The Supreme Court on Friday ruled the army cannot use excessive force during counter-insurgency operations in areas declared disturbed under the Armed Forces (Special Powers) Act and criminal courts do have the jurisdiction over cases of alleged excesses by security forces.
"The use of excessive force or retaliatory force by the Manipur Police or the armed forces of the Union is not permissible," said a bench of Justice Madan B. Lokur and Justice Uday Umesh Lalit in their judgment, adding that Manipur was not faced with an unconventional war-like situation. The central government and the army had argued that the Army Act gives immunity to armed forces personnel from being prosecuted by criminal courts.
The court verdict came on the plea by the Extra Judicial Execution Victim Families Association (EEVFAM) which has sought a SIT probe into the killing of 1,528 persons by the Manipur Police and security forces since 1978.
Holding that armed forces should refrain from resorting to excessive fire power in counter-insurgency operations, Justice Lokur, speaking for the bench, said: "When the state uses such excessive or retaliatory force leading to death, it is referred to as an extra-judicial killing or an extra-judicial execution or as it is called 'administrative liquidation'."
"Society and the courts obviously cannot and do not accept such a death caused by the state since it is destructive of the rule of law and plainly unconstitutional," the court said, adding "it is abundantly clear that the right of self-defence or private defence falls in one basket and use of excessive force or retaliatory force falls in another basket".
Reiterating an earlier view taken by the top court, the bench ruled that proceedings could be initiated before a criminal court in the event of the death of a person on account of excessive or retaliatory force by the armed forces. Rejecting the government's contention that Manipur was faced with "unconventional war" like situation, the judgment said: "Be that as it may, we need to be clear that the situation in Manipur has never been one of a war or an external aggression or an armed rebellion that threatens the security of the country or a part thereof."
"No such declaration (of war like situation) has been made by the Union of India – explicitly or even implicitly – and nothing has been shown to us that would warrant a conclusion that there is a war or an external aggression or an armed rebellion in Manipur. That is not anybody's case at all nor has it even been suggested," the court said, noting "Manipur has been and is facing a public order situation equivalent to an internal disturbance."
Taking note of National Human Rights Commission's submission that it was a "toothless body", the court sought the government's response as to whether it was bound by the recommendations of the rights body and announced it proposed to consider the nature of guidelines issued by the NHRC and "whether they are binding or only advisory".
Reiterating that an allegation of excessive force resulting in the death of any person by police or the armed forces in Manipur must be thoroughly enquired into, the court said, that for the time being it was leaving open the decision as to which agency would probe the cases.
The decision on this, the court said, would be taken after amicus curiae Menaka Guruswamy along with EEVFAM representatives revisits all the 1,466 cases as it had already done in 62 cases.
The court said that Guruswamy will prepare a chart of the cases that would be taken up after four weeks, adding this is required to be done for eliminating those cases in which there is no information about the victim's identity or the place of occurrence or any other relevant detail.
'NO BLANKET IMMUNITY'
The Supreme Court said there would be no "blanket immunity" for the armed forces personnel for causing unjustified deaths until it is determined that the killings had occured in genuine encounters or insurgency operations.
While dealing with the controversial Armed Forces (Special Powers) Act, the apex court said that section 6, dealing with grant of immunity from prosecution, and section 49 of the Unlawful Activities (Prevention) Act (UAPA) giving protection for action taken in good faith, was not applicable to cases pertaining to alleged extra-judicial killings in Manipur.
"At this stage, we would like to make it clear that section 6 of the AFSPA and section 49 of the UAPA presently have no application to this case," a bench of Justices Madan B Lokur and U U Lalit said.
The bench said "it has yet to be determined whether the deaths were in fake encounters as alleged or whether the deaths were in genuine encounters in counter insurgency operations and it has also to be determined whether the use of force was disproportionate or retaliatory or not."
"If any death was unjustified, there is no blanket immunity available to the perpetrator(s) of the offence. No one can act with impunity particularly when there is a loss of an innocent life," the apex court said.
It noted in its verdict that Manipur was and is still facing a "public order situation" equivalent to an internal disturbance and this situation has continued since 1958.
"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, 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.