Logic of FIR in Major Aditya’s case

Lt-Gen Syed Ata Hasnain (Retd)
Ex- GOC of the Srinagar-based 15 Corps 

This write-up is not about defending young Army officers who bear the burden of operations in all kinds of unpredictable situations in Kashmir; it is  about putting in perspective the functioning of the Army and its soldiers in counter-terrorist operations there. 

It's a veritable minefield that the Army has to operate in. Mercifully, it usually gets it right. But the Army's involuntary involvement in messy situations needs some explanation and advice; more for the curious public as also for former and serving soldiers who do not have the experience of handling such situations or their blowback many years after the soldier has retired.

The social media has enabled the public to express all kinds of opinion, but most of it is bereft of a deep knowledge of the subject or experience. 

Before plunging into the subject of an FIR against Major Aditya, here is a look at what the Supreme Court said in 2016 about deaths resulting from the Army's operations in an area where AFSPA is applicable: a two-judge Bench had ruled that every allegation of the “use of excessive force” by the security forces resulting in a civilian death must be looked into. It made the registration of a first information report (FIR) mandatory in such cases. 

Obviously, the SC was being simply prudent in directing that no coercive action be taken against Major Aditya for two weeks with reference to the incident in which a column of troops of 10 Garhwal under his command, had fired on a mob allegedly attempting to lynch his troops near Shopian town; the firing led to some deaths of civilians. 

But the registration of an FIR is within reason and mandatory; it is just a narration of circumstances and in this particular incident, names Maj Aditya only as the column commander of the troops that opened fire. 

Then what is the entire objection that has led to the uproar? That is circumstantial and needs understanding. The state government's withdrawal of FIRs against a couple of hundred first-time stone-throwers in 2016 was reasoned as part of the outreach and hearts and minds programme. There weren't too many pinched brows. The issue also did not draw much attention when FIRs were withdrawn against second-time offenders. 

But a narrative emerged etching the stark difference and contrast between the FIR against the troops of 10 Garhwal and withdrawal of FIRs against stone throwers. Patriots were being censured for their actions of self defence while stone-throwers received the state's goodwill and largesse. 

That is a powerfully negative narrative and did raise emotions and rallied support for the young officer, irrespective of the SC's 2016 ruling. His father moved the SC, which perhaps sensed the awkwardness of the situation, whatever the reality of what the FIR actually involves.

While as commander in all operations involving a body count on the other side, I had always insisted on lodging an FIR, irrespective whether the local police had lodged one or not. The unit always retained the copy in a ‘Handing and Taking Over’file because in J&K or the North-East, it's always safe to retain the right documentation as there are comebacks, mostly many years later. This is especially so after many missing cases were filed years after the alleged events and there was a demand to produce in court officers and soldiers who had participated in those operations long back. In fact, if an FIR had been lodged, suitably followed up, investigated and a closure report filed, the legal actions are considered complete. It is then easier to defend alleged Army offenders against the spree of cases lodged against them; that is if FIRs are filed. 

This rationale may not justify the lodging of an FIR in as obvious a case as that of Maj Aditya. However, consider 10 years later. Someone files a case in 2028 when in the third rotation, 10 Garhwal is deployed in the same area. There is no legal document if no FIR exists and Maj Aditya, then Col Aditya, would be running from pillar to post to defend his case. If he had left the Army prematurely, it would be a shade worse. 

Unfortunately, those who have never experienced the true application of AFSPA think that there is total immunity for men in uniform. Unfortunately, AFSPA is not that strong an instrument. It partially shields the soldier from ultimate prosecution (Central government approval needed) and not from the process of investigation. 

Further, a loophole has targeted the Army after a soldier has left the force. In 2011, Havaldar Swain (retd)  of 7 Parachute Regiment  was arrested from Orissa by the J&K Police and hauled to Srinagar to stand investigation and possible trial without any reference to an authority of the Central government. But we overcame that awkward situation and the veteran soldier walked free. 

There is no doubt that the messaging to society is incorrect if an FIR is filed against a soldier performing his rightful duty, many times in self-defence. Either the Central government must review AFSPA, not for its dilution (as one may think) but for better soldier protection, or the society needs to be better educated to appreciate the environment and long-term effects of various actions which are taken in the course of responsibilities in a counter-terrorism environment.