Supreme Court dismisses pleas of 350 Army men challenging FIR against armed forces members
Some 350 Army men had challenged the registration of FIRs against members of the armed forces for carrying out operations in Manipur and Jammu and Kashmir where the Armed Forces (Special Powers) Act (AFSPA) is in force.Updated: Nov 30, 2018 22:56 IST
The Supreme Court on Friday dismissed three petitions filed by over 750 army personnel challenging its decision in July 2016 to dilute the Armed Forces Special Powers Act (Afspa) on the grounds that it must not give officers the right to use “excessive or retaliatory” force.
The petitioners argued that the verdict, given in a Manipur fake encounter killing case, put the lives of security officers at risk and exposed them to criminal prosecution for carrying out counter-insurgency operations.
The Centre, too, came out in support of the officers, arguing that the verdict has had a “demoralising” effect on soldiers fighting terrorism in Jammu and Kashmir.
But a bench of justices MB Lokur and UU Lalit rejected Centre’s stand and told solicitor general Tushar Mehta that the issued should be “debated” and “discussed” to evolve a mechanism so that “soldiers do not shirk fighting terrorism.”
Afspa gives immunity to security forces from criminal prosecution if they are carrying out operations in “disturbed areas”, including Jammu & Kashmir and Manipur.
In July 2016, the top court asked for a thorough probe into the alleged killings in Manipur and held that “excessive or retaliatory” force by the armed forces was not permissible under Afspa. It also noted that democracy would be in grave danger if citizens were killed merely on suspicions.
In 2017, the top court ordered a Central Bureau of Investigation (CBI) investigation into 97 alleged cases of extrajudicial killings by the Indian Army, Assam Rifles and the Manipur Police in insurgency-hit Manipur. In August this year, while seeking an update on the CBI probe, the bench hit out at the agency for not arresting the officers in murder cases.
Also read: Don’t demoralise soldiers by diluting AFSPA
The court also commented that CBI was letting “murderers” roam free. It was this comment that provoked the filing of the petitions by the soldiers.
In its submission, the Centre said that armed forces were operating in an “altogether different situation” in disturbed areas, and a balance has to be struck.
The court said this was not its job but was that of the government. “Who has stopped you from coming out with a mechanism? Why do you require our intervention? These are issues which you have to discuss, not the courts. When there is a loss of life, even in an encounter, should not the human life demands that it should be looked into and investigation should be done?” Justice Lokur asked.
Advocate Aishwarya Bhati, appearing for the soldiers from the army, told the bench that the plea should be heard along with the main matter, which relates to alleged extrajudicial killings in Manipur. But the bench disagreed with her contention and said the two issues were separate.
Bhati contended the directions in the Manipur encounter case on AFSPA were contrary to an earlier verdict of the top court. The bench, however, retorted that the judges were forced to pass orders because the Centre had failed to give an assurance that action would be taken against members of armed forces.
“If no action is taken at all by the authorities under the Army Act, you cannot say that no investigation can go on,” the bench said.
Bhati clarified the petitioners were not asking for complete immunity but protection as they were facing “proxy war” in AFSPA areas.
“Today, we are not giving any clean chit to either side,” the court remarked, adding that CBI’s final investigation report would be subject to a court’s scrutiny.
First Published: Nov 30, 2018 18:40 IST