Apex Court rejects indefinite AFSPA, orders probe into more than 1500 fake encounters

New Delhi: The Supreme Court on 8 July said that indefinite deployment of armed forces in the name of restoring normalcy under AFSPA “would mock at our democratic process,” apart from symbolising a failure of the civil administration and the armed forces. The court said that “ordinarily our armed forces should not be used against our countrymen and women” and that “every person carrying a weapon in a disturbed area cannot be labelled a militant or terrorist or insurgent” and be killed without any inquiry.

Raising serious questions on deployment of security forces in Manipur under the AFSPA since 1958, a bench of Justice Madan B Lokur and Justice Uday U Lalit reminded the Central and state governments that the purpose behind deployment of armed forces was to ensure normalcy would be restored within a reasonable period. “In our opinion, it would be indicative of the failure of the civil administration to take effective aid of the armed forces in restoring normalcy or would be indicative of the failure of the armed forces in effectively aiding the civil administration in restoring normalcy or both,” said the bench.

Critical of continuation of AFSPA in Manipur even after almost 60 years of its imposition, the court said that “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…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,” the bench said.

Deciding to order a probe into 1,528 cases of alleged fake encounters in Manipur in the last 20 years, the court rejected the central government’s submission that there is a war-like situation in the state and an inquiry may demoralise the security forces, in turn helping the militants, terrorists and insurgents. “The submission of the learned 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,” the verdict stated.

It noted that if the AG’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. “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,” added the bench.

On its decision to probe 1,528 cases of alleged fake encounters by security forces and the state police, the bench said “democracy would be in grave danger” if armed forces were permitted to kill citizens on mere allegation or suspicion that they are enemies of the state. It added that “smoking guns” must come under judicial scrutiny to examine if excessive or retaliatory force was used by security forces. “There is some truth in the allegations, calling for a deeper probe… It is necessary to know the truth so that the law is tempered with justice,” said the bench.

It also said that “no absolute immunity” would be given to armed forces personnel if any death was found to be “unjustified”. “This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties. 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,” it noted.

Citing the Constitution Bench judgment of 1955 in the Naga People’s Movement case, the bench held that “the use of excessive force or retaliatory force by the Manipur Police or the armed forces of the Union is not permissible” and all such instances must be thoroughly investigated.

Stating that any death caused due to “use of excessive force or retaliatory force… is destructive of the rule of law and plainly unconstitutional”, the court said that each instance of an alleged extra-judicial killing would have to be examined to determine the facts.

This article appeared in The Milli Gazette print issue of 16-31 July 2016 on page no. 3

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