The article “AFSPA in Practice” by Lt Gen (R) HS Panag of 4 March 2018 has created a series of confusion on the functioning of the Indian armed forces in the aid to civil power. The four issues raised by the author (points 1-4) have been clarified and are as follows.
1. ….. violations stem from overzealous actions of the security forces. These also get the protection of AFSPA from prosecution in civil courts.
Correct Position: Section 7 of the AFSPA (J&K) provides that prosecution, suit or legal proceedings can be instituted in the case with the sanction of the Central Government. The members of the armed forces have no protection for the violations done by them during the aid to civil power. There have been cases where the Central Government has given sanction for prosecution of the members of the armed forces by the civil (criminal) courts.
2. The benchmark judgement given on July 8, 2016 by a three-judge bench examined all aspects in detail and ruled that every allegation of the “use of excessive force” must be investigated. It made the registration of an FIR mandatory in such cases.
Correct Position: This was decision of two-judge bench in the case of Extra Judicial Execution Victim Families Association (EEVFAM) v. Union of India and pertains to allegations of fake-encounter killings in the State of Manipur. The allegations against state police (special forces) as well as security forces were that these forces while operating in the state of Manipur have killed few insurgents in fake encounter. The Supreme Court has directed that such uses of excessive force in Manipur must be investigated and directed lodging of FIR. The case is continuing.
The incident of three deaths in self-defence in J&K must not be linked with the case of Manipur. The conclusion made by the author that “Thus the registration of an FIR (against Major Aditya) is within reason and is mandatory…” is wrong and out of context.
3. When the charge-sheet is filed in court, if both the inquiries are in consonance, that a wrong has been done, the Army takes over the case under Army Act Section 125 and conducts a trial by court-martial. In cases where only the police investigations find that an offence has been committed, the Army informs the court about its own inquiry and invokes AFSPA. …… However, under the AFSPA, central government permission is required to proceed with such cases. This has never been granted up till now.
Correct Position: The author is perhaps not aware of the legal position. Army Act s. 125 gives power to a military commander to take over cases of military member if he has committed a civil offence (i.e. under concurrent jurisdiction). After a case comes up in the civil court, the accused person is required to be handed over to the military for the trial and shall be detained in the military custody. At the same time, a civil (criminal) court may demand under section 126 that a military accused be handed over for his trial in a civil court. In case of any dispute as to the forum of trial, the decision of the Central Government remains final. The procedure for resolving the dispute is contained in the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules 1978. The author is wrong to suggest that Army invokes AFSPA in such cases.
4. In fact, experienced commanders in J&K always insist that an FIR be filed in all cases of deaths caused by use of force by security forces irrespective of whether the local police had filed one or not. This is to ensure proper investigation and legitimate closure of the case. The emotive protests against the lodging of an FIR in the instant case are due to ignorance of the law and Army’s own time tested policy…..
Correct Position: The author appears confused about the lodging of FIR by the members of armed forces under Cr PC s. 154, whenever they use force against insurgents or recover weapons/stores etc., with the lodging of FIR against the members of the armed forces for the use of force in self-defence or during anti-insurgency operations. In the instant case FIR was lodged against the members of the armed forces for using force in self-defence or for protection of the government property. The J&K Government has now clarified that no FIR has been lodged against Major Aditya.
When the armed forces act in the “aid to civil power” under Cr PC sections 130 or 131, their members cannot be prosecuted unless the sanction of the Central Government is obtained under the Cr PC s. 132. When members of the armed forces function in the “aid to civil power” under AFSPA, this protection is available under AFSPA s. 7. This must not be confused with the issue of concurrent jurisdiction under Army Act s. 126 and 126.