On Tuesday morning this week, a petition was mentioned before Chief Justice of India Dipak Misra for urgent listing. This petition, filed by as many as 355 personnel of the Army, had objected to the alleged dilution of the Armed Forces Special Powers Act (AFSPA) through the Supreme Court’s decision in the Manipur Encounters Case.

The petitioners have made a slew of prayers, the foremost being immunity for soldiers for all actions done in “good faith” under the AFSPA.

The petition prays that a direction be issued that no suit or legal proceeding be instituted without the sanction of the Central government against such personnel of the Army.

This dilution of the AFSPA, the petition claims, is compromising the sovereignty, security, and integrity of India.

The judgment passed by the Supreme Court in Extra Judicial Execution of Victim Families Association v. Union of India, popularly known as the Manipur Encounters Case, is what seems to have prompted the petition in the first place.

Without delving into the correctness of the merits of the petition, let us look at some glaring issues that have arisen as a result of filing it.

Who is the villain?

The main issue raised in the petition is regarding dilution of AFSPA by the Supreme Court through its judgments, more particularly, Extra-Judicial Execution of Victim Families Association v. Union of India.

Question C raised in the petition cuts straight to the point without any qualms. It states,

“Whether subjecting of Professional Army Personnel guarding the frontiers/borders of India and engaged in anti-terrorist operation, to the process of CrPC, like any other individual, without any safeguards, as held in Extra Judicial Execution victim Families association (EEVFAM) & Anr. v. UOI & Anr. and General Officers Commanding, Rashtriya Rifles v. CBI, not be violative of their rights under Art 21 and contrary to the ratio and conclusions of Constitution Bench Judgment reported in Naga People’s Movement of Human Rights Vs Union of India?”

Question D put forth before the Court is even more abrasive:

“Whether the view expressed in Extra-Judicial Execution Victim Families association (EEVFAM) & Anr. v. UOI & Anr. which follows General Officers Commanding, Rashtriya Rifles v. CBI that even under AFSPA, “institution” would be the date of taking cognizance post filing of the charge sheet, will jeopardize the sovereignty, integrity and security of the nation, therefore eroding the very edifice and foundation of our existence as a Constitutional Sovereign Democratic Republic?”

Question D goes to the extent of questioning the Supreme Court’s authority to pass such orders.

“Whether, the judgment of this Hon’ble Court rendered in Extra-Judicial Execution victim Families association (EEVFAM) & Anr. v. UOI & Anr. and General Officers Commanding, Rashtriya Rifles v. CBI, doesn’t amount legislation and or supplanting ASFPA with the directions contained in the judgment and the same is impermissible?”

So the question of who the villain is – as per the petitioners – needs no further clarification.

A subterfuge to scuttle Manipur Encounters Case?

Without going into the merits of the above contention, the fact is that the petition is nothing but an effort to appeal against an order of the Supreme Court that has attained finality.

The Manipur Encounters Case interpreted the AFSPA, the Army Act and the Code of Criminal Procedure (CrPC) in a certain manner. That judgment attained finality when the review petition and the curative petition against the same were dismissed. It was not a challenge to the Constitutionality of a law. But it has only interpreted the law in a particular way.

Hence, recourse to a writ petition challenging a position of law settled by the Court, claiming violation of fundamental rights by the order of the Court, is a tacit intra-court appeal in disguise.

In fact, a petition filed by father of Major Aditya Kumar, who was sought to be tried for the Shopian firing incident, is already addressing a similar question – whether sanction of Central government is required before registering an FIR against Armed Forces personnel?

The above case is before a three-judge Bench of the Supreme Court. Any order passed by the Bench on this issue will have a bearing on the law laid down in the Manipur Encounters Case.

In this light, the question arises: Why a new petition?

The answer seems to lie in the petition itself. The petition harps on the incorrectness of the Manipur Encounters judgment.

The Manipur case is not over yet, as the Supreme Court is now monitoring the probe in individual cases pursuant to its own judgment. And the recent hearings in Supreme Court showed that the Central government and the Central Bureau of Investigation (CBI) were found to be wanting in their respective duties.

Last month, the Supreme Court sought the personal presence of the Director of the CBI with regard to the “unduly long time” taken by the investigating agency in probing the alleged extra-judicial encounter killings in Manipur. The Court made it abundantly clear that it was not satisfied with the slow pace of the investigation, with no final report in even a single case having been filed.

“If this is the attitude of the CBI then we will give you directions and we do not need your consent to issue directions…we wanted the investigation done expeditiously”, an agitated Justice Madan Lokur told the CBI.

The Court was particularly irked by the fact that one year after the Special Investigation Team (SIT) was constituted, the CBI had filed only two charge sheets. Initially, the FIRs were filed against the victims who had died.

“When the FIRs were filed initially, they were filed against the victims, people who had died, saying that they had committed an offence. It is unbelievable but it has happened. 41 FIRs against dead victims…so keep that as your reference point” Justice Lokur said.

When the same was brought to the notice of the Attorney General KK Venugopal, even he expressed dismay at this fact.

Any order passed in the Shopian hearing might not impact the individual cases which the Supreme Court is directing the CBI to pursue in the Manipur Encounters Case. This is because the Shopian hearing is now confined to a question of law and might take time to decide.

This could be the reason why the Army personnel have moved the Supreme Court attacking the Manipur judgment.

Aside from this, there is obvious political mileage to garner. At a time when lines are being drawn between the so-called nationalists and the anti-nationalists, the stand of Union of India in this matter should be keenly watched.

Which brings us to another interesting fact.

Petition settled by Mukul Rohatgi

The petition has been drafted by advocate Aishwarya Bhati and settled by Senior Advocate Mukul Rohatgi.

Rohatgi was the Attorney General for India who defended the Centre before the Supreme Court in the Manipur Encounters Case. That he has settled the petition assailing that judgment is a fact which is hard to miss.

The matter is expected to be listed for hearing on 20.

Judicial (In)Discipline

Judicial discipline is something which has been talked about a lot recently. When Justice Jasti Chelameswar took up a case on mentioning and assigned it to a Constitution Bench, he was accused of breach of judicial discipline.

When the four senior-most judges of Supreme Court held a press conference, they were accused of judicial indiscipline.

Now that a writ petition has been filed challenging a judgment of the Supreme Court, what needs to be seen is whether the Court will breach judicial discipline to entertain this tacit intra-court appeal.