New Delhi: The Supreme Court has agreed to hear the Centre’s curative petition seeking to recall the July 2016 order holding that the army or the Manipur police cannot use excessive force under the provisions of the Armed Forces (Special Powers) Act (AFSPA) or the Unlawful Activities (Prevention) Act (UAPA) to deal with militants or insurgency.
A three-judge bench comprising Chief Justice J.S. Khehar and Justices D.Y. Chandrachud and Sanjay Kishan Kaul, without giving any specific date, told attorney general Mukul Rohatgi, who made a ‘mention’ yesterday for the listing of the curative petition that the matter will be heard in due course.
Generally, curative petitions are filed after the court dismisses the review petition and mostly such curative petitions are decided in the chambers of the presiding judge. If there is merit then the matter is listed for an open court hearing.
On July 8, 2016, the top court had given 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.
The court had said that if the members of the armed forces are deployed and employed to kill citizens of the country on the mere allegation or suspicion that they are ‘enemy,’ then not just the rule of law but also our democracy would be in grave danger. It said that the use of excessive force or retaliatory force by the Manipur police or the armed forces of the union is not permissible. It had directed that the Indian army and other paramilitary forces cannot use “excessive and retaliatory force” in Manipur and all such allegations of excessive force must be probed.
Seeking to recall this order, the Centre said the findings and conclusions have far reaching ramifications on the security and integrity of the territory of India, especially in certain parts of the country. The protections available to the armed forces under statutes such as AFSPA and the UAPA have been completely negated or bypassed. If the position maintained by the impugned order continues, it may one day be well-nigh impossible to maintain peace and security.
The Indian army has to, in given circumstances, take quick decisions which cannot be dissected later. The action taken by the army during operations cannot be put to judicial scrutiny. It submitted that the principle of judicial scrutiny cannot be applied in insurgency operations in the state of Manipur by the security forces.
The curative petition said that it is a well-known fact that the northeastern region has also been, post-independence, infested by insurgency and militant groups from the China and Myanmar region. There is a constant threat from armed militant groups and therefore there was a need for counter-insurgency operations through the armed forces in conjunction with the Manipur police.
These anti-insurgency/militant operations also hold out a threat to the lives of the armed forces personnel since the insurgents/militants wield deadly weapons inclusive of the latest automatic fire weapons.
The court in July 2016 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 top court said that “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 an 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.
Disagreeing with these findings, the Centre said the top court in its order failed to take into account the peculiar facts and circumstances and did not take into account the express contents of statutory provisions and their interpretation especially in consonance with the ground realities under which the forces are posted in the Manipur region. No army action against such suspected insurgents in frontiers and difficult terrain can be equated to a “public order” or a “law and order” situation. It cannot be expected that the army during such operations which generally last two-five minutes, consider that the army officer might be tried for participating in an operation.
The government said the immediate effect of the impugned judgment was that it has hampered the army’s ability to respond to insurgent and terrorist situations. The Indian army has to, in given circumstances, take quick decisions which cannot be dissected later on like an appeal against the ordinary murder appeal. Denying violation of human rights in these fake encounters, the government said, “human rights and respect for the life of a human being are kept on the highest pedestal” as reflected by the data showing only 10% of insurgents died in the army operations between 1990 and 2015.
It said that if members of our armed forces are deployed and employed to kill citizens of our country on the mere allegation or suspicion that they are ‘enemy’ not only the rule of law but our democracy would be in grave danger and prayed for recall of the order and to dilute the findings which held the army accountable for fake encounters.