The Centre’s divergent stand on the immunity extended to the army and paramilitary forces from criminal prosecution prompted the Supreme Court on Thursday to direct the government spell out its position on the controversial Armed Forces (Special Powers) Act (AFSPA) and other such laws.
“You cannot say that an army man can enter any home commit a rape and say he enjoys immunity as it has been done in discharge of official duties,” a Supreme Court bench headed by justice BS Chauhan said after a government counsel voiced divergent views on two separate encounter killings involving security forces in Jammu & Kashmir and Assam.
Advocate Ashok Bhan, appearing for the government, urged the court to lift a 2007 SC order that stayed the trial of eight Rashtriya Rifles personnel, including a Brigadier in an alleged fake encounter in Chattisinghpora district of Jammu and Kashmir.
He sought prosecution of the officers on the ground that the special law gave no immunity to the personnel from prosecution for criminal acts.
However, in another case of alleged fake encounter involving CRPF men in Assam, Bhan said officials could not be prosecuted as they enjoyed immunity under the CRPF Act.
Piqued over Bhan’s contradictory arguments the bench retorted: “How can you adopt diametrically different views?” The counsel said it was under “compulsion” of his professional duties.
As he requested the court to de-link the two cases, the court said the matter would be heard at length as it involved vital questions of law related to public.
It asked the government to clarify whether the army/para military personnel enjoy immunity from criminal prosecution for any penal offence committed in discharge of their official duties including fake encounters and rapes vis-à-vis AFSP Act, Section 197 CrPC and Section 17 of the CRPF Act.
It also sought to know if the CBI should conduct a preliminary inquiry into such killings before registering an FIR against accused the army/ para military personnel.
India has been facing insurgency in Jammu and Kashmir and many northeastern states where the AFSPA gives immunity to the armed forces from prosecution.
Human right activists have been demanding the Act’s withdrawal but the government and the army have maintained that it is needed to tackle insurgency.