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Law

The CBI Must Stop Dragging Its Feet on Manipur's Fake Encounters

The interminable delays and inaction in filing even FIRs – the first step in a criminal investigation – raise a lot of questions.

“A failure to respect the duty to investigate is a breach of the right to life.” 
∼ Office of the UN High Commissioner, Minnesota Protocol on the Investigation of Potentially Unlawful Death

On March 12, the Supreme Court – in its ninth hearing of the Extra Judicial Execution Victim Families Association and Another (EEVFAM) vs Union of India and Another matter – asked the Special Investigation Team (SIT) of the Central Bureau of Investigation (CBI) to expedite its inquiry into at least 13 cases of the 1,528 cases of alleged extra-judicial killings by security forces in Manipur.

The CBI’s interminable delays and inaction in filing even the FIRs – the first step in a criminal investigation – despite repeated orders and reprimands from the Supreme Court, calls into question the investigating body’s willingness to follow due process, as well as its effectiveness, impartiality and transparency.

India, through its investigating agencies like the CBI, has an obligation under international and domestic law to conduct investigations into allegations of extra-judicial executions with due diligence, in good faith and without delay, and to be thorough, effective, impartial and independent. India is required to adopt all the appropriate measures to protect and preserve the right to life as part of their duty to ensure full and free exercise of the rights of all persons under their jurisdiction.

History of the case

The petitioner, NGOs EEVFAM and Human Rights Alert, have alleged that 1,528 cases of extra-judicial killings, mischaracterised as “encounter killings”, were committed by security forces in Manipur between 1979 and 2012.

In July 2016, the Supreme Court in a momentous judgment emphasised the need for accountability for human rights violations by security forces, including under the Armed Forces Special Powers Act, and the right of victims’ families and the society to know the truth. The court affirmed that “the law…is very clear that if an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court”. It subsequently ordered the CBI to set up an SIT and ordered it to go through the records of 85 cases, lodge FIRs, complete investigations, and file charge sheets, where needed, by 31 December 2017. In its judgement, the court stated that a prima facie case had been made out in the context of 32 of the 85 cases and directed registration of FIRs in those cases. In derogation of the Supreme Court order, the CBI failed to register FIRs.

As a consequence, in January 2018, the court stated that the CBI was not treating the matter “with the seriousness that it deserves”, and yet again ordered the CBI to register the FIRs by January 31, 2018 and to conclude investigating at least 12 of the cases and to file reports.

Despite the court’s clear instruction, the CBI, instead of filing FIRs against security forces for extrajudicial execution, re-registered 42 FIRs against the deceased victims of the extra-judicial executions. The court repudiated the CBI for their action and Justice Madan B. Lokur told the CBI, “there is something terribly wrong with the investigation”. The judge asked the National Human Rights Commission to second three persons to the SIT to conduct the investigations and to ensure that appropriate FIRs are registered and necessary steps are taken to file chargesheets. However, as of March 12, only 13 FIRs had been registered against “unknown persons”, despite the names of policemen and army personnel being available in the FIRs that the CBI had re-registered against the deceased victims.

Manipur is the site of a long-running armed insurgency. The killings mentioned in the petition took place in areas considered “disturbed” under the Armed Forces Special Powers Act (AFSPA). Once an area is declared “disturbed” under AFSPA, armed forces are given a range of “special powers”, which include the power to arrest without warrant, to enter and search any premises, and, in certain circumstances, to use lethal force. These and other vaguely framed provisions give the armed forces broad powers that are inconsistent with the government’s obligations to respect the right to life. AFSPA has facilitated gross human rights violations by the armed forces in the areas in which it is operational. Human rights organisations, including the International Commission of Jurists and several UN human rights bodies, have recommended that the AFSPA be repealed or significantly amended. In India, the Justice Jeevan Reddy Committee set up to review the working of the AFSPA has advocated its repeal.

Applicable international law standards

India has a legal obligation under Articles 2(3) and 6 of the International Covenant on Civil and Political Rights (ICCPR), to which it is party, to investigate allegations of violations of the right to life promptly, thoroughly and effectively, through independent and impartial bodies and to ensure that those responsible are brought to justice.

The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), which are international principles on investigation of suspicious deaths, particularly where the state is alleged to be responsible, provides:

“The investigation must determine whether or not there was a breach of the right to life…The investigation should seek to identify any failure to take reasonable measures which could have had a real prospect of preventing the death. It should also seek to identify policies and systemic failures that may have contributed to a death, and identify patterns where they exist.”

The Human Rights Committee, which is the UN supervisory body responsible for interpreting state obligations under ICCPR, has emphasised that “perfunctory and unproductive investigations whose genuineness is doubtful” do not meet the standard of the obligation to undertake investigations with due diligence.

The investigation being carried out by the CBI has consistently failed to meet the standards of due diligence, impartiality and effectiveness. Despite being asked by the Supreme Court to register FIRs against the security forces and police, and to conclude investigations where needed in July 2017, and again in January 2018, the CBI, in patent violation of the Supreme Court order, lodged FIRs against the deceased victims of the alleged ‘fake’ encounter killings. Upon being reprimanded in February 2018, the CBI has filed 13 FIRs against unknown police personnel despite the identity of the personnel being known to them.

This reflects an unwillingness to register cases against the security forces and does not inspire faith that the victims’ families will get justice. It is a fundamental rule of law principle the executive must carry out the decisions of an independent judiciary. This principle is affirmed, among other places, in the UN Principles on the Independence of the Judiciary.

The CBI must ensure full compliance with the Supreme Court’s historic judgment directing independent investigations into alleged extrajudicial killings by the police and security forces in Manipur from 1979 to 2012. The right to know the truth extends to society as a whole, given the public interest in the prevention of, and accountability for, the breach of one’s fundamental right to life by the state. Regarding state accountability for breach of the right to life committed under the cover of AFPSA, the government has a duty to ensure that the investigation is independent, impartial and thorough, and in line with international standards.

Maitreyi Gupta is International Legal Advisor-India, International Commission of Jurists.