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UNPRECEDENTED: Over 300 Serving Armymen, In Personal Capacity, To Ask Supreme Court If Soldier's Discretion Can Be Put Under Legal Scrutiny

Written By Ankit Prasad | Mumbai | Published:

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  • In an unprecedented development, over 300 serving Armymen are to move the Supreme Court on Tuesday
  • The soldiers are to move a writ petition over their fundamental rights, asking whether a soldier's discretion can be put under legal scrutiny
  • The move comes against the backdrop of cases regarding the actions of on-duty Army officers coming under the scrutiny of internal security agencies and the judiciary

Update at 11:20 AM: Government should have taken the step to protect the soldiers, however, they failed in doing so. This is the reason that serving army men approached the court. The security condition in Manipur is critical. It’s not the fault of the army cannot be blamed for it: Lt Gen Vinod Bhatia, former DGMO

Update at 11:20 AM: "What we have highlighted is any dilution of the protection given to soldiers for their bonafide duties which is done by them in good faith in the disturbed area where AFSPA is in operation. Then it is not like you are taking away the right of the soldiers, it actually amounts to imperiling the sovereignty and integrity of the country and no nation can take a chance like that. It is not like AFSPA gives a blanket protection. The protection is only to the extent that the government sanction is necessary before instituting any Proceedings against soldiers": Aishwarya Bhati, counsel representing the 350 serving Army officers

Update at 11:05 AM: Here's the full prayer mentioned in the plea:

"In light of the submissions made above, the Petitioners pray that this Hon’ble Court may be pleased to:
a) issue a writ of mandamus or any other appropriate writ 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, as mandated by the Union of India, in protection of sovereignty, integrity
and dignity of the Country;
 
b) issue a writ of mandamus or any other appropriate writ directing the Respondents to take all  steps to protect the soldiers protecting the Integrity and Sovereignty of the nation from persecution and  prosecution by motivated and 
indiscriminate FIRs  against the mandate of law;
 
c) issue a writ of mandamus directing that protection of Soldiers acting in good faith under AFSPA is imperative to protect the soldiers engaged
with the direct and proxy enemy and insurgency and cannot be diluted without a specific and categoric amendment in law;
 
d) issue a writ of mandamus or any other appropriate writ directing 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;
 
e) issue a writ of mandamus or any other appropriate writ directing that any investigation, assessment or adjudication qua the criminality, misuse, abuse, negligence, excessive power, judgment error, mistake, bonafide or
malafide, 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;
 
f) issue a writ of mandamus directing the respondent to carry  out a  comprehensive investigation into acts of individuals/ organizations to target and  
attacksoldiersinexercise of their bonafide duties of upholding the dignity of Indian Flag, by launching mischievous complaints against them;
 
g) issue a writ of mandamus or any other appropriate writ directing 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 areas;
 
h) issue a writ of mandamus or any other appropriate writ directing that adequate compensation is provided to the effected serving personnel and their families, who have been unnecessarily embroiled in 
malafide criminal proceedings in discharge of their bonafide duties; and/or
 
i) any other appropriate writ/order/direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
 
AND FOR THIS ACT OF KINDNESS PETITIONERS, AS IN DUTY BOUND"

Update at 11:05 AM: The petition is filed against:

Update at 11:05 AM: Republic TV access copy of the petition filed by 350 soldiers

Update at 10:48 AM: Supreme Court agrees to list the matter next week

Update at 10:43 AM: Aishwarya Bhati, the lawyer representing the 350 soldiers, says it’s a matter of great significance. Military operations on the border are getting affected

Update at 10:34 AM: Three-hundred and fifty serving officers of the Army, in their personal capacities, file the petition in the Supreme Court


Unprecedented development coming against the backdrop of cases regarding the actions of on-duty Army officers coming under the scrutiny of internal security agencies and the judiciary, around three-hundred serving officers of the Army, in their personal capacities, are likely move the Supreme Court on Tuesday seeking a protection of their fundamental rights.

The officers are to file a writ petition in the country's apex court asking a number of questions, among which are, 'Can the discretion of a soldier be put under legal scrutiny?' and 'Can anything be above national security?'

On August 2, an Army officer was booked by the CBI in relation to an alleged fake-encounter in Manipur. The central agency was conducting its probe on the orders of the Supreme Court, and the case, which relates to a 2009 incident, had been registered under murder-related sections of the Indian Penal Code. The incident had been termed a fake encounter the SC-appointed commission. Earlier, in July 2017, the Supreme Court had entrusted the CBI with over 40 cases of alleged extrajudicial killings. 

Meanwhile, in Jammu and Kashmir, an FIR had been filed by the police under sections 302 (murder) and 307 (attempt to murder) of the IPC against Major Aditya and his unit of the 10 Garhwal Rifles over the Shopian Firing incident of January 27 when three civilians were killed after Army personnel fired at a stone-pelting 200-strong mob of protestors in J&K's Shopian district. The Supreme Court is currently hearing the plea of Major Aditya's father, Lt Col Karamveer Singh, seeking to quash the FIR against his son. Lt Col Singh had said in his petition that Major Aditya was "wrongly and arbitrarily" named in the FIR as the incident relates to an Army convoy that was on bonafide military duty in an area under AFSPA.

READ | Shopian Firing Incident: Supreme Court Refuses To Turn Case Against Major Aditya Into A Nationwide Debate On AFSPA. Sets Date For Final Arguments

In the petition, the serving officers will raise (among others):

  • Whether the rights of a soldier has been violated in the probe
  • The trying circumstances under which the officers serve in their aim to curb militancy and terrorism in order to protect the interests of the country.
  • Whether members of an institution with a glorious history of martyrdom and sacrifice should serve under the threat of being tried under court martial if they don't follow orders and prosecuted by the criminal justice system if they do.
  • Whether anything can be put above national security?
  • Won't this affect their morale?
  • Whether the court applying a murder charge even while the investigations were ongoing is right. Whether it would prejudice agencies in the matter.
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