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AFSPA on ‘rights’ direction after Court roadblock

POSTED ON 20 JULY 2016

wasbir hussain
EXECUTIVE DIRECTOR, CDPS & VISITING FELLOW, IPCS

The controversial Armed Forces Special Powers Act (AFSPA) has finally come under the scrutiny of none other than the Supreme Court that has given out a clear direction that the armed forces who seek immunity for their counter-insurgency actions under its provisions are actually answerable to the courts—both civil and military. In an unprecedented judgement delivered on 8 July, the apex court said, rather unambiguously, that members of the armed forces cannot simply shoot to kill militants engaged in internal disturbances by regarding them as ‘enemies’. The Court also said members of the armed forces would have to face criminal prosecution if found using excessive force even in such areas where the AFSPA is in force.

Before one seeks to analyze the significance or impact of this judgement—delivered by the bench of Justices Madan B Lokur and UU Lalit—it is important to get an essence of the judgement itself. "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," the judges noted.

The judgement debunked the general understanding that the AFSPA provides complete immunity to the armed forces personnel from facing a trial for their acts, particularly charges of excessive use of force. "There is no concept of absolute immunity from trial by the criminal court,” the judgement noted. The judges agreed trial by a criminal court on armed forces personnel engaged in counter-insurgency operations could have a deleterious and demoralising impact on the security forces, but observed at the same time that “...a citizen, living under the shadow of a gun that can be wielded with impunity...is equally unsettling and demoralising, particularly in a constitutional democracy like ours."

The judgement can impact in several ways—it can restrain the armed forces from use of excessive force in the future, thereby reducing the number of extra-judicial killings, and it can force the Government to really gather the courage to re-write, if not do away with the Act itself.

But, one of the key operative parts of the judgement is the directive by the judges to have the 1528 documented cases of alleged fake encounters in Manipur, as presented by the petitioners, examined by the amicus curiae. After the select 62 of the 1528 cases are examined by the amicus curiae within four weeks, the Court will decide on a full-scale probe into all the listed cases. In fact, the interim 85-page judgment that one is talking about has come because of a 2012 petition filed by families of victims of alleged fake encounters from Manipur. The petition was filed by a group that calls itself the Extra Judicial Execution Victim Families Association.

Without doubt, the judgement has paved the way for initiation of criminal investigations into cases of alleged extra-judicial killings, something that is resented by the armed forces. In fact, the judges rejected an argument in this case put forth by the attorney general that excessive inquiries into allegations of fake encounters could demoralise the armed forces, compelling them to fight insurgents with “one hand tied to their backs”. The apex court on its part said “it is not the encounter or the (military/police) operation that is under scrutiny but the smoking gun that is under scrutiny.” The probe, that may be initiated in the days ahead, could come up with interesting conclusions because, of the 62 cases (out of the 1528 cases of alleged fake-encounter deaths in Manipur listed by the complainant) that the Court had concentrated on through a commission led by former judge Santosh Hegde, 15 were found to be fake.

The petition by the Manipur group and the Supreme Court judgement has brought into focus, as never before, the justifiability of having a provision as stringent as the AFSPA to be used against its own citizens in a democracy as vibrant as that in India. In Manipur, the AFSPA has been in force since the mid-eighties but insurgency is very much alive in the frontier state with close to 40 active insurgent groups keeping the security establishment on tenterhooks. The apex court judgement has made another very important observation—it says: “…normalcy not being restored cannot be a fig leaf for prolonged, permanent deployment of the armed forces, as it
would mock at our democratic process and would be a travesty of jurisdiction…” that law confers. This part of the judgement has actually opened the Pandora’s box on the very quality of governance in some of these so-called ‘disturbed areas’ that lead to internal turmoil resulting in the civil administration calling in the armed forces for help and then letting it stay on for long, at times, almost permanently, as in Manipur and other parts of the Northeast, and, of course, Jammu and Kashmir.

Tripura’s Left Front government withdrew the AFSPA in May 2015 after 17 years of use to contain a violent insurgency, sending out a clear signal that the decision to lift such a provision lies with the state government. The CPI(M)-led government wanted to lift the Act earlier, but failed to get the clearance from the state’s security establishment. Last year though, the Tripura Government decided to withdraw the Act after it was concluded that insurgency was almost negligible in the State.

It must be noted that Tripura had used the Act with a lot of caution, exercising enough checks and balances. As the security situation improved and insurgent activities declined, the Tripura government in June 2013 reduced operational areas of the AFSPA to 30 police station areas.

Before that, 40 out of 72 police stations in Tripura were covered by AFSPA. This indicates there was constant review going on and the spread of areas under the Act was being brought down with the improvement in the security situation. The message sent out by the move to withdraw the Act was that provisions like the AFSPA should not be continued for more than what is necessary.

Significantly, the Supreme Court judgement contains everything with which the case for drastically modifying or repealing the AFSPA could be strengthened. For instance, the judgement goes to define as to who is a militant or an enemy as understood in accordance with the AFSPA or any other existing provisions. The judgement was clear when it said “a person carrying a weapon in a disturbed area in violation of a prohibition to that effect cannot be labelled a militant or insurgent”.

The judges sought to explain their conclusion by saying armed forces personnel cannot kill any perceived ‘enemy’ merely on suspicion. The law, the judgement added, is the same for a common man or an insurgent and that it did not matter whether the aggressor was a common person or the State.

The Supreme Court judgement certainly is a landmark as it has the potential to take the rights discourse in an altogether new direction, in keeping with the guarantees to life and liberty provided by the Constitution. It also means that one need to take a new look in responding to issues of security and law and order. For the civil administration and the armed forces, it is a stern reminder of the fact that in a parliamentary democracy like ours, the Army only comes in to aid the civil authorities, and must act in accordance with provisions that can stand scrutiny in all courts.