Over 350 serving Indian Army officers petitioned the Supreme Court on Tuesday, asking that the actions of soldiers in areas where the Armed Forces Special Powers Act is in force be exempted from legal scrutiny. The plea is being seen in the backdrop of a 2016 Supreme Court ruling that Army men did not enjoy absolute immunity from criminal prosecution even in places under AFSPA and directing an investigation into alleged extrajudicial killings in Manipur. It is unprecedented for soldiers to move the court, that too in such large numbers, over a matter that, if so required, should be dealt with by the Army as an institution. The move has raised concerns about human rights and questions about the politicisation of the armed forces.
Enacted by Jawaharlal Nehru’s government in 1958 to facilitate counterinsurgency operations in the North East, AFSPA gives the military vast powers in areas declared “disturbed”. The law currently applies in Nagaland, Manipur, Arunachal Pradesh, Assam and Jammu and Kashmir. It was withdrawn from Manipur on April 1.
No legal action
The Army officers’ petition calls upon the Supreme Court to issue “specific guidelines to protect the bonafide action of soldiers under AFSPA, so that no soldier is harassed by initiation of criminal proceedings for actions done in good faith in exercise of their duties”. Calling AFSPA “sacrosanct”, the plea asks that “no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by AFSPA”.
It also demands an investigation into individuals and organisation that have made complaints against army personnel for alleged human rights violations.
Extrajudicial killings
The court’s 2016 ruling that AFSPA does not provide absolute immunity from trial by a criminal court came in response to a Public Interest Litigation filed by the families of the victims of alleged extrajudicial killings in Manipur. “If members of our armed forces are deployed and employed to kill citizens of our country on the mere allegation or suspicion that they are the ‘enemy’ not only the rule of law, but our democracy would be in grave danger,” the court said. The court also ruled that the Army can only be deployed as “aid to civil authorities”, not for an “indeterminate period”.
The Army was unhappy with the judgement, as Scroll.in reported at the time. In 2017, the Supreme Court directed the Central Bureau of Investigation to inquire into cases of alleged extrajudicial killings in Manipur. On August 2, the CBI booked Major Vijay Singh Balhara for allegedly killing in cold blood a 12-year-old boy in Imphal West in 2009. It was the first time an Army officer had been charged in such a case.
Colin Gonsalves, counsel for the families whose petition led to the 2016 judgement, contended that the Army officers’ petition is a direct result of the CBI’s chargesheet. “This petition has nothing to do with nationalism or patriotism, as it is being made out to be,” Gonsalves said. “About 99.9% of Army men are fearless and faithful. There are only some rogue elements. How can you say that even if a person in uniform has killed a person in cold blood, they stand above the law and cannot be prosecuted?”
Babloo Loitongbam, executive director of the Human Rights Alert in Manipur, is of the view that the Army officers’ petition weakens the rule of law. “In cases of combat, we recognise killings will happen,” Loitongbam said. “But how can you protect people accused of extrajudicial killings? The CBI has examined the case and come out with a chargsheet. If despite this evidence, you are saying there can be no action then you are throwing out the rule of law and the Constitution.”
Politicisation of Army?
The petition has also sparked concerns about the politicisation of the military, given that collective action of this kind by Army officers is unprecedented. On Tuesday, the Hindu reported that “there seems to be tacit support of the Army” for the plea.
A former chief of the Army’s Northern Command suggested as much. “How did these officers come together?” asked the former commander who spoke on the condition of anonymity. “And if the case is so serious, why didn’t the Ministry of Defence take action? Why didn’t Parliament take action? This will open the floodgates. What will happen if another set of officers filed petitions against the top brass of the Army?”
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