ON 8 July, Burhan Wani was killed in what the security forces claimed was an ‘encounter’ in Kashmir. On the same day, the Supreme Court passed a significant order considerably restricting the scope of the AFSPA and countering many of the arguments being made to silence critics of fake encounters, AFSPA and prolonged use of military to curb unrest in civilian areas of the country.

The Supreme Court of India, unfortunately, has stopped short of deeming AFSPA to be unconstitutional – and this latest verdict is no different. But this verdict by Justices Madan B. Lokur, J. and Uday Umesh Lalit (Writ Petition (Criminal) No.129 Of 2012 Extra Judicial Execution Victim Families Association (EEVFAM) vs Union of India), while repeatedly invoking the 1998 Naga People’s Movement of Human Rights vs Union of India verdict that had upheld AFSPA, does go several steps further to question the very validity of its widespread and indiscriminate application. While continuing to demand that the AFSPA be scrapped, people’s movements can still welcome this verdict.

The verdict’s forthright observations on fake encounters are especially welcome in a climate when from Ishrat Jehan to Sohrabuddin Sheikh to Burhan Wani, any questions about the veracity of ‘encounters’ is sought to be silenced by the pugnacious claim - ‘he/she was a terrorist/criminal.’

The order was passed in the wake of a 2012 petition by the Extra Judicial Execution Victim Families Association, which had compiled 1528 cases. The Association had made a detailed documentation of 62 of these cases, and focused on 10 of these for the writ petition. In 2013, the Supreme Court had appointed a Commission comprising retired Justice N. Santosh Hegde as the Chairperson and J M Lyngdoh, former Chief Election Commissioner and Ajay Kumar Singh, former Director General of Police and Inspector General of Police, Karnataka as members. The Commission was asked to look into six of the 10 cases cited in the writ petition. The Commission had found all six to be brazen cold-blooded custodial killings beyond possible doubt (see ‘Indictment of AFSPA and Army’s ‘Licence to Kill’, Liberation August 2013).

The petitioners had sought that a SIT from outside Manipur be set up to investigate instances of alleged extra-judicial executions, and also for a direction that the areas in Manipur declared as a ‘disturbed area’ under AFSPA be withdrawn and the notification issued in this regard be quashed. The 8 July order did not deal with the demand for the SIT – that matter will be heard later.

Interestingly, the Home Ministry and Army bigwigs have been complaining that this verdict will set a “bad precedent” that will encourage people all over the country to approach the Supreme Court for relief! In a report in scroll.in by Saikat Datta, a senior home ministry official is quoted as saying “It creates a precedent and what prevents from people from other regions using it to file similar petitions?...That could have a major impact on the efficacy of our operations in Kashmir or Chhattisgarh.” Dr Ambedkar had described Article 32 of the Constitution (under which a citizen’s right to approach the Supreme Court for constitutional remedies is guaranteed) as the “the very soul of the Constitution and the very heart of it”, “without which this Constitution would be a nullity.” Well, in expressing consternation at people availing of this provision, the Home Ministry is clearly going against the very heart and soul of the Constitution!

Some significant portions of the Supreme Court’s observations and order of 8 July are reproduced below.

The Right to Truth

“The right to know the truth has gained increasing importance over the years. This right was articulated by the United Nations High Commissioner for Human Rights in the sixty-second session of the Human Rights Commission. In a Study on the right to the truth, it was stated in paragraph 8 that though the right had its origins in enforced disappearances, it has gradually extended to include extra-judicial executions….”

Not An Ordinary Case of Police Negligence

Stating that it was “unimpressed by submission of Attorney General that CrPC procedures are enough” to deal with the petitioners’ complaint that not a single FIR had been registered in the fake encounter cases, the Court upheld the right of the petitioners to approach the SC for justice, observing that “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. … 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…. …

“The truth has to be found out however inconvenient it may be for the petitioners or for the respondents. In matters concerning gross violations of human rights this Court and every constitutional court should adopt an ‘open door policy’.

Permanent Military Deployment To Curb Unrest Is Mockery of Democratic Process

Citing the NPMHR case, the Court observed that armed forces could be deployed to aid the civil administration “until normalcy is restored.” But it added, that such deployment was on the assumption “that normalcy would be restored within a reasonable period. What would be the consequence if normalcy is not restored for a prolonged or indeterminate 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. Whatever be the case, normalcy not being restored cannot be a fig leaf for prolonged, permanent or indefinite deployment of the armed forces (particularly for public order or law and order purposes) as it would mock at our democratic process….”

Noting that the “deployment of the armed forces is intended to restore normalcy and it would be extremely odd if normalcy were not restored within some reasonable period, certainly not an indefinite period or an indeterminate period,” the Court expressed amazement that AFSPA has been in force since 1958, implying that “Manipur has been a disturbed area for about sixty years!”

Resolve The Festering Problem

What the Court essentially told the Indian State is that long-standing unrest in areas of nationality struggles (Manipur, Nagaland, Kashmir for instance), the ‘solution’ cannot be to indefinitely deploy the Army for tackling the unrest. A political solution must be reached in consultation with all stakeholders. The Court observed that when it asked the counsel for the State of Manipur to produce the original declarations of AFSPA and prohibitory orders under Section 144, he could only produce fairly recent ones, “the rest having perhaps been lost in antiquity.”

The Court observed “A generation or two has gone by and issues have festered for decades. 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 same surely holds true for other parts of the North East and for Kashmir.

War-Like Situation?

The Court rejected the Indian Government’s claim that there is a ‘war-like situation’ in Manipur, noting that “… 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. …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….”

On Fake Encounters: Is the SC Also ‘Anti-National’?

Activists who demand enquiries and registration of FIRs in the case of every encounter by police or armed forces are frequently heckled and branded as ‘anti-national’ and so on. One wonders if those politicians and media houses that indulge in such heckling would also brand the Supreme Court ‘anti-national’?

The 8 July verdict states “… At the outset, a distinction must be drawn between the right of self-defence or private defence and use of excessive force or retaliation. Very simply put, the right of self-defence or private defence is a right that can be exercised to defend oneself but not to retaliate.”

The Court addresses the many common arguments put forward to justify fake encounters. Take the argument that the killers of Ishrat Jehan must not be put to trial because “she was a terrorist.” Take Narendra Modi’s election speech at Mangrol (Gujarat) on December 4, 2007, in which he asked the audience, “Congressmen say that Modi is indulging in encounter, telling that Modi has killed Sohrabuddin. Sohrabuddin from whose possession large cache of AK 47 rifles were found, same Sohrabuddin whom police of four states were looking for, Sohrabbudin who attacks police, Sohrabuddin who maintains connections with Pakistan, who raises eyes on Gujarat, you tell me what to do with Sohrabuddin?,” eliciting the frenzied reply, “Kill him, kill him”. Today, those who suggest that the security forces could and should have avoided killing Burhan Wani are subjected to derision and hate speech in the media.

The Supreme Court’s 8 July order cites the 2013 Rohtash Kumar v. State of Haryana verdict that stated clearly “merely because a person is a dreaded criminal or a proclaimed offender, he cannot be killed in cold blood.”

The Court notes that “Scrutiny by the courts in such cases leads to complaints by the State of its having to fight militants, insurgents and terrorists with one hand tied behind its back. This is not a valid criticism. 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; one is an act of self-defence while the other is an act of retaliation.”

Burhan Wani is being called a “terrorist” and those in his funeral are being called supporters of a terrorist, even though Wani is not charged in a single terrorist act. Being a member of a banned outfit or posing with weapons is not enough ground to brand someone a terrorist. The 8 July verdict states that “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 terrorist or insurgent…… Similarly, …mere membership of a banned organization does not incriminate a person. He might be a passive member and not an active one and so it is necessary to prove that he has indulged in some act of violence or imminent violence….”

Democracy in Danger If Armed Forces Are Used to Kill Citizens of Our Own Country

The Court noted that in the six cases examined by the Justice Hegde Commission, “none of the victims …had any criminal antecedents or … affiliations with 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 Court stressed that “there is a greater duty of care and an equally greater necessity of a thorough enquiry since, we must not forget, the alleged ‘enemy’ in this case is a citizen of our country entitled to all fundamental rights including under Article 21 of the Constitution. In this regard, it is worth recalling 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 we may add 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…”

Does Prosecuting Army Personnel For Rapes or Murder ‘Demoralise’ The Army?

The Court holds that “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…”

NHRC ‘Toothless Tiger’

The SC made it clear that even if the Armed Forces were to holds their own (belated) enquiries into the cases, “it would not preclude any other inquiry or investigation into the allegations made.”

The Attorney General had in fact tried to mislead the Court. He had claimed that the Ministry of Defence itself had a human rights division to investigate allegations of rights violations. Asked to submit proof of such investigations, he submitted 6 cases – which, it transpired, had never been sent to the ‘human rights division’ at all!

A Magisterial Enquiry is mandatory into every ‘encounter’ – but in its submission to the Court, the NHRC itself said that such enquiries were a farce. “NHRC has also complained about the poor quality of the Magisterial Enquiry reports received by it and it is pointed out that in some instances the family of the person killed is not examined nor any independent witness is examined by the Magistrate.” This is true of Magisterial Enquiries all over the country.

The SC Bench concluded that “in the event of an offence having been committed by any person in the Manipur Police or the armed forces through the use of excessive force or retaliatory force, resulting in the death of any person, the proceedings in respect thereof can be instituted in a criminal court subject to the appropriate procedure being followed.” It also proposed to further examine the “grievance of the NHRC that it has become a toothless tiger” and “consider the nature of the guidelines issued by the NHRC – whether they are binding or only advisory….”