Supreme Court seeks government stand on AFSPA

Irked by the Centre’s diametrically diverse views on Army and paramilitary forces’ immunity from criminal prosecution in fake encounter killings, the Supreme Court on Thursday asked the government to spell out its position on the controversial Armed Forces Special Power Act and other laws.

“You cannot say that an Army man can enter any home commit a rape and say he enjoys immunity as it has been done in discharge of official duties,” the apex court remarked.

The apex court made the remarks after senior counsel Ashok Bhan, appearing for the Centre, voiced divergent views on two separate encounter killings involving military personnel in Jammu and Kashmir and Assam.

In the 2004 Chattisingpora killing in Jammu and Kashmir, where seven youth were killed in an alleged fake encounter by Rashtriya Rifles personnel, Mr. Bhan sought prosecution of the armymen whereas in a similar alleged fake encounter by CRPF men in Assam, the counsel said they enjoyed immunity.

“How can you adopt diametrically different views?” the Bench said, to which Mr. Bhan admitted it was “compulsions of his professional duties.”

He urged the court to de-link the two issues and deal with them separately.

However, the Bench said since “the issue involved vital questions of law relating to public”, the matter would be taken up for a detailed hearing immediately after vacation.

The court asked the government to clearly spell out its stand on two issues: whether army and paramilitary personnel enjoy immunity from criminal prosecution for any penal offence committed in discharge of their official duties including fake encounters and rapes vis-a-vis AFSP Act, Section 197 CrPC and Section 17 of the CRPF Act.

Should the investigating agency like CBI conduct a preliminary inquiry into such killings before registering an FIR against accused army and paramilitary personnel.