Tuesday, 3 May 2022


Reprising the Manual of Military Law provisions on Martial Law

In a passage in his book, Sarkari Mussalman, General Zameeruddin Shah, recalls wracking his memory to recall a few pages of the military’s Manual of Indian Military Law. He had been charged by the Army Chief to take his division to stop the outbreak of violence in Gujarat. The internal security situation had taken a turn for the worse in wake of the Godhra tragedy in which over 50 people perished in a train bogey that had (accidentally (in the view of the railway inquiry that was set up later)) caught fire. The Army had been called-in in ‘aid to civil authority’ after the bodies of the victims were wantonly taken in a politically-charged procession to Ahmedabad with the authority of the then chief minister there, Narendra Modi.

Shah’s formation had been deployed in Rajasthan, practicing maneuvers it was expecting to execute in case the military mobilisation after the attack on the Indian parliament the previous December turned into a hot war. Sent post haste in the reverse direction, to Ahmedabad, he did not find anyone knowledgeable to brief him on the situation, since even the military’s static formation in the Area and Sub Area hierarchy were also ahead, providing logistics along the border.

Confronted with the magnitude of the mass one-sided violence unfolding against the Muslim community, he rightly contemplated extreme measures to end the mob violence. He recalled vaguely his training curriculum passages on martial law, but a copy of the venerable tome on military law was not readily available. Had he got the passages right, he may well have taken legitimate recourse to the powers under the paragraphs in question and could well have proactively put out the communal conflagration.

In the event, he was way-laid by the defence minister, George Fernandes, who turned up untimely and wasted the opportunity of a meeting with Modi, to deploy the military force at hand. It was only after some two days of the military’s arriving that it - without further ado - returned Ahmedabad and Gujarat to sanity. That was just about the duration of time the alleged meeting late night 27 February 2002 at the chief minister’s camp office at his residence had decided the mobs needed to teach Muslims a lesson.

A counter-factual would have it that had Shah followed what the rules for martial law eminently permissible in the circumstance, he may have preempted two days of violence. He was instead constrained to act ‘in aid to civil power’, which - by definition - placed him at a position of disadvantage since it privileged the administration in calling the shots. As he meticulously recorded in his subsequent report to the Army Headquarters – now lost to history in the dusty cupboards of South Block - he was led up the garden path by the Gujarat administration. Had martial law regulations been implemented – an option empowered by the situation – his division could have changed the course of history.

Continuing with the counter-factual, here’s what could have followed. Vajpayee’s hand would have been strengthened when he invoked Rajdharma, making Modi answerable for holding at abeyance his law and order duty. Denied impunity timely, Modi could not have made a hat-trick of state election wins thereafter, that set him up to the win in national elections. The country’s record would not have been besmirched by the Gujarat pogrom. The near ‘police state’ that Gujarat formed thereafter - now aped by fellow ruling party-run states - would not have seen light of day. The spate of murders of Muslims - passed off as of terrorists out on an avenging mission - would not have happened. The dialogue of sorts between extremists on both sides of the deepening religious divide through terror bombing, supplemented by ‘black operations’ in which majoritarian perpetrators projected Muslim provenance, might not have occurred. The use of Muslims as the Other, to bring the majority community together into a vote-bank may have been less blatant, preventing Hindutva hegemony of political culture today. And - who knows - India’s Pakistan policy, initiated by Vajpayee and kept on track by Manmohan Singh, may have resulted in a substantive conclusion, enabling Kashmir to enjoy azadi as do other fellow Indians.

Counter-factuals, being wishful, are a futile indulgence. However, the opportunity has been flogged here for the express purpose of proving that martial law provisions in the military law manual are not window dressing. They are to affect outcomes. Given the direction the internal security situation appears to be heading, it is not impossible that such instances, as confronted Shah, may reemerge. These are once-in-a-decade incidences, but with profound consequences for the Republic. The demolition of the Babri Masjid was ongoing even as an infantry battalion sat in a high degree of readiness barely a few kilometers away, at Faizabad. Today, perpetrators vie for credit for the demolition. The homily, ‘a stitch in time saves nine’, could not be more apt.

Not only is the State increasingly partisan, but mobs emboldened. Active participation by police in violence that book-ended the democratic protests surrounding the anti-Citizen’s Amendment Act (CAA) was witnessed. At the inception of the backlash to CAA, the police entered two central university campuses and flog Muslim students (along with others), and, later, in northeast Delhi’s one-sided violence, they supported majoritarian mobs. In the process the police killed at least one Muslim youth, Faizan, while forcing him, along with other youths, to sing the national anthem. This is of a piece with partisan behavior of the police in riots such as in Bombay 1992-93, in pogroms in 1984 and 2002,  and in administering direct violence as in Meerut in 1987. There has been talk of genocide-in-the-offing, in wake of a dharm sansad that made calls along those lines.

The multiple targeted communities - India’s Muslims in various vulnerable pockets across India - are being deprived of the right to self-defence by the post-mob violence punitive deployment of dozers by the administration to bring down their properties, without due process. The upshot is that not only does the State not hold out the promise that it will protect the community, but will penalize it should it resort to its own devices. The movie, The Kashmir Files, proactively plugged by officials including the prime minister fully cognizant that it is fiction for most part, has an agenda-setting function. The subtext justifies retributive violence against Muslims as comeuppance.

This has been normalized to the extent that the so-called Concerned Citizens (CC), comprising assorted bhakts on a pension, have  pronounced that  the “multiple violent incidents in various states ruled by different political parties” amount to “pre-meditated attacks on peaceful processions during Ram Navami, Hanuman Jayanti, and other sacred festivals in Rajasthan, Madhya Pradesh, Gujarat and New Delhi.” So that no one misses this version of the violence, they repeat it, calling such violence, “premeditated attacks on peaceful processions during Hindu festivals, be it in Rajasthan, Madhya Pradesh, Gujarat or New Delhi.” If not an instance of poor drafting, they know a lie repeated often enough gets to be the truth.

They claim that, “(T)he reality is that instances of major communal violence have palpably decreased under the BJP (Bhartiya Janata Party) government and this is appreciated by the public.” To them, “this has instigated groups like the CCG (Concerned Citizens’ Group (an anti-right wing set of retirees)) to highlight beyond proportion sporadic instances of communal violence that no society can entirely eradicate.” In terms of statistics, they are arguably right. But this bears interrogation.

Firstly, the terror incidents having miraculously vanished all but gives away that they were manufactured in first place. It cannot be that the police and intelligence have become competent overnight. Secondly, the manner dissent has been suppressed has been deliberately kept obvious and upfront; to deter. The extent is clear from the use of hackers to emplace ‘evidence’ in laptops and illegal surveillance by the Pegasus spyware. Thirdly, ruling party states have abused the police, evident from casualties in ‘encounters’ toted up by Uttar Pradesh (UP) (over 3000 in over 8000 encounters over last five years) and Assam (28 over last 8 months in 80 encounters). Needless to add, that in both cases, most victims have been Muslim. Lastly, UP’s repression of the peaceful anti-CAA stir accounted for some 22 Muslim lives. Intimidation alongside included public release of names and addresses of activists, reprisal demolitions of private property, punitive payments later declared illegal, public participation of right wing goondas alongside police in repression etc.

These trends suggest deliberate obfuscation by the CC. The willful distortion of facts – such as eliding the provocative conduct of ‘peaceful’ processionists – makes credible the genocide-in-the-air talk. That the same ‘chronology’ (to borrow Amit Shah’s now immortal phrase) to mob violence has been seen across multiple states suggests a centralized control to the communal madness. Diverting from this easy-to-arrive-at observation is quickly attempted by the 189 signatories to the collective missive to Modi. They trot out time-honoured diversionary narratives blaming a ‘foreign hand’: “The narrative alive of minority persecution, majoritarianism and Hindu nationalism under the present government. Such a narrative gets recognition and encouragement from international lobbies that want to halt India's progress.”

A din is on over a Hindu Rashtra on-the-make, New India. Over time, this could eventuate on another assault on the Constitution normalized under the catch-all, “this is appreciated by the public.”  Hold-outs might resort to pushback, preemptively characterized by CC as “anti-national” to prospectively legitimise a crackdown. The parliamentary processes on CAA and the Article 370-nullity are indicative forerunners. The pushback these received and the accompanying security measures – in the first case, reactive, and in the latter case, preemptive – shows possible security trajectories. Ahead are similar legislative actions perceived by Muslims as threats – dismissed by the CC as “non-issues” - such as the National Register of Citizens and the Uniform Civil Code. Localised suppression may acquire proportions of a pogrom in light of convergence between the right wing, the State and the police. It is in such a hypothetical – if increasingly plausible - scenario the martial law provisions are pertinent.

So, what are these martial law provisions, which military officers need a timely refresher on?

The martial law provisions date to pre-Independence times, when the authorities required extensive powers to suppress the freedom movement if its energy went beyond a certain level. They persist in the rule book in case there is a bid by forces to overawe the government, though there is no mention in the Constitution or legislation on martial law. Martial law can be declared by the military commander, preferably at the highest possible level with due reference to and permission of the government (Manual of Military Law, 2010, Vol I, Chapter VII, para 15, 16). A military commander may in emergencies take it on himself to act according to his lights under the principle of self-defence, including the defence of the State, its assets and people in its ambit. The logic is that in case of large scale breakdown of law and order, the duty devolves on citizens, including the military, to return the situation to normalcy under the legal maxim (Salus populi suprema est lex (safety of the people is the supreme law)) (Ratnabali, K and UC Jha, Martial Law in India: Historical, Comparative and Constitutional Perspective, New Delhi: Vij Books, 2020).  

The CC’s assumption that a carte blanche can be wrested from electoral victories is false. India is not a majoritarian democracy nor can secularism be trifled with, being intrinsic to the basic structure of the Constitution. If and since the direction of New India is to Hindu Rashtra, backlash is possible to visualise. By default, the State will rely on its suppressive template, being honed rather well in UP, Kashmir and Central India. Should the right wing pose an existential threat to Indian communities, specifically Muslim, then those in authority confronted with such situations must be aware that provisions exist to protect targeted people.

This is in keeping with India’s acceptance of the content of Pillar I of the Responsibility to Protect that has it that the State is primarily responsible for protection of people. Taking the concept further, when State resources designated for the purpose are unwilling or unable - or are complicit in the threat or constitute the threat itself - then State elements that can and should act meaningfully, must. The concept here is also in accord with the United Nations’ theory, develped with Indian participation as a leading troop contributing country, on Protection of Civilians (POC). POC requires military resources in particular to protect civilians, where necessary with miitary force, within their resources and in areas of proximity to their deployment. The three-tier POC strategy has political action at Tier I, military action at Tier II and preventive peacebuilding at Tier III. Tier II theoretical content, which includes ‘Do No Harm’ and other just war factors, serves as a useful guide.

Such extreme circumstance will unlikely arise, not least because the ‘boiling the frog’ metaphor (that has it that a frog in water slowly building up to boiling point misses jumping out timely) is operational in India’s ongoing transformation. Should the situation boil over, however, the military – as last bastion of the Republic – has the legal cover recounted here for stepping up, with due deference to the government. Awareness of this may deter, prevention being better than cure.