Unlawful encounters

Print edition : August 19, 2016

A demonstration demanding the repeal of the Armed Forces Special Powers Act (AFSPA) at Jantar Mantar in New Delhi, a 2011 photograph. Photo: V. Sudershan

The Supreme Court’s July 8 judgment in the Manipur encounter case holds important lessons for the security forces in Jammu and Kashmir.

THE Armed Forces Special Powers Act (AFSPA), 1958, is the most draconian law used by the security forces in the north-eastern States. It was first applied to Assam and Manipur and was amended in 1972 to extend to Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland. It gives security forces unrestricted power to carry out their operations—to shoot, arrest and search in the garb of aiding civil power and maintaining public order—after declaring the area “disturbed”. Worse, under the Act they are immune from legal proceedings for their actions unless the Central government sanctions them. The Act has invited criticism, time and again, with human rights defenders saying that it encourages the armed forces to use excessive force against suspects. A commission, headed by former Supreme Court judge Justice Jeevan Reddy, had recommended that it be repealed. Another former Supreme Court judge, Justice Santosh Hegde, found gross abuse of the law in the six cases in Manipur the Supreme Court referred to him. But these findings have hardly had any impact on the government, which justifies the use of the AFSPA against alleged terrorists and militants on the ground that they are our “enemies” who have created a “war-like” situation in the country.

The Supreme Court bench comprising Justices Madan B. Lokur and Uday Umesh Lalit delivered a landmark judgment on July 8 in Extra Judicial Execution Victim Families Association vs Union of India, in which the next of kin of victims of fake encounters carried out by the Manipur Police and the armed forces of the Union in Manipur demanded justice and punishment of the guilty, and not just monetary compensation. The bench effectively exposed the government’s claims that the use of the AFSPA was justified. The bench agreed that Manipur had been and was facing a public order situation equivalent to an internal disturbance for almost 60 years. But it disagreed with the government’s view that a war-like situation existed in Manipur. Saying that the animus to wage a war or any other similar activity was important before a non-conventional war or war-like situation could be said to exist, the bench held that every act of violence even though it might be directed against the armed forces or public officials would not lead to an inference that a war was going on or that war-like conditions were prevailing.

Similarly, the bench held that sporadic but organised killings by militants and ambushes could not lead to the conclusion that a war or war-like conditions existed. Were such a blanket proposition accepted, it would reflect poorly on the armed forces that they had been unable to effectively tackle a war-like situation for the last six decades. It would also reflect poorly on the Union of India that it was unable to resort to available constitutional provisions and measures to bring a war-like situation under control for almost six decades, the bench concluded. The bench was conscious of the fact that the security forces had been defending themselves on the ground that they were exercising their right of self-defence in the encounters with suspected militants. The bench thus held that while a victim of aggression had a right of private defence or self-defence under Sections 96 to 106 of the Indian Penal Code, if that victim exceeded the right of private defence or self-defence by using excessive force or retaliatory measures, he then became an aggressor and committed a punishable offence. When the state uses such excessive or retaliatory force and it leads to death, it is referred to as extrajudicial killing or execution. Society and the courts obviously could not and did not accept such a death caused by the state since it was destructive of the rule of law and plainly unconstitutional, the bench declared.

There was a qualitative difference between the use of force in an operation and the use of such deadly force that was akin to using a sledgehammer to kill a fly: one was an act of self-defence, the other an act of retaliation, the bench reasoned. Citing the Supreme Court’s judgment in Naga People’s Movement of Human Rights vs Union of India (1998), the bench held that every death caused by the armed forces, including in the disturbed area of Manipur, should be thoroughly inquired into if there was a complaint or allegation of abuse or misuse of power.

The bench held that before a person could be branded a militant, a terrorist or an insurgent, there must be the commission or some attempt or semblance of an overt violent act. A person carrying a weapon in a disturbed area in violation of a prohibition to that effect could not be labelled a militant, terrorist or insurgent.

Santhosh Hegde Commission

The Santosh Hegde Commission found that none of the victims in the six cases it examined had any criminal antecedents nor was there any credible evidence to show that they had affiliations with a banned or unlawful organisation. Therefore, the bench held that it would not be correct to say that merely because a person was carrying arms in a prohibited area, that person automatically became an enemy or an active member of a banned or unlawful organisation. The bench noted, without comment, the contention of the petitioners that in most cases the arms were planted on the victims. The bench observed that there was a greater duty of care and an equally greater necessity of a thorough inquiry since the alleged “enemy” in an encounter was a citizen of the country entitled to all fundamental rights, including Article 21 of the Constitution. “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 ‘enemies’, not only the rule of law but our democracy would be in grave danger,” the bench observed.

In the inquiry, 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 inquiry would be whether excessive or retaliatory force had been used to kill the so-called enemy, the bench suggested.

The Manipur government maintained before the Supreme Court that ordinary criminal laws, including the Unlawful Activities (Prevention) Act, were inadequate to deal with the problem of insurgency in Manipur.

The bench observed that even while dealing with the “enemy” the rule of law would apply and if there were excesses beyond the call of duty, those members of the Manipur Police or the armed forces who had committed them would be liable to be proceeded against. Advocating caution and the use of minimal force against citizens, it was held in Naga People’s Movement of Human Rights that power could be exercised under Section 4(a) of the AFSPA only under certain circumstances. Quoting from the 10 commandments issued by the Chief of the Army Staff, the bench said that minimum force should be used even against terrorists, militants and insurgents. “This is very much in tune with international law even in times of war when the Geneva Conventions and the principles of international humanitarian law are applicable,” the bench held. It added: “There is absolutely no reason why an equally toned-down response cannot be given by our armed forces in times of internal disturbances and why no inquiry should be held if the response is alleged to be disproportionate.”

Agreeing with the court’s decision in Naga People’s Movement of Human Rights, the bench held that an allegation of excessive force by the Manipur Police or the armed forces in Manipur resulting in the death of any person must be thoroughly inquired into. The bench held that in the event of such an offence having been committed by any person in the Manipur Police or the armed forces, the proceedings in respect thereof could be instituted in a criminal court subject to the appropriate procedure being followed.

In this case, the petitioners complained about 1,528 cases in which complete and accurate information was not available. Therefore, there was a need to obtain and collate this information before any final directions could be given on who should conduct the inquiry, the bench held. The amicus curiae in this case, Menaka Guruswamy, told the bench that in 15 out of 62 cases documented by the petitioners, the Justice Santosh Hegde Commission or judicial inquiries conducted at the instance of the Gauhati High Court had held that the encounters were fake. The National Human Rights Commission (NHRC), however, informed the bench that in 31 of those 62 cases it had been concluded that the encounters were not genuine and that compensation had been awarded to the next of kin of the victims or the award of compensation was pending. The bench directed the petitioners’ representative and the amicus curiae to prepare a simple tabular statement for these 62 cases indicating the following: whether a judicial inquiry or an inquiry by the NHRC or an inquiry under the Commissions of Inquiry Act, 1952, had been held; the result of the inquiry; and whether the next of kin of the deceased had filed any first information report or complaint. The bench further directed the representative of the petitioners and the amicus curiae to revisit the remaining 1,466 cases and carry out an identical exercise.

The bench, which is likely to hear the case in September, is expected to pass further directions regarding the nature and scope of an inquiry to ascertain the truth about documented fake encounters in Manipur, and also propose remedies to make the NHRC powerful enough to intervene in fake encounter cases in future.

Observers say that this landmark judgment will have significant bearing on how similar concerns over the enforcement of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, are addressed.