CHANDIGARH/JAMMU — Holding that excessive force cannot be used against citizens, the Armed Forces Tribunal (AFT) has upheld a “severe displeasure” censure awarded to a former Rashtriya Rifles sector commander over the December 2023 custodial deaths of three civilians in Jammu and Kashmir’s Poonch district.
Dismissing the plea of Brigadier Padmasambhava Acharya, the tribunal has ruled that even under intense emotional provocation following the loss of comrades in counter-insurgency operations, human emotions must yield to military discipline, constitutional mandates and strict human-rights safeguards.
“While dealing with insurgents, the security forces must not violate human rights. Unnecessary force should not be used nor should there be a breakdown of the rule of law. This is necessary for democracy to survive,” the AFT said and also stressed that the authority granted under the Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA), 1990, does not allow arbitrary use of force.
“Excessive force was used in violation of the law. It was, thus, a failure of command and control function. Failure to stop use of excessive force and failure to pass clear directions were the direct fallout thereof,” the tribunal said in its order passed recently.
However, in a relief to the officer, the tribunal directed authorities not to maintain a record of the disciplinary action on his administrative file, treating it as an exception limited strictly to the facts of the case.
“This is a direction based on the facts of the instant case only and is not to be treated as a precedent or an exposition of the law,” the AFT bench said.
The bench justified this by referring to a defence ministry policy dated October 30, 2023, which stipulates that while a censure awarded to an officer typically remains part of his administrative record for 10 years, to be shared with selection and promotion boards, a “Severe Displeasure” issued by a corps commander remains operative for a maximum period of two years.
Noting that the censure awarded to Brigadier Acharya on July 8, 2024, had completed its two-year period and ceased to be operative, the tribunal ordered that the record of the punishment should not be retained, while clarifying that the directive is based solely on the specific circumstances of the case and would not serve as a legal precedent.
Acknowleding the operational pressure on ground personnel, the bench said, “The troops involved in follow-up operations face a dilemma. Having lost their brothers in arms and that too in a brutal manner, makes their blood boil and development of emotions of revenge is quite natural.” “On the other hand is discipline, instilled by rigorous training, commanding them to exercise restraint and scrupulously follow plans to trace the culprits. Even in war, the Indian soldier is known for his discipline, and adherence to the Geneva Conventions is the rule,” it added.
The case relates to an operation launched on December 21, 2023, when a military convoy was ambushed near Dera Ki Gali (DKG) in Poonch, leaving four soldiers dead. The bodies of two of the dead soldiers were also mutilated. In the subsequent search operations, sub-units rounded up local civilian suspects for questioning to gather actionable intelligence.
During interrogation at the Company Operating Base in Mastan Dhara, three civilian suspects succumbed to their injuries. A Court of Inquiry convened by HQ 16 Corps led to administrative action against Brig. Acharya, the then commander of 13 Sector RR, for failing to exercise proper command and control, improper handling of civilians and failing to prevent excessive force.
Challenging the two-year censure issued by the general officer commanding of 16 Corps, the officer had argued that senior commanders, including the corps commander and the GOC of Counter Insurgency Force “Romeo”, were present at the DKG control room during the operations and should share responsibility. He had also contended that the corps commander had acted as a judge in his own cause.
Rejecting these arguments, the tribunal clarified the operational hierarchy of field forces, ruling that direct command and control over ground operations rests with the commanding officer and the sector commander. Higher commanders visiting forward control rooms to gain situational awareness do not exercise micro-level executive control over sub-unit tactical interrogations, it said.
Citing landmark Supreme Court verdicts, the bench reiterated that internal-security duties require a distinct approach from conventional warfare, emphasising that Army guidelines strictly prohibiting physical force or third-degree methods during interrogation are legally-binding orders that must be scrupulously followed.
The bench observed that the circumstances following the ambush presented the troops with a difficult conflict between their emotions and the discipline required of them.
“In the conflict between human emotions and requirements of discipline, which is in large measure based on the law declared by the Supreme Court, human emotions must yield,” the AFT said.
It said in a situation as exists in the instant case, the troops involved in follow-up operations face a dilemma.
The tribunal examined the powers available to the armed forces under the AFSPA and relied extensively on Supreme Court verdicts dealing with the use of force and human rights during counter-insurgency operations.
It held that the sector commander had an important responsibility for the discipline and training of the troops under his command.
The bench also rejected the argument that the protection from prosecution provided by the AFSPA prevented administrative action against the officer.
It held that section 7 of the Act protects persons acting in good faith from prosecution, suits or other legal proceedings without prior sanction from the central government, but does not bar departmental action.
The bench further rejected challenges concerning the Court of Inquiry, holding that the applicant had failed to establish that the inquiry had violated the applicable Army rules or regulations.
On the allegation that the show-cause notice was vague, the tribunal held that the document had specifically identified the alleged failure to exercise proper command and control, stop excessive force and issue clear directions. — (PTI)