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.
LEGAL SHIELD The army argues that AFSPA must not be diluted