372

2001 1890 662 806 1536 2176 1,86,889 10252 2386

2002 1526 466 852 1406 2083 2,31,841 9171 1980

2003 1397 313 644 1246 1971 2,29,220 9554 2613

2004 885 224 595 1202 1417 1,67,059 7327 1996

2005 876 240 486 924 1546 2,31,241 7369 5238

2006 560 426 368 877 1325 1,47,045 7705 3199

TOTAL 8566 2605 4381 8008 12,444 15,09,253 60,151 20,784

RIO 2000 – 2006 : NE STATES

YEAR TK TA TS CIV K CIV W WPN REC

2000 438 2937 1806 NA NA 1316

2001 455 3115 626 602 NA 1300

2002 410 1565 306 459 NA 905

2003 450 1655 3189 494 NA 1520

2004 332 1735 1174 388 573 1003

2005 197 1169 462 393 263 966

2006 174 1023 1385 196 452 861

OVERRIDING INFLUENCES

• CHANGING CONCEPT OF WARFARE

• STRATEGIC & ECONOMIC

CONSIDERATIONS• CONSTITUTIONAL FRAME WORK • ACTIVE JUDICIARY• FUNCTIONAL NHRC• LAWS OF ARMED CONFLICT

MAJOR FACTORS

COALITION POLITICS MIX UP OF RELIGION WITH POLITICS OVER LAPPING JURISDICTIONS CRIMINALISATION OF POLITICS CHALLENGES TO AF(SP) ACT VIGIL AGAINST HR VIOLATIONS COMPENSATORY JUSTICE MULTIPLICITY OF SECURITY AND INT AGENCIES

CONVENTIONAL

COUNTER TERRORISM

PKO

DISASTER MANAGEMENT AND AID TO

CIVIL AUTHORITIES

NATURE OF OPERATIONS

COUNTER INSURGENCY

CODE OF THE WARRIOR“I AM A WARRIOR. DEFENDING MY NATION IS

MY DHARMA. I WILL TRAIN MY MIND, BODY AND SPIRIT TO FIGHT. EXCEL IN ALL DEVICES AND WEAPONS OF WAR, PRESENT AND FUTURE. ALWAYS PROTECT THE WEAK. BE TRUTHFUL AND FORTHRIGHT. BE HUMANE, CULTURED AND COMPASSIONATE”

FIGHT AND EMBRACE THE CONSEQUENCES WILLINGLY

GOD, GIVE ME STRENGTH THAT I ASK NOTHING OF YOU”.

THE BHAGAWAD GITA

DOCTRINE IS INDISPENSABLE

TO AN ARMY. DOCTRINE PROVIDES

A MILITARY ORGANISATION WITH A

COMMON PHILOSOPHY, A COMMON

LANGUAGE, A COMMON PURPOSE,

AND A UNITY OF EFFORT.

General George H Decker, 1960

ROLE OF INDIAN ARMY

PRIMARY PRESERVE NATIONAL INTEREST AND SAFE GUARD SOVEREIGNTY, TERRITORIAL INTEGRITY AND UNITY AGAINST ANY EXTERNAL THREATS BY DETERRENCE OR BY WAGING WAR

SECONDARY ASSIST GOVERNMENT AGENCIES TO COPE WITH `PROXY’ WAR AND OTHER INTERNAL THREATS AND PROVIDE AID TO CIVIL AUTHORITY WHEN REQUISITIONED FOR THE PURPOSE

MAJOR TASKS OF INDIAN ARMY INCLUDES –

PROVISION OF AID TO CIVIL AUTHORITY WHEN CALLED UPON TO DO SO FOR MAINTENANCE OF LAW AND ORDER, HUMANITARIAN AID AND ASSISTANCE DURING DISASTERS AND CALAMITIES OR ANY OTHER CIRCUMSTANCES INCLUDING MAINTENANCE OF ESSENTIAL SERVICES

STRATEGIC FRAME WORK

1. POLITICAL OBJECTIVE:- CONFLICT MANAGEMENT RATHER THAN CONFLICT RESOLUTION.

2. AIM AT LOW PROFILE AND PEOPLE FRIENDLY OPERATIONS.

3. INTRA – FORCE AS WELL AS INTER AGENCY EFFORTS

4. SEEK VOLUNTARY AND WILLING SUPPORT OF PEOPLE IN AFFECTED AREAS. (WHAM)

IRON FIST WITH VELVET GLOVE

CODE OF CONDUCT

1. AVOIDANCE OF HUMAN RIGHTS VIOLATIONS UNDER ALL CIRCUMSTANCES.

2. BE COMPASSIONATE. (WHAM)3. PEOPLE FRIENDLY OPERATIONS. ENSURE LEAST

POSSIBLE INCONVENIENCE AND HARASSMENTS 4. USE OF MINIMUM FORCE. AVOID COLLATERAL

DAMAGE.5. CO-OPT POLICE REPRESENTATIVE/WOMEN POLICE6. BE TRUTHFUL AND HONEST7. SUSTAIN PHYSICAL AND MORAL STRENGTH.

THREE PRONGED APPROACH

SURGICAL COUNTER TERRORIST OPERATIONS WITH MINIMALCASUALTIES

WHAMPERCEPTION

MANAGEMENT

SPECIAL FORCES

1. HOSTAGE RESCUE2. ANTI TERRORIST

OPERATIONS3. ASSISTANCE TO FOREIGN

FRIENDLY GOVTS.

TERRITORIAL ARMY

7X HOME & HEARTH BATTALIONS 1200 X

PERS EACH

ROLE

1. INTERFACE BETWEEN THE ARMY AND

THE PEOPLE.

2. ANTI-TERRORISM.

THEME

JAWAN AUR AWAAM,AMAN HAI MUQAAM.

(WHETHER IT IS A SOLDIER OR CIVILIAN THE END STATE FOR BOTH IS PEACE)

ARMY AS A CATALYST FOR PEACE &

DEVELOPMENT

OP SADBHAVANA

MEANINGFUL PROGRAMME TO INVOLVE LOCALS

MOBILE MEDICAL

TEAMS

MUSKAN ORPHANAGES

FACILITATING HAJPILGRIMS

OPJI JANABUJALA RAHAT

CIVIL AFFAIRS1. MOVEMENTS OF REFUGEES2. MINIMIZING DAMAGE TO CIVIL

INFRASTRUCTURE.3. LEGAL AND MORAL OBLIGATIONS TO

MINIMIZE CIVILIAN CASUALTIES.4. TO EXERCISE AUTHORITY AT THE END OF

OPERATIONS.5. TO HANDLE TASKS RELATING TO

CONTROL OF CIVIL POPULATION & MANAGEMENT OF RESOURCES.

6. TO ENSURE STABILITY IN CAPTURED TERRITORY.

PERCEPTION MANAGEMENT

1. MAKE THE LOCALS PROUD OF THEIR HERITAGE

2. REMIND THEM ABOUT WHO WORKED FOR CAUSE OF PEACE.

3. THE PHRASE ‘VIOLENT VALLEY” REPLACED WITH “VIBRANT VALLEY”

INFORMATION WARFARE

1. TRANSPARENCY2. MUTUAL TRUST &

UNDERSTANDING3. LEVELS

(a) LOCAL/TACTICAL(b) NATIONAL(c) INTERNATIONAL

REDUCE THE SCOPE

DISTORTION

MAINPULATION

DISINFORMATION

TRUTH IS NOT A VIRTUE BUT A NECESSITY

PUBLIC RELATIONS

1. AIM OF RESPECTING AND PROTECTING HUMAN RIGHTS.

2. CANDID AND PROMPT ADMISSION OF PROVOKED

(a) EXCESSES BY THE TROOPS OROTHER WISE

(b) ERRORS OF JUDGEMENT OF COMMANDERS.

3. SWIFT CORRECTIVE ACTION IN A FREE AND FAIR MANNER.

APPROACH

1. PRO INTERACTS DAILY.2. GOC ONCE A MONTH.3. IW BDE.4. www.armyinkashmir.org

IN THE ABSENCE OF A GLOBAL

FRAME WORK, DOMESTIC

LEGISLATION REMAINS THE ONLY

LEGAL REMEDY AGAINST

TERRORISM.

LEGISLATIVE STEPS TO COMBAT TERRORISM

ARMED FORCES (SPECIAL POWERS) ACT, 1958

UNLAWFUL ACTIVITIES PREVENTION ACT, 1967 (AS

AMENDED IN 2004)

MAHARASHTRA CONTROL OF ORGANISED CRIME

ACT, 1999

NARCOTIC DRUGS AND PSYCHOTROPIC

SUBSTANCES ACT, 1985

AF (SP) ACT, 1958

PREAMBLE

To confer certain special powers upon members of the Armed Forces in disturbed areas.

EXTENT

STATES OF

1. ARUNACHAL PRADESH

2. ASSAM

3. MANIPUR

4. MEGHALAYA

5. MIZORAM

6. NAGALAND

7. TRIPURA

APPLICABLE TO A DISTURBED AREA

PRE CONDITIONNOTIFICATION UNDER SECTION 3.

SPECIAL POWERS (STATUTORY)

1. TO USE FORCE EVEN TO THE EXTENT OF CAUSING OF DEATH.

2. TO DESTROY ANY ARMS DUMP ETC3. TO ARREST WITHOUT WARRANT4. TO SEARCH WITHOUT WARRANT

IMPLIED5. TO INTERROGATE6. TO RETAIN CUSTODY OF SEIZED WEAPONS

PROTECTION

PRIOR SANCTION OF THE CENTRAL GOVERNMENT BEFORE INSTITUTING ANY PROSECUTION, SUIT OR OTHER LEGAL PROCEEDINGS.

NAGA PEOPLE’S MOVEMENTOF

HUMAN RIGHTSVS

UNION OF INDIA(AIR 1998 SC 431)

SCRUTINY BY THE SUPREME COURT

1. ACT NOT A COLOURABLE LEGISLATION.

2. NOT A FRAUD ON THE CONSTITUTION.

3. DOES NOT AMOUNT TO HANDING OVER THE

MAINT OF PUBLIC ORDER TO THE ARMED

FORCES DIRECTLY.

4. CONFERMENT OF DRASTIC POWERS

ENUMERATED UNDER SEC 4 IS NOT

DISCRIMINATORY OR ARBITRARY.

CHECKS/SAFE GUARDS INTRODUCED BY THE SUPREME COURT

1. PERIODIC REVIEW OF DECLARATION BEFORE EXPIRY OF

SIX MONTHS

2. DESIRABLE FOR CENTRAL GOVT TO CONSULT STATE GOVT

3. ARMED FORCE NOT TO SUPPLANT OR ACT AS SUBSTITUTE

FOR THE CIVIL POWER. STATE ADM WILL CONTINUE TO

FUNCTION

4. ARMED FORCES PERS TO USE MINIMUM FORCE

5. HAND OVER ARRESTED PERSON WITHIN 24

HRS TO NEAREST POLICE STATION

6. PROCEDURAL SAFEGUARDS UNDER Cr PC

FOR SEARCH AND SEIZURE TO BE FOLLOWED

7. DISREGARD TO DO’S AND DON’TS TO INVITE

ACTION UNDER THE ARMY ACT

8. CO-OPT WOMEN POLICE

9. AWARD OF COMPENSATION

10. SPEAKING ORDER UNDER SEC 6

COMPARTMENTALISATION OF ROLE

MILITARY SEARCH SEIZURE COGNIZANCE OF

OFFENCES DESTRUCTION OF

DUMPS, SHELTERS, TRG CAMPS AND HIDE OUTS

POLICE INVESTIGATION PROSECUTION REGISTRATION OF REPORTS

OF OFFENCES (RECORDING OF FIR)

TRIAL EXECUTION OF SENTENCES,

WHERE REQUIRED

RULE OF LAWPOSITIVE FEATURES

EMPHASIS FOR THE MILITARY DECISIONS TO

CONFORM TO RULE OF LAW FAITH OF THOSE AFFECTED BY THE DECISIONS TO MOVE THE SUPREME COURT AS A FINAL ARBITRATOR

SCOPE OF STATUTORY PROVISIONS EXPANDED

ENHANCED NUMBER OF CASES IS SUGGESTIVE OF

GREATER ASPIRATIONS TO SEEK FINAL DECISION ON RULE

OF LAW

THE PROTECTION OF HUMAN RIGHTS ACT, 1993

IT PROVIDES FOR THE CONSTITUTION OF

NATIONAL HUMAN RIGHTS COMMISSION

(NHRC)

THE STATES HUMAN RIGHTS COMMISSION IN

THE STATES (SHRC).

THE HUMAN RIGHTS COURTS (HRC).

HUMAN RIGHTS ORG IN THE ARMY

ARMY HQ HUMAN RIGHTS CELL (HRC)/ADG D&V

MONITORS HUMAN RIGHTS ISSUES IN THE ARMY.

ENSURE HUMAN RIGHTS VIOLATIONS ARE PROMPTLY INVESTIGATED AND THE GUILTY PUNISHED

DEALING WITH HUMAN RIGHTS ALLEGATIONS AGAINST THE ARMY

1.HUMAN RIGHTS CELL ACTS AS NODAL AGENCY FOR RECEIVING THE ALLEGATIONS/COMPLAINTS OF HUMAN RIGHTS VIOLATIONS.

2.ALLEGATIONS OF HUMAN RIGHTS VIOLATION ARE RECEIVED BY THE HRC FROM – (a) NHRC(b) MOD AND MEA(c) MEDIA(d) REPORTS PUBLISHED BY VARIOUS HUMAN RIGHTS ORGANIZATIONS.

3.ALLEGATIONS ARE INVESTIGATED IN

DETAIL, PROCESSED AND FORWARDED TO

NHRC THROUGH MOD

4.EXEMPLARY PUNISHMENT TO ERRING

PERSONNEL

MONETARY COMPENSATION CANNOT UNDO THE PHYSICAL AND MENTAL TRAUMA OF VIOLENCE CAUSING BODILY HARM. BUT NEVERTHELESS, PECUNIARY AMENDS MAY PARTIALLY TAKE FORM OF APPEARING AS A SOLACE AND

REHABILITATION EFFORT

IT IS BOUNDEN DUTY OF THE STATE TO REPAIR THE DAMAGE DONE BY ITS OFFICERS TO THE INDIVIDUAL’S RIGHTS

COMPENSATION BY WAY OF PUBLIC CLAIM

DISAPPEARANCE OF DETENU

CUSTODIAL VIOLENCE

CUSTODIAL DEATH

CASE STUDIES

(a) MANORAMA DEVI

(b) MAJ RAHMAN

HR VIOLATION

YEAR NUMBER OF ALLEGATIONS

2002 - 166

2003 - 32

2004 - 35

2005 - 35

2006 - 29

ANALYSIS OF PUNISHMENTS 1994 TO 2006

TYPE OFFRS JCOs OR TOTAL

TERMINATION OF SERVICE 01 - 02 03

DISMISSAL WITH LIFE IMPRISONMENT - - 01 01

CASHIERED/DISMISSAL WITH RI 8-14 YRS

- - 24 24

CASHIERED/DISMISSAL WITH RI 1-8 YRS

03 - 09 12

DISMISSAL WITH RI UPTO 1 YR - - 06 06

DISMISSAL FROM SERVICE 01 - 04 05

RI IN MILITARY CUSTODY - 01 15 16

OTHER PUNISHMENTS 25 08 10 43

TOTAL PERS PUNISHED 30 09 71 110

ALLEGATIONS OF HUMAN RIGHTS VIOLATIONS FROM 1994 TO 2006

ITEMS J & K NE TOTAL

NUMBER OF ALLEGATIONS RECD 907 363 1270

NUMBERS INVESTIGATED 873 341 1214

NUMBERS UNDER INVESTIGATION 34 22 56

NUMBER OF FALSE/BASELESS ALLEGATIONS

849 313 1162

NUMBERS FOUND TRUE 24 28 52

PERSONNEL PUNISHED 47 63 110

NUMBER OF CASES AWARDED COMPENSATION

06 11 17

GOOD LAWS ARE BEGOT BY BAD ACTIONS.

Macrobius

Saturnalia, C.400

THE RIGHTS TO INFORMATION ACT 2005 (22 OF 2005)

AN ACT TO PROVIDE FOR SETTING OUT THE PRACTICAL REGIME OF RIGHT TO INFORMATION FOR CITIZENS TO SECURE INFORMATION UNDER THE CONTROL OF PUBLIC AUTHORITIES, IN ORDER TO PROMOTE TRANSPARENCY AND ACCOUNTABILITY IN THE WORKING OF EVERY PUBLIC AUTHORITY.

INTERNATIONAL CO-OPERATION

SIGNATORY TO ALL TWELVE SECTORAL CONVENTIONS ON TERRORISM

BILATERAL AGREEMENTS TO COMBAT TERRORISM, ORGANISED CRIMES, DRUGS ETC

EXTRADITION TREATIES TREATIES ON MUTUAL LEGAL ASSISTANCE

IN CRIMINAL MATTERS

INDIAN ARMY’S PARTICIPATION IN PEACE KEEPING

MORE THAN 50 YEARS

COVERING 36 MISSIONS

65,000 SOLDIERS

AS OF JULY 2000 – SECOND LARGEST TCC

IT MUST BE REMEMBERED THAT MERELY BECAUSE POWER MAY SOMETIMES BE ABUSED, IT IS NO GROUND FOR DENYING, THE EXISTENCE OF POWER. THE WISDOM OF MAN HAS NOT YET BEEN ABLE TO CONCEIVE OF A GOVERNMENT WITH POWER SUFFICIENT TO ANSWER ALL ITS LEGITIMATE NEEDS AND AT THE SAME TIME INCAPABLE OF MISCHIEF.

Supreme Court Of India in State of Rajasthan Vs UOI, 1978 (1) SLR (1)

WAY AHEAD

LAW ENFORCERS DESERVE MORE EFFECTIVE LEGAL TOOLS AND BETTER LEGAL COVER

PLUGGING OF GAPS IN DOMESTIC PROCEDURES TO RETAIN A PRO-ACTIVE STANCE IN THE WAR AGAINST TERRORISM.

SHARING OF INFO ABOUT NEW LEGISLATIVE MEANS AND LATEST CASE LAW.

TO BE EFFECTIVE, A LIBERAL

STATE MUST NOT FOSTER

VIOLENCE, IT MUST CONQUER

IT.

CONCLUSIONThere are no dangerous thoughts;

thinking itself is dangerous.Hannah Arendt