Out of the barrel and into the chamber
Criminal
What started out as a petition against extra-judicial executions by the armed forces in the north-eastern states of the country roused the Supreme Court into reflecting on the role of the armed forces themselves adversely affecting public order in states.
The Court began by hearing the question “do the next of kin of deceased [extra-judicial execution] victims have any rights at all other than receipt of monetary compensation?”, brought by an association of wives and mothers of persons who had allegedly been executed by Manipur police and other security forces in fake encounters. They alleged that over 1500 such executions had been carried out while the deceased were in police custody.
Discussion soon turned to the incapability of States to manage violent terrorism within their borders and the need for the Armed Forces (Special Powers) Act, 1958 to be passed to bring peace to the “disturbed region”. The Advocate General stated the situation in the region to be “war-like”, and that militancy had seen the killing of innocent civilians. The government submitted, violence “has become a way of life in the north-eastern states”.
From the outset, the court disagreed with such an appraisal of the situation, noting that there was no external aggression or armed rebellion threatening the country - nor had the Union ever declared as such. It referred to earlier judgments terming terrorism a “proxy war”, where killing an ‘enemy’ was not only available solution. Even when engaging ‘enemies’, State police and armed forces would have to follow the ‘List of Dos and Don’ts while acting under the Armed Forces (Special Powers) Act, 1958’. Also distinguished was right of self-defence and excessive force: “while a victim of aggression has a right of private defence or self-defence…if that victim exceeds the right of private defence or self-defence by using excessive force or retaliatory measures, he then becomes an aggressor and commits a punishable offence.”
It reiterated that armed forces personnel acting in excess of will be proceeded against. To that end, the court felt Code of Criminal Procedure provided insufficient recourse for investigating misconduct. It opined that “ordinary criminal law remedy [would not] provide an adequate answer”, instead inquiries by various authorities such as the NHRC would be called upon to deliver justice. The judgment highlights the scarcity of resources in the National Human Rights Commission and how calls to government to increase spending have gone unanswered.
Even if the State government decides to hold Magisterial Enquiries and take suitable action on the report given, it would not preclude any other inquiry or investigation into the allegations made. In situations of the kind that we are dealing with, there can be no substitute for a judicial inquiry or an inquiry by the National Human Rights Commission. The pitiable resources allocated to the “toothless” NHRC and slower-than-reasonable compliance by authorities in NHRC’s investigative demands were also asked to be corrected.
The government had submitted that 70 personnel of the armed forces had been punished for human rights violations - the stand however backfired when the court asked for evidence towards the same. Counsel for the government was able to supply only a few files from Justice Hegde’s Commission, and none from the claimed 70 cases. The court deferred judgment till investigation was made into each of the 1500 cases the petitioners had complained about. Only once data was provided on the investigations into these and other complaints would the court deliberate further into the matter.
Relevant : People's Union for Civil Liberties and Anr. vs. Union of India MANU/SC/1036/2003
Naga People's Movement of Human Rights v. Union of India MANU/SC/0906/1998
Ram Sarup vs. The Union of India (UOI) and Anr MANU/SC/0047/1963
Tags : NORTH EAST FAKE ENCOUNTER HUMAN RIGHTS PROXY WAR TERRORISM
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