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Wednesday, 2 May 2012

From Today's Papers - 02 May 2012
SC asks Army to take call on trial procedure
Says Centre’s sanction must for criminal trial
R Sedhuraman
Legal Correspondent

New Delhi, May 1
The Supreme Court today ruled that the Central Government’s permission was required to proceed with the criminal prosecution and trial of five Army personnel on charges of killing five persons in a fake encounter in Pathribal in Anantnag district of Jammu and Kashmir on March 25, 2000.
However, no permission from the Centre was needed in case the Army decided to subject the accused to court martial proceedings, a Bench of Justices BS Chauhan and Swatanter Kumar held.

The Pathribal encounter took place five days after the killing of 36 Sikhs by terrorists in Chattisinghpora village on March 20, 2000. The area was covered under the Armed Forces J&K (Special Powers) Act (AFSPA), 1990. The Army personnel named as accused in the case are Colonel Ajay Saxena (A1), Major Brajendra Pratap Singh (A2), Major Sourabh Sharma (A3), Subedar Idrees Khan (A4) and Major Amit Saxena (A5).

In the 55-page judgment, the court directed the competent authority in the Army to take a decision within eight weeks from today as to whether the trial would be by the criminal court or by a court martial and convey it to the Chief Judicial Magistrate-cum-Special Magistrate (CBI) at Srinagar.

If the Army decided to court martial the accused, the proceedings should “commence immediately and concluded expeditiously”, strictly in accordance with law, the Bench said. In case the option was to try the Army personnel in the criminal court, the CBI should make an application to the Central Government for grant of sanction within four weeks from the receipt of necessary communication. The government should take a final decision on the plea within three months.

“In case sanction is granted by the Central Government, the criminal court shall proceed with the trial and conclude the same expeditiously,” the apex court ruled.

The SC clarified that the competent Army authority should exercise its discretion to opt as to whether the trial would be by a court martial or criminal court after filing of the chargesheet and not after cognisance of the offence was taken by the court.
“Facts of this case require sanction of the Central Government to proceed with the criminal prosecution/trial” the Bench held. At the same time, the Army Act, 1950 “does not provide for sanction of the Central government,” the SC clarified, while rejecting the contentions of the Army and the Defence Ministry to the contrary.

Dealing with Section 197 of the CrPC, under which sanction was required for prosecuting public servants, the court said it was aimed at protecting them against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them.

The court said taking a decision on the plea for sanction would be “dependent on the facts of each case and cannot be a subject matter of any hypothesis, the reason being, such cases relate to initiation of criminal prosecution against a public official who has done or has purported to do something in exercise of the powers conferred under a statutory provision. The facts of each case are, therefore, necessary to constitute the ingredients of an official act.”The apex court also clarified that if an act was not traceable to any lawful discharge of duty that “by itself would not be sufficient to conclude that the duty was performed in bad faith. It is for this reason that the immunity clause is contained in statutory provisions conferring powers on law-enforcing authorities. This is to protect them on the presumption that acts performed in good faith are free from malice or ill will.”

Further, there should be material to attribute or impute an unreasonable motive behind an act to take away the immunity clause. “It is for this reason that when the authority empowered to grant sanction is proceeding to exercise its discretion, it has to take into account the material facts of the incident complained of before passing an order of granting sanction or else official duty would always be in peril even if performed genuinely.”
Kabul seeks Indian equipment for its security forces
Ashok Tuteja/TNS

New Delhi , May 1
Afghanistan today sought India's assistance in not only training its security forces but also equipping them under the strategic partnership agreement so that they were in a position to defend the trouble-torn nation after international forces withdraw from there by the end of 2014.

This was conveyed by Afghan Foreign Minister Zalmai Rassoul to External Affairs Minister S M Krishna at the inaugural session of the India-Afghanistan Partnership Council, which formally set in motion the implementation of the strategic partnership pact signed by Prime Minister Manmohan Singh and Afghan President Hamid Karzai in October last year.

Expanding security and counter-terror cooperation figured prominently in the talks. Issues relating to the safety of nearly 4,000 Indians living in that country and the security of Indian missions and facilities also figured prominently.

Addressing a joint press conference after the meeting, Krishna responded favourably to his Afghan counterpart’s suggestion, saying New Delhi had always been unwavering its commitment to assist the people of Afghanistan in their endeavour to build a peaceful, stable, democratic and prosperous country.

“Let me assure you that while it is a time of change and transformation in the region, India ’s commitment to Afghanistan is neither transitory nor in transition...India's security is intertwined with that of Afghanistan's stability,'' he told Rassoul.

The visiting minister also called on Prime Minister Manmohan Singh, who hoped the strategic partnership between the two countries would be further strengthened in the critical period ahead.

Krishna said India was hopeful that by the time the International Security Assistance Force (ISAF) and American forces pull out of Afghanistan , the Afghan security forces would be in a position to protect the sovereignty of their nation.

On the process of reconciliation with the Taliban, the Afghan minister said the Afghan government was not looking at the military aspect of dealing with the situation in the country alone but also at the political side in keeping with the decision taken by the Loya Jirga-the governing council of tribal leaders. Talks would be held only with those among the Taliban who respect the Afghan Constitution and recognise the gains made by the country in different areas during the last 10 years of conflict.

On his part, Krishna reminded his Afghan opposite number of the need to adhere to the red lines drawn by the international community for negotiations with the Taliban. The process of reconciliation must be Afghan-led, inclusive and transparent. Talks should be held only with those who snap links with the militia and promise to abide by the constitution. Afghanistan must be prevented from sliding back to safe haven for terrorists and extremist groups, he added.

On the fears expressed by IAF chief Air Chief Marshal N A K Browne that the Taliban or other such groups might shift close to the Indian border with Pakistan at Wagah if the situation deteriorated after the withdrawal of foreign forces from Afghanistan, Krishna said India was always monitoring developments at its borders.

“We keep a close watch on the situation and take steps to check infiltration by the Taliban or others.’’
Drone strikes legal, ethical: US
Ashish Kumar Sen in Washington
US President Barack Obama’s counter-terrorism adviser on Monday defended the use of unmanned Predator drones to kill terrorist suspects despite Pakistan’s opposition to such warfare.

Drone strikes are legal, ethical and wise, John Brennan, assistant to the President for homeland security and counterterrorism, told an audience at the Woodrow Wilson International Center for Scholars in Washington.

In a thinly veiled swipe at Pakistan, Brennan said there was nothing in international law that bans the use of remotely piloted aircraft against terrorist suspects or that prohibits the US from using lethal force “against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.”

“As a matter of international law, the United States is in an armed conflict with Al-Qaida, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defence,” he added.

Brennan acknowledged that the US conducts drone strikes against specific Qaida terrorists. Obama has instructed his administration to be more open with the American people about these efforts, he added.

US officials have been making the case that the controversial drone strikes are legal in the face of growing Pakistani opposition.

Brennan defended the use of drone strikes, saying the Authorization for Use of Military Force passed by the US Congress after the September 11, 2001, attacks on the United States of America authorises the President “to use all necessary and appropriate force” against those nations, organisations and individuals responsible for 9/11.

“Targeted strikes are ethical,” Brennan said.

“Targeted strikes conform to the principle of necessity - the requirement that the target have definite military value... In this armed conflict, individuals who are part of Qaida or its associated forces are legitimate military targets,” he said. “We have the authority to target them with lethal force just as we targeted enemy leaders in past conflicts, such as German and Japanese commanders during World War II.”

Saying that drone strikes cause minimal collateral damage, Brennan noted: “It is hard to imagine a tool that can better minimise the risk to civilians than remotely piloted aircraft.”

Brennan said the use of drones was “wise” because remotely piloted aircraft have the ability to fly “hundreds of miles over the most treacherous terrain, strike their targets with astonishing precision, and then return to base.”

“They can be a wise choice because of time, when windows of opportunity can close quickly and there may be just minutes to act,’ he added.

Pakistan’s government on Monday lodged a formal protest with a senior US diplomat in Islamabad over a drone strike in Miranshah, North Waziristan, the day before. A Pakistani parliamentary committee has demanded an end to US drone strikes in Pakistan.

Drone strikes in the border regions of Pakistan and Afghanistan have increased under the Obama administration. US officials say these strikes have been effective in eliminating terrorists.

Brennan’s remarks come on the eve of the first anniversary of a US Navy SEALs operation in Abbottabad during which Qaida leader Osama bin Laden was killed.

Pakistan criticised the operation saying it had violated the country’s sovereignty.

Pakistan kicked US troops out of the Shamsi air base from where unmanned Predator drone operations had been run, following NATO strikes on two Pakistani border posts in November. Twenty-four Pakistani soldiers were killed in that incident. The US has refused to apologise. Pakistan also shut down a land route used to supply US troops in Afghanistan following NATO strikes.
Subhash Joshi is NSG chief
Tribune News Service

Dehradun, May 1
Subhash Joshi, a former Director General of Police, Uttarakhand, has been appointed as the Director-General, National Security Guards (NSG), Ministry of Home Affairs. At present, he is working as Special Director-General, CRPF.

The appointment will be effective from the date of his taking over the post till his superannuation on February 28, 2014, or further orders. Joshi is an IPS officer of the 1976 batch.
How to meet the Maoist challenge
There's need for well-defined strategy
by Maj-Gen J.S. Kataria (retd.)

The Maoist abduction spree that included two Italians and a local MLA in Odisha, and the Sukma Collector Menon from Chhattisgarh has left the government in a state of paralysis. The Italians were released after the government succumbed to the Maoist demands.

The MLA, too, has been released after a month with the state government conceding to release 24 of the Maoist cadres held in prison. Viewing the events, it is not the abduction of the MLA but that of the young collector from Chhattisgarh that has made the nation sit up.

The Maoist extremism by some 20,000 men and women with their tactics of abduction appears to have sent the government of more than a billion people with paramilitary forces exceeding two millions in a state of quandary. Abduction tactics by the Maoists are not a new phenomenon. In a similar instance, the Collector of Koraput was abducted by the Maoists in February last year. He was released after the government had accepted a number of Maoist demands. In 2009, the Maoists raided an ill-prepared police post in West Bengal and looted the armoury, killing all policemen expect one officer who was abducted. Ironically, in this case also the government had conceded to the Maoists to secure the release of the abducted officer. The moot point is that have the state agencies involved in fighting the Maoist meance learnt any lessons from the past abductions?

The Maoists have developed their strategy to keep the government and its forces cleverly disorganised by hampering the democratic process employing tactical tools like hostages and forcing the government to concede to their demands. The state has been losing space to the Maoists; the menace has spread into more than half of the nation's districts. The simple tactics of abduction has sent the government in a state of mental arthritis. From the day we exchanged hostages for the beleaguered passengers of IC- 814, we have time and again displayed our incompetence and ill-preparedness to fight such a menace requiring dynamism and vision in both strategy at the national level and innovative tactics at the operation level.

In 1989, with the sudden eruption of insurgency in J&K and its subsequent shift to terrorism, the country witnessed a serious threat to the state. There were many cases of abduction that included Rubaiya Sayeed who was released after the government succumbed to the abductors' demands. Two young Army officers were captured, tortured, maimed and killed. Nine foreigners were abducted and killed by foreign terrorists and Charar-e- Sharif, the famous Sufi shrine, was set on fire by Pakistani terrorists. In the latter cases, the state did not give in to the terrorists' demands. Some of these incidents took place in highly inaccessible areas which were also treated as liberated zones like Abujhmad Forest. The security forces fought back to enforce the authority of the Union of India. How it was achieved should be a matter of interest to those operating in the Maoist-infested areas.

The conditions that are imperative for militants' success in abduction are better intelligence, surprise in terms of time and place of action, ability to concentrate in disguise and melt away, and maintain a vice-like hold on the local population in the areas that are often inaccessible. The security forces and government officials who operate in Maoist areas have to understand their modus operandi and operate in concert to beat the insurgents in their game.

To begin with, the areas on the fringes of Maoist strongholds should be dominated by strong, tactically sited pickets based on the "dynamic Grid System", held by well-trained and well-motivated security forces. The aim being to deny these areas to the insurgents, use them as launch pads, re-establish and extend government authority deeper into Abujhmad Forest and usher development. We cannot have a repeat of the Maoist attack of 2009 on the police posts. During this phase the innocent villagers must not be subjected to any harsh treatment and instead be protected from the wrath of the insurgents. Those apprehended be brought to justice quickly to ensure unstinted support of the local population. The judicial system would also have to gear up suitably. The civil officials reach is extended to inaccessible areas as the security forces reach deeper and reduce the insurgents' footprints.

Collectors should coordinate intelligence that is the key to success against insurgents and send periodic advisories to all concerned. It should not be left to the intelligence agencies alone. Coordination with the neighbouring districts at both intra-state and inter-state levels is imperative. Their movement to the villages under areas dominated by insurgents and meeting with the local bodies should not be publicised - desirably organised in the garb of some other activity. The route to the meeting sites be unpredictable and changed routinely. Drivers and the majority of the staff be informed of the movement at the eleventh hour. The escort should be of approximately 10 well-trained armed personnel in two separate vehicles at a suitable distance ready to support each other and manoeuvre to beat any attack or attempt by insurgents to take hostage.

On reaching the site, the escort must deploy tactically and be ready to foil any misdemeanour by the insurgents. When the abduction of Collectors from Sukma and Koraput is analysed, it becomes evident that they and their escorts had violated all the basic tenants of operating in an insurgency-hit area. The collectors were on a pre- publicised visit; the escort was ill-trained and had been taken off-guard. Even the collectors had no intelligence of likely abduction of any kind. It is like going in front of a tiger and being ignorant of the consequences.

At the national level, the the National Security Adviser and others need to act and advise the government to have a well-defined strategy fight to the Maoist menace. Irrespective of the fact that whether it is a coalition government or otherwise, the nation's interest must come first always and every time.

The police and the paramilitary forces must be given the requisite teeth and political backing to execute their assignment. The anti-hostage policy must be clearly spelt out, and the nation be ready to make sacrifices. Well-trained interlocutors be nominated in advance and pressed into service rather than waiting for the militants' diktat. There is a lesson in history- the freeing of hostages at Entebbe Airport, 2500 miles away from home in a daring raid by the Israel Special Forces, when the Israel Cabinet in a secret and difficult deliberation refused to give into the terrorist demands. During the raid, the operation commander- Yonatan Netanyahu, brother of subsequent Prime Minister Benjamims Netanyahu and three hostages lost their lives, a small price for the honour and safety of the nation.

Alas, Indian politicians did not have a similar will and pride during the hijacking of IC-814. Had the Indian defence forces, capable of performing a similar feat, been given the resources and political backing, the country would not have suffered at the hands of terrorists. It is time we started employing our much-trained and extremely well-equipped NSG and SSG to execute rescue missions in the Maoist-infested areas and send a message to the insurgents that the national security and sovereignty are invaluable to us and at the same time the doors of negotiation and peaceful means of projecting their grievances are kept open.n
Defence Ministry blames Army for procurement delays
Under attack for inaction after the uproar over Army Chief General V K Singh’s concerns about military preparedness, the Defence Ministry has hit back by squarely blaming the armed forces for delays in acquisitions, contending that faulty drawing up of qualitative requirements and hiccups in technical screening by service headquarters is to blame.

In a detailed explanation to a parliamentary panel on the issue, Defence Secretary Shashi Kant Sharma has said that delays happen at every stage of the procurement process but pointed out that the armed forces takes inordinate time to frame its Request for Proposals (RFPs) and complete Technical Evaluation.

Speaking only on procurements undertaken by the Army, Sharma said that in several cases, contracts have to be cancelled at advanced stages as the Army HQ draws up faulty or too stringent qualitative requirements that result in low interest from vendors.

Explaining the procurement process stage by stage, Sharma said the stipulated time to formulate an RFP is one month but at an average, the Army has been taking nine months to firm up the documents. The next stage of technical evaluation, which is under the supervision of the Deputy Chief of Army Staff, should take three months but at an average it comes to double the period, Sharma said.

Attacking the Army for drawing up faulty general service qualitative requirement (GSQRs), Sharma said at least 41 RFPs of the Army have been cancelled due to these reasons. “As many as 41 RFPs were rejected and the reasons were faulty GSQR, stringent GSQR, faulty vendor analysis, which implies that we have anticipated three vendors but only one responded or we may have short-listed five vendors but only two responded,” Sharma told the panel.

The Defence Ministry has pointed out two examples in its detailed response to the committee, referring to the replacement of air defence guns and procurement of bulletproof jackets that have been held up due to stringent GSQRs and faulty RFP respectively.

On the replacement of the L 70 air defence gun, the Defence Secretary told the panel that as per his knowledge, “four or five companies” make the guns but the Army insisted on a vendor that has been blacklisted. “The Army says that the best gun is being made by Rheinmetall Air Defence (which) is also one of the companies blacklisted here. So, it is a difficult condition,” he said.

On the procurement of bulletproof jackets, the ministry told the panel that a tender to purchase 3.5 lakh units was approved in 2009 but the procurement has still not gone through. Explaining the case, the ministry said a tender was issued in March 2011, but was retracted in December due to problems in the “conduct of ballistic trials”. A fresh RFP will be issued after amendments are made to the GSQRs, the ministry said.
NDA chief worried over decreasing number of Punjabi officers
Lt Gen Jatinder Singh, chief of National Defence Academy in Pune, on Tuesday expressed anxiety over the decreasing number of Punjabis in officer cadre in the Indian military.
Delivering his keynote address during 5th All India Punjabi Conference, he said about 20 years ago, the number
of Punjabis, particularly Sikhs, topped in the Indian army but now it has come down to eighth position.

"We have not been facing any problem as regard to recruitment of jawans in the Indian army but the number of officers has come down drastically, particularly from Punjab," he added.

Lt Gen Singh, who was conferred Ati Vishisht Seva Medal (AVSM) by the President, said the NDA had been producing 2,100 cadets every year and till now they have produced 30,000 officers for the Indian army.

The NDA chief lauded the efforts of the Punjab government in setting up Maharaja Ranjit Singh Preparatory Institute for Military Training in Mohali. He urged the Punjab government to ensure that the best talent among students was trained for the armed forces in the institute so as to make it one of the most prestigious army training institutes in the country.

On this occasion, Lt Governor of Pondicherry, Iqbal Singh said that there was no danger to the existence and survival of Punjabi language anywhere in the world.

Describing Punjabi University as the lighthouse of Punjabiyat in the true sense of the term, he stressed upon the need of establishing trusts all over the country, which could work for the furtherance of Punjabi language, art and culture.

In his presidential address, vice chancellor Jaspal Singh said the changing face of world, under the heavy impact of technology, was casting its impact on every aspect of life, including languages across the world. It was therefore an opportune time to draw a 'decisive blueprint' that could pave the way for weathering any storm that could influence the growth and development of Punjabi.

Punjab Technical University VC Rajnish Arora said all institutions, devoted to the cause of promotion of Punjabi, should work in a cooperative manner rather than following the pattern of one-upmanship.
Indian Air Force participates in Exercise 'Shoorveer' in Rajasthan
Somewhere in Rajasthan Desert, May 1 (ANI): The South Western Command, Army is conducting Exercise 'Shoorveer' in the desert sector of Rajasthan.

The Indian Air Force is involved in the exercise with the troops (EWT) in a big way with elements from WAC providing full spectrum of Air Support during the exercise, a Ministry of Defence release said.

The offensive Air Support will involve all type of fighters including SU-30. Mi-35, attack helicopters would also be providing the Offensive Air Support to the ground troops.

Counter Surface Force Operations are crucial to the overall success of the Land Operations. The Mi-17s including some elements from SWAC would be employed for the Special Heliborne Operations (SHBO). The Combat Support role will also see, the Airborne Assault Operations where a large contingent of paratroopers will be para dropped in the exercise area.

The exercise would see the Surface Forces and the Air Force elements fighting together in close coordination with each other. This however, calls for a high degree of Control and Coordination which is achieved by adhering to laid down operating procedures and supported by complex communication networks.

Both the Army and Air Force would field their Remotely Piloted Aircrafts (RPAs) in support of their missions.

A significant amount of joint training has been carried out by the Army and Air Force prior to the exercise during the preparatory phase, both by day and by night. (ANI)
5 year ban for retired military officers before joining pvt sector: Par panel
Government should impose a five-year ban for retired military officers before they can take up a private sector job, a Parliamentary panel has recommended, noting some senior officers act as "middleman" for defence procurement after retirement.

The prescribed period as per service conditions which forbids armed forces officers from joining private sector was earlier two years, but it has now been reduced to one year.

The Parliamentary Committee on Defence while stating that its recommendation would help in addressing the issue of blacklisting of technologies wanted it to be implemented immediately.

"The committee is of the strong view that the prescribed period now needs to be increased to five years for officers of the rank of Brigadier and above, which would certainly help in addressing issues of blacklisting of technologies," the report tabled in Parliamen said.

"The Committee notes that some of the retired defence officers work with the private sector and act as a middleman for the defence procurement," it added.

The recommendation came against the backdrop of a retired Lieutenant General facing allegations of being middleman to push a truck deal for the Indian Army.

On blacklisting of firms involved in malpractices, the committee observed that it led to debarring of rare technologies and a solution needed to be found for this.

"The Committee may like to emphasize that investigation with regard to blacklisted companies should be expedited so that it reaches to logical conclusion and offenders are penalized which would be a deterrent for others," the panel said.

It added that another mechanism to deal with such issues can be the vetting of defence procurement by Central Vigilance Commission (CVC).

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