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Security forces cannot use excessive force in AFSPA areas: Supreme Court

by Anuj KumarJuly 8, 2016

Serving a blow to immunity enjoyed by armed forces under the Armed Forces Special Powers Act (AFSPA) against criminal action for acts committed in disturbed areas, the Supreme Court on Friday held that armed forces personnel and police cannot use “excessive or retaliatory force” in disturbed areas.

A Bench of Justices Madan B. Lokur and R.K. Agarwal upheld the highest constitutional court’s power to entertain and deliver justice under Article 32 of the Constitution in a plea made by the families of civilians killed in over 1,528 cases of alleged fake encounters involving the army and the police force in Manipur.

In a judgment, which will have ramifications in sensitive border areas across the country, the apex court held that the allegations of fake encounters in Manipur by the Army and the Manipur Police should be “thoroughly enquired into.”

It stressed that security forces cannot use excessive force and then claim immunity from criminal action.

The court observed that there are several ‘dos and don’ts’ in the defence forces’ rule book and there is no justification whatsoever of breaching these rules of combat and conduct.

The court asked the petitioners and amicus curiae Menaka Guruswamy to collate the information regarding 62 cases of alleged fake encounters in Manipur and submit it before the Bench in a simple tabulated form.

The information should comprise details of whether any FIR was filed in a case, the identity of the victim, whether a judicial enquiry was ever conducted or whether there was an enquiry under the Commission of Enquiry Act, etc. The court directed the National Human Rights Commission to render assistance to this exercise.

The independent exercise to tabulate the 62 cases once again has been done due to a mismatch in the findings of the apex court-appointed Justice Santosh Hegde Commission and the NHRC.

The Commission had enquired into 62 of the 1,528 cases and highlighted 15 cases of ‘fake’ encounters. But the NHRC had found that 31 of the 62 cases were found to be not genuine.

The court stopped short of delving into issues of court-martial of defence personnel allegedly involved in the encounters, leaving the issue open for independent enquiry by a competent authority as per law.

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The court also sought the Centre response on NHRC’s plea that it has been reduced to a “toothless tiger.” The court has scheduled a hearing after four weeks to consider these aspects.

Cries against AFSPA in Manipur

The details of the crimes allegedly committed by the Army, the CRPF and police commandos were revealed in a series of inquiry reports filed by serving and retired district judges, adding impetus to the cry for justice and repeal of AFSPA by activist Irom Sharmila.

On August 8, 2014, the Manipur government had handed over the reports to the Supreme Court.

The judgment is based on a PIL filed in 2012 by the Extra Judicial Executions Victims’ Families Association, through senior advocate Colin Gonsalves, seeking a Special Investigation Team to probe the extra-judicial killings and disappearances in the State.

The Supreme Court had in 2014 directed the State government to pay Rs 10 lakh to the mother of Manipuri girl Thangjam Manorama, who was allegedly killed by Assam Rifles personnel in 2004.

A Bench of Justices T.S. Thakur and P.C. Ghosh told the government to pay the amount within four weeks.

A judicial inquiry report had revealed to the apex court the “brutal and merciless” torture of the girl by an Assam Rifles team.

The Manorama case had led to widespread protests against the Armed Forces Special Powers Act (AFSPA) and is partly attributed to calls for review of the law, especially by the Justice J.S. Verma Committee in 2013.

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Anuj Kumar

Founder & Editor-in-Chief at Legal Desire Media & Publications
Anuj is Founder & Editor-in-Chief at Legal Desire Media & Publications
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