Infusing semblance of sobriety

Infusing semblance of sobriety

The Supreme Court judgment on a plea highlighting the extrajudicial killings in Manipur is likely to provide some healing touch to the people suffering from the excesses of the armed forces deployed in disturbed areas. With it, some semblance of sobriety could be spawned in their conduct. And the timing could not have been better as several border states, including Jammu & Kashmir, have seen large deployment of forces due to unrest.

The Northeastern state of Manipur has witnessed massive protests over the years against the Armed Forces Special Powers Act (AFSPA) that gives the army sweeping emergency powers. Besides raising questions over the unbridled use of AFSPA in the state, nearly 60 years after it was imposed, the Supreme Court directed for deeper probe into the 1,528 cases of “fake” encounters by security forces and the state police to unravel the truth.

The sheer number of deaths shows how security forces resorted to high-handedness, alienating the very people they had to protect. In a clear message to the powers that be, the court said: “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.”

Though the instructions were issued by the Army Headquarters as “Dos and Don’ts” under the Armed Forces (Special Powers) Act, and the Ten Commandments of the chief of army staff, which restrained the personnel from using excessive force, it remained a somewhat dead letter on the ground in view of shrill cries on human rights violations, including the high rate of casualty. That weighed heavily on the court when it said that there is some truth in the allegations, calling for a deeper probe so that the law is tempered with justice. The court called for ascertaining whether fake encounters or extrajudicial executions have taken place and if so, who are the perpetrators of the human rights violations and how can the next of the kin be commiserated with and what further steps ought to be taken.

“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 enquiry would still remain whether excessive or retaliatory force was used to kill that enemy,” the bench asserted. After making it categorical that no absolute immunity would be available to the armed forces, if the death was found unjustified, the court also jettisoned the Centre’s bid to avoid an independent inquiry into fake encounters on the excuse that it would have a demoralising effect on the security forces.

“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,” the court said. 

Far-reaching impact

The court has opined that that the decision to try a person who committed an offence punishable under the Army Act does not always, or necessarily lie, only with the army. It has also said the criminal court could also try such an offender in certain circumstances. This is likely to have a far-reaching impact. The Central government’s submission that there is a war-like situation in the state, and therefore an inquiry may prove deleterious on the security forces to no one’s advantage except the militants, terrorists and insurgents, failed to cut any ice.

“The submission of 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 stated. The court further went on to hold 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 the last almost six decades.

While acknowledging that the challenges of militancy and terrorism staring at us are grave, the court clarified: “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. A person carrying a weapon in a disturbed area in violation of a prohibition to that effect cannot be labeled a militant or a terrorist or an insurgent.”

The role of the National Human Rights Commission also came in for some criticism over the charges that it is a toothless tiger in view of its failure to ensure an independent inquiry into the killings and in bringing justice to the victims. The coming days would also hopefully see streamlining the procedure to be adopted by the rights panel for dealing with such encounters.

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