Understanding the role of the Armed Forces in lieu of the Pandemic and during the Lockdown

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Introduction

The composition of the Armed Forces of India is in itself perplexing to many of its citizens. The fine differences between the Military and the Paramilitary are not clear to the citizens. Including the ministries regulating them, the Ministry of Home Affairs or the Ministry of Defence.

This article attempts to draw a roadmap of the structure of the Armed Forces. This structure also seeks to explain the legal framework governing the functioning of the military when its active-duty overlays with the civilian sphere.

The Army is not the Military! The army is merely a part of the Military. The Military consists of the Army, the Air Force and the Navy – all three being under the Ministry of Defence. The Paramilitary forces at the disposal of the Government are the Coast Guard, the Assam Rifles and the Special Frontier Force.

The Paramilitary, like the Armed Forces, needs special provisions of law to operate in aid of Civil Authorities. The Ministry of Home Affairs manages the Paramilitary. The officers of the Ministry of Defence and at times, IPS head the Paramilitary force. Besides the Military and the Paramilitary, there also exists the Central Armed Police Forces (CAPF). It consists of Border Security Force, Shashastra Seema Bal, Indo-Tibetian Border Force, Central Reserve Police Force, and Central Industrial Security Force. The CAPF is overseen by officers of the Ministry of Home Affairs and Indian Police Service.

The Legal Backdrop

The Constitution is the grundnorm of the country. All the statutes and the Parliament itself derive their powers from this very document. Centuries of struggle against our colonial masters preceded the formation of the Constitution. The drafters of the Constitution did not want the future generations of the country to experience the same.

The drafters of the Constitution have provided for several safeguards that act as a roadblock for military rule. They wished that the government would not use Armed Forces on civilians like in the colonial past. A global outlook should be seen while making deployments. In the true sense, we must first look at the Posse Comitatus Act- a US case study.

The Posse Comitatus Act, 1878

The Act prohibits the government from using the military for law enforcement. Except in cases and circumstances authorized by the Constitution or Act of Congress, such as ones mentioned in the Insurgency Act. India has enabling acts that prescribe conditions where the government can utilize the military to aid civil authorities. Yet, it lacks an equivalent of the 1878 Act which deters the government from doing so. Thus presenting a route of arbitrary misuse of executive power by the Center and the States.

“There’s a reason you separate military and the police. One fights the enemies of the state, the other serves and protects the people. When the military becomes both, then the enemies of the state tend to become the people.” 

– Cpt. Lee ‘Apollo’ Adama

The Fundamental Right to Life enshrined in Article 21 of the Indian Constitution is an everlasting testimony to the same. The fundamental right does not secure a citizen’s ‘mere animal existence’. It gives him the right to live with dignity. Thus, it limits the usage of the Armed Forces in the civilian sphere. However, during this pandemic, many civil authorities face difficulties in maintaining law and order. Therefore, they seek the help of the military. The deployment of the Indian military on Indian soil is usually done via the Armed Forces (Special Powers) Act, 1958 (AFSPA).

Armed Forces (Special Powers) Act, 1958

Lord Linlithgow promulgated The Armed Forces (Special Powers) Ordinance in 1942, to curb the Quit India movement. The Ordinance became a statute after it received assent from Dr. Rajendra Prasad. Its objective was to curb the secessionist movement in the seven sisters.

The AFSPA gives armed forces the power to maintain public order in “disturbed areas”. The procedure for labelling an area as disturbed is much too simple. It requires an announcement in the Official Gazette of India. The military has the authority to prohibit a gathering of five or more persons in the area. It can use force or even open fire after giving due warning if they feel a person is in contravention of the law. If reasonable suspicion exists, the army can also arrest a person without a warrant. It can enter or search premises without a warrant, and ban the possession of firearms.

The Act exists in a worse form in the context of human rights when compared with its 1942 counterpart. Guess Indians really did outdo their colonial masters in every field. Till 1942, only the officers with a rank of a captain had the power to shoot on sight. But the 1942 ordinance gave this power to even non-commissioned officers in 1958.

The Act has been a plethora of Humanitarian crises. For instance, the infamous Operation BlueBird – an operation that earned the epithet: ‘Holocaust of India’. However, the Supreme Court upheld the constitutional validity of AFSPA in the case of the Naga People’s Movement of Human Rights v Union of India.

But the Court laid down certain guidelines in the form of do’s and don’ts. Multiple organizations and committees have called for the repeal of India’s most Draconian law. These also include the Justice Jeevan Reddy Committee (2005) and the J.S. Verma Committee (2012).

The Situation during COVID-19

The million-dollar/rupee question still remains. How can the government use the Armed Forces effectively to combat the novel coronavirus?

For this, we have to accept a basic premise. Civilian control over the military is a key constitutional principle for a healthy democracy. Like any other branch of executive, the military and police institutions are subject to constitutional and statutory limits on their powers. The deployment of the military on Indian soil must be the final straw. The government must first try and control the situation with the use of the police and the CAPF.

When deploying the military for law enforcement, the government must ensure that civil servants guide the military. This will ensure that the rule of law is maintained. The same must not be authorized by the AFSPA. The powers to shoot under suspicion seems to be a bit excessive when dealing with a pandemic. A specific statute must authorize the deployment of the armed forces. This statute must not infringe on the Fundament Rights or the procedure laid down by law. Further, the same must contain a sunset clause that ensures that the military is removed from Indian soil as soon as the pandemic ends.

As far as possible, the armed forces must be utilized for surveillance, contact tracing and aid distribution. They must not be involved in detaining civilians or enforcing a curfew. This is because the military is accustomed to viewing people as threats and the police are accustomed to viewing the people as people. This could prevent another Baton Rouge incident.

Author’s Suggestions

The world’s largest democracy will become more democratic while dealing with the novel coronavirus. A few suggestions to achieve the same would:-

Enact a legislative equivalent for the Posse Comitatus Act, 1878. This would deter the government from using the military for law enforcement under normal circumstances.

Repeal the Armed Forces (Special Powers) Act, 1958. Although the Hon’ble Supreme Court has upheld its constitutionality – the present author believes it to be unconstitutional and of an utmost draconian nature.

Enact specific legislation that authorizes the deployment of the military to aid civil authorities. Such an act must respect the fundamental ideals of the CrPC and Article 22 of the Constitution. It must also contain a sunset clause to prevent arbitrary usage.

The officers of the Armed Forces should not enjoy absolute immunity for their acts in the civilian sphere unlike its status under AFSPA. Malicious acts done by the Armed Forces must be brought to justice and a robust redressal mechanism for the same must be established.

Conclusion

India has failed to appreciate the importance of constitutional principles that maintain the subservience of the armed forces to civilian control. This has had substantial consequences for Indian constitutional functioning. There is no major threat to the endurance of the constitution from the military. There is insufficient consideration of these principles may inadvertently lead us down that path. We should, as citizens of this great country, we all must raise awareness against such a dystopian future. We should ensure cooperating with the police force so that the deployment of the military is never in question.


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