SC to hear plea of Army personnel challenging prosecution in AFSPA areas

A bench comprising Chief Justice Dipak Misra and Justice AM Khanwilkar considered the submissions of lawyer Aishwarya Bhati that the Army personnel are being "persecuted" and proceeded against for performing duties in such disturbed areas.

The petition was filed by the army officers, including Col Amit Kumar. They range from the level of Section Commanders to Commanding Officers of the Section, Platoon, Company and Battalion, leading 10 to 1000 men each.

The filing of the plea by serving Army officers assumed significance as the CBI's SIT has recently filed charge sheets in two separate encounter cases in Manipur against armed forces in which murder charges have been slapped.

The SIT was constituted by the apex court while hearing a matter related to alleged fake encounters by the Army, Assam Rifles and the state police in Manipur.

The Army personnel, in their petition, claimed that they "are now facing confusion and countering questions from the soldiers under their command, as to whether they are supposed to continue to engage the proxy war and insurgency with their military training, principals, standard operating procedures, operational realities, valour and courage or act and operate as per the yardsticks of peace time operations, law and order issues and CrPC."

The plea said that an "extraordinary situation of confusion" has arisen with respect to their protection from prosecution, as defined under the sections AFSPA (Assam and Manipur) and AFSPA (Jammu and Kashmir), and that such prosecutions lower the morale of the military and para-military forces.

"This protection doesn't give any blanket prohibition or any special right to the soldier for himself, but facilitates his functioning and operations in extraordinary circumstances of proxy war, insurgency, armed hostility, ambushes, covert and overt operations.

"Such operations are materially and substantially different from law and order situations. Absolute protection for bona fide actions of soldiers in this extraordinary situation is imperative to enable the soldier to carry out his duty effectively and efficiently, which in turn is the sine-qua-non for protection of Nation's sovereignty and integrity," the petition said.

It said "any criminality, misuse, abuse, negligence, excessive power, judgment error, mistake, bona fide, mala fide, good faith or mens rea have to be questioned, considered, assessed, investigated or adjudged only with respect to the peculiar facts and circumstances of insurgency and proxy war, taking into regard the Standard Operating Procedures of Indian Army and operational realities."

Any such exercise can only be conducted with aid, advice, involvement and guidance of persons who understand full dynamics of such military operations. Civil police or even CBI cannot even be expected to be in the know-how of the complete picture, it said.

It sought specific guidelines to protect the bona fide action of soldiers under the AFSPA, "so that no soldier is harassed by initiation of criminal proceedings for actions done in good faith in exercise of their duties, as mandated by the Union of India, in protection of sovereignty, integrity and dignity of the country."

It sought protection of soldiers protecting the integrity and sovereignty of the nation from persecution and prosecution by motivated and indiscriminate FIRs against the mandate of law.

It said the protection of persons acting in good faith under AFSPA was sacrosanct with the sovereignty and integrity of the nation.

"...the manner in which the ongoing enquiry is being forced to speed up by the court and charge sheets to be filed up in a time bound manner without following the prescribed procedure as per the CBI manual, reflects the extremely vulnerable state for the officers and troops who were engaged in these operations," it said.

It said the "garb of protection of human rights should not be taken as a shield to protect the persons involved in the terrorist act."