New Delhi: An unprecedented petition was mentioned before the Chief Justice of India on Tuesday – 356 army officers have filed a writ petition asking for all court-monitored investigations into fake encounters by the armed forces to be stayed.
The names, ranks and regiments of all 356 officers are listed in the writ petition.
The first prayer of the petitioners is to protect the “bonafide” action of soldiers under AFSPA, “so that no soldier is harassed by initiation of criminal proceedings”.
This show of strength has been triggered by two cases which have brought the army to the brink of prosecution. The first case, on fake encounters in Manipur, began in 2012 and alleges 1,528 cases fake encounters took place in the state of Manipur alone. Strong action was taken this month, including the filing of an FIR against Major Vijay Singh Balhara.
The second is a new case on the deaths of three civilians in Shopian, Jammu and Kashmir, in January 2018. The state government had filed an FIR against Major Aditya Kumar of the 10 Garhwal Rifles in this case. His father Lt Col Karmveer Singh has approached the court seeking to quash the FIR. In March 2018, the Chief Justice of India stayed the investigation into this case.
The Manipur case has been referred to repeatedly in the petition, with the petitioners asserting that the historic orders passed by the Supreme Court in 2016 and 2017 to investigate the cases of alleged fake encounters are against the Indian constitution.
The petition is also an ex-parte application for a stay, which means the victims who are seeking justice for their allegations of fake encounters may not be heard in court.
The army officers feel that the FIRs which are being filed against them by the CBI and state governments are “motivated and indiscriminate”. They call the victims “anti-nationals”. In the petition, they ask the court to initiate an investigation into the victims and petitioners themselves. They even ask for armed forces personnel who are the accused in this case to be given “adequate compensation” by the court.
Their petition says that army officers need to be safeguarded from “persecution and prosecution”. They have asked the court to ensure that no legal proceeding should be instituted against them without the sanction of the Central government.
Although the case on fake encounters in Manipur is already going on before Justice Madan B. Lokur and Justice U.U Lalit, Chief Justice Dipak Misra has himself scheduled this petition seeking a stay on that case, before his own court, for Monday.
Army officers claim that the CBI cannot investigate them
In their petition, the army officers claim that CBI’s manual and protocol is not being followed. “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.”
However, this issue was already hashed out in the Supreme Court on July 30 and the CBI as well as the Union of India were found to be inflating the CBI’s protocol, using that as a misleading explanation for their months of inaction.
On July 30 in the Supreme Court, CBI director Alok Kumar spent over an hour answering the judge’s questions on what exactly the CBI’s protocol for investigations is. In an earlier hearing, additional solicitor general Maninder Singh had misled the court, saying that the CBI had nearly ten layers of investigators who would have to examine the files, before a final report or chargesheet could be filed. On July 30, the judges examined Section 19 of the CBI manual itself and it was revealed that the CBI actually only had a two or three layer process.
The CBI’s director then told the court that the extensive layers of protocol was in fact only an “internal arrangement” and was not necessary according to the CBI’s own manual. Kumar assured the court that he would whittle down the unnecessary bureaucracy and speed up the filing of cases. The Wire reported on this in July.
Army officers say even FIRs cannot be filed against them
Apart from not wanting to be investigated or prosecuted by the CBI, this new petition goes so far as to say that FIRs cannot be registered against them at all. This issue is already a matter of dispute in court, in the earlier case of Major Aditya Kumar, who’s father is separately challenging this matter.
So far, the CBI was in fact not naming any armed forces personnel in their FIRs on encounter killings in Manipur. Until earlier this year, the CBI was filing their new FIRs against “unknown persons.” This was even in cases where the names and ranks of the accused armed forces personnel was known from the original FIR’s filed by the victims. The judges recorded this behaviour in February and said that the CBI’s new FIRs were simply “re-registered and re-numbered” versions of the original ones filed many years ago. The Wire reported this in May.
But in the Manipur encounter case, an FIR was filed last month which named Major Vijay Singh Balhara. And in the Jammu and Kashmir encounter case, Major Aditya Kumar was named in an FIR by the Jammu and Kashmir government’s investigation.
CBI has registered another FIR in Manipur encounter cases. Major Vijay Singh Balhara among others has been named as an accused in the FIR. pic.twitter.com/xBtfEXwbqa
— The Leaflet (@TheLeaflet_in) August 2, 2018
These two FIRs have been unprecedented and the actual naming of the army officers in just the FIRs has pushed the armed forces fraternity over, causing this demand for immunity.
The petition thus directly references both the Manipur case and the Jammu and Kashmir case. For example on Manipur it says, “the direction and pressure resulted in CBI filing an FIR in the name of an officer of Army (Col Vijay Balhara), after the directions of the Court on 30 July 2018. This has severely affected the morale of many officers and troops who are presently operating in these areas.”
The petition by the armed forces personnel also places store on the central government, saying that only the central government should or can give permission for investigation and/ or prosecution.
However, information revealed in parliament this year showed that the Central government was not interested in going down this route, at least in Jammu and Kashmir where the state government is pursuing 50 cases of violence by the armed forces. This includes cases of murder, rape, torture, disappearances and fake encounters, on civilians, allegedly by the armed forces, in Jammu and Kashmir.
@MPHusainDalwai asked GoI in Parl to give details on cases. Cases include murder of civilians (17), rape (2), torture (2), disappearance (7), fake encounter (1) etc.@DefenceMinIndia said it denied permission to prosecute in 47/50 cases due to “insufficient evidence.”
3 pending. pic.twitter.com/549gvoOqAn
— Anoo Bhuyan (@AnooBhu) April 29, 2018
Requests to the defence ministry to disclose its procedure in approving or denying the prosecution of the armed forces are also being denied by the government.
4/4. @CHRI_INT filed RTI asking GoI to disclose protocol involved in approving/ denying prosecution of cases involving Indian armed forces.
RTI being stalled, denied, diverted.
Gov of India contradticting itself in RTI replies as it evades accountability. https://t.co/bxXbzyneoO
— Anoo Bhuyan (@AnooBhu) April 29, 2018