Need to Protect Soldiers from False FIRs

Legally tackling vexatious first information reports (FIRs) filed against soldiers operating in internal conflicts, has been an unresolved issue that demands immediate attention of the government. The legal noose around the soldier’s operational neck has been tightening since 2017, when the Supreme Court appointed a Special Investigation Team to probe allegations of fake encounter cases in Manipur. Consequently, an FIR was filed by the Central Bureau of Investigation (CBI) against a serving officer and some others which triggered an unprecedented filing of a writ petition by 356 serving personnel of the Indian Army.

In August 2018, the petitioners filed a plea seeking “guidelines to protect soldiers operating in insurgency, militancy and proxy war situations, which have been identified by the State/Union Government to be a disturbed area, where it is imperative for Army to act in aid of the civilian authorities, from malicious, frivolous, vexatious and motivated FIRs.” It was not an attempt seeking to protect any criminal activity, which may be carried out by some soldiers. The plea was supported by the government counsel who was also a respondent. However, on November 12, 2018, the Supreme Court while dismissing the writ petition remarked that it was the government’s responsibility to evolve mechanisms to protect the soldiers, as under the existing legal framework filing of FIR was mandatory.

The petitioners had cited the Punjab High Court judgment of 2005 that laid down the guidelines to be followed before any FIR/Criminal Complaint is lodged against the doctors in exercise of their professional duties. Consequently, it sought the use of same justification in order that the privilege be extended to the soldiers who have also carried out their professional duties in good faith. The Supreme Court judgement implied that it was up to the government to decide whether similar guidelines should also be laid down for the soldiers.

At the heart of the matter is the urgent necessity of protecting the soldiers from harassment to which they are subjected from the prolonged investigative procedures that ensue. The investigative process itself, for a soldier acting in good faith and in accordance with the orders of his superiors, is a form of punishment which could also entail financial costs through legal fees, disruption of normal life, and deep psychological strain of the proverbial legal sword hanging over their heads. Although, admittedly, the soldier already enjoys protection from prosecution under Section 4 of the Armed Forces (Special Powers) Act or the AFSPA, it does not however cover investigations.

Protection should be achievable, as the government has provided such cover to public servants through the Prevention of Corruption (Amendment) Act, 2018. The new section 17A of the Act states, “No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval” of the government. A time limit has been laid down for the government to decide. The protection is also extended to retired personnel. The only exception is when public servants are caught red handed in the commission of an illegal act.

The issues relating to the doctors/public servants are vastly different from that of the soldiers. The death of a patient and the acts of corruption are definitely in a different category from deaths occurring during the counter insurgency operations. The commonality is distinctly in the legal principle, that safeguards have been provided for acts done in good faith and such protection is extended particularly to the filing of FIRs and the investigative process. Notably, soldiers act collectively and individual responsibility is not easy to ascertain.

The revealed vulnerability of soldiers to exaggerated, motivated and false FIRs is fundamentally a result of the State preferring to deal with legal issues in disturbed areas within the framework of a law and order problem, which by its very nature it is not. Undoubtedly, the intensity of such conflicts is dynamic and for over several decades the non-state actors have been lethally empowered by technology which is manifested in the improvised explosive devices, and inter alia the suicide bombers who also enjoy the support of external powers.

The issue of vexatious FIRs has been lingering for several decades and many soldiers have had to endure prolonged legal processes which by itself tantamount to punishment. The cases were dealt individually by the armed forces and no resolution through legislation was sought. However, the issue has now gained focus because of the unprecedented and collective action of a group of serving soldiers. There is a strong case for a legislation that will have to cater for the plausible circumstantial mishaps in disturbed areas. The case is also strong because a soldier cannot be expected to perform effectively if, while carrying out orders and discharging his duty in good faith, the resultant complications are likely to return to haunt his mental peace not only while in service but also in retirement. The impact on the morale cannot be acceptable to the military leadership.

The political acknowledgement of the realities of disturbed areas must be based on the fundamental problem faced by the soldiers in such conflicts – the armed adversary is not easily recognisable and often hides among the local populace. Uncertainty and danger to one’s own survival characterise the hostile environment. The abnormal ambience confronted by the agents of the State, and the increasing potential of civil rights activism that requires investigation and which is often false, exaggerated and motivated by inimical intentions, should pave the way for crystallising legislative measures that will preserve human rights and yet ensure protection of the soldiers.

The inadequacy of the existing laws to protect the soldier against motivated FIRs has been amply revealed by the ongoing deliberations of the Supreme Court, and was further highlighted when the Supreme Court intervened in the case of Major Aditya after three civilians were killed in the army firing on stone throwers in South Kashmir. Thus, safeguards against FIRs that emasculate operational capability and demoralise soldiers is an imperative requirement.

The need for effective legislation to answer the soldier’s justifiable demand for protection under law, and not from the law, must be acknowledged by the military and political leadership. The challenge in framing the law is to maintain the balance between protection of soldiers and upholding of human rights. Human rights sensitisation has been embedded in the Indian Army’s counter insurgency doctrine which is also reflected in the creation of human rights cells at the army command, corps and division levels.

Although there can be no blanket protection against FIRs, some provision for checks and balances to weed out motivated and vexatious ones could be created. This is a complex task and would require joint examination by legal experts and the armed forces. The ministry of defence (MoD) could consider instituting a study group in this regard. The erroneous approach, to argue the case, within the existing legal framework stands exposed especially in the light of the same legal framework being used by inimical entities to commence proceedings against soldiers performing their duties in very trying and difficult circumstances.

Views expressed are of the author and do not necessarily reflect the views of the IDSA or of the Government of India.