Supreme Court dismisses Centre’s plea in Manipur encounter case

In yet another instance of the ongoing tussle for primacy on issues concerning institutional integrity and accountability, the Supreme Court Bench of Justices Madan B. Lokur and Uday Umesh Lalit, on November 12, dismissed a petition filed by some police personnel of the Manipur Police, backed by a few hundred officers of the Army, the paramilitary forces and the Manipur Police seeking the bench’s recusal from the Manipur encounter case.

The petition was supported by Attorney General, K.K. Venugopal, on September 28, in the course of the hearing of the case. Quoting incomplete reports that appeared in the media about the proceedings of a previous hearing in the case, Venugopal contended that Justice Lokur in his remarks termed some Manipur police personnel charge-sheeted in alleged fake encounter cases as “murderers”. This, he said, had “completely shaken” the morale of the armed forces and security personnel operating in insurgency-hit areas. Venugopal was backed by former Attorney General Mukul Rohatgi, who appeared for the personnel of the armed forces.

Venugopal’s contention was rebutted by Colin Gonsalves, senior counsel for Extra-Judicial Execution of Victims’ Families’ Association, the petitioner in the main case. Colin Gonsalves said Justice Lokur was only asking the Central Bureau of Investigation (CBI), how those it had charge-sheeted as murderers were roaming free. This, he insisted, did not amount to casting aspersion on the entire police force or armed forces personnel, let alone lowering their morale. 

The amicus curiae in the case, Menaka Guruswamy, had told the court that the former and present Attorneys General, having lost the main case, sought to “overawe” the court by filing the recusal application. In the main case Rohatgi had represented the Centre as the then Attorney General and had resisted the plea to set up a Special Investigation Team (SIT) to probe select fake encounter deaths in which the personnel of the armed forces were accused.  But the court went ahead to constitute a SIT and monitor the probe to ensure that charge sheets were filed and the accused faced trial.  

The application for recusal of Justice Lokur was aimed at getting relief for the accused as Justice Lokur is due to retire on December 30. The accused, perhaps, hoped that the new presiding judge in place of Justice Lokur may not be as vociferous as he was in pulling up the CBI for its lack of interest in prosecuting the accused.  

As per the judgment in the main case, delivered on July 8, 2016, the CBI ought to have completed its investigations by December 31, 2017, and prepared charge sheets and final reports where necessary. The petitioner in the main case had gathered information with regard to 655 deaths out of 1,528 alleged in the writ petitions.

The CBI Director appeared before the bench on July 30 this year, and informed it that two charge sheets had been filed in which there were 14 accused, and all of them had been charged with murder and criminal conspiracy for their role in fake encounters in Manipur.   The accused were also charged with the offence of causing disappearance of evidence or giving false information to screen offenders. The Director also informed the bench that some more final reports/charge sheets would be filed, making a total of seven charge sheets. 

Normally, in such cases, arrests and custodial investigation of the accused would take place.  Their absence in this case surprised the bench, which asked the CBI, during the proceedings held on July 30, why it had not resorted to these steps so far.

In the judgment authored by Justice Lokur, the bench remarked that the media reported its observations with varying degrees of accuracy and completeness.  Those who sought the recusal of the bench presided by Justice Lokur suggested that the “guilt” of each and every one of the applicants/petitioners has been prejudged, though only a police report had been filed. The biased observations by the bench, therefore, were a ground for recusal by the judges concerned in order to ensure a fair hearing of the case, it was contended.  The petitioners-accused expressed real apprehension that either the investigations or the trial would be tainted to their prejudice because the Supreme Court bench had prejudged their guilt.

The Amicus Curiae, on the other hand, submitted that if the bench accepted the plea for its recusal, then in all cases where judges of the Supreme Court made enquiries that were probing or even inconvenient to one of the parties in the matter, they could be compelled to recuse themselves. 

In its judgment on November 12, the bench made it clear that the purpose of a continuing mandamus was only to ensure that there was no interference during the course of investigations from anybody, whether on account of political, executive or judicial pressure.  

The bench observed: “It is inappropriate for the applicants/petitioners to harbour any apprehension that the Trial Judge would be influenced by the observations said to have been made by this court on July 30, 2018. The applicants/petitioners are indirectly, perhaps unwittingly, questioning the fairness and independence of the judiciary.”

The bench was also categorical that the SIT, consisting of professionals, would not be swayed by any observations it made during the continuing mandamus and monitoring process. More significant, the bench made it clear that officers and personnel of the Indian Army, paramilitary forces and the State police were made of much sterner stuff than was sought to be projected and that they could hardly be demoralised by observations said to have been made by anybody. Calling the accusation of demoralisation a bogey, the bench wondered what could be a reason behind some people raising it.

An attempt to overawe the court by the Centre and its emissaries has been thwarted in time, so that the bench can now make substantial progress in monitoring the case to its logical culmination.