8 July 2016 1:48 PM GMT
Supreme Court of India Today has held that an allegation of excessive force resulting in the death of any person by the Manipur Police or the Armed forces in Manipur must be thoroughly enquired into. The Two Judge Bench comprising of Justices Madan B Lokur and Uday Umesh Lalit also held that even while dealing with the ‘enemy’ the rule of law would apply and if there have been excesses...
Supreme Court of India Today has held that an allegation of excessive force resulting in the death of any person by the Manipur Police or the Armed forces in Manipur must be thoroughly enquired into. The Two Judge Bench comprising of Justices Madan B Lokur and Uday Umesh Lalit also held that even while dealing with the ‘enemy’ the rule of law would apply and if there have been excesses beyond the call of duty, those members of the Manipur Police or the Armed forces who have committed the excesses which do not have a reasonable connection with the performance of their official duty would be liable to be proceeded against.
The Bench was considering a writ petition under Article 32 of the Constitution of India by Extra Judicial Execution Victim Families Association and The Human Rights Alert. The petitioners claimed to have compiled 1528 alleged extra-judicial executions carried out by the police and security forces in Manipur. It is alleged that a majority of them have been carried out in cold blood while the victims were in custody and allegedly after torturing them. Petitioners alleged that not a single First Information Report has been registered by the Manipur police against the police or the security forces even though several complaints have been made in respect of the alleged extra-judicial executions. As a result of the failure of the Manipur police to register an FIR not a single investigation or prosecution has commenced and the cries of anguish of the families of the victims have fallen on deaf ears. The petitioners alleged that the victims of the extra-judicial executions include innocent persons with no criminal record whatsoever but they are later on conveniently labelled as militants. Earlier the Court had appointed Advocate Menaka Guruswamy as Amicus Curiae.
An objection was raised by the Attorney General Mukul Rohatgi to the effect that in a writ petition like the present one, a prayer to order a police investigation is not maintainable. It was submitted that the procedure laid down in the Cr.P.C. is quite adequate and if there is any inaction on the part of the authorities, recourse may be had to the grievance redressal procedure laid down in the Cr.P.C. Rejecting the contention, the Bench held as follows;
“This is not an ordinary case of a police complaint or a simple case of an FIR not being registered. This case involves allegations that the law enforcement authorities, that is, the Manipur Police along with the armed forces acting in aid of the civil power are themselves perpetrators of gross human rights violations. This is also not a case where the ordinary criminal law remedy provides an adequate answer. A particular situation of internal disturbance has prevailed for decades and the ordinary citizens of Manipur have had little access and recourse to law in the situation that they find themselves placed in. To make matters worse, FIRs have been registered against the victims by the local police thereby leaving the next of kin of the deceased with virtually no remedy under the Cr.P.C.”
War like Situation?
The principal contention of the Attorney General in opposing any investigation or inquiry into the alleged extra-judicial killings is that a war-like situation has been and is prevailing in Manipur. It is to control any escalation of the situation that vast powers have been given to the armed forces under AFSPA and the constitutionality of AFSPA has been upheld by the Constitution Bench in Naga People’s Movement of Human Rights. It is only due to the efforts of the Manipur Police and the armed forces of the Union that the security environment in Manipur has not deteriorated but has vastly improved over the years. In support of his contention that a war-like situation was and is prevailing in Manipur, the Attorney General relied on Navjot Sandhu to submit that under Section 121 of the IPC ‘war’ is not necessarily conventional warfare between two nations and even organizing and joining an insurrection against the Government of India is a form of war. Rejecting the above contention the Bench held as follows:
“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 and proceed on the basis that there is no war or war-like situation in Manipur but only an internal disturbance, within the meaning of that expression in the Constitution - nothing more and nothing less. Every act of violence, even though it may be directed against the armed forces or public officials would not lead to an inference that a war is going on or that war-like conditions are prevailing. Similarly, sporadic but organized killings by militants and ambushes would not lead to a conclusion of the existence of a war or war-like conditions. Were such a blanket proposition accepted, it would reflect poorly on our armed forces that they are unable to effectively tackle a war-like situation for the last 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. We cannot be expected to cast or even countenance any such aspersions on our armed forces or the Union of India. All that we can and do say is that in such a situation, our Constitution recognizes only an internal disturbance, which is what the situation in Manipur is and that ought to be dealt with by the civil administration with the services of the armed forces that are available in aid of the civil power.”
The Supreme Court has primarily considered the following two questions
While considering the above questions, the Bench has made some remarkable observations.
Merely because a person was carrying arms in a prohibited area, that person automatically became an enemy
The Bench held that in any event, 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 labelled a militant or terrorist or insurgent.
“In so far as the present case is concerned, the Justice Hegde Commission found that none of the victims in the six cases examined by it at the instance of this Court had any criminal antecedents or that there was any credible evidence to show that they had affiliations with a banned or unlawful organization. Therefore 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 organization. We note, without comment, the contention of the petitioners that in most cases the arms are planted on the victims”, the Bench added
Ordinarily Armed forces should not be used against our countrymen and women.
The Bench stated that in cases such as the present, there is a greater duty of care and an equally greater necessity of a thorough enquiry since, the alleged ‘enemy’ in this case is a citizen of our country entitled to all fundamental rights including under Article 21 of the Constitution. The Court has re-iterated what the Constitution Bench said in Naga People’s Movement of Human Rights - our armed forces are not trained to fight and kill our own countrymen and women. To this the Bench added that ordinarily our armed forces should not be used against our countrymen and women. “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”, said the Bench
The Court has made it clear that, it is not possible to accept the contention of Attorney General that a person carrying weapons in violation of prohibitory orders in the disturbed area of Manipur is ipso facto an enemy or that the security forces in Manipur in such a case are dealing with an ‘enemy’ as defined in Section 3(x) of the Army Act.
“ This is far too sweeping and general an allegation and cannot be accepted as it is or at its face value. Each instance of an alleged extra-judicial killing of even such a person would have to be examined or thoroughly enquired into to ascertain and determine the facts. 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. Therefore, even while dealing with the ‘enemy’ the rule of law would apply and if there have been excesses beyond the call of duty, those members of the Manipur Police or the armed forces who have committed the excesses which do not have a reasonable connection with the performance of their official duty would be liable to be proceeded against”, observed the Bench
No Absolute Immunity for Army Personnel
A contention was raised by the Attorney General that an offence committed by a member of armed forces must be tried under the provisions of the Army Act through Court Martial proceedings and not under the Cr.P.C. In other words, if anyone from the Army is found to have used excessive force, he should be proceeded against under the provisions of the Army Act and not in a criminal court. In reply the Bench held as follows:
“The law is therefore very clear that if an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the Cr.P.C. To contend that this would have a deleterious and demoralizing 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 demoralizing, particularly in a constitutional democracy like ours.”
Finally the Bench has summarised its finding as follows:
The Court has also issued the following Directions:
(a) Of the 62 cases that the petitioners have documented, their representative and the learned Amicus will prepare a simple tabular statement indicating whether in each case a judicial enquiry or an inquiry by the NHRC or an inquiry under the Commissions of Inquiry Act, 1952 has been held and the result of the inquiry and whether any First Information Report or complaint or petition has been filed by the next of kin of the deceased. We request the NHRC to render assistance to the learned Amicus in this regard. We make it clear that since a Magisterial Enquiry is not a judicial inquiry and, as mentioned above, it is not possible to attach any importance to Magisterial Enquiries, the tabular statement will not include Magisterial Enquiries.
(b) The representative of the petitioners and the learned Amicus will revisit the remaining cases (1528 minus 62) and carry out an identical exercise as above. This exercise is required to be conducted for eliminating those cases in which there is no information about the identity of the victim or the place of occurrence or any other relevant detail and then present an accurate and faithful chart of cases in a simple tabular form.
The Court has further directed to post the Case for further proceedings after Four weeks.
Read the Judgment here.