Institution of several cases by CBI against the army and police personnel for ‘extra judicial killings’ in Manipur and elsewhere and the monitoring of their investigation by the Supreme Court have raised the question of legal protection for armed forces engaged in counter-insurgency and counter-terror operations in the border states of J&K and the North East. A collective body of as many as 356 serving army officers and men have now moved a petition in the apex court demanding that the immunity granted by Armed Forces (Special Powers) Acts (AFSPA) be applied to them and that a clear redefinition of this Act be made for the future. They were piqued by the prejudicial ‘observations’ of one of the judges on the SC Bench examining this matter and also concerned that these would come in the way of justice being done to the implicated personnel. The launch of an investigation presages the commission of a crime and this case therefore, offers an occasion to clear the path - in legal terms - for the way state would counter the enemy that was conducting not a ‘war’ on the border but a ‘proxy war’ through its armed agents on our own soil. Infiltrated terrorists or insurgents who worked for a violent overthrow of the existing regime with the help of weapons and money received from the external adversary, are the extended arms of the latter operating within our own borders as was seen in J&K and the North East both. There has to be an absolute clarity about how they would be neutralised and by whom.

The top judiciary surely will examine three fundamental issues involved here. First, in the post- cold war era ‘proxy wars’ have become the instrument of combat across the globe and all concerned nations have had to retrain their armies to take on the agents of this new kind of covert offensive. Fighting a proxy war like a ‘war’ can be entrusted only to the army. This has not been an easy task since army men used to facing a visible enemy on the border had the mandate of inflicting maximum damage on the adversary. They are now required to pursue the ‘unseen’ terrorist on our own territory on the basis of Intelligence and be also restrained enough to minimise collateral damage in the situation of an encounter.

The second basic issue that arises from the first, therefore, is to recognise that even when counter- terror operations are handled by the army on our own territory there is simply no comparison between these and the use of force by the police in a situation of law & order disturbance. Judiciary would do well not to paint army handling terrorists and the police dealing with crime suspects or a civil disorder, with the same brush. In the matter of controlling civilian violence there is a well laid out code of law about warnings, use of minimal affective force and action within the cognisance of a magistrate around. When terrorists spring upon army men the latter have a built in right of self defence — apart from any other protection of law — to shoot them down. The army men confront terrorists like they would face the opponent on the front — bullet being the only way of putting down the armed militant. If, however, a gunman is caught, disarmed and then shot dead this then would be a different matter falling outside of the legal protection provided to the personnel.

The third fundamental issue precisely is to ascertain what protection the sovereign state had provided to army men engaging the enemy on our own soil and having to operate on the civilian turf. A law like the AFSPA has been enacted for this purpose. A judicial scrutiny can go into the legitimacy of this protection but it cannot disregard its existence. The protection of this law has to be unambiguous and absolute against the launch of an inquisition or investigation without express clearance from the political executive that discharges the sovereign responsibility of safeguarding national security. Allegations of violation of human rights or other acts of wilful omission or commission on the part of any army personnel — in course of performing a professional duty — have to be first examined through an internal institutional enquiry before permission of legal follow up was accorded. Tinkering with this fundamental scheme of things will certainly affect the morale of the army - and this is something the nation cannot afford. A soldier does not need the plea of working in a ‘difficult situation’ — he needs the protection from any misreading of his intent. Armed Police can have the protection of AFSPA only if it was working under the Army’s operational control. It is very much within the competence of the Sup-reme Court to evaluate the aforesaid three-point framework in which army conducts counter-terror operations. Supreme Court can also reiterate that AFSPA did not protect a rogue member of the armed forces who indulged in criminal activity as an individual.

It is important that for the success of a long-range strategy of India to affectively deal with the enemy’s ‘proxy war’, distractions from the relentless pursuit of terrorists and insurgents are immediately removed. There are reports of Pakistan stepping up infiltration of terrorists from across LoC in the coming months and this happening at a time when a new prime minister of that country was assuming office, confirms that India is in for a bigger challenge of cross border terrorism in the regime of Imran Khan.

As the next general election in India draws close Pakistan’s attempt to destabilise Kashmir will become more intense and the pro-Pak lobby including the peaceniks could also raise more questions about the army operations there. The cases against army men hanging fire in the judiciary require a speedy closure on the basis of evidence furnished - with an acceptance of the relevance of AFSPA in the terrorist- affected and insurgency-ridden border states.

If the rules of engagement for army in the conduct of counter-terror operations are to be given a second look this should be done without wasting time and the ambiguities affecting the minds of the brave soldiers fighting India's battle within our own borders removed forthwith. This is necessary for the sake of protection of national security in the future.

(The writer is the former director Intelligence Bureau)