Judiciary needs to understand constraints of the Army

The recent killing of a Major and three other Army personnel, while battling terrorists near the LoC in Jammu and Kashmir, should act as a reminder to judicial commissions of the constraints within which our forces operate. All too often, members of judicial commissions have expressed doubts over the “encounter” killings of terrorists, in particular where there are no casualties from the security forces. In one such case, a civilian was killed a few years ago, the Supreme Court even directed the CBI to file an FIR against the Army officer.  

The judiciary needs to understand the constraints that the military is under, before they make such observations. If they do not do so, the fundamental strength of the forces, which is their agility, can get compromised. In an anti-terrorist operation, which does not take place in daylight in an open field, it is virtually impossible to anticipate precisely what will happen during an offensive action. It is also difficult to estimate how many terrorists are involved or the kind of weapons they are equipped with. The Armed Forces depend upon electronic as well as human intelligence, which may not always be reliable or authentic. There have been occasions when the “source” has fed incorrect information to a military unit, leading to killing of innocent persons, whose property the source wanted to inherit. 

A soldier who is employed in an anti-terrorist operation is under a duty, enforceable under military law, to search for criminals and use force, if necessary. For the performance of this duty, he is equipped with a firearm, sanctioned to him by the government. If he hits the target, it is almost certain to cause serious injury, if not death. If he is late in reaction or takes unreasonable time in ascertaining the ground situation, he runs the risk of being eliminated by the terrorist. If he disobeys the lawful command of his superior, he may be tried by court martial, where the punishment can go up to death.

In such a scenario, a soldier cannot be expected to focus on preserving evidence; that too such evidence as can be preserved and produced in a court of law 20 or 30 years later. If he were to keep such considerations in mind, he would be on a defensive footing, leading to the detriment of the mission. A soldier involved in combat or under an immediate threat should be able to focus on the task of fighting. 

While deployed in Northern Ireland, a British soldier on foot patrol shot and killed a young man in an open field in daylight. The shot was not preceded by a warning shot and was fired when the deceased tried to flee after being told to halt. The area was one in which troops had been killed by the Irish Republican Army (IRA) and where a surprise attack was a real threat. When the military person fired, he believed that he was dealing with a member of the IRA, but he had no information as to whether the deceased had been involved or was likely to be involved in any act of terrorism. In fact, the deceased was an entirely innocent person who was in no way involved in terrorist activity. After the soldier’s acquittal, the House of Lords held that the stated circumstances, where a military person “fires to kills or seriously wounds an unarmed person” because he honestly and reasonably believes that the person is a member of a proscribed organisation, who is seeking to run away, and the soldier’s shot kills that person, the court must establish beyond reasonable doubt that the shooting constituted unreasonable force. In most occasions, the time available to a military person to make up his mind is so short that even a reasonable man can only act intuitively.

The burden of record keeping places greater demand, and stresses on military personnel who serve in difficult, chaotic, unpleasant and dangerous circumstances. It may be possible in a commercial enterprise or public sector undertaking or even when the police use force to disperse an unruly mob; it is certainly not suitable for the military. If a military commander is forced to focus on his or his subordinates’ personal liability during an operation, the operation may fail completely. A thread-bare assessment of an operation in which the bullets fired by the Army are counted, could lead to a notion that the judiciary is determined to declare a military action illegal. 

A number of organisations have been using what is called “lawfare” as a weapon against the security forces.  The practice of using law as a weapon against the security forces came to the fore in 1995 and has been growing in importance. When an enemy is aware of the fact that he cannot win a “just war” with “just means and methods”, it is easy for him to take recourse to “lawfare” to engage his opponents. This must be guarded against. While judicial activism can be a very powerful means of guarding the rights of the people, the judiciary must not fall into the trap of being used as a “weapon” by such unscrupulous activists.

The author is a retired Wing Commander. Views are personal.