First and foremost, let me begin by coming straight to the nub of the matter. In a landmark judgment with far reaching consequences, the Supreme Court on July 8, 2016 held that the Army cannot be justified to use excessive force in an area declared “disturbed” under the Armed Forces Special Powers Act (AFSPA). This is a clear warning signal to Army that its soldiers cannot kill anyone by using excessive force and stand protected under the shield of AFSPA any longer. Army has to take it very seriously as this landmark judgment has come from the highest court of India – Supreme Court!
All like minded citizens will welcome this landmark ruling because Supreme Court has clearly ruled that even Army cannot use excessive force against any citizen without strong reasons for doing so. This landmark ruling has brought a huge cheer in the face of all human rights activists who feel that now at least even soldiers in Army will think hundred times before killing an innocent as even they can be held liable and face punishment as AFSPA would not come to their rescue. Killing of an innocent person is the worst crime worse than even terror attack carried out by those donning Army uniform and they under no circumstances can be pardoned for their misdeeds. They must be made to face the music so that the right signal goes all across that, “Nobody is above law”.
Examining a petition of 1528 cases of “extra judicial killings” brought before it by the Extra Judicial Execution Victim Families Association (EEVFAM) of Manipur which is a association of families, relatives and friends who had lost their near and dear ones in a spree of extra judicial killings in Manipur, the Bench of Justices Madan B Lokur and UU Lalit set out to examine the truth behind 1,528 instances of such killings. The case was filed in 2012. It ordered the National Human Rights Commission (NHRC) to assist the amicus curiae Menaka Guruswamy in tabulating information about each case. There has to be zero tolerance for extra judicial killings as they can never be justified under any circumstances and it is no surprise that Supreme Court too has taken it very seriously.
The compilation will indicate whether in each case a judicial enquiry or an enquiry by the NHRC or an enquiry under the Commission of Inquiry Act, 1952 has been held and the result of the enquiry and whether any First Information Report or complaint or petition has been filed by the next of kin of the deceased. The matter will be taken up for hearing next after four weeks. It would only be then that the Court will examine the prayers of the petitioners to recommend a probe by either a special investigation team or CBI into the alleged killings.
The Court said there was no justification for the Army to kill citizens of the country by treating them as “enemy” of the State. The Bench minced no words in stating unequivocally 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.” It was also held that, “Every death in a disturbed area, be it of a common person or insurgent, should be thoroughly enquired into by the CID at the instance of the NHRC. Not every armed person violating prohibitory order in a disturbed area is an enemy. Even if enquiry finds the victim an enemy, a probe should look into whether excessive or retaliatory force was used.”
The Bench stated unambiguously that, “It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state. The law is the same for both and is equally applicable to both… This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties.” The Bench thus has come down heavily on the cloak of secrecy which covers in secrecy so many unaccounted deaths involving security forces in disturbed areas where AFSPA is in force.
Those soldiers who kill innocents are worse than terrorists because terrorists are trained rigorously in hostile foreign nations like Pakistan by their Army and ISI on how to kill maximum innocents but who trains these Indian soldiers to kill innocents? Certainly no one but their lure to impress higher ups and get gallantry awards prompts them to go in for extra judicial killings or fake encounters and many times they immediately kill someone on getting information about someone being a terrorist without verifying it properly!
While craving for the exclusive indulgence of my esteemed readers, let me bring out here that the Centre had argued before the Court that terrorism had been raising its ugly head over past five decades for which reason Manipur has continued to be declared a “disturbed area” under AFSPA. Any curb on Army action would be demoralizing to the armed forces, argued Attorney General Mukul Rohatgi. This is a specious argument because no one can be given the licence to kill innocents under any circumstances and even the armed forces are no exception to it.
Throwing out the government’s argument that lack of immunity from prosecution would have a demoralizing impact on the security forces, the Court asked the Centre to spare a thought for the “equally unsettling and demoralizing” picture of a citizen living under the fear of the gun in a democracy. The Court dismissed the government’s argument that every armed person breaking prohibitory orders in a disturbed area runs the risk of being considered an “enemy”. The Supreme Court while ordering that all encounter deaths in a disturbed area caused by armed forces should be probed said: “It would not be correct to say that merely because a person was carrying arms in a prohibited area, he or she becomes an enemy or an active member of a banned or unlawful organization… Before a person can be branded as a militant or a terrorist or an insurgent, there must be the commission or some attempt or semblance of a violent overt act.” The Court also held that, “There is a qualitative difference between use of force in an operation and use of such deadly force that is akin to using a sledgehammer to kill a fly.”
There are many things which demoralizes armed forces but does Centre care really? As for instance, just 2 to 3 months after Kargil war in which we officially lost more than 600 soldiers yet the Pakistani invader and Pakistani Army Chief Gen Pervez Musharraf who himself masterminded Kargil war and even entered `15-16 km inside Indian territory just before Kargil war begin as he himself acknowledges to boost his soldiers morale and inspire them to brutally massacre Indian soldiers was given a red carpet welcome to India like a royal emperor! Did this boost morale of Indian soldiers?
Gen Musharraf while in India hailed terrorists as “freedom fighters” and terrorism as “freedom struggle”! For dreaded terrorists like Hafiz Sayyid and Syed Salaluddin who head dreaded terror groups like Lashkar-e-Taiba and Hizbul Mujahideen, Gen Musharraf said very recently in an interview to Indian news channel that, “Yeh to hamare hero hain ji hero bilkul aasli hero. Bharat ke liye yeh aatankwadi hain paar haamare to yeh hero hain ji hero! Pakistan has always provided all help – money, weapons and other things to wage war against India and kill Indian soldiers and Inshah Allah will keep doing so till Kashmir is liberated! Thousands of Kargil war will be fought in the coming days with India!” Did this boost soldiers morale? Gen Musharraf is the same person who had paid dreaded Al Qaeda terrorist Iliyas Kasmiri Rs one lakh for presenting him a severed head of Indian soldier as trophy which he promised to keep with him always as was reported in most English Indian newspapers in 2000! Did this boost morale of Indian soldiers?
Since last 42 years Centre denied ‘One Rank One Pension’ to soldiers which it ended immediately after India won historic 1971 war! Did this boost morale of Indian soldiers? Gen Musharraf ordered Captain Saurav Kalia and 5 soldiers of 4 Jat Regiment to be tortured brutally non-stop for not 5 days or 10 days or 15 days or 20 days but for nearly a month and their body bore signs of cigarette torture, their eyes were punctured after hot iron rods was inserted before gouging them out similarly their nose, ears etc were not spared even their private parts not spared and finally they were shot on head and their dead body was handed over to India yet Centre never raised this worst form of torture and killing in any international forum even after promising to do so and it was the then PM Atal Bihari Vajpayee who himself assured parents of Captain Saurav Kalia but 17 years later NK Kalia – the father of Captain Kalia is fighting a lonely legal battle with no help from Centre in any manner! On the contrary, India accorded recognition to the illegal usurpation of power by Gen Musharraf as President when even Commonwealth countries had expelled Pakistan from its membership! Did this boost morale of Indian soldiers?
Politicians of all major political parties welcomed Gen Musharraf with garlands and felt proud to have photo-ops with him! Did this boost soldiers morale who lost many of their colleagues in Kargil war masterminded by him? Many big media groups honoured Gen Musharraf who there itself lashed out at India and deplored the condition of Muslims in India. Did this boost soldiers morale? It is a different thing that Maulana Mehmood Madani who is head of Jamiat-e-Islami organization then and there itself advised Gen Musharraf to not start Pakistan politics from India and concentrate on Pakistan only. He also told Gen Musharraf that 95% of Hindus are always with us and so you worry about Pakistan!
Indian Army even after capturing alive nearly one lakh Pakistani soldiers (93,000 to be precise) treated them with full dignity as are accorded to enemy soldiers as provided under the Geneva Convention and released them all but Pakistan did not return Indian prisoners of war whose strength is estimated to be about 60 and who are being tortured most brutally since last 45 years in various Pakistani jails as was noted by even the former PM of Pakistan – Zulfikar Ali Bhutto who said before being executed that in jail he could hear horrifying cries of Indian soldiers and some have even been sent as slaves to other countries with whom Pakistan enjoys good equations and this has been acknowledged even by Supreme Court who castigated Centre for doing nothing on this! Did this boost soldiers morale?
Anyway, shifting focus again on the landmark verdict, the Bench examined the abuse of AFSPA from the aspect of victims and said, “To contend that this would have a deleterious and demoralising impact on the 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, outright acceptance of the proposition advanced is equally unsettling and demoralising, particularly in a constitutional democracy like ours.”
Supreme Court rubbished the Centre’s stand justifying Army deployment in Manipur on the ground that armed insurgency has created a warlike situation. If the situation was really war like why terrorists are not killed? Why Centre keeps holding “talks and dialogues with terrorists and repeatedly keep extending ceasefire as we see in many northeastern states”? Why Centre keeps appointing senior IAS officers to act as “interlocutors” to talk with those with whom India is at war and accord them the status of “emperor”?
Defending Army deployment in the state since 1958, the Centre said, “There is a constant threat from armed militant groups and therefore there is a need for counter-insurgency operations through armed forces in conjunction with the civil administration.” It added, “in this background, the AFSPA was enacted and amended keeping in view the hostile environment and the imperative to give legal and logistic protection to armed forces personnel posted on duty so as to enable them to operate with required thrust and drive.” Supreme Court was not impressed by such arguments. Seeing some merit in petitions alleging extra-judicial killings of 1,528 persons, the court called for a probe into 62 such cases to decide if a special investigation team was required.
The Bench of Justices Madan B Lokur and UU Lalit said a thorough inquiry should be ordered into “encounter” killings in disturbed areas because the “alleged enemy is a citizen of our country entitled to all fundamental rights including under Article 21 of the Constitution.” Justice Lokur lashed out saying that, “If members of our armed forces are deployed and employed to kill citizens of our country on the mere allegations or suspicion that they are ‘enemy’ not only the rule of law but our democracy would be in grave danger.” Very rightly said and this must be borne in mind by not just common man but also the security forces for whom it has been said specifically!
The Supreme Court held that even if the enquiry proved that the victim was an enemy and an “unprovoked aggressor”, the security forces should still answer to the question whether excessive or retaliatory force beyond the call of duty was used. “Killing an ‘enemy’ is not the only available solution,” Justice Lokur observed candidly. The Court, without making any comment of its own, referred to how the petitioners said that in “most cases the arms are planted on victims.” To the dual questions as to what and who decides whether “excessive or retaliatory force” was used, the Court said that “it is not the encounter or operation which should be under scrutiny but the smoking gun.”
On the question as to who should conduct the probe into an encounter death to see whether it was of an “indefensible, mala fide and vindictive” nature, the Apex Court said the enquiry should be done by the Criminal Investigation Department at the instance of the NHRC. The court observed that there are several ‘do’s and don’ts’ in the defence forces rule book and there is no justification whatsoever of breaching those rules of combat and conduct.
Supreme Court wondered whether the 60-year run of AFSPA in Manipur had served the purpose of restoring normalcy which was declared a disturbed area in 1958. Rejecting Attorney General Mukul Rohatgi’s arguments supporting continued presence of Army in Manipur, a Bench of Justices Madan B Lokur and Uday Umesh Lalit said, “The public order situation in Manipur is, at best, an internal disturbance. There is no threat to the security of the country or a part thereof either by war or an external aggression or an armed rebellion. For tackling internal disturbance, the armed forces of the Union can be deployed in aid of the civil power. The armed forces do not supplant the civil administration but only supplement it.”
Moreover the role of Army is to fight soldiers from across the border and not fight enemies from within for which CRPF and other forces should be deployed! This point has been emphasized time and again by many Generals that Indian Army too wants to be in barracks defending border posts and doing what is their job instead of being deployed repeatedly for internal conflicts which make soldiers weary and render them unfit to fight a war in the real sense! This must be always borne in mind who blindly support AFSPA and Army’s deployment for quelling internal disturbances!
The Bench stated that the submission of the 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. It noted that if the Attorney General’s submission was to be accepted, it would reflect poorly on the armed forces that they are unable to effectively tackle a war like situation for almost six decades. The Bench also added that, “it would also reflect poorly on the Union of India that it is unable to resort to available constitutional provisions and measures to bring a war-like situation under control for almost six decades.”
It must be mentioned here that in June 2005, the Justice Jeevan Reddy panel recommends withdrawal of AFSPA in 147-page report but Centre takes just no action. It recommended repealing AFSPA and incorporating its provisions into the Unlawful Activities Prevention Act. It also must be mentioned here that in January 2013 the Supreme Court constitutes Justice Santosh Hegde Commission to probe Manipur fake encounters after PIL lists 1,528 cases. On April 4, 2013, Hegde panel finds six cases to be fake-encounter killings.
It is worth mentioning here that in May 2015, Tripura’s Left Front government decides to lift AFSPA after 18 years of imposition which has certainly created a worthy example to be followed. It also must be mentioned here that Irom Sharmila who has vowed to end her fast only if AFSPA is repealed`has been on indefinite fast since November 5, 2000 and has been going through a release-and-re-arrest routine and is nose-fed at a government hospital ward, which has been converted into a jail for her.
Let me point out here that the 85-page latest ruling draws its broad principles from an earlier Constitution Bench verdict in Naga People’s Movement of Human Rights (1997). I am happy to note that the Court has acknowledged that additional powers have been given to the armed forces to deal with terrorists effectively but it also made clear that this cannot be an excuse for extrajudicial killings. Extrajudicial killings are worse than terror killings as it is the men in uniform who execute it and they certainly must be awarded the strictest possible punishment for nothing can justify killing of any person in fake encounter or extrajudicial killing! The Court has also rejected the notion that every person bearing arms in a disturbed area is ipso facto an “enemy”.
In a strong indictment, the Court finds that the preliminary evidence points strongly in the direction that activists have been arguing for decades, namely that the AFSPA is often used as a tool for un-needed and excessive force and violence. In addition, the inquiries are conducted by the Army and mostly (the human right activists allege) are found to be unreliable. The Court states that there is no evidence to believe that the cases reached the human rights division of the army or the ministry of defence.
The Supreme Court has championed the cause of human rights in this landmark judgment and has stated that there is a difference in the manner in which a person who violates an order in force in a disturbed area should be treated as compared to an enemy combatant belonging to a hostile country. The fact that an Indian citizen, in a disturbed area, is violating a prohibitory order ipso facto does not give rise to an automatic right for the armed forces to treat him with force or to assume that he constitutes an enemy in that situation. Be it noted, the court looks at the methods of practice prescribed by the army itself and states that the use of force and especially excessive and retaliatory force on citizens is unjustified.
Last but not the least, let me also bring out here that the Court also holds that in such cases, where the use of force is excessive or the encounter itself is not genuine, there is nothing which precludes a criminal investigation and inquiry under ordinary criminal law. Both the Army Act, and the Code of Criminal Procedure permit for an inquiry to be conducted before a judicial magistrate for crimes committed by men in uniform while they are on duty. It is imperative to point out here that Code of Criminal Procedure applies to all crimes under the IPC unless otherwise excluded.
For my esteemed readers exclusive benefit, let me bring out here that it is Section 6 of the AFSPA which precludes any prosecution, suit or legal proceeding against personnel of the security forces and is therefore considered most controversial and draws maximum ire of human rights activists. The Supreme Court held that if the deaths of civilians are unjustified, there is no question of blanket immunity as under Section 6 and that there cannot be impunity where loss of human life is concerned. Thus we see that the Supreme Court has sent a clear and loud message to all security forces that AFSPA can’t protect them from being prosecuted for fake encounters, extra judicial killings, forced disappearance etc!
A crime is a crime! If security forces commit crime, they too must be prepared to face the unpalatable consequences from which there can be no escaping! This is the firm message that the Supreme Court has sought to send by its landmark verdict!
Manipur based human rights activist, Beenalaxmi Nepram also welcomed the Apex Court’s judgment. She said that, The ruling will ensure that those who commit human rights violation or indulge in extra-judicial killings will not be let off. We’ve suffered for more than 40-50 years but we have faith in the Indian justice system. We’ll keep fighting for the repeal of AFSPA from the entire country. Putting a blanket AFSPA on the people of Manipur itself is a violation of the Constitution.” Beenalaxmi is confident that AFSPA would be repealed soon.
AFSPA’s Clause Four and Clause Six have often become the prime targets in debates and discussions which we keep hearing in various news channels. One allows the security forces to kill upon suspicion in a disturbed area and the other protects them from prosecution except with the sanction of the Central government. This latest landmark judgment however removes the blanket protection provided by AFSPA’s Clause Four and Clause Six and said there is no concept of absolute immunity from trial by the criminal court under the Criminal Procedure Code as I have already pointed out earlier.
Supreme Court has in no uncertain terms decried the permanent use of AFSPA. The Supreme Court has ruled very categorically that indefinite deployment of armed forces in disturbed areas under AFSPA “mocks at our democratic process” and symbolizes a failure of the state. It said: “Normalcy not being restored cannot be a fig leaf for prolonged, permanent or indefinite deployment of the armed forces…as it would mock at our democratic process.”
The Bench also said that, “It is high time that concerted and sincere efforts are continuously made by the four stakeholders – civil society in Manipur, the insurgents, the State of Manipur and the Government of India to find a lasting and peaceful solution to the festering problem, with a little consideration from all quarters. It is never too late to bring peace and harmony in society.” It must be stated here that AFSPA was enacted in 1958 and has remained in force since then in Nagaland and Manipur (except Imphal), from 1990 in Assam and Kashmir, and from 1991 in three districts of Arunachal Pradesh.
Having said this, let me also state that while human rights of citizens must be protected under all circumstances but equally it would be disastrous to tie the hands of our soldiers where militancy is at its peak as for instance in Kashmir and make our soldiers sitting ducks to be killed whenever terrorists likes! While all those security forces who are guilty of extra judicial killings must be brought to book but the landmark judgment of Supreme Court in Naga People’s Movement case that had upheld the Army’s operational guidelines for such operations with very clear ‘do’s and don’ts’ should remain valid! Even in this landmark case, the Supreme Court has clarified that its ruling for enquiries into fake encounters does not disturb the AFSPA shield which protects the military from precisely such enquiries. It also clarified that Section 6 of the Act has not been taken into consideration because it was “yet to be determined whether the deaths were in fake encounters” or “in genuine encounters in counter-insurgency operations”. National interests of our nation are paramount and there can be no compromise on that. I am sure that the latest landmark ruling will ensure that there is a check on fake killings while at the same time ensuring that terrorists don’t enjoy a free run as they are a threat to the very existence of our entire nation and not just to one or few individuals unlike other ordinary criminals who get best possible rigorous training in foreign hostile nations, are armed to the teeth and also given all financial aid!