The Supreme Court said on Friday that it was not up to the judiciary but the government to devise a mechanism to uphold human rights in the insurgency-hit areas and protect soldiers who served there and acted in the course of duty.
A Bench of Justices Madan B. Lokur and U.U. Lalit dismissed a petition by 355 Army officers, serving in insurgency-hit areas such as Jammu and Kashmir and the north-eastern region, against the court’s decision to order a CBI probe into the encounter deaths in Manipur between 2000 and 2012.
The officers said the court-monitored investigation and chargesheets had hit the morale of the ranks.
The soldiers were “shaken” and feared they would be “persecuted” for doing whatever was necessary to serve their country in under extremely tough conditions. The officers urged the court to pause and understand the “realities of the battle field.”
“The fact that 350 soldiers of our country have to pray for this is itself unfortunate,” Solicitor-General Tushar Mehta said, expressing the “full support” of the government to the petition.
Calls for debate
Mr. Mehta invited the court for a “discussion” on devising a mechanism to safeguard the soldier’s resolve and yet deter him from being trigger-happy.
“Let us have a debate and see whether a mechanism can be worked out by which the Defence is not demoralised and human life does not lose its value… The Centre wishes the Supreme Court to examine this issue. Don’t even issue notice on this petition, but just hear us,” Mr. Mehta said.
“Who has stopped you from coming out with such a mechanism? Why do you require our intervention? These are issues which you have to discuss, not us,” Justice Lalit retorted.
Justice Lalit said that only cases with prima facie evidence supporting the allegations against security personnel were referred to the CBI. “If the CBI finds evidence, the proceedings would go on… A citizen has lost his or her life. Should not human life at least have some value that an investigation is mandated,” Justice Lalit asked the government.
Advocate Aishwarya Bhati, for the officers, said no one was claiming blanket immunity from prosecution. The soldiers only wanted somebody who “understands the way things operate” to conduct the investigation.
“Your Lordships’ concern for human life is shared, but defence personnel cannot be demoralised. The country cannot afford that to happen… Is it not unusual for 355 soldiers to approach you? Even the life of an Army man has some value...” Mr. Mehta submitted.
To this, the court said there was no argument that soldiers who acted in the course of duty should be protected but a probe was necessary when a person was killed and the charge sheet alleged the defence personnel acted in excess of their authority. The court pointed out that it took almost 20 years and the Supreme Court’s intervention for an investigation into the deaths to reach this conclusion.
“Why did the Union of India not do anything? Who stopped you from devising a mechanism,” Justice Lalit asked the government.
The court, in a July 2016 judgment, ripped open the cloak of immunity provided by the Armed Forces (Special Powers) Act, 1958, and declared that “there is no concept of absolute immunity from trial by a criminal court” if an Army man committed an offence.
The Bench, which is hearing a public interest litigation (PIL) petition seeking a probe into 1,528 cases of extra-judicial killings in Manipur, had constituted an SIT and ordered filing of charge sheets in a time-bound manner.
