The Armed Forces Special Powers Act (AFSPA) is being widely debated across the sub-continent. The legislation has evoked reactions ranging from critical to scornful. Human rights defenders, political activists, legislators, legal experts and the sufferers have been demanding repeal of the draconian law. However, Section 45 and section 197 of the Criminal Procedure Code (CrPC) which are equally draconian have been ignored. Section 45 CrPC disallows arrest of public servants and Section 197 like Section 6 AFSPA provides impunity against prosecution.
The Supreme Court has given diverse rulings on section 197. No strict rule has been laid down unfortunately by the apex court. The Supreme Court has held that government sanction is mandatory for initiating prosecution against police personnel for excesses or killings committed during the maintenance of law and order.
"If it [killing] was done in the performance of duty or in purported performance of duty, Section 197 (1) of the Criminal Procedure Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197 (1) could not be attracted."
A Bench headed by the Chief Justice Y.K. Sabharwal, by a majority of 2:1, held that to ensure protection to security forces personnel, deployed to enforce law and order including during elections, a mandatory provision had been made under Section 197 (1) to obtain prior sanction
Allowing an appeal by a West Bengal police official, charged with the murder of a person by using excessive force during a clash between rival party supporters in Alipore during the May 2001 elections, Chief Justice Sabharwal and Justice P.K. Balasubramanyan said: "We hold that such a sanction was necessary and for want of sanction the prosecution must be quashed."
The police official, Sankaran Moitra, challenged a Calcutta High Court order, which held that if a person died due to use of force by a police personnel while performing his duty, the killing could not be held as having been done in an official capacity and consequently Section 197(1) Cr. PC could not be attracted.
Setting aside the order, the apex court Bench said: "The High Court was in error in holding that sanction under Section 197(1) of the Code was not needed in this case."
Referring to the High Court’s observation that if courts started interfering in such matters merely on technicalities such as sanction from the Government the people would lose faith in the judicial process.
However, in another case, the apex court held: "It is necessary to protect the public servants in discharge of their duties. But it is equally important to emphasize that rights of the citizens should be protected and no excess should be permitted.
`Encounter death’ by the police has become too common. In the facts of circumstances of each case prosecution of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties and whether the public servant has exceeded his limits." Bakhshish Singh Brar v Smt. Gurmej Kaur and Anr AIR 1998 SC 257.
What is more worrying is the fact that the government frames special laws to empower the armed forces but no special safeguards are made available to the ordinary citizen to check misuse of the special laws. Special laws always attract attention.
But when the ordinary laws are as draconian as the special laws the plight of the commoner can only be imagined. He has nobody to fall back upon. The CrPC was enacted way back in nineteenth century but till date a few people have commented on its deadly fangs. In actual practice, Section 6 of the AFSPA has been overtaken by Section 197 of the Criminal Procedure Code amended in 1991 to provide virtual impunity to the armed forces. Impunity has been made a feature of normal criminal jurisprudence. In fact Section 197 of CrPC has made section 6 of AFSPA redundant. If the Central Government were to give permission under section 197 of the CrPC, there is no reason as to why the same permission will not be granted under Section 6 of the AFSPA.
The United Nations Special Rapporteur on Extra- judicial, summary and Arbitrary Executions lucidly summarized the impunity and extrajudicial executions in her report to the 57th session of the United Nations Commission on Human Rights:
"Impunity for human rights offenders seriously undermines the rule of law, and also widens the gap between those close to the power structures and others who are vulnerable to human rights abuses. In this way, human rights violations are perpetuated or sometimes even encouraged, as perpetrators feel that they are free to act in a climate of impunity…, extrajudicial killings and acts of murder may sometimes also go unpunished because of the sex, religious belief, or ethnicity of the victim.
Longstanding discrimination and prejudice against such groups are often used as justification of these crimes. The increasing difficulties in securing injustice alienate the people from the State and may drive them to take the law into their own hands, resulting in a further erosion of the justice system and a vicious circle of violence and retaliation. If unaddressed, such situations may easily degenerate into a state of anarchy and social disintegration. Human rights protection and respect for the rule of law are central to lasting peace and stability. It is, therefore, crucial that conflict prevention strategies and post-conflict peace-building efforts include effective measures to end the culture of impunity and protect the rule of law.
While examining the third periodic report of the government of India, an expert of the United Nations Human Rights Committee stated: "Article 6 of the Armed Forces (Special Powers) Act, which prevented all legal proceedings against members of the armed forces, was extremely worrying; if the Government’s fear was that citizens would bring vexatious or frivolous actions, that was a matter better left to the courts to resolve. It was inadmissible for citizens to be deprived of a remedy as was at present the case."
The UNHRC noted: "Criminal prosecutions or civil proceedings against members of the security and armed forces, acting under special powers, may not be commenced without the sanction of the Central Government. This contributes to a climate of impunity and deprives people of remedies to which they may be entitled."
Surprisingly no mention was made about Section 45 and Section 197 of the CrPC. Why? Because CrPC is not a special legislation and is, therefore, overlooked. This makes it more dangerous.
There is no denying the fact that the public servants cannot claim impunity under Section 6 AFSPA and Section 197 CrPC if they misuse their official position. But who can determine that. Of course the courts. But can the courts take cognizance without prior sanction?
"The Section contemplates an act which is done by a public servant in his official capacity but which, at the same time, is neither his duty nor his right as such public servant to do as in that case he would not be committing an offence at all and there would be no question of prosecuting him or obtaining sanction for such prosecution." AIR 1955 SC 287(292,293).
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