Why wait for sanction?

Following the lifting of AFSPA from Meghalya, the legislation which grants impunity from prosecution to armed forces has evoked a fresh debate in Jammu & Kashmir. Various quarters have reiterated appeals for its repeal but nothing seems to be moving for the time being. Legal experts believe no sanction from government of India is needed for filing challans against erring men in uniform. According to them, the court has to see whether sanction under AFSPA or ordinary procedural law is needed or not. The state government tries to escape responsibility by accusing the federal government withholding sanction to prosecution. Sanction is not needed for filing the charge sheet.  AFSPA, by the way, is not the only legislation that shields the personnel of the armed forces. Section 197 CrPC (Section 549 in CrPC applicable to Jammu Kashmir) accords similar impunity. The Supreme Court of India has clearly laid down guidelines in Bakhshish Singh Brar v Smt. Gurmej Kaur and Ors  AIR 1998 SC 257. The apex court held:  “It is necessary to protect the public servants in discharge of their duties. But it is equally important to emphasize that rights of the citizens should be protected and no excess should be permitted. Encounter death by the police has become too common. In the  facts of circumstances of each case prosecution of public officers and public servants functioning in discharge of official  duties and protection of private citizens have to be balanced  by finding out as to what extent and how far is a public servant working in discharge of his duties and whether the public servant has exceeded his limits.” In the light of this judgement, the courts have to apply mind and see whether the official exceeded his limits and proceed accordingly. This means, the police do not have to wait for sanction.  But, in most of the cases, the police refuse to register FIRs not to speak of filing the challans. The state government, which is the complainant in all the cases has to take appropriate measures and direct the police to register FIRs and file the charge sheets without waiting for  sanction under AFSPA or the CrPC.