Events leading up to the filing of writ petitions by hundreds of serving officers of the Indian army raise disturbing and serious questions about their refusal to be bound by the judgments of the Supreme Court of India. Do such actions amount to wilful disobedience of the judgment of the highest court of the land or do they violate the very principles underlying the Army Act 1950, or both?
The petitions appear to be ill-advised, if not politically motivated, undermining the very “discipline” that the army represents. Have these officers been permitted to file such petitions questioning the judgment of the Supreme Court by their respective commanding officers or the army headquarters? If not, should Army Headquarters have not taken swift action against them? These are searching but disturbing questions. If indeed the petitions have been filed with active or tacit support from the army higher-ups, the matter assumes even more serious significance.
The principle, “be you ever so high, the law is above you” stands firmly affirmed in this country. The Constitution of India is paramount. Fundamental rights including the right to life guaranteed under Article 21 applies to all citizens including the alleged rebels or insurgents. If the Geneva Conventions, to which India is a party, demand that prisoners of war be treated with utmost respect and that their safety be guaranteed and the Indian army has a sterling record in treating almost 90,000 POWs after the 1971 war for almost a year as per that convention, there is no reason why Indians citizens must be killed wantonly merely because any state – Manipur in the present instance – is declared a “disturbed area” to which the Armed Forces (Special Powers) Act, 1958 applies.
Constitution and armed forces
The constitution does not recognise the armed forces as either superior or independent of civil authorities. In fact, Article 53(2) expressly provides that,
“The supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law”.
The Armed Forces (Special Powers) Act (AFSPA) is referable through Entry 2A of List I, which empowers parliament to legislate on subjects mentioned therein and expressly provides for a legislation for “deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power…”.
Section 3 of AFSPA expressly declares that if any state, “is in such a disturbed or dangerous condition that the use of Armed Forces in aid of the civil power is necessary”, the whole or such part of the state may be declared as a disturbed area.
Section 4, which gives special powers to the armed forces, expressly requires a designated officer to form an opinion that it is necessary to do so for maintenance of the public order to fire upon or otherwise use force even to the causing of death but only after giving “due warning” and only against any person who is acting in contravention of any law or order, prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or as firearms, ammunition or explosive substances. He can even authorise arrest without warrant of any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit such an offence. He can also authorise entry and search without warrant any premises to make such arrests or to recover any person or property or arms, ammunition or explosive substances believed to be unlawfully kept in such premises.
Section 6 of the Act, which throws a protective umbrella around members of the armed forces acting in disturbed areas, expressly prohibits prosecution, suit or other legal proceedings except with the previous sanction of the Centre, but only against such persons “in respect of anything done or purported to be done in exercise of the powers conferred by this Act”.
The Act therefore does not give blanket powers as is generally assumed, especially amongst the members of the armed forces. The exercise of powers is seriously controlled by the checks prescribed under the Act itself. Besides the constitutional safeguards, Part III of the Constitution never stands suspended even in disturbed areas. The armed forces are not a law unto themselves, but must throughout act only in aid of civil power.
Army’s ‘ten commandments’
Realising this position, the chief of army staff has issued ‘ten commandments’, including, “remember that people you are dealing with are your own countrymen. All your conduct must be dictated by this one significant consideration”, “operations must be people friendly using minimum force and avoiding collateral damage-restraint must be the key”, “no operations without police representative. No operations against women cadres under any circumstances without mahila police. Operations against women insurgents be preferably carried out by police”, “uphold Dharma and take pride in your country and the army”, and lastly “be compassionate, help the people and win their hearts and minds”.
Army headquarters has issued a series of “dos and don’ts” while providing aid to civil authority including, “aim low and shoot for effect”, “ensure high standard of discipline”, “do not use excessive force”, “no torture”, “no communal bias while dealing with civilians”, “hand over the arrested person to the nearest police station with least possible delay”, and most importantly, “directions of the high court/Supreme Court should be promptly adhered to.”
In this backdrop, the Supreme Court heard and decided a writ petition, Extra-Judicial Execution Victim Families Association versus Union of India, over a period of four years and ultimately – by judgment and order dated July 8, 2016 – held that the petition alleging gross violations of human rights is maintainable under Article 32 and directed that 1,528 cases of killings of citizens must be enquired into.
In so doing, the Supreme Court:
- Was conscious of the sensitivity of the matter and the respective rights of the citizens vis-a-vis the duties and powers of the armed forces
- Appointed as amicus curiae Menaka Guruswamy, an extremely competent lawyer to assist it
- Appointed a commission headed by one of the most respected former judges, justice Santosh Hedge, along with J.M. Lyngdoh, former chief election commissioner and Ajay Kumar Singh, former DGP Karnataka. The commission found that out of the six cases referred to it, all persons were killed without just cause. Similarly, NHRC had found wanton killings in 31 out of 62 cases examined by it
- Accepted detailed affidavits from the Union of India and other parties.
- Heard the attorney general of India, who holds the constitutional office by virtue of Article 76 and is the highest law officer of the Union including the Ministry of Defence and the armed forces
The judgment is not only reasoned, but is erudite in law, especially constitutional law and human rights law. The court has considered the matter from all perspectives, including that the public order situation in Manipur is “an internal disturbance” and not a threat to the security of the country, that the armed forces are deployed in aid of civil power and therefore do not supplant and only supplement it and that the armed forces were intended to restore normalcy, yet for 60 years, Manipur continues to be a “disturbed area”.
Subsequently, the court heard matters in 2017 and by its judgment on July 14, found that since more than a prima facie case has been made out in the killings examined by inquiry commissions, high court or NHRC as the case may be, FIRs must be registered.
In addition, the court found that the 655 cases out of 1,528 for which statement had been filed by petitioners and accepted by the amicus curia and for which “no objection was raised by the Union of India” or by the state of Manipur needed to be investigated by a Special Investigation Team (SIT) since in none of those cases was any cognisance taken by any authority, including the state and the army.
Supreme Court cannot be faulted
The Supreme Court cannot be faulted on any count, having performed its constitutional duty after a detailed enquiry conducted in an open, fair and transparent manner. The Ministry of Defence and the army headquarters, as also the officers who have now moved the Supreme Court, were throughout aware of the proceedings and were watching from the fence. They were assisted by none other than the attorney general. They cannot now question the Supreme Court’s directions on any count since the remedy of review and a curative petition were available to the Union alone and none else.
It is doubtful if the petitioners today can even maintain an Article 32 petition because none of their fundamental rights are infringed. If at all, it’s a question of their legal rights under AFSPA, which can be resorted to by them before appropriate competent courts during trials.
Amongst the petitioners are officers of the judge advocate general (JAG) branch who are supposed to be acquainted with the law and the law does not authorise them to do what they have done. The provisions of the Army Act, 1950 militate against the present exercise by them in more than one manner. Does this amount to mutiny as defined in Section 37, in so far as their effort “endeavours to seduce any person in the military, naval or air forces, of India from his duty or allegiance to the Union”, and “begins, incites, causes, conspires with any other person to cause any mutiny in the military, naval or air forces of India or any forces cooperating therewith”?
The writ petitions militate against the highest court and therefore the Union. It is definitely a case of gross indiscipline. These acts of commission are too serious to be ignored by those in highest constitutional positions and the army headquarters. The rot has set in and must be stemmed forthwith before irreparable damage is inflicted on the rule of law and a full scale confrontation develops with the judiciary and creates avoidable dissatisfaction amongst our brave soldiers. The scars will be too deep. The chief of the army staff has himself expressed grave reservation about these actions. He must take the matter to its logical end and ensure supremacy of the law, vital to our democracy.
I have always admired and loved the armed forces. I have special affinity on account of my own brother having served the army with distinction and having seen active warfare in 1965 and 1971. I have always appeared for members of the armed forces pro bono and whenever I felt the need, supported serving officers or their families with financial aid. As president of the Supreme Court Bar Association, I even offered free legal camps with the help of the best lawyers of the country for our jawans on borders, which unfortunately was not acceded to by the army headquarters. On the One Rank, One Pension issue, the entire executive committee and myself visited Jantar Mantar and publicly supported the just cause. Yet, today I am deeply saddened by the turn of events. I hope and pray that my sadness is short lived.
Dushyant Dave is a senior advocate and former president of the Supreme Court Bar Association.