Questions on the Army’s role

Lt Col. Karamveer Singh after a hearing on his petition in the Supreme Court on February 12.

WHEN the Army has been deployed in Jammu and Kashmir to handle an extremely hostile atmosphere prevailing there for a long time, can criminal action be initiated against individual armed forces personnel when they act in the line of duty? This is the fundamental question raised by the writ petition that has been filed in the Supreme Court by Lt Col. Karamveer Singh, father of Major Aditya Kumar, who is named in a first information report (FIR) by the Jammu & Kashmir Police in the Shopian incident.

The petition, filed on February 8, came up for hearing in the Supreme Court on February 12. Admitting the petition, a Supreme Court bench comprising Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud stayed any “coercive action” against Major Aditya Kumar and asked the Centre and the State government to make their stand clear on the issue within two weeks.

Aishwarya Bhati, counsel for the petitioner, said: “Now we will get to debate the question of the Army’s role in Jammu and Kashmir dispassionately. After all, the Army personnel are there not on their own, but they have been duly invited by the executive power of the State because the hostile conditions prevailing there have gone beyond their control.” According to her, the fact that the Supreme Court has admitted the writ petition and immediately stayed all “coercive action” against the major is significant because it is the first time such a matter has reached the apex court. “The Supreme Court has asked the State government and the Centre to clarify their position on this issue. This is significant because now we will also see clarifications on the governments’ stand on the role of the Army in Jammu and Kashmir,” she said.

That the petition was filed not by the Army but by Lt Col. Karamveer Singh was “disappointing”, said Maj. Gen. (retd) Satbir Singh, who heads the association of ex-servicemen. “This is disappointing because in such a case, the Army as an institution should have taken a stand,” he said. The Army has only issued a statement that the firing was in line of bona fide official duty in order to protect military personnel and the military property (tanks) from an “unruly mob”. “The soldiers responded after being provoked to the ultimate. It was an act in self-defence and to protect government property,” Northern Command chief Lt. Gen. Devraj Anbu had said earlier.

Former Army chief General V.P. Malik described the FIR filed in the case as “wrong and uncalled for” and demanded that the State government quash it immediately. “Otherwise, we will have to discuss AFSPA,” he said at a press conference in Chandigarh soon after the incident.

Satbir Singh said: “It is the civilian power that invokes AFSPA and calls the Army to operate in a particular area. It is for the government to decide whether it wants the Army or not.”

Karamveer Singh, while explaining his reason for filing the petition, said: “The present writ petition is filed by a decorated officer on behalf of his son for protecting the morale of the soldiers of Indian Army who are facing all odds in performance of their bona fide duties and laying their lives in the line of duty to uphold the dignity of the Indian flag.”

The petition has sought relief for the major and the quashing of the FIR on the grounds that since the armed forces personnel were operating in an area that is under AFSPA, and the action taken by them was in line of their bona fide official duty, they should have immunity from prosecution under civilian laws. It added that even if prosecution has to be initiated, it should have been done after an inquiry and after obtaining the Central government’s sanction. It asks why no action has been initiated by the government against those pelting stones.

It requests the court to direct the State to desist from arbitrary exercise of power impairing normal and bona fide functioning of the Army, protect soldiers from criminal proceedings, adequately compensate personnel and their families who are prosecuted, and order an independent investigation.

Purnima S. Tripathi