RSTV: THE BIG PICTURE- HUMAN RIGHTS OF SECURITY FORCES
The Supreme Court has agreed to examine and hear a petition seeking protection of the rights of the armed forces personnel and the security personnel in view of facing agitated and sometimes even angry civilian protestors. The petition is filed by two young women — a daughter of a retired Army officer, and a daughter of a serving Army officer. The petitioners are seeking the formulation of a policy to safeguard the rights of armed forces personnel on what all could come under their ambit while discharging their duties in case of facing an unruly mobs or individuals who attack them while performing their military duty. The petitioners here are citing various instances of violence against Armed Forces personnel… including stone pelting in Kashmir. The contention raised by the petitioners also seek to examine if the cases must also be registered against the perpetrators of such violence. The Supreme Court while agreeing to examine the plea has sought views of the Central government Union Ministry of Defence and the National Human Rights Commission.
Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.—Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,—
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or
(d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c),
be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.]
Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void
(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas
(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality
AFSPA gives armed forces the power to maintain public order in “disturbed areas”. They have the authority to prohibit a gathering of five or more persons in an area, can use force or even open fire after giving due warning if they feel a person is in contravention of the law. If reasonable suspicion exists, the army can also arrest a person without a warrant; enter or search premises without a warrant; and ban the possession of firearms.
Any person arrested or taken into custody may be handed over to the officer in charge of the nearest police station along with a report detailing the circumstances that led to the arrest.
- The petition asked the government to form a policy to check alleged human rights violations of security forces personnel.
- The petitioners are further disturbed by the troops in the Indian Army having to suffer the ire of stone pelters while they are discharging their duty of maintaining peace and security in the area of their deployment.
In support to the Petition:
- The petitioners have no grievance to any complaint/FIR being filed against any armed forces personnel, for any act done by them, which amounts to any criminal offence under the law for the time being in force.
- Soldier is as much human as anybody else and wearing uniforms does not take away the human rights.
- However, they are very much aggrieved by the fact that no similar action is taken against the perpetrators of violence against the armed force personnel.
- Further, armed forces personnel are also derided of their basic human rights of defending themselves against assault and safeguarding their life and limb.
- There is no mechanism put in place, by the Centre or the State to deal with such brazen acts of human rights violation of the forces.
- The armed forces personnel is deployed in these disturbed areas, by orders of the respondents, to discharge their duties.
- Soldiers have to be restrained in their self-defence while facing armed stone-pelters in areas facing internal strife, the petition contended. This is violative of their basic right to dignity and life.
- Soldier Rajender Singh died because of stone pelting
- Stone-pelters in other legal jurisdictions were treated far more severely than in India. The maximum jail term for this in the US is a life term.
- In India, even the FIRs filed against them have been withdrawn earlier at the instance of the state government.
- A former chief minister of J&K had declared in the assembly that as many as 9,760 FIRs registered against stone-pelters shall be withdrawn as they were first-time offenders.
- The state government withdrew the FIRs without following the due procedure.
- Withdrawing cases demotivates the troops and they are obstructed from discharging their duties.
- Depriving armed forces personnel of the right to prosecute those who commit crimes against them amounts to violating their right to life and liberty, their petition.
Against the petition:
- The law of the land gives adequate power to the security forces acting in aid to civil authorities.
- A conclusion is very difficult for the reason behind the action taken by the armed personnel.
- AFSPA already gives armed forces the power to maintain public order in “disturbed areas”
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