By Prarthana Mitra
The Supreme Court on Friday turned down a petition by 355 serving army officers protesting the lodging of FIRs against soldiers involved in operations in Manipur and Jammu and Kashmir under the Armed Forces (Special Powers) Act (AFSPA). The apex court further insisted on continuing the probe into the alleged extrajudicial killings by the Army, Assam Rifles and state police in insurgency-hit Manipur between 1985 and 2010.
Why was the petition filed?
355 soldiers had filed the petition challenging the First Information Reports filed against soldiers for carrying out operations in Manipur, and Jammu and Kashmir. One of the advocates also told the bench that around 400 retired defence personnel have approached the Supreme Court in support of the serving army officers.
This comes after the top court ordered an inquiry into the incidents in Manipur after finding that no action had been taken even 15-20 years after complaints alleging fake encounters were made.
Prosecution of officers and soldiers fighting insurgency and terrorism in these border states was having a “demoralising effect”, Solicitor General (SG) Tushar Mehta told the court on behalf of the Centre. The Centre is seeking specific guidelines to protect the “bona fide action of soldiers” under AFSPA.
What did the SC bench say?
Acknowledging the difficult situation faced by soldiers in “disturbed” areas, the bench, headed by Justices Madan B. Lokur and U.U. Lalit clarified to the petitioners that protection under AFSPA only extended to soldiers involved in genuine encounters.
After repeatedly asking the attorney general about the action taken on the complaints, the apex court found that the Army had not yet conducted an inquiry into decades-old incidents that had shaken Manipur. “When we found nothing has been done, we handed over the investigation to CBI in only those cases where a prima facie finding on possible fake encounters had been recorded by high court, a judicial commission, Justice Santosh Hegde Commission or NHRC, the bench said on Friday.
The court reminded them that even though they could still approach a court of inquiry, one of the cases in the past had ended with the Manipur government paying the compensation. Despite that, nothing was done to find the real culprits behind the offence.
The court had earlier ordered the registration of FIRs in as many as 100 out of 1,582 deaths registered in the northeastern state between 2000 and 2012 possibly owing to police and military brutality.
How did the Centre and petitioners’ counsel respond?
According to media reports, the bench was firm and brushed aside the Centre which supported the plea.
SG Mehta said that a balance needed to be struck to ensure that a soldier did not become trigger-happy. In response to his request to stall the probe lest soldiers become demoralised, the bench replied, “Who has stopped you from coming out with a mechanism to strike a balance? Why does it require our intervention? These are issues you [the Centre] need to decide. We are not stopping you from debating. You can debate and find out a mechanism for striking a balance between armed forces operations against extremists and protecting the rights of innocent.
When there is a loss of life, even in a[n] encounter, should not the human life demands [sic] that it should be looked into and investigation should be done, the bench remarked.
Counsel for the soldiers Advocate Aishwarya Bhati said, The country which doubts its soldiers and their martyrdom is bound to lead to a collapse of its sovereignty and integrity. [sic]
What is AFSPA and why do people protest against it?
Decried by international bodies because it allows the army “special powers” to arrest, rape, and kill people with relative impunity, the AFSPA has come under increasing scrutiny owing to Irom Sharmila’s 16-year-long hunger strike, and the naked protests led by the elderly Meitei women against a heinous rape and murder.
Tightening the leash on AFSPA’s powers, the CBI probe comes after years of reprehensible extrajudicial acts in the northeast. A 2004 committee report proposed the repeal of AFSPA but it was buried under two successive governments who did not want to hold the army accountable for its actions. After an 85% decline in insurgency-related events in the northeast for the first time in 27 years, AFSPA was withdrawn from Meghalaya and parts of Arunachal Pradesh. It remains in full force in J&K, Assam, Nagaland, and Manipur.
Prarthana Mitra is a staff writer at Qrius