Law

Army Cannot Use Excessive Force Even Under AFSPA, Rules Supreme Court

Supreme Court. Credit: Shome Basu

Supreme Court. Credit: Shome Basu

New Delhi: In a landmark judgment, the Supreme Court on Friday said the largescale killings in Manipur in the guise of self defence while dealing with insurgency or militants was unacceptable. It said if members of the armed forces are deployed and employed to kill citizens of the country on the mere allegation or suspicion that they are the ‘enemy’, not only the rule of law but also democracy would be in grave danger.

The court held that the army or Manipur police cannot use excessive force under the provisions of the Armed Forces (Special Powers) Act (AFSPA) or the Unlawful Activities Prevention Act to deal with militants or insurgency.

A bench of justices Madan B. Lokur and Uday Lalit gave this ruling on a PIL filed by Extra Judicial Execution Victim Families Association alleging 1,528 fake encounter deaths in Manipur in the last decade and demanding a probe by a special investigation team. If any death was unjustified, there is no blanket immunity available to the perpetrator(s) of the offence. No one can act with impunity, particularly when there is a loss of an innocent life, the judges said.

The bench said to say that this would have a demoralising impact on security forces is certainly one way of looking at it, but from the point of view of a citizen, living under the shadow of a gun that can be wielded with impunity is equally unsettling and demoralising, particularly in a constitutional democracy like ours.

It said therefore, even while dealing with the ‘enemy’, the rule of law would apply. If there have been excesses beyond the call of duty, those members of the Manipur police or the armed forces who have committed the excesses would be liable to be proceeded against in a court of law, and not necessarily by the army in court martial proceedings.

On the Centre’s submission that a war-like situation exists in Manipur, the bench said militants and ambushes would not lead to a conclusion on the existence of a war or war-like conditions. The order read:

If such a blanket proposition were accepted, it would reflect poorly on our armed forces that they are unable to effectively tackle a war-like situation for the last almost six decades. It would also reflect poorly on the Union of India, as unable to resort to available constitutional provisions and measures to bring a war-like situation under control. The submission of the learned Attorney General is nothing but a play on words and we reject it and hold that an internal disturbance is not equivalent to or akin to a war-like situation and proceed on the basis that there is no war or war-like situation in Manipur but only an internal disturbance, within the meaning of that expression in the Constitution – nothing more and nothing less.

The bench said as is evident from the dos and don’ts and the ten commandments of the chief of army staff, the army believes in this ethos and accepts that this principle would apply even in an area under AFSPA and against militants, insurgents and terrorists.

The bench rejected the Centre’s submission that a person carrying weapons in violation of prohibitory orders in the disturbed area of Manipur is ipso facto an enemy or that the security forces in Manipur in such a case are dealing with an ‘enemy’ as defined in section 3(x) of the Army Act.

The bench continued, “this is far too sweeping and general an allegation and cannot be accepted as it is or at its face value. Each instance of an alleged extra-judicial killing of even such a person would have to be examined or thoroughly enquired into to ascertain and determine the facts. In the enquiry, it might turn out that the victim was in fact an enemy and an unprovoked aggressor and was killed in an exchange of fire. But the question for enquiry would still remain whether excessive or retaliatory force was used to kill that enemy. Killing an ‘enemy’ is not the only available solution and that is what the Geneva Conventions and the principles of international humanitarian law tell us.”

The court said an allegation of excessive force resulting in the death of any person by the Manipur police or the armed forces in Manipur must be thoroughly enquired into. The order read:

For the time being, we leave it open for decision on who should conduct the inquiry and appropriate directions in this regard will be given later. Unfortunately, we have not been given accurate and complete information about each of the 1528 cases that the petitioners have complained about. Therefore, there is a need to obtain and collate this information before any final directions can be given.

As a first step, we direct: Of the 62 cases that the petitioners have documented, their representative and the learned Amicus will prepare a simple tabular statement indicating whether in each case a judicial enquiry or an inquiry by the NHRC or an inquiry under the Commissions of Inquiry Act, 1952 has been held and the result of the inquiry and whether any First Information Report or complaint or petition has been filed by the next of kin of the deceased.

The representative of the petitioners and the learned Amicus will revisit the remaining cases (1528 minus 62) and carry out an identical exercise as above. This exercise is required to be conducted for eliminating those cases in which there is no information about the identity of the victim or the place of occurrence or any other relevant detail and then present an accurate and faithful chart of cases in a simple tabular form.

We propose to consider the grievance of the NHRC that it has become a toothless tiger, after hearing the Union of India and the NHRC on this important issue. We also propose to consider the nature of the guidelines issued by the NHRC – whether they are binding or only advisory.

The court posted the matter for further hearing after four weeks.