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Raj Kumar Makkad (Adv P & H High Court Chandigarh)     04 April 2012

It is bad to depend on supreme court on all matters

The Supreme Court Monday slammed the tendency of government departments to seeks its decision before acting when confronted with a contentious situation.


“Everyone wants the decision of the court be it army, minister of defence or the home ministry. They want the stamp of this court,” said a bench of Justice B.S.Chauhan and Justice Swatanter Kumar.


The court’s reaction came when Additional Solicitor General P.P.Malhotra asked it to grant time to the government to decide on the pleas seeking sanction to proceed against defence personnel, accused of criminal action committed purportedly in discharge of their duties in disturbed areas falling under Armed Forces Special Power Act.


“Why don’t you decide and take a call,” Justice Kumar told Malhotra in the course of the hearing of plea by the army contending that no proceedings either under court martial or before the regular criminal courts could take place without prior sanction of the government.

Senior counsel M.S.Ganesh told the court that as consequence of the proceedings before the court, 40 matters are pending decision before the government. He said that since the early 1990s, the government had till date taken no decision in any such case involving army personnel.

Appeared for the kin of one of the Pathribal victims — the five people allegedly killed by army in the village of Kashmir’s Anantnag district five days after the killing of 34 Sikhs in Chattisinghpora by militants March 25, 2000, Ganesh assailed the “common view” of the defence ministry and the home ministry.

“It is a clear attempt by two ministries of the central government to overawe the CBI (Central Bureau of Investigation) and thwart the CBI from ensuring that law takes its course,” said Ganesh, who appeared for mother and uncle of Zahoor Ahmed Dalal.

In another case involving the killing of five United Liberation Front of Asom (ULFA) activists in Assam in 1994, the CBI told the apex court that no sanction of the government was required for initiating court martial proceedings against army personnel accused of criminality in the area falling under the Armed Forces Special Power Act.

“They (army) are bound to hold court martial without sanction,” Additional Solicitor General Harin Rawal told the bench of Justice Chauhan and Justice Kumar.

Rawal who appeared for the CBI is seeking action against army personnel allegedly involved in the killing of five ULFA activists in 1994.

The matter would come up for hearing on April 13.


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