By: Kirti Sharma, Research Analyst, GSDN
“Remember that the people you are dealing with are your own countrymen; your behaviour must be dictated by this single most consideration. The violation of Human Rights, therefore, must be avoided under all circumstances even at the cost of operational success. The operations must be people-friendly, and it must be ensured that minimum force is used and there are no collateral damages.” The renowned doctrine for Sub Conventional Operations 2006 is an unforgettable principle in accordance with which the Indian Army operates in insurgency and terrorism hit areas. Forming the foundation of International Human Rights, the Right to Life has been guaranteed in India by Article 21 of the Indian Constitution. It expresses it’s application to the Armed Forces of the country, Article 33 of the Constitution confers powers on the Parliament to modify the rights guaranteed by Part III (Fundamental Rights) while applying to men in the forces including the Army, Navy, Air Force, Paramilitary Forces and Intelligence Services. However, this extends only so far as necessary for maintaining discipline and ensuring proper discharge of duties by the armed forces personnel.
In accordance with this, the Army Act 1950, Air Force Act 1950 and the Navy Act 1957 were promulgated. Though these legislations have regulated certain fundamental rights of the Indian Army, but none of the Army Act 1950, Army Rules 1954, Armed Forces Special Powers Act (1958 and 1990), or any other legislation in the country restricts an Indian Army personnel’s right to life and self-preservation as guaranteed under Article 21 of the Indian Constitution. Notwithstanding, Indian Army’s commitment to protect Human Rights of civilians, the rights of army personnel are also guaranteed under the Indian Constitution.
Amidst the treacherous circumstances that exist in insurgency and terrorism affected areas, there are only a handful of cases of Indian Army personnel who have committed Human Rights violations. Such cases are addressed in a timely manner by both the military and the civilian judicial systems. The Indian Army has a strong and transparent Human Rights Cell mechanism to ensure that all soldiers function within the parameters of Human Rights, which will also have police personnel to address the complaints of human rights violations against the armed forces and facilitate related enquiries. Moreover, since the beginning of training days Human Rights is included as a part of the syllabi of the soldiers and the rules of engagement are people-friendly. In operational environment, soldiers are often open to accusations of Human Rights violations, serious as well as frivolous, genuine as well as motivated. Notwithstanding, all cases involving accusations against the Indian Army personnel have been legally taken up at the appropriate levels and necessary action has been taken so far.
Cases involving Indian Army to be caught for violation of human rights have historical instances, one among them is the brutal sense of outrage over Operation Bluestar has aroused the systematically drawn feeling, even among the critics of the government where the army has acted with restraint while carrying out its duty. North-East has some instances of it where the army has been involved in fighting an armed insurrection for almost thirty years. Moreover, when reports of such violations of human rights have appeared in the news station, the action of the armed forces was executed to be on a justification of their necessity to take law in their hand due to the high cum natural demand of the arisen situation. According to some scholars, the scarce notion of human rights violation prior to seventies were all absent but the post-emergency period escalated the cause of violation of human rights. In the sophisticated instances, the leader Jayaprakash Narayan was a lone voice which was almost drowned by our patriotic parliamentarians because he described the Naga struggle as a nationalistic outburst of the Naga people.
Nonetheless,“The driving ethos of the Indian Armed Forces is “Insaniyat”( Humanity) and “Sharafat”(Decency)” The Chief of the Army Staff General Bipin Rawat said with much disciplined and utmost respect for human rights laws and International human rights law. Moreover, while adding the principles of Geneva Conventions he said the Indian Armed Forces not only ensure protection of human rights of our own people but also of adversaries and deal with the prisoners of war as per the Geneva Conventions. But while dealing with the advent of technology Indian soldiers are often un-caught by the changing nature of warfare tactics by insurgency and terrorist activities, which becomes difficult for soldiers to identify the insurgent among communities with keeping in mind the three principles which has been mentioned earlier. While considering women as a victim of human rights violation, Indian Army started recruitment of women soldiers in the Military Police force to address the concerns of women during search operations. But keeping in view the concerns of women during such operations, the army has now decided to deploy its women soldiers of its Military Police Force also.
Nonetheless, the Armed Force Special Powers Act (AFSPA), gives almost the same powers to the Army in connection with search and enquiry operations. However, over the years the army itself has diluted its application under the ten commandments issued by the Chief of Army Staff, which are to be strictly adhered by every soldier, and particularly those deployed for operations in anti- insurgency areas. The Supreme Court guidelines on this are also being strictly followed by soldiers, who are all given special training before their deployment in counter insurgency and counter terrorism operations.
As a signatory to the Universal Declaration of Human Rights (UDHR), 1948, India accepts that ‘recognition of the inherent dignity and the equal and inalienable rights to all members of the human family is the foundation of freedom, justice and peace in the world. Therefore, upholding the Human Rights of the Indian soldiers in an operational environment is a phenomenal instance of implication of both international declarations as well as national legislations. In addition to it, there exist consolidated legal mechanisms in the country that address the allegations of Human Rights abuses by the Armed Forces personnel while on official duties. With the fulcrum of three principles- maximum restraint, minimum force and minimum collateral damage, Indian Army sets an example to re-locate the identity of human rights to remain unviolated.
Nonetheless, the country lacks a similar mechanism that protects or deals with cases wherein the Human Rights and Fundamental Rights of an Indian soldier is violated. With a petition filed in the Supreme Court seeking the intervention of the Apex Court to protect the dignity and Human Right of the soldiers facing the stone pelters in Jammu and Kashmir. With the stringent judicial action by Supreme court the human rights of Indian soldiers can receive discernible attention, thus, will no longer in the shackles of stone pelters and other attacks by certain sections of the society.
