Legal experts maintain that filing chalaans against men in uniform involved in human rights violations and other wrongdoing does not require approval from the government of India.The courts’ role of determining whether sanction under the AFSPA or ordinary procedural law is needed, they say, comes in only after a charge-sheet has been filed, and no sanction is needed to file the charge-sheet. The state governments’ plea that the union government withholds sanction for prosecution is, according to them, the former’s bid to escape responsibility.
Besides, the AFSPA’s are not the only provisions shielding forces personnel, as Section 197 of the CrPC (Section 549 in the CrPC applicable to Jammu and Kashmir) performs a similar function. And yet, in Bakhshish Singh Brar v Smt. Gurmej Kaur and Ors (AIR 1998 SC 257), the Supreme Court of India 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 a public servant is working in discharge of his duties and whether the
public servant has exceeded his limits.”
In light of this judgement, the courts have to apply their mind and see whether officials in question have exceeded their limits, and proceed accordingly. This means that the police cannot wait for sanction as provided by Section 6 AFSPA and Section 197 CrPC, but must file a chalaan without delay. Whether or not central sanction is required for prosecution, according to legal experts, is to be decided by the courts.