AFSPA: Army Men Cannot Get Away with Anything

AFSPA grants immunity to army personnel for shooting at people whom they think are likely to create disorder. But it certainly does not authorise fake encounters or other kinds of atrocities.

The recent judgment of the Indian Supreme Court rejecting petitions filed by 350 army men seeking the quashing of FIRs which had been been filed against them for extra judicial killings in fake ‘encounters’ in Manipur, Kashmir and some other states, must be welcomed by all supporters of the rule of law, civil liberties and human rights.

The states in which these alleged extra judicial killings occurred were those declared to be ‘disturbed areas’ under the Armed Forces (Special Powers  Act, 1958.

That Act had been promulgated as a temporary measure, but as someone remarked, if after 60 years the ‘temporary’ Act continues to operate, one wonders what would be a permanent Act.

Also read: Supreme Court Slams Claim That Manipur Fake Encounter Probe Will ‘Demoralise’ Army

AFSPA grants immunity to army personnel for shooting at people whom they think are likely to create disorder. But it certainly does not authorise fake encounters or other kinds of atrocities.

A petition was filed in the Supreme Court – Extra Judicial Execution Victims Family Association and Human Rights Alert vs Union of India – mentioning 1,528 cases of extra judicial executions by army and police personnel between 1979 and 2012 in the state of Manipur. The plea was that these be investigated by the Central Bureau of Investigation.

The court appointed a committee consisting of retired Justice Santosh Hegde as its chairman, and included J.M. Lyndoh, former chief election commissioner as a member, to enquire into some of the complaints. The committee found many of them prima facie correct. Consequently, the court ordered registration of FIRs against many army and police personnel and investigation by the CBI against them.

It is these orders which prompted the army, para military and police personnel implicated in fake encounters to approach the Supreme Court.

Also read: At the Heart of Army Officers’ Protest, an FIR Against Colonel for Child’s Killing

In my opinion, the court acted correctly in rejecting the petition. Army personnel must know that they are not above the law, and cannot get away with anything as long as there is a constitution guaranteeing fundamental rights, including the right to life and liberty under Article 21.

In the Nuremburg trials held after the Second World War in 1945, the Nazi war criminals, including Field Marshal Keitel and General Jodl, took the plea of ‘orders are orders ‘, but their plea was rejected and several accused were hanged. It was found that Keitel and Jodl had signed several orders for committing atrocities during the war, which were against the laws of war. They took the plea that they did so only under instructions from Adolf Hitler, their superior, but the International Tribunal held that carrying out illegal orders cannot absolve anyone.

Nazi Germany and the atrocities Hitler’s men committed cannot be compared with anything that preceded or followed it, but the ‘Nuremberg Principles’ have become the standard by which the conduct of security forces the world over are judged.

Watch: Encounter – Manipur’s Killer Cop Speaks

Justice Madan B. Lokur, who presided over the bench which decided the case, is retiring next month. He will go down in India’s judicial history as a judge who always upheld liberty – for instance in his decision in Dataram Singh vs State of UP in which he reiterated the principle laid down by the celebrated Justice Krishna Iyer in State of Rajasthan vs Balchand, that bail, not jail is the normal rule.

This is in stark contrast to the judges who rejected the bail plea of Abhijit Iyer-Mitra, whose only ‘crime’ was that he posted a satirical tweet (for which too he immediately apologised), and is still rotting in jail.

Markandey Katju is a former judge of the Supreme Court of India.