Role of military in supporting civil power in India

The military has been called upon to aid the civil power in India, not only in J&K and the North-East, but also in other states, on many occasions. On a few occasions, it has also been called upon to disarm the state as well as the Central police forces. In 1973, the UP PAC had to be disarmed by the Army on the government’s instructions. There were serious casualties on both sides — 22 PAC personnel were killed and 56 injured; Army had 13 casualties including an officer of major rank, and 45 were injured. 

There continues to be some ambiguity in civil society as regards the power and duties of military personnel on such occasions. Many feel that the military has unbridled powers in such scenarios. This is far from the truth. Section 129 to 132 of the Criminal Procedure Code (CrPC), dealing with maintenance of law and order, empowers an executive magistrate or the officer in-charge of a police station to command any unlawful assembly to disperse. If the unlawful assembly shows no disposition to disperse quietly, the executive magistrate may use the armed forces to disperse it. In practice, such requests are made by the executive magistrate to the commanding officer of the nearest military station, who in turn details an officer of suitable rank with the required number of troops. 

The officer and persons under his command must use as little force and cause as little injury to persons and property as may be necessary for dispersing the assembly. The law also empowers a commissioned officer to use force when public security is manifestly endangered by such an assembly and no executive magistrate can be communicated with. Sanction of the Central Government is necessary for prosecution of a military person and an act done in good faith is not an offence.  

The Armed Forces have laid down adequate guidelines for the use of force in aid to civil power. The strength and composition of the force, the amount of ammunition, arms and equipment to be taken and the manner of carrying out the operations is to be decided by the military authorities. The troops are to fire only on the orders of a military commander, who will exercise a humane discretion in deciding both the number of rounds and the object to be aimed at. Firing should be for effect, but should be aimed low, the idea being to injure and incapacitate rather than to kill. These guidelines would not be applicable in a disturbed area, where the Army has to deal with terrorists and insurgents, who are considered ‘enemy’ under the military law.  

The power to deploy military in aid to civil power exists in almost every democratic country. In the UK, Section 23(1) of the Reserve Forces Act, 1980, empowers the Secretary of the State to call out members of the Army or Air Force Reserve to aid civil power in the preservation of public peace. Under the Queen’s Regulations for the Army, a military commander who receives a request from the civil power for assistance is under a duty to protect life and property and report the matter as soon as possible to the chief officer of the police and to the service authorities.

In the recent past, there have been a few instances where an FIR has been lodged against military officers for the use of excessive force. Human rights organisations and activists have often accused the military of using excessive force. A few judicial panels and commissions which have investigated cases of encounter killings, which took place 20-30 years ago have accused the military of using disproportionate force, in particular when there were no casualties from the military during the operation. In a few cases, they have accused the security forces of not apprehending a terrorist and instead using lethal force against him.

The use of force in such situations is justified on the grounds of an ‘honest belief’, perceived for good reasons, to be valid at the time. The honest belief is not required to be shown to be reasonable by reference to objectively established facts. An honest belief could be held for good reasons even if, objectively, another person might consider the belief to be irrational or based on either a flawed premise or faulty perceptions. The European Court for Human Rights (Grand Chamber) in the case of Armani Da Silva v. the United Kingdom had earlier applied the concept of “honest belief”. The case concerned the fatal shooting of Jean Charles de Menezes, a Brazilian national on July 22, 2015, at the station in the London underground, mistakenly identified by the police as a suicide bomber. 

The Supreme Court, in a case in 2016, commented that a person carrying weapons in violation of prohibitory orders in a disturbed area cannot be considered an ‘enemy’ by the Armed Forces. The judiciary and the enlightened members of the civil society must understand that in a war against a constantly changing set of faceless actors, who frequently change their locations and organisation, there can be no clearly defined ‘enemy’. These enemies possess sophisticated arms and weaponry and even have cross-border support from countries inimical to India’s interests.

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