AFSPA QUES­TIONS

India Today - - UPFRONT - —San­deep Un­nithan

In the clutch of highly sen­si­tive cases the Supreme Court is cur­rently hear­ing is one chal­leng­ing any di­lu­tion in the Armed Forces (Spe­cial Pow­ers) Act or AFSPA. Last Au­gust, the court ad­mit­ted this pe­ti­tion by nearly 700 serv­ing mil­i­tary per­son­nel.

The mil­i­tary frowns at serv­ing per­son­nel ap­proach­ing civil courts and Gen­eral Bipin Rawat re­acted on pre­dictable lines when he pub­licly won­dered why they were do­ing it. The pe­ti­tion­ers have sought guide­lines to pro­tect mil­i­tary per­son­nel from crim­i­nal pro­ceed­ings for ac­tions taken in the line of duty.

The pe­ti­tion ad­mit­ted by the Supreme Court this Au­gust was prompted by the CBI (Cen­tral Bu­reau of In­ves­ti­ga­tion) ac­tion to reg­is­ter an FIR against a serv­ing army Ma­jor for al­legedly killing a 12-year-old boy in Ma­nipur. The case was reg­is­tered after the SC ad­mit­ted an in­quiry into 1,500 en­counter cases in Ma­nipur in 2016 and di­rected the CBI to reg­is­ter cases in sus­pi­cious in­ci­dents.

Till date, no army per­son­nel have been pun­ished for vi­o­la­tions un­der AFSPA

Passed as an act of Par­lia­ment 60 years ago, on Septem­ber 11, 1958, the AFSPA gives armed forces per­son­nel op­er­at­ing in dis­turbed ar­eas ex­tra­or­di­nary pow­ers to search and seize

prop­erty with­out a war­rant and shoot to kill in or­der to main­tain pub­lic or­der. Army per­son­nel can­not be pros­e­cuted for ac­tions car­ried out un­der AFSPA. The act is in force in Jammu and Kash­mir, As­sam, Mi­zo­ram and Na­ga­land. It was lifted in Ma­nipur ear­lier this year.

Till date, no army per­son­nel have been pun­ished for vi­o­la­tions un­der the AFSPA and the army has zeal­ously fought at­tempts to di­lute the act. The army ar­gues that tin­ker­ing with the act makes its sol­diers vul­ner­a­ble to lit­i­ga­tion. With­out the AFSPA, they ar­gue, the armed forces can­not main­tain in­ter­nal se­cu­rity or be ef­fec­tive in op­er­a­tions to thwart in­sur­gent groups in Kash­mir and the North­east. But some army vet­er­ans ar­gue that the mil­i­tary is over-re­act­ing.

The AFSPA, they say, of­fers pro­tec­tion only in the case of ac­tion taken in “good faith in the per­for­mance of du­ties”. “It is per­fectly fine to seek pro­tec­tion against ma­li­cious or vex­a­tious pros­e­cu­tion, but not okay to seek im­mu­nity,” says a lawyer, re­quest­ing anonymity.

“Most armed forces have dealt with rogue or bad-faith ac­tions un­der mil­i­tary law to avoid con­flict with the law of the land,” says Lt Gen­eral H.S. Panag, former north­ern army com­man­der. “In the last few years, the cred­i­bil­ity of the mil­i­tary jus­tice sys­tem to deal with vi­o­la­tions has be­come sus­pect,” he adds.

The SC bench, con­sist­ing of Jus­tice Madan Lokur and Jus­tice U.U. Lalit, is to pro­nounce a ver­dict on the pe­ti­tion soon. The army will watch it very closely.

WASEEM AN­DRABI/GETTY IMAGES

LE­GAL SHIELD The army ar­gues that AFSPA must not be di­luted

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