In the hypothetical case refferred by you, nobody has committed any offence,yet one can conceive that a false accusation can be made. The solution would be to provide that in the case of armymen only a high police officer alone would have the authority to exercise the powers of an investigating officer.Incidentally I am not Prashant Bhushan but Shanti Bhushan.
Sent from my iPadRespected Prashant Bhushan,I describe to you an actual situation experienced and please do educate me about "breech of command responsibility"An infiltrating group is ambushed. A few infiltrators make good an escape from the killing area(mind you it is past midnight) The CO is informed and he knows that these few will either go back to POK or head for the nearest village on our side where he will be given shelter by their contact.The Co rustles up more quick reaction teams and sends them to the village /hamlet/bhaiks/huts. A couple of militants are sighted entering a village. Pursuit by own troops is in progress , who notice them entering a house. Officer and Jawans already brain washed about rape assault physical abuse etc.For our patrol, at this stage, of primary concern is to "search and destroy". They enter the house. Man of the house not present, probably undertaking morning ablutions. Lady of the house with a daughter or two shout on top of their voice.The other villagers outside the house interpret the shouting in many different ways- mostly detrimental to the Jawans (they do not love us much).The Commanding Officer is located in his Tactical HQ which may be miles away.The Company Commander having moved to the ambush site to obtain actionable intelligence from those who have survived. Both not in the house and village.As a Commanding Officer my primary responsibility is to counter infiltration and achieve moral ascendency over the LOC. I have fulfilled my other equally important responsibilities of briefing my Jawans and Officers of various do's and don'ts that need to be observed in that environment.(All are taught to us in the Formation Battle school prior to induction into the area)So now I as a CO, my company commander, the patrol leader and those unfortunate Jawans who were doing their primary duty have to gather evidence and prove that there was no malice in our actions inside the house and we did not indulge in any abuse whatever which resulted in the women shouting.For how long will this command chain not be available to the unit labouring to prove that they are innocent and there is no breech of command responsibility?. Perish the thought that it will be disposed off quickly.Please also note that I have simply not touched upon the effect it will have on the Unit and its Morale. There will be a sudden drop in performance.How will our Justice system interpret"breech of command responsibility" Please put me wise.Whereas I have full faith and confidence in a selected few within the Judicial system to understand and interpret "command responsibility" this very abstract concept outside my organisation, will be least understood by The Honourable men sitting in judgement at the level which will be dealing with such cases.It is for this precise reason the committee should spend time with us folks in Macchil Kupwara Manipur etc and then take a decision ,if at all. I can assure you they will be convinced not to disturb a hornet's nest.God Forbid a feeling should not creep into our men- damn the primary task let us take care of ourselves by doing nothing, mark time in the insurgency area and look forward to a peace station to spend time with the wife and kids.On Sat, Jan 26, 2013 at 10:54 AM, Shanti Bhushan <shantibhush@gmail.com> wrote:
Let it be clear that according to Justice Verma committee report There would be breach of command responsibility only and only if the CO failed to take such measures as he could have taken to prevent the cmmission of rape by his subordinate that he would be guilty of the offence of breach of command. If on facts he could not have reasonably done so then no action has been sugested against him.
Sent from my iPad-- tDear Seema MustafaOn 25 January 2013 18:06, seema mustafa <seemamustafa@gmail.com> wrote:
Ridiculous comments by some in the story. If the CO can't ensure the conduct of his men towards women all the more reason for the ordinary criminal laws of the land to be made applicable instead of protecting sexual molesters under AfSPA.The false case excuse has been heard many times before. One there are very few women who will say they have been raped when they have not; and besides surely the courts and the investigating authorities can be trusted to being justice? The army can always represent its men if it is convinced of their innocence in the courts.
Seema MustafaWhat can be our stand on this issue?
Verma commission report draws armed forces' fire
http://timesofindia.indiatimes.com/india/Verma-commission-report-draws-armed-forces-fire/articleshow/18174402.cms
NEW DELHI: The J S Verma Committee report has come under intense criticism from security forces for suggesting "breach of command responsibility", holding a commanding officer (CO) responsible if a junior commits rape. The report's suggestion to amend the Armed Forces Special Powers Act (AFSPA) has also been opposed by the armed and the paramilitary forces.
Many COs and senior officers are arguing that the breach of command responsibility was unacceptable and could lead to COs ending up in jail for upto seven years for the misdeeds of a junior.
"I have almost 1,000 personnel under me, and they are spread across some five kilometres. They could go on leave, or temporary duty. How am I to ensure their sexual conduct throughout the year, 24 hours a day?" asks the CO of an Army unit.
Officials in the Union home ministry too were taken aback by the panel's "unusual" suggestion to include "breach of command responsibility" as an offence under Section 376. "How can the officer commanding a battalion be held responsible if a junior he sends on a patrol suddenly chooses to go morally astray?" asked an officer, adding that vicarious liability in such a case is "nothing short of absurd".
Another senior officer of the security establishment indicated that the forces deployed in conflict zones like Jammu & Kashmir, Maoist-affected states and the insurgency-hit areas in the north-east, have to constantly guard against foisting of false cases by local, self-proclaimed rights groups who may actually be a front of terrorist or extremist groups. "The J S Verma committee's suggestion, if accepted, will only give such activists a legal handle to falsely implicate not only the jawan but his CO as well," the official warned.
A senior CRPF officer posted in a Naxal-infested area said, "Inserting breach of command responsibility in Section 376 is stretching the law too far. There is so much moral degradation in the society. Anyone can commit a crime on a given day. How can you hold the commanding officer responsible because a constable has gone berserk. No one will work for the forces then."
A BSF officer from the Eastern frontier added, "This is akin to jailing the mother for the crime of the son. We already have a mechanism where commanding officer is reprimanded for transgressions of a junior officer; administrative actions are taken. But punishing him for individual aberration is just not on. Unless there is an organised criminal behaviour in a unit, commanding officer cannot be held responsible."
The J S Verma Committee has recommended the introduction of a new section 376F in the Indian Penal Code (IPC) for offence of breach of command responsibility. The proposal is to hold responsible "whoever, being a public servant in command, control or supervision of the police or armed forces...or assuming command whether lawfully or otherwise, fails to exercise control over persons under his or her command, control, or supervision and as a result of such failure" rape and similar offences are committed.
The COs would be held "guilty of the offence of breach of command responsibility" if he "failed to take necessary and reasonable measures within his or her power to prevent or repress the commission of the said offences," the committee has recommended.
Presently, there is no criminal liability for a CO of an Army unit in cases where his subordinates are involved in any kind of breach of discipline. It does of course invite administrative action, or even dismissed from service. The introduction of a criminal liability by a CO for actions of a junior would add a completely new and extremely challenging burden to being a CO, say army officers.
The Committee has also recommended amendments to the Armed Forces Special Powers Act (AFSPA), saying, that "impunity for systematic or isolated sexual violence in the process of Internal Security duties is being legitimized" by AFSPA.
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Dear Seema Mustafa, Read your comments on the Security Forces, have you ever appreciated what the command of a unit involves . Can you make a person responsible for the acts of his more then 850 subordinates?more so when his is not present with them. I am sure you do not have any idea what commanding troops means. As it is strictures are passed on the commanding officers of any incident involving his subordinates. Pushing him to the wall will only be at the cost of his responsibility. Imagine what the CO of Rajputana Rifles must have gone through after the Krishna Ghati incident, can the CO be held responsible for the deeds of the enemy. In your opinion he must be, this is just commenting for commenting sake without application of logic. I wish you could gather closer knowledge by being with a unit for few days and also go through the hell when deployed on LOC or counter insurgency duties. Regards,
Col Madan Sharma (Veteran)Indian InfanteerHAPPINESS IS JOURNEY, NOT DESTINATION
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