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  • Is prior sanction always required to prosecute army officers under AFSPA?
Miscellaneous

Is prior sanction always required to prosecute army officers under AFSPA?

Rohit - May 4, 2012

The Supreme Court passed its  judgment in General Officer Commanding (Army) vs. CBI on May 01, 2012.  The case addressed the issue of need for sanction to prosecute Army officers under the Armed Forces Special Powers Act (AFSPA). The case dealt with two instances of alleged fake encounters.  Five people were killed by the Army in Assam in a counter insurgency operation in 1994.  Another five people were killed in Jammu and Kashmir in March, 2000 in an encounter. In both cases, it was alleged that the Army officers had staged fake encounters.  In both instances, the CBI was directed to investigate the matter.  CBI claimed that the people who were killed were indeed victims of fake encounters.  The CBI moved the court to initiate prosecution against the accused Army officers. The officers claimed that they could only be prosecuted with the prior sanction (permission) of the central government.  The officers relied on provisions of the AFSPA,1958 and the Armed Forces J & K (Special Powers) Act, 1990 to support their claim.  (See Notes for the relevant clauses)  These provide that legal proceedings cannot be instituted against an officer unless sanction is granted by the central government. It must be noted that Army officers can be tried either before criminal courts or through court-martial (as prescribed under Sections 125 of the Army Act, 1950).  The Army officers had appealed that both procedures require prior sanction of the government. The judgment touches upon various issues.  Some of these have been discussed in more detail below:

  • Is prior sanction required to prosecute Army officers for 'any' act committed in the line of duty?
  • At what stage is sanction required?
  • Is sanction required for court-martial?

Is prior sanction required to prosecute army officers for 'any' act committed in the line of duty? The judgment reiterated an earlier ruling.  It held that sanction would not be required in 'all' cases to prosecute an official.  The officer only enjoys immunity from prosecution in cases when he has ‘acted in exercise of powers conferred under the Act’.  There should be 'reasonable nexus' between the action and the duties of the official. The Court cited the following example to highlight this point:  If in a raid, an officer is attacked and he retaliates, his actions can be linked to a 'lawful discharge of duty'.  Even if there were some miscalculations in the retaliation, his actions cannot be labeled to have some personal motive. The Court held that the AFSPA, or the Armed Forces (J&K) Special Powers Act, empowers the central government to ascertain if an action is 'reasonably connected with the discharge of official duty' and is not a misuse of authority.  The courts have no jurisdiction in the matter.  In making a decision, the government must make an objective assessment of the exigencies leading to the officer’s actions. At what stage is sanction required? The Court ruled that under the AFSPA, or the Armed Forces (J&K) Special Powers Act, sanction is mandatory.  But, the need to seek sanction would only arise at the time of cognizance of the offence.  Cognizance is the stage when the prosecution begins.  Sanction is therefore not required during investigation. Is sanction required for court-martial? The Court ruled that there is no requirement of sanction under the Army Act, 1950.  Hence, if the Army chooses, it can prosecute the accused through court-martial instead of going through the criminal court. The Court noted that the case had been delayed for over a decade and prescribed a time bound course of action.  It asked the Army to decide on either of the two options - court martial or criminal court - within the next eight weeks.  If the Army decides on proceedings before the criminal court, the government will have three months to determine to grant or withhold sanction. Notes Section 6 of the AFSPA, 1958: "6. Protection to persons acting under Act – No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act." Section 7 of the Armed Forces (J&K) Special Powers Act, 1990: "7. Protection of persons acting in good faith under this Act. No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act."

Constitution

Explainer: Mechanisms to investigate charges against a Supreme Court judge

Roshni Sinha - April 25, 2019

This week, an in-house inquiry committee was constituted to consider a complaint against the current Chief Justice of India.  Over the years, three mechanisms have evolved to investigate cases of misconduct, including cases of sexual harassment, misbehaviour or incapacity against judges.  In this blog, we summarise the procedure for investigating such charges against judges of the Supreme Court.  

  • In-house procedure (1999): The Supreme Court has an in-house process to deal with allegations against a judge relating to the discharge of his judicial function, or with regard to his conduct or behaviour outside court.   
  • Sexual harassment guidelines: In 2013, Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.  Subsequently, the Supreme Court framed regulations for protection of women against sexual harassment in the Supreme Court. Under the regulations, the CJI is required to constitute a Gender Sensitisation and Internal Complaints Committee (GSICC).  The GSICC will include 7-13 members including: (i) one or two judges of the Supreme Court, and (ii) up to two outside members (having experience in social justice, women empowerment, gender justice, among others) to be nominated by the CJI.  The Regulations require the majority of the members of GSICC to be women.  As of 2018, the GSICC has received 13 complaints, out of which 10 have been disposed of. 
  • Removal for proven misbehaviour or incapacity: Charges of misconduct may also be investigated in the context of proceedings for removal of a judge.  Article 124(4) of the Constitution of India provides that a judge can be removed only by Parliament on the basis of a motion in either the Lok Sabha or Rajya Sabha.  The procedure for removal of judges is elaborated in the Judges Inquiry Act, 1968.  Till date, no judge of the higher judiciary has been impeached under this process. 

Table 1: Process for investigation of charges against a Supreme Court judge

 

In-house Procedure of Supreme Court

2013 SC Sexual Harassment Regulation

Removal Proceedings

Who may file a complaint
  • Complaint of misconduct may be filed by any person.
  • Written complaint of sexual harassment by a woman.
  • Signed notice by at least 100 members of the Lok Sabha, or 50 members of the Rajya Sabha on charges of misbehaviour or incapacity by a judge. 

Persons to whom complaint must be filed
  • CJI or President of India
  • GSICC
  • Presiding Officer of the relevant House of Parliament

Preliminary Inquiry
  • The CJI is required to determine whether the complaint is either frivolous or serious. If the complaint is frivolous or relates to a pending case, no further action will be taken.
  • If the CJI finds that the complaint involves serious misconduct or impropriety, he will seek the response of the concerned Judge. 
  • Based on the response and supporting materials, if the CJI finds that the complaint needs a deeper probe, he will constitute an inquiry committee. 
  • If the GSICC is satisfied that the complaint is genuine, it will constitute a three-member Internal Sub-Committee to conduct an inquiry into the complaint. 
  • If the notice is in order, the Presiding Officer will constitute a three-member committee to investigate the complaint.

Composition of Inquiry Committee

  • The Committee will comprise three judges including a Judge of the Supreme Court and two Chief Justices of other High Courts.
  • The Committee will comprise members of the GSICC or persons nominated by the GSICC, with majority members being a woman and an outside member.
  • The committee will comprise a Supreme Court judge, Chief Justice of a High Court, and a distinguished jurist. 

Time limit for submission of inquiry report

  • No specific time limit provided.
  • To be completed within 90 days of the constitution of the Internal Sub-Committee, and forwarded to the GSICC within 10 days of completion. 
  • To be submitted to the presiding officer within 90 days.

Findings of the Committee
  • The Committee may report to the CJI that:

​1.  there is no substance in the allegation made, or,

2.  there is substance in the allegations but the misconduct is not of such serious nature as to warrant removal, or,

3.  the misconduct is serious enough to initiate removal proceedings against the judge. 
  • If the committee concludes that the allegation has been proved, it will submit its report to the GSICC to pass appropriate orders within 45 days.
  • If more than two thirds of the GSICC members differ from the conclusion of the Committee, it will, after hearing the complainant and the accused, record its reasons for differing and pass orders.
  • After concluding its investigation, the Committee will submit its report to the presiding officer, who will lay the report before the relevant House.

 

Action taken upon submission of report

  • If the finding is under category (2) above, the CJI may call and advise the Judge accordingly and direct that the report be placed on record.
  • If the finding is under category (3) above, the CJI may ask the judge to resign or seek voluntary retirement.  If the judge refuses to resign, the CJI may decide to not allocate any judicial work to the judge concerned. 
  •  Further, the CJI may inform the President of India and the Prime Minister of his reasons for the action taken and forward a copy of the inquiry report to them.
  • The GSICC has the power to: (i) to pass an order of admonition (reprimand), which may also be published in the court precinct, or (ii) pass an order to prohibit the accused from harassing or communicating with the complainant, or (iii) pass any other order to end the sexual harassment faced by the complainant.
  • GSICC may also recommend to the CJI to pass orders against the accused, including: (i) prohibiting entry of the accused into the Supreme Court for up to a year, or (ii) filing a criminal complaint before the concerned disciplinary authority governing the accused.
  • If the report records a finding of misbehaviour or incapacity, the motion for removal will be taken up for consideration and debated. 
  • The motion is required to be adopted by each House by a majority of the total membership of that House and a majority of at least two-thirds of the members of that House present and voting.
  • Once the motion is adopted in both Houses, it is sent to the President, who will issue an order for the removal of the judge.

Process for Appeals
  • No specific provision.
  • Any aggrieved person may make a representation to the CJI to set aside/modify the orders passed by the GSICC.  The CJI also has the power to issue any other orders in order to secure justice to the victim.
  • No specific provision.

Sources: Report of the Committee on In-House Procedure, December 1999, Supreme Court of India; Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013; Article 124(4), Constitution of India; Judges Inquiry Act, 1968 read with the Judges Inquiry Rules, 1969; PRS.

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