SO Correspondent
Srinagar:The Armed Forces Special Powers Act (AFSPA) is being widely debated across the sub-continent. 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 (Section 549 of JK CrPC) 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.”
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.” Bakhs
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.
So even if AFSPA is repealed, Section 197 CrPC will always be there to provide impunity to men in uniform.
