Surgical strikes – whether possible against internal enemies


Yesterday, on 29 September 2016, special forces of the Indian Army crossed the LoC (line of control) and conducted surgical strikes at seven launch pads for terrorists in the territory controlled by Pakistan. As per reports, about 38 terrorists have been killed and a couple of Pakistan army personnel have also been killed in these operations. These surgical strikes were in the form of “pre-emptive self-defence” strikes in the face of an imminent attack by terrorists across the LoC. In this regard, the following extracts from the official statement of Lt. General Ranbir Singh, the Director General of Military Operations, may be seen:

“Based on very specific and credible information we have received that some terrorist teams have positioned themselves at launch pads along the Line of Control with an aim to carry out infiltration and terrorist strikes inside Jammu and Kashmir and various other metros in our country. The Indian Army conducted surgical strikes last night at these launch pads. The operations were focused on ensuring that these terrorists do not succeed in their design of infiltration and carrying out destruction, endangering the lives of the citizens of our country. During these counter-terrorist operations, significant casualties have been caused to the terrorists and those trying to support them. The operations aimed at neutralizing terrorists have since ceased.”

It should thus be clear that these surgical strikes were pre-emptive strikes in self-defence. In fact, the above terrorists had not assaulted as yet, though it could be said that they had made preparations for targeting India.

One needs to compliment the Indian army and also the Indian Government for taking the bold decision to conduct such surgical strikes in enemy territory and then to execute them in the most professional manner. The question that may be asked here is – can we conduct similar “surgical strikes” against the internal enemies in our own territory if they also happen to be equally dangerous and desperate in their fight against India? Does the law permit such surgical strikes in our country, whether pre-emptive or retaliatory?

It may be noted that such preventive or pre-emptive strikes in anticipation of a future attack are not possible within one’s own country. For example, the security forces in India cannot have the luxury of conducting pre-emptive or preventing strikes against Maoist groups and annihilate them completely, killing all members of such groups. This is not permissible under the existing provisions of law.

As per the existing scheme of law, in India, at present, there are four different sets of legal provisions under which, subject to the conditions mentioned in those provisions, killing of a human being by police officers or personnel from the Armed Forces may not amount to an offence and may be justifiable under law:

(1) Section 46 of the Criminal Procedure Code, 1973, lays down that if a person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, the police officer (or other person making the arrest) may use all means necessary to effect the arrest. This includes use of force. In certain extreme situations, it may be justifiable even if death of the person being arrested is caused if the conditions mentioned in this section are satisfied and if the person being arrested is accused of an offence punishable with death or with imprisonment for life.

(2) Sections 129 to 132 of the Criminal Procedure Code, 1973, are covered in the Chapter “Maintenance of Public Order and Tranquillity”. These sections allow use of force, including use of armed forces, to disperse unlawful assemblies if the conditions mentioned in the sections are satisfied. In extreme situations, under justifiable conditions, use of such force may even lead to causing of death of a person while dispersing such unlawful assembly.

(3) Chapter 4 of the Indian Penal Code contains certain sections (Sections 99 to 106) grouped together under the heading of “of the right of private defence”. Some of these provisions provide the right of private defence to everyone that may even extend to the causing of death of another person subject to the conditions mentioned therein.

(4) Section 4 of the Armed Forces (Special Powers) Act, 1958, empowers certain personnel of Armed Forces in a “disturbed area”, if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances. However, it is pertinent to point out that this Act is applicable only to certain states in the north-east region of India, and a similar Act is operational in Jammu and Kashmir also [called, Armed Forces (Jammu and Kashmir) Special Powers Act, 1990].

Other than the above provisions of law, there are no other legal provisions that allow security forces in India to strike with weapons at a group and cause death of the members of such group, even if such group is a terrorist group. In fact, the above legal position is applicable even to surgical strikes in situations other than preventive or pre-emptive. For example, the security forces in India are not allowed to take a subsequent planned retaliatory action even against a terrorist act that at this already over; of course, on-the-spot retaliatory action is possible while the terrorist act is still being committed, but even in such situation the retaliatory action can be taken only in accordance with one or more of the aforesaid four legal provisions (wherever applicable) that permit use of force at the security forces. The security forces are not permitted to simply go and kill the terrorists at a later stage as a retaliatory action after the terrorists have already committed the act and have absconded; they have to be arrested and prosecuted before a court of law which shall decide their fate; of course, here again, they may use force in such a situation at the time of arresting them in accordance with one or more of the aforesaid four legal provisions (wherever applicable).

In fact, any excess force used by the security forces within one’s own country may land them in trouble forcing their prosecution in courts. There are a large number of human rights activists, many of whom are well-paid by interest groups for deliberately harassing the security forces, who are always waiting for such opportunities to pounce upon personnel belonging to security forces for dragging them to courts for prosecuting them for any alleged excessive use of force even where such force was used against the worst types of terrorists (who may even belong to an enemy country). Moreover, the courts in India also generally have an attitude which is not very sympathetic to the security forces. There have been a large number of cases wherein personnel belonging to security forces have been harassed by way of frivolous prosecutions even for the acts which were committed in the bona fide discharge of their duties. Therefore, any preventive or pre-emptive or retaliatory surgical strikes against even armed groups such as terrorists, are not possible within the territory of India itself.

It is only in an enemy territory where such surgical strikes can be conducted by armed forces. As they say, everything is fair in love and war. Our armed forces are not accountable to the domestic laws of the enemy country. Even if the enemy country registers offences against personnel belonging to our security forces for acts committed within their territory, it will not be possible for them to force our personnel to face the process of justice in their country. International law is more like jungle raj, even though there may be certain rules for engagement. A powerful nation will not bother for those rules. Might is right. Brute force prevails. If you have the power to inflict casualties in an enemy country in a pre-emptive or retaliatory exercise, you would not be subjected to the domestic laws of the courts of that country. At best, the enemy country may also retaliate. But then, it is the survival of the fittest. If you are more powerful, then your writ will run.

Therefore, similar surgical strikes may not be possible against our own homegrown terrorists who wage war against the State within our own territory. Here, our security forces have to act only in accordance with the legal provisions that allow them the use of force. Moreover, for the acts committed within our own territory, the security forces are fully accountable to the courts of law. They cannot use excess force than that is permissible under law. The rule of law prevails and curtails their powers to use force freely as they could in an external action. While acting against the external enemies, our security forces are supposed to use maximum force and to the maximum effect, but when it comes to dealing with the internal enemies the requirement of law is to use minimum possible force. You violate this rule at your own peril.

About Dr. Ashok Dhamija

Dr. Ashok DhamijaDr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. List of his Quora Answers.

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