Rejecting a petition by 700-odd Army personnel protesting against the dilution of protection from prosecution under Armed Forces (Special Powers) Acts in disturbed areas for alleged fake encounters, the Supreme Court on Friday said it had ordered CBI probe only in a few specific cases after finding that the Army hadn’t conducted any inquiry into 15-20-year-old incidents.
However, the SC clarified that protection under AFSPA would be available to soldiers in case of genuine encounters.
The SC said, “We are aware of the difficult situation faced by soldiers in disturbed areas. That’s why we repeatedly asked the AG on action taken on complaints of fake encounters for the past 15-20 years. When we found nothing had been done, we handed over the probe to the CBI in those cases where a prima facie finding on possible fake encounters had been recorded.” A bench of Justices Madan B Lokur and U U Lalit said the Army had the choice of opting for a court of inquiry even as there were several cases where the Gauhati HC had granted compensation and Manipur paid, indicating the possibility of fake encounters.
“Should the real culprit behind the alleged fake encounter not be found out? When the Army or Centre does not take any action on probable fake encounters, should the truth not be found through an inquiry? If there is a loss of life in an encounter, should it be not inquired whether excessive force was used?” the SC said.
Finding the court in no mood to alter its July 8, 2016, and July 14, 2017, rulings ordering filing of FIRs in nearly 100 of the 1,528 cases of alleged extra-judicial killings by Manipur police and Army from 1985-2010, solicitor general Tushar Mehta stepped in to offer the Centre’s support to soldiers.
‘Govt must strike balance between Army ops & protecting human rights’
Soldiers had, in their petition, expressed apprehension that it would be difficult to carry out operations in disturbed areas due to fear of prosecution decades later. When the bench said it would not hear the Centre as no notice had been issued on the petition, Mehta pleaded and eked out a small window to put forth the Centre’s argument. He said, “We cannot shut our eyes to the unusual situation faced by soldiers in disturbed areas. Their hands must not shake while fighting terror. At the same time, a balance needs to be struck to ensure that a soldier does not become triggerhappy. Let there be a debate on the issue of striking a balance. Till then, the investigations order by the SC need to be stalled. We cannot demoralise our armed forces.”
Justices Lokur and Lalit asked the SG, “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.”
The petitioner soldiers, through advocate Aishwarya Bhati, had said, “The country which doubts its soldiers and their martyrdom is bound to lead to a collapse of its sovereignty and integrity.” They said they had been constrained to file the petition in view of an extremely hostile situation on ground because of prosecution of officers and soldiers for bona fide actions. It had a demoralising effect on troops deployed for counter-terrorism and counter-insurgency operations in J&K and north-eastern states, they said.
“Soldiers never hesitate to lay down their lives in the line of duty. However, the extraordinary circumstances in which their colleagues are being persecuted and prosecuted for carrying out bona fide duties has compelled them to approach the SC,” they said.