The AFSPA in practice

Lt Gen (R) H S Panag, who served for five years on the Armed Forces Tribunal of India, has this Times of India "Shooting Straight" column describing -- against the backdrop of a particular recent incident from Jammu & Kashmir -- how the Armed Forces (Special Powers) Act functions in deciding whether to prosecute military personnel in civilian or military court. Excerpt:

Human rights violations do take place in an insurgency where force has to be used against terrorists who intermingle with people and enjoy their tacit or coerced support. First, violations may be the result of legitimate and good faith actions. Such cases should and do have the protection of AFSPA. Second, violations stem from overzealous actions of the security forces. These also get the protection of AFSPA from prosecution in civil courts. However, violations of laid down rules of engagement are dealt with under military law. Third, violations are caused by rogue actions. Such cases do not have or deserve the protection of AFSPA. Even in these cases, the courts permit the Army to carry out trial by court-martial.

The Supreme Court has examined the AFSPA in detail in a number of benchmark cases. While it has upheld the legality of the act, it has categorically ruled that the immunity provided to soldiers is only for “good faith” actions and is not absolute. Actions of the troops can be investigated, keeping in view the law of the land, COAS commandments and “dos and don’ts” laid down by the Army. 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. 

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In all legitimate cases of use of force, police closes the case and it remains on record to avoid future opening of cases, as has happened many times earlier. In controversial cases, the police carries out its investigations and a parallel Court of Inquiry is conducted by the Army. When the chargesheet 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. In most cases the matter ends there.

In rare cases, the court decides to proceed with the case under the Army Act, Section 126. However, under the AFSPA, central government permission is required to proceed with such cases. This has never been granted up till now. Some cases do linger and go up to the High Court and even Supreme Court. There is not a single case where the Army’s stand has not been upheld. Appearance of individual soldiers in courts is exceptional. The Army has a well laid out procedure to carry such cases to their logical conclusion.

Not one?