India's Crying Need for a Robust Criminal Justice System

(This is edited version of a piece written for Asian Affairs, UK)

A deficient criminal justice system not only hinders rule of law but also impedes internal security and social harmony, which are critical for economic development and national security

Supreme Court's decision on November 26 to dismiss a minority government in the India's commercially powerful state of Maharashtra underlined the significance of an independent judiciary for the health of the world's biggest democracy. Raising hopes of a smooth governance, at least for sometime, it brought to an end weeks of uncertainty and political squabbles, involving multiple machinations and counter-machinations, that had followed the fractured mandate in the state.

However, all is still not well with the India's criminal justice system. It was a high-stake political dispute that drew immediate response from the top court. And the court acted swiftly and decisively, living up to its reputation of impartiality and integrity, to reassert its credibility. But a large number of matters that profoundly impact the course of democracy, and lives of the citizens, fail to even reach the courts. Even this verdict, with all its virtues, only pronounces who will rule. It is no guarantee that such a rule shall be free of corruption and in accordance with the rule of law to uphold larger interests of the people and the country.

Not too long ago, early this month on November 02, streets of national capital witnessed an ugly fracas between members of two crucial wings of criminal justice system of the country. Policemen in uniform were assaulted and chased by groups of lawyers around various court complexes in the city.

The provocation was an illegal arrest and custodial beating of a young lawyer over a petty dispute in a district court complex. A spokesman for the lawyers alleged that the police opened fire, injuring scores of them. The police, however, denied any firing from their side.

Over 20 policemen were injured and dozens of their vehicles torched by the protesting lawyers. Clashes continued even on the subsequent day and similar number of lawyers too were reported injured. In an unprecedented protest, members of the junior ranks of Delhi Police staged a massive demonstration in front of their HQ on November 5, booing their Chief, who sought to pacify them.  Lawyers too boycotted work for nearly a week, dislocating the judicial process in the city. However, sustained efforts by senior lawyers and police officers eventually restored peace and both sides resumed their respective duties.

The episode may pass off as an aberration in India’s sustained pursuit of a credible criminal justice mechanism. Nevertheless, it was a shocking spectacle in the national capital of the world's biggest democracy, where members of neither the police force nor the legal profession showed any respect for the due processes of law, something that they are expected to uphold and protect for the entire citizenry. The incident, no doubt, exposed a deeper underlying ailment afflicting the entire criminal justice system of the country.

By any global standard, the Indian police has produced some first-rate professionals and leaders. Almost every year, a significant number of men and women from police agencies lay down their lives in the call of duty. But India’s police forces, especially the lower rungs, have a longstanding record of notoriety.

Last year, the National Human Rights Commission (NHRC) of India recalled an observation, made half a century ago by Justice A N Mullah of Allahabad High Court, describing the police force of India’s biggest state, Uttar Pradesh, as ‘an organized gang of criminals’. Dealing with complaints of extra-judicial killings, wrongful detentions, custodial murders, sexual assaults, false implication of innocents and cover-ups, the apex human rights body of the country observed: ‘There is not a single lawless group in the whole of country whose record of crime comes anywhere near… that of the single organised unit which is known as the Indian police force…’

The Indian police has retained many of its colonial features, even after seven decades of independence. It continues to be governed largely by an archaic 1860 Act, with only minor modifications, and remains more a tool in the hands of the executive, lacking the autonomy and accountability necessary to serve as an instrument of the rule of law to protect citizens. A large number of retired police officers with strong professional credentials have beseeched successive governments for comprehensive police reforms to align the country’s police forces with the requirements of a modern representative democracy.

Flawed induction, deficient training, seniority- and loyalty-based promotions, which often disregard professional and leadership attributes, have crippled the capacity of Indian states to administer laws efficiently and impartially. Malevolent sections of police agencies are suspected of patronising, abetting and colluding in virtually all shades of crime. Similar sections in the political and corporate worlds, the legal profession and media have emerged as their partners to create a powerful nexus. In recent years, even the top officers of the country’s most credible investigative agency, the Central Bureau of Investigation (CBI), have come under the scanner on charges varying from graft to collusion with high-profile law-breakers.

There is conflicting data on the total number of complaints registered against police personnel in India; they vary anywhere between 50,000 to half a million or more. The National Crime Record Bureau placed the figure at 54,916 for the year 2015, while one media report quotes that in 2018 alone there were 1.1 lakh complaints against Delhi police personnel. Yet only one out of every 400 was investigated. Most state police agencies lack an effective independent police complaint commission, which one finds in developed democracies, to rein in erring police personnel. A protracted judicial process ensures that most crimes committed by men and women in police uniform go unreported.

Such a scenario must be demoralising for the large number of police men and women who do their duty diligently. Recent years have witnessed a spurt in assaults on working police personnel. Several entities, including Human Rights Watch (HRW), have recorded inhuman working conditions among lower rung police forces. These utterly desensitise them, often inducing brutal responses in their dealings with the public. Indeed, multiple videos doing the rounds on social media show policemen abusing and assaulting unarmed people, including one involving a blind student on the streets of New Delhi.

A cop in uniform is the most direct symbol of the state. Any assault on such a person is an assault on the sovereignty of that state. In a democratic state, the police is expected to protect citizens and command their trust through exemplary conduct and integrity. India needs to build a larger ecosystem that fosters such a relationship between the police and the public.

As for India’s legal community, although it too boasts some of the most brilliant minds observing the highest levels of scruples, in practice, the entire profession lacks well-defined yardsticks, including transparent fee structures, hourly working mechanisms or professional specialisations. High quality legal services are virtually unaffordable, not only for the masses but even for most of the middle classes, with competent lawyers on an average charging fees in the range of $5000 to $50,000 per appearance in cases that involve multiple hearings.

Perjury by lawyers or even state functionaries is rampant as there exists no effective deterrent in this direction. Many who have earned a degree from some of the law colleges in hinterland, lack even a passing familiarity with the basics of law. Many legal practitioners, especially in the lower courts, are known for their own criminal records, which was amply manifest during their clashes with the police.

Nevertheless, there are still some good lawyers– though too few – who remain committed to the pursuit of justice even under the most adverse circumstances. They take on a significant number of pro-bono cases to help the poor and needy in a system that lacks effective legal aid by the state.  Such sections certainly need support and encouragement from both the state and the society.

The Indian judiciary, especially the apex court, has traditionally been known for consistently delivering exemplary judgements on some of the most complex issues in the public domain. Even now, the top court comes out with judicious interpretations of the most vexed issues of law that are part of public discourse. But judges and lawyers are overworked in virtually all Indian courts.

India’s Law Minister recently disclosed on the floor of the parliament that as on June 1 this year, 43.55 lakh cases were pending in various High Courts, including 8.35 lakhs that were older than a decade. Such pendency in the Supreme Court was nearly 60,000, while in the lower courts it could be much higher. Very often judges hear 60 to 70 or even 100 or more matters in the course of a single day spanning a duration of five to six hours. It is not humanly possible to comprehend complex issues in two to five minutes and then pronounce a fair verdict. Hence, miscarriages of justice are quite common unless a matter is too high-profile.

Such deficiencies within the criminal-justice system not only deny citizens fair and consistent access to rights guaranteed by the constitution, but also retard national security by breeding avoidable internal conflicts. These nullify Indian democracy’s promise of the rule of law and discourage economic enterprise and industry, crippling the collective output of India as a nation. A weak criminal justice system also cedes a bigger space to subversive forces, which thrive at the cost of the country.

India’s quest for stronger national security warrants greater professionalism, innovation and integrity in the entire criminal justice system. It must prevent, preempt and deter internal conflicts to build an ambience that fosters healthy competition and collaboration among citizens. 

FROM HOUSTON TO MAMALLAPURAM AND BEYOND

Diplomatic successes are no substitute for efficient governance, observes Jitendra Kumar Ojha, who believes India needs sustained reforms in this regard if it is to pursue its aspirations as a great global power.

  (This is a piece written for Asian Affairs, UK on October 23, 2019 for November issue of the Magazine)

     Prime Minister Modi’s grand spectacle in Houston on September 22 and his informal summit with President Xi Jinping at Mamallapuram on October 12 symbolise India’s global influence as well as his own stature as leader. Both events, but particularly the latter, signified India’s ability to transcend differences, as emphasised by the Chinese media, and to optimise convergence of interests. However, there is merit in the argument that favourable geopolitics and smart diplomacy are no substitute for good governance in India’s quest for great power status.

   The head of the world’s most powerful nation played second fiddle in his own country when 70,000-strong crowds – the biggest ever to assemble in the US for a visiting dignitary other than the Pope – cheered and listened to Modi at Houston’s NRG stadium. The US decision to hike duties on Indian steel and aluminium and withdraw GSP for Indian exports did not appear to have affected the personal bonhomie between the leaders of the world’s two largest democracies. Showering the Indian-American community with effusive praise for their positive contribution to US society, President Trump emphasised his own endeavours to boost Indo-US trade and defence ties. He specifically highlighted US support for the Indian space programme and mutual efforts to curb terror, to the delight of the Indian audience.

   Local media reported that President Trump made good political capital out of the event, which could shore up his support within the Indian-American community int he upcoming presidential polls. His quip ‘Abki baar Trump Sarkar’ (‘This time Trump Government’) summed up this underlying sentiment and his eagerness to borrow Modi’s winning formula.

Details of the outcome of the Mamallapuram summit can never be known, although Foreign Secretary Gokhale assured the media that Kashmir, as an internal matter for India, was not discussed. This was significant,given President Xi’s meeting with Pakistani PM Imran Khan in Beijing hours before embarking on his India tour. Military-backed Khan, who emerged victorious following a dubious 2018 poll, has been seeking to exploit unease in the Kashmir Valley. By projecting the abrogation of Jammu and Kashmir’s special status as an assault on Muslims, he has not only attempted to whip up nationalist sentiment at home but also sought, albeit with negligible success, to make common cause with Muslim nations.

The Chinese media hailed the Xi-Modi summit as a ‘new beginning in bilateral cooperation’ that would provide ‘stability and positive energy to the current world, full of uncertainties’. Many among them appreciated India’s decision to consolidate trade and other ties,despite choosing to stay away from China’s Belt and Road Initiative (BRI).

A closer look, however, suggests that India’s ability to garner dividends from such diplomatic successes and geopolitical influence remains limited. India has continued to slide over the past decade or so on most governance parameters. What started with the exposure of corruption and scams in the UPA era has now taken the form of serious all-round economic decline and uncertainty. The gap between India’s potential and its actual progress towards great power status has never appeared wider.

Despite promising to be in the same league as China until a decade ago, India now looks a minnow by comparison. China’s five times bigger economy (nearly US $14 trillion, compared to less than $3 trillion for India) does not adequately sum up its superiority in technological excellence and innovations. Chinese R&D investments are gradually getting closer to those of the United States, with many of its institutions of excellence pushing frontiers of knowledge. Its advances in artificial intelligence, space technologies and 5G internet services, and its rapid strides in human development, public infrastructure, fin-tech and military modernisation have taken it on a different trajectory. Comparable figures of India’s economic growth do not tell the real story.

India, accounting for barely over 2 per cent of total world trade, with a significant deficit and a high share of primary products in its exports, is nowhere close to the 12.5 per cent share of China, with a considerable surplus of exports dominated by manufactured goods. The volume of Indo-US trade in 2018-19, amounting to US$86.9 billion,with a surplus of $16.9 billion in India’s favour, pales into insignificance when compared to US-China trade of $737.1 billion,with $378.6 billion surplus for China. For the US, India is hardly a serious trade partner, given that the volume of its trade with Canada, the EU and Japan stands at $627.8 billion, $575 billion and $217 billion respectively. Similarly, Sino-Indian bilateral trade of around $95 billion, which is heavily skewed in favour of the former, is much smaller compared to that of China’s own trade with Germany, Japan,Hong-Kong and others. That said, India still remains a profitable market for China.

The rise of India as a bigger stakeholder in the global order will have a stabilising impact in the context of Chinese expansionism

China may not be able to surpass the economic, military and technological might of the US in the foreseeable future. But it has increasingly carved out, and continues to expand, much larger domains of influence.These are manifest in its rising global footprints from Oceania, the Far-East to the West of Asia, almost all of Africa and South America, and parts of Europe. Its initiatives, varying from the BRI, Asia Infrastructure & Investment Bank (AIIB) and the Shanghai Cooperation Organisation, have registered significant global influence.

Many in American policy establishments, who in the past pushed for deeper strategic ties with India, insist that US commitment to India must go beyond reciprocity in tactical matters.India is in no position to act as a countervailing influence on China, nor should US policy aim at that. The rise of a democratic India as a bigger stakeholder in the global order will have a stabilising impact in the context of China’s aggressive expansionism.In this context, the US establishment shows greater understanding towards India’s freedom to conduct its relations with others, including its traditional friend Russia or others in Asia and beyond.

Simultaneously, there are elements in the US, albeit smaller in number, who do not favour any accommodation to the world’s biggest democracy in matters of trade. India, however, appears confident dealing with such duality. At the India-US Strategic Partnership Forum in New Delhi on October 21, Foreign Minister Jaishankar gave assurances that Indo-US ties were strong enough to resolve differences on trade.

There has been considerable discussion in the Indian media,as well as efforts on the part of the government, to de-hyphenate India from Pakistan. This is not possible without destroying the Pakistani capacity for covert and proxy war by invoking Islam. Pakistan is probably a unique territory whose state power, including the armed forces, is controlled by syndicates who have little commitment to their own people. They have been privately thriving on all shades of transnational crime,from money laundering to illicit trade in narcotics, arms and fake currencies, among others. Jihad and Kashmir provide a strong smokescreen for pursuing such activities. The integrity and professionalism of India’s governance institutions are prerequisites for destroying the space for covert war.

Chinese support for Pakistan, to pre-empt any possible – but currently non-existent –competition from India could potentially backfire quite severely in the long run. Radicalisation and subversion in the name of Islam may hit well beyond Uyghur-dominated Xinjiang if these build a strong momentum. The CCP’s pursuit of the resurrection of the glorious civilisational state of China certainly requires it to oppose radicalism at a global stage.

India has to go beyond minor tweaks in policies or tactical initiatives to bolster its institutional capacity of governance. Sustained and comprehensive reforms are compulsory if enduring solutions are to be found to the fledgling economy, rising unemployment, deficient human capital, poor infrastructure and technological stagnation, or even the larger menace of corruption that has been eating away at Indian society and the economy like termites.

India’s status-driven generalist civil service may have multiple examples of individual brilliance. But it is ill-equipped to translate policy visions into reality. Tortuously slow and highly unpredictable judicial processes can neither ensure observance of the rule of law nor promote trust in contracts. Advancement of knowledge and technological innovation require an ambience of congeniality within institutions of excellence rather than obtrusive control. The most serious structural reforms are probably required in India’s corporate sector,to optimally generate wealth and create jobs.

This is simply not possible if political parties do not transition into credible platforms for right talent and instruments to aggregate powerful ideas for better governance. A free media is useful only if it throws up facts and enlightened perspectives impartially and with integrity. The current dynamics of market and democratic instruments appear incapable of making any headway in this direction. Nevertheless, Prime Minister Modi has the mandate and global standing to script a newer history beyond text books by pushing for radical reforms in governance structures and processes.

India’s governance challenges are unique, as is its wider social and economic context.It has to explore a model of democratic governance beyond what is known in the West,but Chinese authoritarianism simply goes against the grain of Indianism.

The resurrection of a civilisational state of India along modern scientific lines, but incorporating some of the essential ingredients of ‘Dharma’ – right selfless conduct or integrity – is critical, not only to address the aspirations of 1.3 billion Indians. It is also indispensable for the stability of a wider global equilibrium. History rarely offers such opportunities for human ingenuity and initiatives that are available to India at this juncture.

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Jitendra Kumar Ojha, a former Joint Secretary in Government of India and an alumnus of National Defence College, with research degrees in Diplomacy and Defence and Strategic Studies, has specialised in various dimensions of national security

Understanding and Tackling Irregular Warfare : A Concept Paper

1.  Steep Rise in Insurgency and Irregular Wars:

        Since the close of second world-war in mid 20th century, there has been a substantial decline in the incidences of conventional war but a steady and steep rise in volume and magnitude of irregular or diffused conflicts.

These have largely manifested in the forms of insurgency and subversion with intermittent use of terrorism. Sustained insurgencies almost all over the world have incorporated an overlapping combination of both terror and subversion. At present, at least 25 or more states are facing moderate to intense insurgency in one or more pockets within their territory. Since 1940s, it is estimated that nearly 250 armed conflicts have erupted that could be described as insurgency.

Virtually one out of every four insurgencies have succeeded in overthrowing an established regime or a socio-political order. Another 20% have forced major changes or concessions in governance policies. The average age of even those insurgencies that have been successfully resolved by the states has been anywhere between 10 to 15 years. Some have endured even beyond half a century, albeit with a variation in intensity and form. Virtually, every insurgency that has sustained itself for more than a decade has deeply impaired all round potentials of the affected society. Every insurgency compromises economic development of a society, destroys precious lives, negatively impacts psychological health, cognitive and technical capacities of  the affected population and their productivity, besides draining precious resources of the affected society and state. Therefore, all strong states need effective strategies to prevent, pre-empt, eradicate and deter such conflicts.

2. Inadequate Understanding of Dynamics of Insurgency :

A careful observation of global conflicts in recent times suggests that security establishments of major powers  possess high level of expertise on the techniques of conventional wars, which will have far more direct and catastrophic consequences in our times. Their understanding about the complexities and dynamics of irregular conflicts, as well as professional capacity to handle these, remain limited. On multiple occasions, even the most formidable power of the current era- the United States– has faced serious debacle despite applying its highly sophisticated military fire-power and finest strategies of warfare. These only demonstrate complexity of such diffused conflict that may not be discernible at the outset. Technological advancements, global inter-connectivity, rise of powerful global networks as well as  radicalisation of large mass of population in Islamic world have further enhanced space for such conflict as well as their overall magnitude. Many of the insurgencies of recent times have also demolished myths that they are driven by ‘poverty and unemployment’ or ‘insurgencies flourish only in hilly or forest like terrain with a large rural hinterland’.

3. Each Insurgency is Unique but Shares Striking Similarities with Others:

While each insurgency is unique in itself, it shares striking similarities with most others. A well-entrenched insurgency in most cases has been an all-out asymmetrical war of which violence has only been a critical and yet a small component. Propaganda, deception, persuasion and coercion are other instruments that insurgents use lavishly to obtain and preserve mass support, or support of a significant section of them, or maintain their control over an area.

Their success depends to a great extent upon their ability to create well-oiled organisational machinery comprising a wide network of willing collaborators and passive supporters to a core group of active fighters and political activists.

Insurgency gains decisive strength from an appealing political ideology-capable of inspiring people in the theatre of conflict and obtaining sanctuaries beyond jurisdiction or reach of counter-insurgent state to evade intensified military action or carry out propaganda and organisational activity unhindered by any pressure.

4. Insurgency : A Symptom of Deeper Malaise :

     A careful analysis of multiple theatres of insurgency over a century suggests that insurgency is more a symptom of larger underlying and unattended conflicts than a simple law and order problem. These underlying causes may vary from deep-rooted cultural or social discords to actual or perceived sense of discrimination, emanating from poor governance, low credibility of the regime and high ‘governance gaps’ (deficit in delivery of governance compared to expectations of people) among others.  Large-scale unemployment among youthful population, social and cultural traditions of violence, weak administration – lacking influence or penetration among people, a culture of mass anxiety and frustration backed by actual or perceived poverty, easier access to funds and weapons, support of powerful external entity (that could provide funds, training, weapons and/ or sanctuary) are variables that help insurgents raise a machinery that is capable of engaging a more powerful force in an asymmetrical all out war cum conflict. Usually, instead of one specific cause or set of causes, it is a complex inter-play among a host of causatives that give rise to an ideologically driven sustained armed insurgency. In most cases, the equation among these variables keeps evolving once insurgency is well-entrenched, generating it’s own momentum.

5. Constraints of Democratic States:

In any irregular or asymmetrical war, non-state aggressors enjoy certain inherent advantages like the following :

a) Higher level of motivation and commitment of their cadres than the members of security forces;

b) Better understanding of local conditions, local psyche, and local terrain translating in support and intelligence from local population;

c) Relatively flexible command-control structures giving higher operational freedom;

d) freedom to create mayhem,undertake wanton killings and destruction to intimidate local population into
submission without being fettered by any sense of legal responsibility or accountability;

e) Freedom to exploit limitations of the state to respond in the same manner. On the other hand, states, especially the democratic ones, are constrained by the following:

i) commitment to rule of law and obligations to act responsibly,
ii) obligation to provide security and stability in a large area,
iii) pressure to avoid heavy collateral damage and
iv) respect larger public opinion both at home and abroad.

     Further, aggressors do not fight for an outright military victory to achieve their objectives (at least until such time that they are able to develop a military strength comparable to the state) as their ability to harass a more powerful state or counter-insurgent forces and not letting them win is a victory in itself. They also enjoy freedom to strike at will, disappear in the crowd or safe sanctuaries (in inaccessible terrain in forest or hill or foreign territory or thickly populated urban pockets) to regroup and re-emerge to strike again.  State is always keen to avoid collateral damages including loss of lives, properties and public infrastructure about which most insurgent groups have been least concerned. Hence, a good counter-insurgency strategy must be designed in a manner that can not only neutralize the advantages that insurgents

enjoy but it must also be consistent with position as well as strengths of the counter-insurgent forces or the state.

6. In-Efficacy of Military-Centric Approach:

      A military-centric response of the state, or over reliance on tools of conventional war, entails a risk of heavy human casualties, high material costs,  curtailment of civil liberties and considerable collateral damage. This can further alienate the people in the conflict  zone and shore up support for insurgents. The cost of security counter-measures after a certain point starts not only hurting the economy but can also make the war far more expensive for the state. This will be particularly so if insurgents continue to enjoy popular local support, easy access to funds, weaponry, youthful recruits besides external support, sanctuaries and logistics. Split of erstwhile Yugoslavia,

independence of East Timor, US Withdrawal from Vietnam, French withdrawal from Algeria, despite a spectacular military victory, failure of the United States to conclude wars in Iraq and Afghanistan, etc are some of the examples in this direction.

     A research paper by RAND Corporation (Paths to Victory : Christopher Paul, Colin P Clarke, Beth Grill and Molly Dunigan; 2013) also states that an attempt to resolve insurgency by military means alone had backfired in 23 out of 33 cases of intense insurgency. ‘Insurgents succeeded in overthrowing established regimes or tiring out bigger military powers in most of these cases.’ There are a few instances of totalitarian regimes in smaller theatres of conflict succeeding in crushing insurgents through sheer force but they did so at the cost of heavy human casualties. Sri Lanka is an example where social fissures may take a few generations to heal and economically the country has plummeted to the status of an ordinary developing nation from that of probably the most advanced and prosperous states of Asia in 1960 and 1970s. Hence, a good counter-strategy must entail minimum loss of human lives and destruction of infrastructure; and, it mus succeed in establising authority of the state through instruments of such good governance that are in sync with local culture, customs and socio-economic realities.

7. Plan to the Point of Finish:

At times, insurgent groups can crumble under their own weight or pressure of some extraneous factors,  without any extensive effort on the part of counter-insurgents. This in itself can neither provide stability nor generate avenues for gainful and constructive engagement of the people. Mere decline in insurgent violence or split in insurgent groups or internecine war among  different factions of insurgent organisation cannot automatically lead to good governance. It can neither address socio-ideological divide that could be the most fundamental causative of insurgency in certain cases. If state machinery remains weak, there is every possibility that disintegration of main insurgent group, spearheading armed resistance, could lead to chaos, confusion and even greater instability. This could post more severe challenges to the authority of state as well as security of the people.

Therefore, a good counter-insurgency strategy must not only be dynamic enough to address emergent challenges – that may vary in form and content – at every stage of insurgency, it should also complete the process of instituting a

credible mechanisms of efficient governance, within a reasonable time-frame, to deter resurrection of insurgency in future. Further, the quality, content and structure of good governance, as well as means to achieve the same, must be consistent with local expectations and its specific social-cultural settings. West’s fixation with its own structures and procedures of democracy and hasty introduction of the same in drastically different socio-cultural milieu, and that too without adequate preparation, has not only destroyed the prevailing stability without being able to create an alternative mechanism of credible governance. Tri-stage formula of “clear, hold and build” prescribed by legendary erstwhile guerrilla leader turned soldier Col David Galuala is too simple and no longer viable in the current technology driven world.

Counter-insurgency is a huge transformational venture, going way beyond military containment, to  influencing and shaping of values, building capacities and creating appropriate institutional structures and

commensurate practices of governance and procedures over a sustained period. Cessation of hostilities is only the foundation for a long phase of all round reconstruction. The average time- frame for completion of good practices of counter-insurgency has been anywhere between 10 to 15 years even in those instances where insurgency has not resurfaced.

8. Negotiated Resolution of Insurgency:

A negotiated resolution of insurgency is usually successful when the warring parties reach a stalemate and both sides find no gain in continuation with the war. A favourable public opinion towards reconciliation or rapprochement, strong leadership with high credibility and charisma on both sides (State and insurgents) can lend additional momentum to such process and partially compensate for some unfavourable factors as well. Third party
intervention or facilitation is usually effective only in a technical form. It yields results when the two parties despite being committed to resolution, and possessing all that is needed in this direction, only lack the required degree of mutual trust. In relatively smaller theatres of conflict, where an insurgent organisation enjoys absolute popularity, a quick negotiation may end hostilities and it can even usher in a long process of reconstruction, if the leadership is strong and committed and national government or the powerful international entity is willing to back it to the hilt. In most cases negotiations can fail to take off, if deep rooted distrusts, hostilities and discords are left unaddressed.

9. Possible Strategies:

It has been repeatedly emphasised by various experts that a decisive and permanent victory in irregular warfare requires not a spectacular or grand stratagem of warfare but a series of of integrated, inter-dependent and large number of indirect measures, to eventually establish a credible and popular government. Military containment is only part of the strategy. It may not be sufficient to control the violence but also eliminate at least substantial part of those factors that induce and sustain such violence and alienate the masses.

Collective application of, at least a majority of the, following measures are more than likely to eliminate even the most well-entrenched insurgencies: a) Re-orientation of civilian and military institutions, as well as their personnel in conflict zone, to equip them with skills to complement each other in winning over people and not the territory alone;

b) Wrest initiative from insurgents to set up an achievable political agenda with an appealing ideology and mobilise support for the same through credible entities both in the zone of conflict as well as internationally;

c) Maintain significantly superior level of fire-power, quality and number of troops, equipped with skills to fight irregular war and possessing comparable level of motivation;

d) Avoid casualties of state forces as far as possible and any publicity to the same;

e)Manage perceptions to project state as a stronger and dependable entity through good practices of counter-insurgency and savvy publicity and expose ‘deceptive’ and ‘malicious’ actions of insurgents and hollowness of

their ideology;

f) Provide security to all people in the zone of conflict but especially those who are aligned in favour of the state;

g) Raise dependable and strong support structures within the civil society and media for generating accurate intelligence and credible publicity to win over local population;

h) Target key insurgents and entice remaining cadres to cross over;

i) Reach out to ethical insurgent leaders and appeal to them in the interest of local population. In case of unethical mercenary insurgent leaders, expose such aspects of their life and behaviour that could undermine their image, credibility and respectability among their own followers;

j) Check subversion of state institutions both in conflict zone and beyond to choke funds, weapons and support for insurgents;

k) Avoid hasty concessions that insurgent could project as moral victory but take measures to eliminate possible causes of grievance of local population;

l) Strengthen overall framework of rule of law and build capacity for a credible process of good governance with substantial local participation;

m) Use direct/indirect diplomatic, covert engagements and propaganda to deny external support, sanctuary, funding and arms to insurgents;

n) Always maintain a local face in the frontline of both military and non-military dimensions of counter – insurgency (after suitable training and motivation) operations, relegating external troops and entities in a supportive role in the background;

o) Boost capacity of civilian institutions to carry out the process of re-building, reconstruction and creation of sufficient employment avenues and incentives to wean away and absorb both serving and potential insurgents;

p) Transform the zone of conflict to eliminate major causative of popular grievance; and

q) Create alternative and informal structures for communication between state and society.

Challenges and Opportunities for India :

A democratic and multi-cultural state like India does not deserve any armed conflict or insurgency within its territory. This not only drains huge resources of the country, impacting its development potential but also dents its credibility. The current era of intense global inter-connectivity has also witnessed powerful ideological-social discords or identity clashes, expanding governance gaps, and easier access to catastrophically destructive technologies. These have enabled even a much smaller number of motivated individuals, or transnational networks with very small following, to engage any powerful state in an asymmetrical war. Disturbances within the region and beyond, against the backdrop of powerful networks preaching hatred against India and its national security, have enhanced vulnerability of India even though it may not be visible otherwise. India needs to initiate several preventive measures to strengthen the framework of governance at one level and build institutional capacity to manage irregular war both within it’s own  territory and beyond,  to enhance its influence. As a responsible emerging global power, with considerable credibility in the developing as well as democratic world, India can convert this challenge into an opportunity to unleash not only its own enormous internal potential but also build gainful linkages with multiple pockets of resource-rich world. However, some unconventional means and methods are needed to restructure it’s own  institutions of governance to prevent, pre-empt and deter such conflicts. It may be a little difficult but certainly possible to build a strong capacity to eradicate such wars within the national frontiers of India and even beyond at minimum costs and within a reasonable time-frame.

Kashmir: What Next?

Continued lock down in the Kashmir Valley, has started raising concerns in sections of Indian media and civil society groups, even though criticism from most opposition parties has remained somewhat subdued. What appeared an interim measure on August 05, when special status of Jammu and Kashmir (J&K) was abrogated and the state was bifurcated into two union territories, has extended even after seven weeks.  Of late, several retired General and Counter Insurgency security experts have conveyed their apprehension that sustained curtailment of liberty may alienate local citizens in the valley. It can damage years of hard work by security forces towards weaning the local population away from subversive radicalization by the proxies of Pakistani military establishment.

Most market places in the valley continue to remain shut, amidst heavy deployment of security personnel. Easing of security restrictions, withdrawal of curfew and resumption of normal schedules in government offices and schools have not made any significant difference. Vehicular traffic and pedestrian movement remain thin and so does attendance in most institutions. To the credit of Indian security forces, no serious incident of violence has been reported until now.  

What worries people most, is continued detention of most mainstream political leaders. Many of their colleagues as well as civil society activists from rest of the country who attempted to visit them were turned away from the Srinagar airport. Continued clampdown on internet services and satellite TV channels has invited the epithet  that “people in the valley had been pushed back into medieval era.”

On the other hand, life appears normal in both Ladakh as well as Jammu. They together accounted for nearly 4/5^th of the territory and 46% of the population- Mostly Hindu and Budhists as well as few Shia sect of Islam-  of the bifurcated state. However,  even here, initial euphoria over “liberation from self-seeking Valley-based politicians milching separatist sentiments for their own bargains from New Delhi”, has given rise to apprehensions. Many fear their neighbourhoods being swamped by outsiders and picturesque landscape losing their sheen if the development works remain as poorly regulated as in rest of the country.

Nationalist government of India shall have to soon find answers and reassure people. Prime Minister Modi has done so through his speeches and public utterances. A substantial progress in this direction would test capacity of governance institutions.

People of Jammu & Kashmir have traditionally enjoyed a privileged position in the union of India. Over the years, almost entire state budget has remained heavily subsidized by the rest of the country.  Locals were not only exempt from direct taxes but a few among them made a fortune by cornering most of the benefits. This section is likely to struggle more to reconcile with loss of special status, howsoever nominal and symbolic. Some have already confided that a piece of their pride and identity had been taken away.

Meanwhile, military controlled Pakistani state has upped its rhetoric on the so-called breach of human rights of Kashmiris. They have found some murmurs of support in the Chinese media but none from the Western world or even West Asia have paid any heed. Its sole claim to Kashmir has been Muslim identity of majority population in the valley. Global leaders at this juncture realize that an inter-connected world cannot afford segregation of people in the name of religion and race. Besides, Pakistan’s own record has been horrendous in governance, rule of law and treatment of even non-Punjabi Muslims of that country.  Most stable West Asian states, being wary of Pakistani involvement in radicalization and terror incidents in their own territories, have maintained a distance.

Kashmiris, on both sides of the divide, have been aware that Pakistan had nothing to offer them, except for cessation of their support to terrorism and radicalization. However, this is not going to be easy. In pursuit of an all out war against India- through means including propaganda, deception, terror, subversion and Islamic radicalization-  Pakistani deep state is suspected to have raised a world-wide mega crime infrastructure. These have helped fund not only proxy wars in India, Afghanistan and Iran but also offered them world-wide clout.

Security agencies of developed countries have been wary of Pakistani involvement in funding of lobbying networks, support to political actors as well as few media and financial institutions in their countries. Episodes like Ghulam Nabi Fai or David Galloway could be tips of a huge iceberg.  Such clout has further helped them consolidate their grip over Pakistani state power to the detriment of the local population. Over the years, Kashmir has been whipped up as an emotive identity issue to an extent that compels people to forgive their state for all its mis-governance, misrule and lack of accountability.

I have always maintained that the traditional counter-terror and counter insurgency strategies require a major revamp. In India, it has been particularly difficult due to wider culture of hierarchical servitude in bureaucracy, coming from colonial legacy, dominating non-military security establishments. Senior leadership in this sector remains seeped in colonial values and outlook, resenting any new idea or even bona-fide intellectual dissidence. They have remained un-empathetic to the requirements of a modern democratic India. They forget that obtrusive and oppressive security counter measures may be unavoidable in certain circumstances but these cannot be justified in perpetuity.

A visit to the valley in May this year showed that the level of alienation in Kashmiri population was remarkably low. This was  despite three decades of violent militancy that had claimed nearly 25000 civilian lives, severely curtailed liberty of local people and exposed them to multiple provocations and inducements including jehadi subversion. Democratic Indian state is obligated to look at its citizens in Kashmir beyond the prism of proxy war with Pakistani deep state. India certainly needs a smarter security paradigm that protects its people and yet decimates subversive networks feeding all out covert Pakistani war. Smart security is a facilitator, and not an impediment, to collective well-being, liberty and dignity of citizens.

Prime Minister Modi  has been exhorting his Ministers and officials to quickly put in place measures for good governance to win hearts and minds of Kashmiris.  Intent appears insufficient in face of formidable challenges in this direction. Governance constraints of Indian democracy have remained its Achilles heels, constricting its overall output. This becomes particularly glaring when compared with similarly statured neighbouring China, which has forged ahead multiple times over the past three decades from a similar position. 

An endurable peace in Kashmir, a permanent victory in covert war and a decisive boost to India’s national security aspirations require serious governance reforms beyond Kashmir valley. What can convince the Kashmiris  that a closer integration with rest of the country was an opportunity that they needed to grab with both hands would be accelerated progress of whole of India towards economic prosperity, social harmony, rule of law to higher output on each of the parameters of Human Development Index. It can bury the two-nation theory forever and equip the Indian governance institutions with capacity to push for even de-radicalization of Pakistani society and democratization of Pakistani state. These are probably indispensable for peace and progress of the entire Indian sub-continent and resurrection of Indian civilizational state as the third pillar of the emerging global order, with the West and the China being the other two.

Kashmir: Towards ‘Elusive’ Peace

(An edited version of a write-up published in July 2019 issue of "Asian Affairs - In Focus"   ) 

 Indian focus in Kashmir needs to go beyond terror infrastructure in Pakistan and installation of credible and efficient administration in the valley. It is important to decimate subversive networks feeding this all-out covert war through logistics, resources and propaganda. Stronger governance capacity at home and diplomatic prowess abroad  are part of  the measures to eradicate and deter such wars on our territory
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In May  2019, a drive along the National Highway 44 from Udhampur to Srinagar via Ramban, Banihal, Verinag, Janglat Mandi and Anantnag, does not suggest, except for multiple security check-posts en-route,  that the state has weathered three decades of violent militancy. Uniformed men at the check-posts are courteous compared to what one may have encountered in the mainland or even during a trip on the same route nearly a decade back.

The entire landscape, both on the Highway and beyond, has changed over a decade. The process started when militancy acquired a downward slope sometime around 2005-06, the year since when the trend of decline in violence has sustained. Today roads are wider and well maintained. Traffic is smoother and construction work is visible all around. A variety of motels and eateries from Café Coffee Day to Pizza Hut to Rajasthani and Punjabi restaurants have sprung up on the route.

Shopping arcades and glitzy showrooms, including a few selling the latest automobile brands, were visible both on the outskirts as well as in cities and small towns. Janglat Mandi of Anantnag, whose only claim to fame used to be a modest civil hospital a decade back, is a vibrant town today with bustling markets. Its streets are lined with banks, ATMS and busy shops like any of the better small towns in Maharashtra and Gujrat. The civil hospital has a brand-new building with state-of-the-art infrastructure and well-trained staff. It boasts of an ambience that could be better than most of its counterparts in Delhi and Mumbai.

Not yet Close to Normalcy

However, an endurable peace and sustained tranquillity still appear far away from the horizon of the Valley. A mild upsurge in terror violence since 2016 has continued. Intermittent low-key infiltration and encounters are a reality even after conscience shaking Pulwama terror attack and subsequent aerial bombing of Jaish camps by Indian Air Force deep inside Pakistani territory.

Indian army has taken every possible care to avoid collateral damage for local population in all its recent counter-terror (CT) operations. These include the post-Pulwama ones in Kulgam, Achabal and Bijbehera etc where it lost its own officers and men. Army has also appeared to have refined its coordination with para-military forces and J&K Police, which has emerged strong local face, in both CT operations as well as in providing security to people and key installations.

Relatively low-key and incident free funeral of Zakir Musa of Ghazwat Ul Hind, who was killed in a  CT operation by security forces in May 2019, is a testimony of the resolve of the security forces to deny space to militants to orchestrate emotive propaganda.  Valley based groups have traditionally used such incidents to mobilise local sympathy and support to bolster their local recruitment. As part of its CBMs with local population, Indian Army has also accelerated its programme of sponsoring Kashmiri students to travel to different parts of the country.  Interestingly, recent years have witnessed a steep rise in number of Kashmiri youth joining the Indian army or security forces or even taking up employment in rest of the country.

Notwithstanding these, the component of local elements in the valley based terror groups has also seen a steady rise. Some national dailies assessed that the percentage had increased up to 80%  from an estimated figure of 60% in 2010. According to a credible Delhi based website, the total casualties in terror violence in first six months of 2019 stood at 218, including 72 from security forces and 22 civilians with the rest being terrorists. Kashmir has seen over 45,000 deaths over the past three decades including nearly 15000 civilians and over 6500 security personnel with the rest being identified terrorists, including over 3000 Pakistanis.

Anti-India graffiti are prominently visible at market places in most valley towns. Frequent suspension of internet services, necessitated as security countermeasure against terror communication, ends up inconveniencing locals. Many of them confirmed that incidents of stone pelting and provocative sloganeering against security forces had dwindled but these were still recurrent, especially on Fridays. The area around Hazrat Bal mosque is particularly known for this. Mosque functionaries consciously point out that they have nothing to do with stone-pelters and it were a few among shopkeepers in the adjoining area, who had lost their loved ones to militancy, could be sponsoring these. Even in other parts of the valley, stone-pelting appeared a well organised activity, that seemed clearly abetted, instigated and funded by some quarter.  

Hazrat-Bal appeared welcoming to all tourists, including non-Muslims and even security personnel. Mosque functionaries warmly show around the holy shrine to all, without any discrimination. During a detailed chat, some of them also expressed concern over rising number of Deoband trained Maulvis in the valley, including several from UP and Bihar, preaching a Wahabi - Deobandi version of Islam to supplant the local “Sufi” and “Pir” traditions.  

An interaction with groups of people both in Srinagar and Badgam suggested that many of the affected Kashmiri families, who had lost their loved ones to militancy, had moved on.  However, several among them are still struggling to reconcile to their loss. These only suggest that a lot of distance has to be covered to heal such wounds, which are inevitable whenever and wherever a diffused or covert war prolongs.

Unique Covert War

The Union government and defence experts have consistently maintained that what India has been facing in Kashmir valley is a complex covert war, through almost every possible means. It has an overlapping combination of terror, subversion, deception,  propaganda and radicalisation. Pakistani military establishment’s involvement in fuelling radical terrorism in the valley, or even beyond, has been well known. Of late, several impartial international entities including geopolitical analysts have emphatically acknowledged it.

While a large majority of Kashmiris have remained immune to radicalisation, even a small armed and organised gang is good enough to intimidate the rest into submission or passive collaboration. They automatically vitiate the security environment. It was under these circumstances that local security and administrative establishments had failed to prevent exodus of Kashmiri Hindus in late 1980s and early 1990s. Probably they are still not in a position to rehabilitate this community and provide them reliable security. Ethnic cleansing of the valley and subsequent radicalisation efforts  were steps towards to giving the identity colour to the covert war.

 History suggests that identity driven irregular wars have been the toughest to handle. These can potentially shore mass emotions to an extent that can destroy space for rationality and reasonableness in actions and thoughts of people in the theatre of conflict. Pakistani military establishment, having obstructed prosperity and dignity of its own people, may be least bothered about the actual plight of Kashmiris, whom it has treated nothing more than a tool to pursue its own larger agenda.

Indian state has been fighting this war from a position of disadvantage. All plural and liberal states have struggled to differentiate between religious freedom and radical propaganda. Probably none have the appropriate technical capacity to efficiently curb the latter. Such propaganda is the most dangerous fodder for externally sponsored diffused proxy war in the name of identity. 

      It is well known that security counter measures inevitably curtail civil liberties, making alienation of local population a natural outcome. The challenge becomes serious as the war prolongs. Possibility of alienation of local population increases further, when the state forces on the front-line of such war are not entirely local. In this context, Indian army has done a better job than probably all its compatriots, almost anywhere in the world. Providing a comprehensive security cover in such theatres of conflict, as well as retaining or regaining trust of the local population, probably requires such herculean efforts that exceeds capacity of most forces, especially if the local context is too adverse.

 United Nations Office on Drug and Crime (UNODC) report in 2017 had highlighted that how all shades of organised crime varying from drug-trade to money laundering were used to fund insurgencies and terrorism all over the world. India itself has been a big market for such illicit activities. At a strategic level, the country shall have to push for greater efficiency and integrity of governance structures at a larger scale, beyond the theatre of covert war. At least those regions and  sectors, both within the country and internationally, that are being used to fund covert war in our territory need to be specifically targeted. 

Challenges of Managing  International Perceptions

Of late, a large number of Western countries have shown a better understanding of the Indian position in the valley. Nevertheless, intermittent criticism of Indian state by several international entities has been a reality. A relentless motivated propaganda often succeeds both due to: a) limited understanding of the finer nuances of the covert war even among the best statesmen; and b) inadequate international appreciation of the finer basic differences between the nature of Indian and Pakistani states. 

     Much of the West or even the West Asia continues to treat covert war in Kashmir as a territorial dispute between a Hindu majority India and a Muslim Pakistan. Hence, the moment Pakistan expresses concern at the plight of Muslims in the valley, it has an anchoring impact notwithstanding the fact that the same country has denied dignity, liberty and even security to vast majority of its own people. As late as on May 10, 2019, Washington Post carried an article on India and Pakistan, which states:  “partition of British India in 1947, …was largely driven by religion: Pakistan became primarily Muslim while India remained mostly Hindu”. This is outrageous not only to secular credentials of India but hints at so-called in-congruence of Muslim majority areas being part of India.

India needs to be more forthright in asserting that the founding fathers of the country had categorically rejected the “Two Nation” theory of Jinnah. During preparatory consultations with Mountbatten, for Independence of India Act,  they made it clear that they were acquiescing to the idea of partition only in deference to the right of self-determination of those who had voted for Muslim League in 1946 elections for the Constituent Assembly. Indian leaders had insisted that a secular India would remain home to all communities including those Muslims who chose to do so. 

Pakistan is suspected to have created a massive world-wide crime infrastructure for its all-out covert war against India in the valley and beyond. Media had publicised arrest of Ghulam Nabi Fai of Kashmir American Council in 2011 for bribing and attempting  to influence US policy makers through funds, amounting to millions of dollars, illegally pumped in by Pakistani ISI. Such episodes could be tip of  a much larger iceberg. Recent charge-sheet against Zahoor Ahmed Shah Watali in the Indian Supreme Court, for acting as conduit in funding militancy in the valley, or disclosure of illicit funding by Pakistani state to separatist Hurriyat leaders, only corroborate such apprehensions.

Pak Military Establishment Unlikely to Relent

Noted American Political thinker Larry Diamond, in a recent write-up in Foreign Affairs, has reiterated what the world has known all these years. He has claimed that the army continues to wield all de facto powers in Pakistan even now. Military establishment is unlikely to relax its grip on Pakistani state, even though such phenomenon has pushed Pakistan to the bottom (150) of the list of developing nations on all parameters of governance, varying from Human Development Index to per-capita GDP. It used to be nearly at the top in 1950s in the same list that included ASEAN nations too, besides India and China.

It has been repeatedly assessed that Pak military establishment shall continue to foment trouble in Kashmir to retain its own control over levers of state power in that country. Facade of civilian government is there probably more to fool its own people than the international community. If we go by the conclusions of UNODC, they may also be involved in a lucrative global clandestine crime empire.  Otherwise, it is impossible to fund an expensive proxy war in Kashmir that has multiple propaganda centres and projects all over the world with massive infrastructure and logistics.

Road to Future

Despite a spurt in violence in recent months, Kashmir appears closer to peace than at any other point of time in the last three decades. People in general appear tired of militancy. An overwhelming majority express a yearning for peace and normalcy. Economic reconstruction has generated  its own momentum that needs to be sustained. However, the government has to guard against both alienation of local population and subversive propaganda in the valley and beyond. These have the potential to push the current covert war to a different trajectory, where violence and militancy may  lose  importance.  

Indian security forces have a tough task at hand. It is difficult to provide security to people in the valley and guard them from subversive propaganda. Nevertheless, it is indispensable for projecting Indian state as a stronger entity and reliable protector of local population. Simultaneously, India has to have a low-cost and yet an effective strategy to decimate, or at least immobilise, the entire infrastructure that  is being used to  wage this covert war. These may include the global crime empires that Pakistani military or security establishment may be running. In a globalised world, terror and subversive camps can be relocated even in third countries, if the adversary is determined and has the capacity to do so. 

Indian focus in Kashmir needs to go beyond containment of violence. Indian state has to bolster its overall governance capacity, both within the valley and beyond.  This will be crucial for not only eradicating and deterring covert wars but also denying space for such causative and ingredients that fuel and sustain these wars. These include subversion, propaganda, recruitment, funding, logistics, as well as  vehicles or avenues or tools that facilitate, support or encourage these.  Of course, security or governance measures must not lead to blanket suppression of civil rights or commercial initiatives but a much finer balance appears a necessity. 

Diplomatic offensives abroad without serious governance reforms at home shall be inadequate for this purpose. Watali case confirms that if money laundering and crime networks are allowed to flourish even in the mainland India, there will be no shortage of funds and logistics for the proxy war in the valley or for that matter anywhere else in the country.

Conclusion

The road towards normalcy in the valley is going to be tough and arduous one. There can be no substitute to, at least relatively, higher level of transparency and credibility in the governance process. A stronger bridge between the local population and the government shall be critical for this purpose. Like higher vulnerability of even a marginally infirm man to fatal diseases or epidemics, the Kashmir valley is also more vulnerable to Pakistani covert war in the prevailing dynamics within that country, especially given the higher space for covert war offered by present globalised world.  

Hence, there is need to go beyond stereotypes of cosmetic Western strategies like “hearts and minds” to institute a sturdier people-centric credible governance, with near zero space for subversion. Probably this is a necessity and not a prerogative if we aspire a decisive and permanent victory in a war that has prolonged far too much, draining our resources and destroying precious lives of our soldiers and citizens. The process may take more than a decade even if efforts are sustained and strategy is strong. Patience, determination, flexibility, and - most importantly – overall ‘integrity of approach’ shall be critical for this purpose.

 (With V S Deshmukh, Defence and Strategic Expert and a Corporate Security Analyst, who extensively travelled in the valley and interacted with cross-sections of people.)

For better appreciation of the subject, researchers and security practitioners may access author's concept paper on Effective Counter-Insurgency Strategy on website: www.wemakesociety.com;