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AFSPA Hits Supreme Court Roadblock

POSTED ON 16 JULY 2016

arunav goswami
Senior Research Fellow , CDPS

On July 8, 2016, the Supreme Court ruled that the army had "no blanket immunity" to shoot or use excessive force against suspected enemies of the country under the Armed Forces Special Powers Act (AFSPA). The court said the law was clear that if an offence was committed even by a member of the army, "there is no concept of absolute immunity from trial by the criminal court constituted under the CrPC (Code of Criminal Procedure)". The two-judge bench also ruled that even if someone is seen carrying weapons in a "disturbed area", it does not automatically give the security forces the right to shoot them. This is indeed a significant ruling by the apex court, which could have wide-ranging ramifications on the prolonged implementation of the Act in Northeast India, as well as in Jammu and Kashmir.

One of the special powers vested on the armed forces by this Act is that “Any commissioned officer, warrant officer, non commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area, if he is of opinion that it is necessary to do so for the maintenance of Public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances.”

But this ruling by the Supreme Court now has spelled out that these special powers do not give immunity to the security force personnel to shoot someone just out of suspicion. The interim 85-page judgement was given by the bench of Justices Madan B. Lokur and U.U. Lalit, following a writ petition filed in 2012 by families of victims of alleged fake encounters from Manipur, under the banner of Extra Judicial Execution Victim Families Association (EEVFAM). In this writ petition, they have stated that during the period May 1979 to May 2012, 1528 people were killed in Manipur in alleged extra-judicial executions. The statement is mainly based on a memorandum prepared by ‘Civil Society Coalition on Human Rights in Manipur and the UN’ and submitted to Christof Heyns, the U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Mission to India, 19-30 March, 2012. The Memorandum compiles the list of 1528 people allegedly killed unlawfully by the Manipur State Police and the Army.

In its ruling, the apex court points out that if the security forces have been deployed for an indeterminate period of time, then there clearly has been a systemic failure in governance. The judgement also states that security forces can only be deployed as “aid to civil authorities” but it cannot be for an “indeterminate period”. The court also observed that “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 the ‘enemy’ not only the rule of law, but our democracy would be in grave danger”. The bench also rejected as "a play on words" the Centre's claim that a "warlike situation" prevailed in Manipur, but it acknowledged that Manipur was witnessing "internal disturbances".

The judgement has also set guidelines that the security forces have to follow after encountering a suspect, starting with "due warning". It is also stated that "a thorough enquiry" is needed before shooting, as the alleged “enemy” is also a citizen of the country, entitled to all fundamental rights including under Article 21 of the Constitution.

However, the bench refrained from deciding immediately whether to order a probe into the 1,528 alleged extra-judicial killings. Instead, it granted four weeks’ time to the amicus curiae, Maneka Guruswamy, to submit details of a select 62 among the 1,528 cases after consulting the petitioners. The court will then pass its orders on a possible probe by the CBI or a special investigation team after receiving Guruswamy's findings.

It is another victory for the EEVFAM in its fight against extra-judicial killings in Manipur. In 2014, in a response to its writ petition, the Supreme Court had appointed high-power commission, headed by retired Supreme Court judge Santosh Hegde, to probe six cases of alleged extra-judicial killings in Manipur. The commission had found that these were not genuine encounters and the victims did not have any criminal records. Again, in April 2016, the Manipur government had sanctioned Rs. 1.54 crore for payment of compensation at the rate of Rs. 5.5 lakh each to the next of the kin of 28 victims of extra-judicial killings. This was after an enquiry into the killings of these 28 persons found them to be extra-judicial ones. The list of these victims was submitted by EEVFAM through two compilations after the submission of their writ petition.

The prolonged implementation of the AFSPA has always been a controversial aspect in Northeast India. It was first implemented in Assam and Manipur and was later extended to the other states of the northeastern region. Innumerable cases of human rights violations in the region like killings, torture, rape and disappearances has been associated with the AFSPA. There are allegations that AFSPA violates many international human rights treaties like the Universal Declaration of Human Rights, 1948.

Numerous protests against the Act, notably in the state of Manipur, have been continuing ever since its imposition. The most visible act of protest against this Act has been the hunger strike of Irom Sharmila Chanu of Manipur. She has been on hunger strike since November 5, 2000 demanding the repeal of the Act. Another incident of protest against the AFSPA which caught everybody’s eye was the naked protest by Manipuri mothers on July 15, 2004. They were protesting the rape and murder of a Manipuri woman, Thangjam Manoroma Devi, in the hands of Assam Rifles personnel. The women bared themselves in front of the Assam Rifles Headquarters in Imphal, capital of Manipur, and held banners which read “Indian Army, Rape Us”.

After this incident, government constituted the Jeevan Reddy Committee to review the provisions of the AFSPA. It was a five member committee, with Justice B P Jeevan Reddy, former judge of the Supreme Court, as its chairman. The panel was given the mandate “to review the provisions of the Armed Forces (Special Powers) Act, 1958 as amended in 1972 and to advise the Government of India whether (a) To amend the provisions of the Act to bring them in consonance with the obligations of the Government towards protection of Human Rights; or (b) To replace the Act by a more humane Act."

The Committee came up with the following recommendations:

a) The Armed Forces (Special Powers) Act, 1958 should be repealed.

b) Appropriate provisions of the AFSPA can be incorporated in the Unlawful Activities (Prevention) Act, 1967.

But, no action has been taken on the recommendations of the committee and the AFSPA is still in force in the Northeast and people are still continuing their protests. However, Tripura has withdrawn AFSPA in May 2015 following improvements in the security scenario and approval by the security agencies in the state.

However, this new development would lead to more consultations on the legality of the continued implementation of the AFSPA. Also, the litigation process for EEVFAM has not yet ended. The case may continue for a few more years. But the ruling given by the Supreme Court is indeed a welcome step and would surely help in reducing extra-judicial killings and other human rights abuse perpetrated in the region using the near immunity to the armed forces personnel provided by AFSPA.