New Delhi: The Supreme Court on Friday granted the Centre three weeks to spell out its stand on the extent of immunity enjoyed by Army personnel under the controversial Armed Forces Special Powers Act (AFSPA) and other laws for fake encounter killings.
The bench passed the direction on CBI's application for vacating the stay granted by the apex court on the trial in a J&K court relating to the killing of 7 youth by the Army in retaliation for killing of 36 civilians by militants at Chattisingpora in 2004.
A bench of justices B S Chauhan and Swatanter Kumar granted the time after Additional Solicitor General Parag Tripathi, appearing for the Army, said the issue was being "discussed at the highest level" and the matter would be resolved soon.
"We are conscious of the matter and want to strike a balance between civilians' rights and national security. The matter is being dealt at the highest level," the ASG told the bench while seeking adjournment of the case.
Additional Solicitor General Harin Rawal and senior counsel Ashok Bhan, appearing for CBI, argued the right of immunity provided under Section 197 CrPC was available to the accused.
But in this case, they said, the immunity was not sought by the accused officers but by senior army and law officers of the Defence Ministry, which was contrary to the law and hence immunity can be granted to the army personnel involved in the killings.
The bench then told Tripathi "we appreciate your concern but we need to hear the matter. If you don't take a decision, we will proceed with the matter.
It then adjourned the matter to December 16. At the last hearing, irked by the Centre's diametrically diverse views on army and para military forces' immunity from criminal prosecution in fake encounter killings, the bench had asked the government to spell out its position on AFSPA and other laws.
"You cannot say that an army man can enter any home and commit a rape and say he enjoys immunity as it has been done in discharge of official duties," the apex court had remarked.
The apex court had made the remarks after senior counsel Ashok Bhan, appearing for the Centre, voiced divergent views on two separate encounter killings involving military personnel in J&K and Assam.
In the 2004 Chattisingpora killing in J&K, where seven youth were killed in an alleged fake encounter by Rashtriya Rifles personnel, Bhan sought prosecution of the armymen whereas in a similar alleged fake encounter by CRPF men in Assam, the counsel said they enjoyed immunity.
"How can you adopt diametrically different views?" the bench had said, to which Bhan admitted it was "compulsions of his professional duties."
He urged the court to de-link the two issues and deal with them separately.
The court had then asked the government to clearly spell out its stand on two issues: whether army/para military personnel enjoy immunity from criminal prosecution for any penal offence committed in discharge of their official duties including fake encounters and rapes vis-a-vis AFSP Act, Section 197 CrPC and Section 17 of the CRPF Act.