Editorial 1: Slow path to peace in J&K
Recent Context:
- It was recently reported that the Union government is discussing a “proposal to withdraw the Indian Army completely from the Valley hinterland.
- If approved, the Army will have presence only on the Line of Control (LoC)”. The Army could be withdrawn in a phased manner, starting with a few districts in Kashmir, with responsibility for counter-terror operations being handed over to the Central Reserve Police Force (CRPF) and the J&K police.
Reasons for shifting the army from valley:
- The reason for this move is the reduced levels of violence in J&K since the August 5, 2019 decisions.
- The government has been claiming that normalcy is returning to Kashmir and now wishes to “make it visible” by reducing the presence of the Army in the hinterland.
- This has happened in the past. For example, between 2007 and 2009, two divisions were pulled out from counter-terror operations in J&K and reverted to their conventional role.
- Two brigades were also relocated from Kashmir to strengthen the deployment along the Line of Actual Control (LAC) in Ladakh
It will also solve the manpower issue:
- The Army is also facing manpower pressures. The two-year freeze on recruitment during Covid-19 has led to a shortage of around 1,20,000 soldiers, and there are no plans to bridge the gap through additional recruitment.
- The manpower problem is exacerbated by the enhanced deployment of troops along the LAC to handle the crisis that erupted in 2020 in Eastern Ladakh. Any reduction in internal security duties gives the Army an opportunity to right-size its force structure.
- In fact, the Army has already been thinking along these lines. There is a proposal to reduce the RR companies in a unit from six to four and disband some of the sector and force headquarters.
- In addition, some RR units have already been sent to Eastern Ladakh and deployed along the LAC. Taken together, this would lead to a significant reduction of the Army from the hinterland.
The factors need to be considered while shifting the Army from the valley:
- First, the timing. External Factor:
- Assessing normalcy requires us to look at how the external and internal factors that have kept the problem festering have been addressed.
- The external factor has been weakened. Pakistan has provided immense support to terror activities in J&K in the past, but its ability to influence the situation today stands diminished.
- This is a result of India’s strong response to terrorist acts with a Pakistani signature, and the deep political, economic, and internal security mess in which Pakistan finds itself.
- Internal Factors:
- The internal factors that need to be addressed include bringing the security situation under control, tackling radicalisation, meeting the aspirations of the people, bringing economic development, and resumption of political activity.
- Lessons from the past indicate that violence levels alone are not an indicator of normalcy. In 2012, fatalities from terror-related violence were less than half of 2022, but because the underlying causes of the conflict in J&K were not focused on, the situation steadily worsened.
- While the security situation today is stable, it would be prudent to take some more time to tackle the other issues comprehensively. This would ensure that J&K remains stable, even without the presence of the Army.
- Shifting the army in phased manner:
- Hand over areas to the CRPF should be done in a phased manner. The start could be made in the Jammu region, where the CRPF takes over the complete responsibility for counter-terror operations.
- A few RR units could be kept as a reserve for any contingency that may arise.
- However, handing over some districts in Kashmir on an experimental basis is not recommended as it would create problems of operational integrity, intelligence collection, and command and control issues with neighbouring forces operating under different ministries.
- Phasing is being suggested for two primary reasons.
- Today, the Army, CRPF, and J&K police work in synergy, with each force bringing its unique capabilities to the operations.
- In the case of the Army, these include not only the highly trained soldiers but also the logistics, communication, engineering, and medical support that is integral to the organisation.
- In the absence of the Army, this capability void would need to be filled up, and the initial deployment of CRPF in the Jammu region could provide valuable lessons in this regard before they take up responsibility in the Kashmir valley
Conclusion:
- There is merit in the government’s proposal that normalcy must be accompanied by a reduction in the force levels of the Army deployed for counter-terror operations in J&K.
- This would also come as a relief to the Army saddled with manpower cuts even as its operational commitments have increased. However, the gains in J&K have come at great cost, and it would be sensible to err on the side of caution and conduct the pull out of the Army in a graduated and phased manner.
Editorial 2: Section 153A: its use and misuse
Recent Context:
- The Supreme Court on Thursday granted interim bail to Pawan Khera, chairman of the media and publicity department of the All India Congress Committee, who had been arrested for alleged hate speech by Assam Police earlier in the day.
- Multiple FIRs registered against Khera across different states mentioned offences ranging from criminal conspiracy, imputations, assertions prejudicial to national-integration to promoting enmity between religions.
- The invocation of these laws are often criticised for restricting free speech and misusing the legal processes for political purposes.
Section 153A: What the law says
- Section 153A of the Indian Penal Code (IPC) penalises “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony”. This is punishable with imprisonment up to three years, or with fine, or with both.
- The provision was enacted in 1898 and was not in the original penal code. At the time of the amendment, promoting class hatred was a part of the English law of sedition, but was not included in the Indian law.
- In the pre-Independence Rangila Rasool case, the Punjab High Court had acquitted the Hindu publisher of a tract that had made disparaging remarks about the private life of the Prophet, and had been charged under Section 153A.
- In his book Offend, Shock or Disturb: Free Speech Under the Indian Constitution, lawyer Gautam Bhatia wrote that the High Court distinguished between an attack on a community and an attack on a deceased leader of that community. When a similar piece was published again, the HC held that “a scurrilous and foul attack on a religious leader would prima facie fall under Section 153A — although not every criticism”.
- Along with Section 153A, Section 505, which penalises “statements conducing to public mischief” was also introduced. In his 2016 paper, legal scholar Siddharth Narrain noted that the provision was introduced to “change the existing provision dealing with circulating mischievous reports to shift the burden of proving the truth to the accused”. (Hate Speech, Hurt Sentiment, and the (Im)Possibility of Free Speech)
The application of the law
- Hate speech laws have been invoked under regimes of all parties to crack down on criticism of public functionaries and to arrest individuals.
- In May last year, Marathi actor Ketaki Chitale was arrested for a Facebook post allegedly defaming NCP leader Sharad Pawar. She was booked under the same provisions in as many as 22 FIRs.
- Data from the National Crime Records Bureau (NCRB) show that the rate of conviction for Section 153A is very low
- In 2020, 1,804 cases were registered, six times higher than the 323 cases in 2014. However, the conviction rate in 2020 was 20.2%, suggesting that the process often becomes the punishment.
- The registration of multiple FIRs across different states drains the resources of the accused to secure legal representation. The accused has to move the Supreme Court seeking clubbing of the FIRs if the FIRs relate to one event. This is what Khera sought.
Safeguards against misuse
- Given that the provisions are worded broadly, there are safeguards against its misuse. For example, Sections 153A and 153B require prior sanction from the government for initiating prosecution. But this is required before the trial begins, and not at the stage of preliminary investigation.
- To curb indiscriminate arrests, the Supreme Court laid down a set of guidelines in its 2014 ruling in Arnesh Kumar v State of Bihar. As per the guidelines, for offences that carry a sentence of less than seven years, the police cannot automatically arrest an accused before investigation.
- In a 2021 ruling, the SC said that the state will have to prove intent for securing a conviction under Section 153A. The SC in this case quashed an FIR against the editor of The Shillong Times, Patricia Mukhim, registered for allegedly creating communal disharmony through a Facebook post.
- “The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A IPC and the prosecution has to prove the existence of mens rea in order to succeed,” the SC stated.
Conclusion:
- Therefore, words used in the alleged criminal speech should be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.
- The standard of an ordinary reasonable man or as they say in English law “the man on the top of a Clapham omnibus” should be applied,”