Faizan Mustafa interviews former Deputy Chief of Army Lt. General Zameeruddin Shah on his YouTube channel ‘Distinguished Guest Series of Legal Awareness Web Series.’
General Shah is a veteran of 1971 Indo-Pakistan war, born on 15 August 1948. He served in the Indian army for many decades. For his distinguished services, he received many awards including Param Vishisht Seva medal. He is currently the Vice Chancellor of a well-known Central university.
Faizan Mustafa discussed with him on Galwan valley incident, Chinese warfare, Court Martial proceedings, Armed Forces tribunal and other aspects of military law.
The first question he asked, was about the toughest situation he handled on the border during his service. He replied that counterinsurgency operations, which are carried out inside the country by our own country men, are more dangerous than the conventional operations on the border. Because, they never know when and where they are going to be attacked. He related one such incident when he was a Major in Nagaland, his platoon was waylaid by Naga hostiles and a large number of his people were dead. He was also involved in insurgency in Punjab and effectively tackled the Gujarat riots within two days of induction.
Faizan Mustafa asked him about the applicability of law in the army and how the court martial is done and whether Shah really followed the due process of law?
General Shah replied, being the member of Armed forces tribunal (AFT) the first question he was asked by the tribunal was; did he know enough about law? Shah said, he replied that he knew the Military law and the adjudication of justice is plain common sense. He further said, laws in the army are governed by the Army Act of 1950 and it improves inherent law of natural justice.
He explained the procedure that when a crime takes place it is brought to the notice of commanding officers that such a crime was committed. Then, the commanding officer orders inquiry. The person against whom the inquiry is to be done, has to be present during the entire process and he can put forward any questions and also give a statement in the inquiry. After the inquiry is completed, the person who committed the offence is presented before the commanding officer and a formal interview is arranged between them. The commanding officer decides three things; either he can dismiss the charges after going through the inquiry and through the interview, or he can dispose of the charge or order a summary of evidence which will be put as an evidence on the record. If a disposal of charge takes place, a commanding officer can punish within a maximum number of 28-days with either rigorous imprisonment or14-days detention. The difference between the two is that in rigorous imprisonment, the guilty person loses pay and allowances for that number of days. In detention, he is only locked-up and made to do physical labour and does not lose his pay and allowances. General Shah said, he always preferred detention rather than rigorous imprisonment. But he also gave rigorous imprisonment whenever it was required.
He further added that the army men spend their whole life with the regiment, which means, when a jawan joins the army he grows with his superiors and he faces the same hazards as his superiors and play sports with them. So it is very difficult for a senior to punish a jawan from his unit because he has become a friend.
The General says there are four types of court martials:
Summary court-martial, which can be tried by only other ranks and maximum punishment given is for a year.
The second court martial is a district court-martial, where minimum three associates have to be members of district court martial. It can penalize a maximum of two-years of rigorous imprisonment.
The third one is Summary General court-martial. This takes place when there are emergencies, operations, or when there is a scarcity of officers. It can reprimand death sentences.
The fourth and the last one is, General Court-martial. It requires five members or more depending on the degree of the charge. The punishment that can be given is death sentence, provided all the members agree to the death sentence.
When asked about the functions of the tribunals and how they conduct proceedings, General Shah first clarified why the tribunals are formed. He said, under the Armed Forces Act of 2009, it was felt that the appeals for court-martial sentences were being dragged on for years at considerable expense of incidents. Therefore, an Armed Forces Tribunal was formed that comprises of several benches all over the country. One bench comprises of either Supreme Court or High Court judge and another sub-officer of the rank of General. The purpose was to reduce the administrative time taken in a business by people who are aggrieved. It cannot alter the sentence of a court-martial. However, it can either strike it down or uphold a sentence. Besides court-martials, the Armed Forces tribunal dealt with the cases of annual confidential reports like not getting promotions, pay and allowances, etc.
General Shah said that it is usually mistaken that military justice is rough, all set and alleged. These presumptions bother judges who sit in the benches, they have to clarify and inform them that a long and detailed procedure for administering justice is required and it does not take place at the whims of the commanding officer. He also said that one aspect where they did not give any relieve in the trials of the Armed Forces tribunal were cases of cowardice.
Faizan Mustafa asked him the reason why Indian soldiers did not fire whey they were provoked by Chinese soldiers in Leh?
General Shah said that he himself did not understand why the Indian army did not retaliate. He says that there are four things that soldiers should always have with them. One is headgear (helmet or cap), which should always be on his head. The second is a belt, where he keeps his ammunition and other arms. The third are his boots. The most important is his personal weapon. Personal weapon is something that soldiers are trained to use and fire in case their life is threatened. He said, he is not sure whether the soldiers were working under the constraints of no escalation at the borders. If that was so, he said, it was improper. He further added that our soldiers were constrained from using their weapons because of the restrictions of the rules of the engagement, that prohibited escalation within the 20kms of the border belt on the Line of Actual Control (LAC).
Faizan Mustafa questioned him about the 1996 and 2006 rules, to which the two governments have agreed.
General Shah affirmed that the governments had agreed but they turned down the army ranks. He further adds that he wished the weapons had been used as it was question of life and death and that it would be less distressing to be martyred through an enemy’s bullet rather than being clubbed to death.
General Shah was asked about his opinion whether incidents like the Galwan Valley are common. During the talks, there was shoving and pushing which resulted in slipping of few soldiers from a treacherous mountainous region.
General Shah replied that this has been happening after 1967 when the Chinese tried to ingress into Sikkim. This is because of the engagement that prohibits any escalation. He further explains about the five stages that the Chinese army follows. The Chinese are a very unpredictable people. They do not make hasty decisions; they rather think deeply as to what their next step will be. They believe, that if a country is the first one to take a step, they are in an advantageous position. And the one who reacts, is in a great disadvantage. Unfortunately, this time, the Indians have reacted. Whenever Chinese take offensive action they do it in five stages; first they threat, then they warn then they demonstrate. Currently, they are at the third stage; they are demonstrating their superiority. Next, they attack. And the fifth is, they withdraw. “They had done the same in 1962, they did it in Vietnam conflict and now they are trying to do it again” says General Shah.
Faizan Mustafa asked about his opinion; whether he thinks that Chinese are on our soil. Satellite images and some experts say that they are, but our government says that no one has intruded in our territory. As a nation, we want to know what is your view on this issue?
General Shah replied, according to what have been shown on television, it does indicate. He adds, that the problem is on the 20 kilometer belt where armed activity is prohibited. Explaining the background of the problem, he said, the problem rose in 1950 when the Chinese occupied Tibet. Then in mid-1950s, they constructed a road linking Lhasa to Xinjiang, passing through Aksaichin. Unfortunately, India was not aware of the construction of that road. When India sent her troops, it was already late.
General Shah explains that there was an agreement between India, China and Tibet at Shimla in 1940 where the McMohan Line was drawn that indicated the border between North-East Tibet and India. China did not recognize it because they believed that Tibet was not an independent country. So, the Chinese representative did not sign the agreement, they only initiated it.
In 1967, there was a conflict where the Indian army got the better of the Chinese. There have been periodic clashes since then, which were not really armed. They were de-escalated and the status quo has been maintained.
This year, the Chinese came in through Galan Valley. This is again a question of perception of the demilitarized zone of 20 kms. The Chinese have one version and Indian army has another version. The Chinese say we have intruded in their territory in Aksaichin and also in the Galvan Valley and in Pangon Tso.
Faizan Mustafa asked General Shah whether China is implementing “Sun Tzu formula” of supreme heart of war, that is, to expand its territory without a full-fledged war?
The General elaborated that according to the Sun Tzu’ Art of War, the one who gently occupies the field of the battle first is at ease. He who comes later and reaches the field is at a disadvantage. Therefore, those killed in war bring the enemy to the field of battle by positioning first. He said, “we should have studied this. We have been saying this for a very long time”. He further added that during a sabbatical in the Army War College he had written a dissertation for his M.Sc. degree on ‘The threat from China and the way to deal with it’. He had studied Sun Tzu, their techniques and predictability. He said China has five times more Armed Forces than India. Their economy is five times bigger; it will be very difficult to compete, but we can still do it –knowing the fact that Chinese troops last faced a conflict in 1987, where they got a bloodied nose from a small country like Vietnam. So, the Chinese has not faced the enemy’s armed forces; have not faced conflict since 1987. Our soldiers and armed forces are battle-hardened, leaving right at war internally.
“Their strategy was very simple” says General Shah. Explaining how the Vietnamese army worked; he said, they did not deploy the regular troops at the border, they only had border guards and their regular army units were 20 kilometers in depth. The guards did put up a bit of resistance, but then they fell back according to a pre-arranged plan and this enticed the Chinese to come into the killing ground. When the Chinese were in the killing grounds, the Vietnamese struck, and the Chinese had no alternative but to withdraw in disgrace. So, this is a lesson.
“Now,” General Shah said, “our national policy of the border is: ‘no loss of territory’, but according to him, it needs to be modified a little into: ‘no permanent loss of territory’. The loss of territory means that we have deployed our regular troops at the show window, he said it should not be like that. If there is a wrestling match, let it be, he said. But army troops should not be involved in clubbing or fighting. Since they are trained to use weapons, they must use them effectively. Even after claiming it to be ‘one border one force’, we have not implemented it, says general Shah.
Faizan questioned him about the Line of Control which is not set clearly or demarcated. He asked whether he thinks this Indo-China problem is a routine kind of thing and whether it will eventually be sorted out with the Chinese agreeing go back to their April position.
To this the General replied that he doubted it very much. he said the aim was to control or to dominate the heights over the huge constructed road from Leh. The efforts will always be there to dispute the use of the road by the Indian Armed Forces. He doubted that they will withdraw to the pre-June positions. In case our skills are good and in case the Prime Minister can bank on cross with the President of China, we may succeed. But this also doubtful according to General Shah.
Faizan stated that when General Shah was Deputy Chief of Indian Army, he was involved with the budget. He asks him whether our army is well off to purchase more ammunition, because our Defense Minister said we are going to purchase arm of 33,000 crores.
General Shah replied that the budget needs to strengthened more. At least 5% of our GDP must be contributed and he also insisted that the acquisition of arms and ammunition is a time consuming process. “We can’t buy things off the shelf like we did in case of Kargil; if we do, then we will get assortment of weapons”. General Shah is not optimistic about the equipment and weapons and the F4 Jets being received as quickly as desired.
Faizan added and said that it may take two and a half years to three years, to which the General agreed.
In his book, General Shah wrote that Indian Army is a different kind of institution; absolutely secular, where there is no discrimination on religion or caste. Faizan asked the General to elaborate on this.
General Shah said, during his 40 years of his service in the army, he never felt discrimination at all. In fact, the commitment of the troops, especially their actions in Gujarat in quelling the riots were above politics and religion. They took action only against rioters. He further adds that the greatest strength of the Indian Army is that it includes all sections of the population. There are no restrictions on anybody joining the Indian Armed Forces. General Shah said that if there had been discrimination, he would have probably retired as a Major or Colonel. But the army delegated him and he has retired as a Deputy Chief; he was aware of every national secret he says. The Indian Army selects and promotes personnel only on the basis of merit. “This bogey about discrimination is wrong” says General Shah.