Setting limits on AFSPA

The two-judge Bench headed by Justices Madan B Lokur held that even while dealing with the “enemy” the rule of law will apply; and if there have been excesses beyond the call of duty, those members of the Manipur Police or the Armed forces who have committed the excesses which do not have a reasonable connection with the performance of their official duty will be liable to be proceeded against. 

The bench led by Justice Madan B Lokur held that judicial precedents empowered the court to take note of use of excessive force by armed forces and state police, and issue appropriate orders of investigation. “Use of excessive force and retaliatory force must be inquired into,” said the bench, adding all cases should be investigated. The use of excessive force and retaliatory force can be tried by a criminal court once a case of fake encounter is prima facie made out. 

There are more than 1500 cases of alleged fake encounters in Manipur in the last 20 years.  This is a judgment which will have ramifications in sensitive border areas across the country. It is a loud and clear message that security forces cannot use excessive force and then claim immunity from criminal action.  The court also observed there is no justification whatsoever for breaching the rules of combat and conduct. 

In a writ petition under Article 32 of the Indian Constitution (Fundamental Right to Constitutional Remedies) , the petitioners claimed to have compiled 1528 alleged extra-judicial executions carried out by the police and security forces in Manipur.  

It is alleged that a majority of them have been carried out in cold blood while the victims were in custody and allegedly after torturing them.  In addition to that, not a single First Information Report has been registered by the Manipur police against the police or the security forces even though several complaints have been made with respect to the alleged extra-judicial executions. As a result, no investigation or prosecution has commenced and the cries of anguish of the families of the victims have fallen on deaf ears. 

It goes without saying that the executions include those of innocent persons with no criminal record but who are later on conveniently labelled as “militants”. The Supreme Court has 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 details of 62 cases are already with the court, and those shall be dealt with first. The court is likely to hear them on August 13. The bench also heeded to NHRC’s complaint that it has become a “toothless tiger” and that most of its orders on inquiries and granting compensation were overlooked by the Manipur government. It agreed to examine the issue in order to accord more authority to NHRC.