Why the petition by 356 serving Army men sets bad precedent

On August 14, an unprecedented writ petition was filed “collectively” by 356 Army officers in the Supreme Court. It may be a coincidence, but the number—356—relates to Article 356 of the Constitution. Under this, the President or the central government takes direct control of the state machinery, when a state is not able to function as per constitutional provisions.

According to the petitioners, “An extraordinary situation of confusion has arisen with respect to their protection from prosecution as defined under Section 6 and 7 of AFSPA (Assam & Manipur) and AFSPA (J&K).” The petition focuses on the alleged dilution of the Armed Forces Special Powers Act (AFSPA) without specific amendment to that effect.

It highlights the plight of soldiers in counter-insurgency areas—where on one hand they are fighting a difficult battle with the terrorists intermingled with the population, and on the other hand, false cases are being filed against them, and they are being prosecuted and persecuted by the police and the CBI on the directions of the State or the Supreme Court. The petitioners allege that soldiers are being prosecuted without taking the mandatory sanction of the central government.

The petition comes in the wake of the Supreme Court ordering the constitution of a Special Investigation Team of the CBI to probe 1,582 alleged cases of extra-judicial killings between 2000 and 2012 in Manipur. The CBI investigation was ordered based on the commission of inquiry headed by Justice Santosh Hegde.

The petitioners specifically focused on two cases out of these 1,582 cases. The first relates to an FIR filed on January 27, 2017, against Major Aditya Kumar of 10 Garhwal Rifles for an incident in a village in Shopian district, Jammu & Kashmir, in which three alleged stone pelters were killed. The second case concerns an incident in March 2009 in Manipur, for which an FIR has been filed against Major (now Colonel) Vijay Singh Balhara of 21 Assam Rifles by the CBI for allegedly killing a 12-year-old boy, Mohammed Azad Khan.

While the petitioners concede that the AFSPA does not provide absolute immunity from prosecution, they seek that the filing of the FIR and investigation must commence only after necessary sanction from the central government. They want clarity with respect to Section 6 (Section 7 in J&K AFSPA) of the AFSPA. The petitioners seek a virtual review of the Supreme Court judgements of 2016 and 2017 with respect to the investigation of the fake encounters in Manipur. They claim the soldiers act only in good faith, based on the orders of the government and their superiors, and all cases instituted against them are by sympathisers of terrorists. They remain ambiguous on bad faith actions of soldiers.

The specific prayers of the petitioners are:

Laying down specific guidelines to protect the bonafide action of soldiers under AFSPA, so that no soldier is harassed by initiation of criminal proceedings for actions done in good faith in exercise of their duties.

Direction to the State to protect the soldiers from persecution and prosecution by “motivated and indiscriminate FIR’s”.

Declaration that AFSPA is imperative to protect the soldiers engaged with direct and proxy enemy and insurgency and it cannot be diluted without a specific and categoric amendment in law.

Directions that protection of persons acting in good faith under AFSPA is sacrosanct with the sovereignty and integrity of the Nation and that in accordance with the mandate of the Act, no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by AFSPA.

Directions that any investigation, assessment or adjudication qua the criminality, misuse, abuse, negligence, excessive power, judgment error, mistake, bona fide or mala fide , of actions done in good faith by Soldiers operating in AFSPA areas, in disregard to the peculiar facts and circumstances of insurgency and proxy war, without taking into consideration the Standard Operating Procedures of Indian Army and operational realities, without the aid, advise, involvement and guidance of persons who understand full dynamics of such military operations, is illegal, unconstitutional and non-est ( it was not done).

Directions to the respondents (the State) to carry out a comprehensive investigation into acts of individuals/ organisations to target and attack soldiers in exercise of their bonafide duties of upholding the dignity of Indian Flag, by launching mischievous complaints against them.

Directions to the Respondents to desist from engaging in arbitrary exercises of executive power which impairs the normal and bonafide functioning of the Army in the AFSPA.

Directions that adequate compensation is provided to the effected serving personnel and their families, who have been unnecessarily embroiled in mala fide criminal proceedings in discharge of their bonafide duties; and/or

Any other appropriate writ/order/direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

This extraordinary petition raises three issues with respect to the functioning of the military and its relationship with the state and the judiciary:

1. The legal and moral implications of the “collective” petition in the Supreme Court with respect to a service matter.
2. Abdication of responsibility by the Indian Army and the government with respect to protecting the interests of soldiers operating in counter-insurgency areas under the AFSPA.
3. The ambiguity of the AFSPA and the law laid down by the Supreme Court with respect to its interpretation to investigate the cases of alleged human rights violations by the soldiers, and the need for review.

Under Article 33 of the Constitution and Section 21 of the Army Act, 1950, enacted by Parliament, the Centre is empowered to modify certain fundamental rights with respect to their application to persons subject to this Act and make rules to that effect. Empowered by the Constitution and the Army Act, the Central government vide Rule 19, Army Rules, 1954, clearly laid down that no person subject to the Army Act without the express sanction of Central government “[can] take official cognisance of, or assist or take any active part in, any society, institution or organisation, not recognised as part of the Armed Forces of the Union”, or “be a member of, or be associated in any way with, any trade union or labour union, or any class of trade or labour unions”.

This collective action by the 356 officers and soldiers in filing the petitions prima facie has violated Army Rule 19, and is liable for disciplinary action under Section 63 of the Army Act.

A quasi-association seems to have been formed wherein the 356 officers and soldiers have deliberated collectively to discuss, debate, sign and file the petition. When soldiers are aggrieved, they can seek redress from their immediate superiors, or even approach the Chief of Army Staff or the central government through non-statutory or statutory complaints.

Was this right exercised by these officers and soldiers? Were the superiors aware of such a “collective” action? One would have to stretch one’s imagination to absolve the superior leadership of the Army of tacit if not formal approval of this action.

Even if we disregard the provisions of the Army Act and Army Rules—keeping in view the constitutional right of any citizen to seek redress under Article 32—the propriety of such a “collective” action militates against the ethos and culture of the armed forces. Allowing such a petition to progress without even a frown, let alone disciplinary action, from the Army or the Ministry of Defence will open Pandora’s box. What if defence personnel “collectively” file similar petitions to seek redressal of real or perceived grievances with respect to pay, allowances, conditions of service, or quality of combat equipment?

Since public memory is short, let me remind readers that when the 5th Pay Commissions was announced, agitating technical services personnel of the Indian Air Force and their families had collectively “gheraoed” their senior officers at a number of Indian Air Force stations.

It was a virtual mutiny—but since the word “mutiny” is a taboo in India it was downplayed. The agitation continued for a number of days and necessary disciplinary action was subsequently taken. In the past, such petitions have been filed by individual officers, and the armed forces and Ministry of Defence formally disassociated themselves from such actions, and opposed such petitions in the Armed Forces Tribunal and the Supreme Court.

The composition of the 356 officers and soldiers itself tells a tale. The prime mover is an officer of the Judge Advocate General’s Branch (legal branch) posted in a Corps Headquarter, who should be well aware of the legal and moral implications of the “collective” action. He was earlier a member of the Army Headquarters legal cell, assisting the senior government law officers in the Supreme Court.

Most of the officers and soldiers are from Northern Command with a relatively small number from the Eastern Command, and a minuscule sprinkling from the rest of the Army. Curiously, a mechanised infantry unit has 107 signatories, or 30 per cent of the total. Now, a mechanised unit has a very limited involvement in counter-insurgency operations, except individuals serving in Rashtriya Rifles or Assam Rifles (in case of officers).

The grapevine says an FIR has been filed against a senior officer of the unit for his tenure in Rashtriya Rifles or Assam Rifles. It spells ominous portents that over 100 officers and soldiers of this unit were motivated to sign a petition apparently in support of an officer for an alleged offence committed in another unit. The coordination and motivation of the 356 officers and soldiers to collectively sign such a petition also smacks of a conspiracy for “collective action”. This would qualify for collective insubordination, if not mutiny, in any armed forces.

If this is not enough, the print and television media were apparently contacted well before August 14, and the media was abuzz with rumours of the impending petition. Social media also saw rumours beginning from August 8 about the pending petition.

A prominent Right-wing Twitter handle published a YouTube video dated August 13, titled “Indian Army Potential Revolt”. In the video, he lauded the “revolt” of the officers and soldiers, comparing them to Mangal Pandey. As per the video, he seems to have been aware of this collective action for quite some time. It seems that some officers and soldiers contacted the mainstream media and Right-wing activists on social media about their petition, which violates Rule 21, Army Rules, 1954, read in conjunction with Section 21, Army Act 1950, and invites disciplinary action under Section 63 of the Army Act.

Grievances of soldiers that cannot be resolved internally are projected by the Army Headquarters to the government, via the Ministry of Defence. Consequently, if officers and soldiers in counter-insurgency areas are facing problems, it was for the Army Headquarters to project their case to the government. It was for the government to take appropriate legal action to redress the problems arising due to the orders of the Supreme Court. A case should have been taken up for the setting up of a constitutional bench to review the application of the AFSPA. Alternatively, Parliament should have been moved to legislate a new act with rules. The inaction of the government has brought the situation to this sorry pass.

Worse than that, the acquiescence of the Army Headquarters and the defence ministry towards the unprecedented “collective action” of the officers and soldiers—and by default or design, abetment of the same and allowing them to act as an independent pressure group—will have serious repercussions for civil-military relations in future. There should be no doubt that the Army Headquarters and the government have abdicated their responsibilities with respect to the soldiers’ problems, and allowed the soldiers backed by the emotional public to virtually challenge the Supreme Court and the law of the land.

In Part 2 of the column, I further discuss the ambiguity of the AFSPA and the need for review.