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Issue No.: 550 | April 2013
 

Justice Verma Committee Report

Suresh Sharma
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Compared to civilian courts, delivery of justice by court-martials is faster and exemplary. The chances of acquittal are far less.

Justice Verma Committee was appointed after the Delhi rape case and the agitations that followed the incident all over India. The Committee was required to make recommendations to modify the laws relating to rape and connected offences against women. The Committee was flooded with suggestions on the issue after it had sought suggestions from the public. Working overtime, the Committee has produced a voluminous report of over 500 pages. The Report also touches on the subject of violence against women or rape by military personnel and has recommended that such cases be tried by criminal and not by military courts. It has surprisingly recommended that the commanding officer [CO] be tried and sentenced up to seven years imprisonment for breach of command responsibility under a new section 376F.  

This provision is based on faulty perceptions and plea of NGOs who ignore ground realities. There is no evidence of the armed forces shielding personnel accused of rape. On the contrary, there is an urgent need for action against those who make false allegations. In theory a soldier who has been falsely accused can seek justice from the courts, but he does not have the financial resources to fight the legal battles. Besides, his name has been tarnished amongst his colleagues and family. Can a monetary award compensate for that? 

Court-martials vs. Civil Court

The committee has obviously not taken care to examine the record of military courts. Compared to civilian courts, delivery of justice by court-martials is faster and exemplary. The chances of acquittal are far less. There is little chance of influencing witnesses or delay due to witnesses not reporting. We see that in civil courts trial being postponed for years as witnesses are not produced in the court. The army, on the other hand, takes this seriously since it is considered to be a breach of discipline. No commander allows his men to indulge in such activities as it reduces or even destroys the combat ability of his command. When soldiers commit serious crimes, and prima facie evidence exists, army initiates immediate action to conduct an enquiry and court-martials the culprit without any sanction from any authority. It is only in cases where the Army feels that a soldier is being falsely implicated that Central government’s sanctions are sought. The conviction rate in civil courts in Maharashtra is 6%. Every soldier will opt for trial by civil court if he has the option. A soldier is carrying out a difficult task. He has implicit confidence in his leaders and exposing him to trial by civilian authorities will spoil that sense of confidence and camaraderie. It must be noted that confidence in leadership is the first requisite of high morale.   

Subjective Unjust Approach

The section demanding punishment to a CO for crimes committed by the soldiers under his command beats all logic. It is applicable to insurgency areas only where the AFSPA is valid. The army has a difficult task. A soldier is not used to dealing with situations in urban area and is hesitant to strike friendship with civilian population. The militants take refuge in houses, either by force or through connivance. They use the inhabitants as a shield. The women are known to hide weapons under their veil and open fire. Should the soldiers not take the obvious measure to search them? There are no women soldiers available. A clause to protect the CO has been included that states that action against the CO is to be taken only if he could have foreseen molestation or rape. This is a highly subjective approach and is against the grain of justice. When we see criminals getting away due to the strict provision of the Indian Evidence Act, must the COs be subjected to this inhuman act? At the top of it, it is being supported by elements who want humane treatment of militants. A unit has to cover a wide area and the patrols may have strength of only five to ten soldiers. How can the CO exercise control on men ten kilometres away? 

For the time being, it is some comfort that the recommendation for holding the CO responsible for the crimes committed by the soldiers has not been included in the Ordnance proposed by the Government. In case it is included in the final Act, all I can say is that nobody would want to be a Commanding Officer. 

The Need for AFSPA

The flawed approach to violence against women by soldiers has prompted Human Rights groups to demand scrapping of Armed Forces Special Powers Act [AFSPA] altogether. The social activists’ oft repeated argument is that AFSPA has not ended terrorism and is of no use. The law against theft has not put an end to that crime. Should it be scrapped?  In a lecture, Chidambaram has spoken in favour of making the AFSPA more humane. He blames the army and not the Defence Minister for opposing any such proposal. It is strange for a minister to criticize a decision of the cabinet. The former Defence Secretary, Prasad repeated the same song during a TV discussion. Ideally, the Defence Minister or the Prime Minister should have refuted the charge of Chidambaram. Failing that, the Army should have explained the need for this Act. 

The panelists and media appear to be considerate by accepting the need to protect the army. AFSPA is necessary to allow the army to function and bring the situation under control since the police are unable or reluctant to do so. It is essential to enforce the constitutional authority of the State. Chidambaram will do better by training and motivating his police force so that the army is not downgraded to do police duty. He considers the army to be a bad guy in a democracy. UK and USA have laws against use of military in domestic violence except for rescue of hostages or defusing bombs. Let us be bold and follow similar practice. I wish to remind him that Aizwal was once bombed by fighter aircraft at the behest of the Cabinet and was not the choice of the military. The army should not be exposed to insurgency operations for long periods. It can be used like a surgical operation and revert to barracks soon after that. There is a grave danger of alienating the army from some religious or ethnic groups if used for operations over long periods. Let Chidambaram’s police force shoulder its responsibility.

Failure of Political Processes

The army must learn to brief the media and take the public into confidence. We need to tell the public that violence continues due to failure of political process. The army can only create conditions to assist political negotiations and enable the Government to talk from a position of strength. While the army must act for any crimes committed by the troops, the troops deserve accommodation and suitable amenities of peace environment rather than the present conditions of toiling in jungles and earn bitter comments.       

The comment that "the brutalities of the armed forces faced by the residents in the border areas have led to a deep disenchantment and lack of mainstreaming of such persons into civil society” is strange and contrary to facts. The army is inducted only after the population has been alienated. If withdrawal of the army can restore peace and bring the population into mainstream, let us not wait even for a second and move them out. The army would be only too happy to get into barracks in peace stations. Only do not send them back to suffer casualties when insurgency breaks out again and the political process fails.    

Brig. SURESH C. SHARMA (Retd.) is adviser to the telecom industry, freelance writer, 
and member of the Advisory Board of Freedom First. Email: brigscs@gmail.com
 
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Editorial

Water Thievery - Cause of Droughts in Maharashtra

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Twelfth Plan and the 2013-14 Budget - 3

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Reflections: The Gang Rape and After

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Justice Verma Committee Report

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Death of a Rapist

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Reflections: A Flawed Democracy

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A Travesty of Justice!

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'Trousering’ a Brown Envelope in Myanmar and Communal Politics in Britain

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Reflections: In the midst of Blasts, Turf wars continue

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The Art of Giving

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Point Counterpoint

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Phone Tapping and CDRS

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The Helicopter Deal

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My Mother Pramila

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Anandi Gopal Joshi

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Maha Kumbh: Time to Come Clean

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In Memoriam

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Viren J. Shah, R.I.P

 

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