Centre seeks recall of SC order on counter-insurgency ops

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New Delhi, April 12 (IANS) The Centre on Wednesday sought a recall of a Supreme Court judgment on no excessive and retaliatory force use in self-defence by security forces in counter-insurgency operations.

Saying that the action taken by Army in disturbed areas could not be put to judicial scrutiny, the Centre contended through a curative petition that the top court order dated July 8, 2016, had completely negated the protection made available to security forces under the Armed Forces (Special Powers) Act, 1958, and the Unlawful Activities (Prevention) Act.

As Attorney General Mukul Rohatgi mentioned the petition before a bench headed by Chief Justice Jagdish Singh Khehar said: “Either you bring it within the parameters of the curative petition; otherwise, we will not be able to help.”

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Rohatgi contended the existing parameters for filing curative petitions were not “exhaustive”.

The bench said it will look into the matter as the Attorney General said a related case was coming up for hearing on April 18.

The Centre has sought the recall of the July 8, 2016, order and the October 6, 2016, order by which the review plea was rejected.

By its July 8 order, the top court had ruled that army and paramilitary forces cannot use excessive and retaliatory force during counter-insurgency operations in Manipur, declared a disturbed area, under the Armed Forces Special Powers Act and criminal courts do have jurisdiction over cases of alleged excesses by security forces.

The Centre contended that the immediate effect of the July 8 judgment is that it has “hampered” the Army’s ability to respond to insurgent and terrorists situations which have far-reaching ramifications for national security and integrity, especially in parts plagued by constant militant and insurgency activities.

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The petition said besides being inherently dangerous and mostly unpredictable, the “counter-insurgency operations are a sovereign function and their justifiability …can’t be and ought not to be allowed…”

Subjecting the legitimate combat decisions to judicial review would impinge upon the national security, the Centre said.

The Centre said armed forces engaged in counter-insurgency operations needed to be given requisite protection of law, adding that operations against the enemy should not be impeded by the same being subject to threat of judicial scrutiny in the future.

It said the review of security situation and potential military level in disturbed areas is a highly specialised issue requiring requisite expertise in the domain of internal security and the same can’t be decided, examined or assessed by the courts of law.

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The petition said in Manipur alone, the Army and Assam Rifles lost 928 personnel to insurgency with 1,463 injuries from 1990 to 2015.

Allegations of excessive use of force has to be examined from the perspective of national security and the larger public interest as opposed to individual’s interest, the government pleaded.



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