According to the HRA (human rights alert), between 1979 and 2012, there have been at least
1,528 documented cases of extrajudicial executions. Armed with that evidence, the NGO,
with the families which had lost their near ones, knocked on the doors of the Supreme Court.
After four years, in July 2016, the Supreme Court made it clear that security force personnel
cannot get away with impunity, stating:
“outright acceptance of the proposition advanced [that Army personnel have immunity from
civilian trials] is equally unsettling and demoralising, particularly in a constitutional
democracy like ours.”
It was a landmark judgment, creating necessary cracks in the immunity under AFSPA. “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 will be in grave danger.”
Colin Gonsalves, lawyer for the petitioner, and amicus curiae Menaka Guruswamy have been
insisting throughout for an SIT and criminal prosecution. “It seems the constitution has not
reached Manipur,” Guruswamy had argued in April. Now with the order stating that a crime
cannot be ignored because of a lapse of time, the court has offered the hope of access to
justice for thousands of families. This is in stark contrast to the court’s ruling in 1997, when it
upheld the constitutional validity of the AFSPA, after it was challenged by the Naga People’s
Movement for Human Rights. At the time the court had only specified an essential list of
“do’s and dont’s” to be followed by security forces. But criminal prosecution remained a
distant cry, and fake encounters continued.
That same summer, however, a landmark judgement from the Supreme Court tore into the
cloak of secrecy maintained by the state about unaccounted deaths involving security forces
in disturbed areas. The court’s judgment was in response to a petition by an Imphal-based
NGO, EEFVAM (Extra Judicial Execution Victim Families Association), on suspected extra-
judicial killings by the security forces in Manipur under the garb of AFSPA.
, the two-judge bench said, “It does not matter whether the victim was a common person or a
militant or a terrorist, nor does it matter whether the aggressor was a common person or the
state. The law is the same for both and is equally applicable to both…this is the requirement
of a democracy and the requirement of preservation of the rule of law and the preservation of
individual liberties.” The verdict mandated police enquiries into suspected cases of extra-
judicial killing by the armed forces under AFSPA.
The court observed that the situation in Manipur has “never been one of war” and killing of
citizens on mere suspicion of being the “enemy” jeopardises democracy. An argument put
forth by the attorney general with regard to this petition was that excessive inquiries into
allegations of fake encounters could demoralise security forces, forcing them to battle
insurgents with “one hand tied behind their backs”.
The apex court refused to accept this contention and noted that “…this is not a valid criticism
since, and this is important, in such cases it is not the encounter or the (military/police)
operation that is under scrutiny but the smoking gun that is under scrutiny.
Not necessarily an enemy
The court also went into a detailed examination of who is a militant or an enemy as
understood in various laws such as the Army Act that governs the functioning of the Indian
Army.
Once again, the judges were emphatic as they pointed out that “a person carrying a weapon in
a disturbed area in violation of a prohibition to that effect cannot be labeled a militant or
insurgent”
Civil courts, not Army courts
He is also keen that the usual practice of dealing with armed forces excesses under military
courts is done away with, as this case progresses. “In countries with histories of fighting
insurgencies, Supreme Courts have ruled that excesses can be adjudicated in civil courts,”he
said. “This should be the norm in India and we must catch up with progressive laws like
many other countries that have dealt with this issue.”
In March 2000, the 7th battalion of the Rashtriya Rifles carried out Operation Swift in
Pathribal, in Anantnag district of Kashmir, that resulted in the death of five people. Facing
allegations of a fake encounter, the case was finally handed over to the Central Bureau of
Investigation that submitted to the Supreme Court in 2012 that it was a case of “cold-blooded
murder”. But the case was sent back to a military court of inquiry, which closed it in 2014
stating that there wasn’t enough evidence to establish a case.
Meanwhile, the petitioners are hoping that the court will order the setting up of a Special
Investigation Team soon to investigate the allegations recorded in these cases.
In April the Supreme Court ruled that two BSF personnel accused of killing a
Kashmiri teenager in 2010 should be tried in a criminal court. It held that the
provisions of the AFSPA could not summarily replace general laws, and that all
such cases need not be tried in a defence services court.
The Supreme Court has also asserted that the AFSPA’s protection was limited to acts
conducted in the line of duty. Rape and murder were “normal crimes” that should be
prosecuted in criminal courts, it said.
But perhaps the most significant development in this regard took place earlier this year when
the Justice J.S. Verma Committee looking into legal reforms related to violence against
women called for a review of the AFSPA. It noted that “impunity for systematic or isolated
sexual violence in the process of internal security duties is being legitimised by the AFSPA”
and “women in conflict areas are entitled to all the security and dignity that is afforded to
citizens in any other part of our country.” The committee also recommended that “special
care must also be taken for the safety of complainants and witnesses in cases of sexual assault
by armed personnel”.
Nepram says an attempt to get information about the number of cases of violence against
women allegedly by armed forces through the Right to Information Act was thwarted by the
central government on the ground that it would breach national security.
“Violence against women is three times more in our area. AFSPA Judgment
Formally known as the Naga People's Movement vs Union of India (27 November 1997).
The Supreme Court of India in this case upheld the Constitutional validity of the Armed
Forces Special Powers Act which grants the armed forces special powers in "disturbed areas."
Concerns have been raised about the Act on the basis that it grants impunity for human rights
violations.
The Supreme Court of India in this case clearly stipulated that the following provisions must
be read into the AFSPA:
Ensure that troop under command do not harass innocent people, destroy property of the
public or unnecessarily enter into the house/dwelling of people not connected with any
unlawful activities. Ensure that women are not searched/arrested without the presence of
female police. In fact, women should be searched by female police only. Do not ill treat
anyone, in particular women and children, no harassment of civilians, no torture.[29]
The Supreme Court held that: The instructions in the form of Do’s and Dont’s have to be
treated as binding instructions which are required to be followed by the members of the
armed forces exercising powers under the Central Act and a serious note should be taken of
violation of the instructions and the persons found responsible for such violations should be
suitably punished under the Army Act of 1950.[29] The court also then pointed out that there
are safeguards within the powers exercisable under the Act. Parliament included these
safeguards to check the arbitrary exercise of power by the armed forces.
The Supreme Court went on to state that: "In order that the people may feel assured that there
is an effective check against misuse or abuse of powers by the members of the armed forces it
is necessary that a complaint containing an allegation about misuse or abuse of the powers
conferred under the Central Act should be thoroughly inquired into and, it is found that there
is substance in the allegation, the victim should be suitably compensated by the State and the
requisite sanction under Section 6 of the Central Act should be granted for institution of
prosecution and/or a civil suit or other proceedings against the person/persons responsible for
such violation
In a significant and far-reaching judgment, the Supreme Court recently said that AFSPA
cannot continue forever and it was only a temporary measure to restore law and bring in
normalcy. It clearly laid out principles and points of law stating:
There cannot be immunity for armed forces in human right violations
The army and police can be investigated and prosecuted in accordance with law
Criminal courts also have the jurisdiction to prosecute
Truth about the violations must be found out
Magisterial inquiries conducted are of no relevance as only the judicial inquiries are
relevant
Inquiries conducted by the human right cell of the army does not inspire confidence
Internal disturbances have to be handled by a civilian administration and the role of
the army is only to aid it.
The judgment was in response to a petition filed in the Supreme Court in September 2012 by the
Extra Judicial Execution Victim Families Association (EEVFAM). It wanted a Special Investigative Team
to probe the 1,528 extra-judicial executions and compensate affected families. The court randomly
picked six cases out of the lot and appointed Justice Santosh Hegde to head a commission of inquiry
that would investigate the encounters. Justice Hegde found that all of them were fake encounters
and all the seven who were killed had no criminal antecedents.
Justice Jeevan Reddy Committee says the Act is a "symbol of oppression, instrument of high-
handedness"
Article 21 of the Constitution:
Article 21: Right to life. “No person shall be deprived of his life or personal liberty except
according to procedure established by law”[9]. It was held in a landmark judgment of
Maneka Gandhi vs Union Of India[10] that “procedure established by law means a fair, just
and reasonable law”.
The Section 4(a)[11] gives unrestricted powers to the armed forces to shoot and kill anyone
arbitrarily which violated the right to life[12]. Such a legislation is by no means fair and
reasonable since it gives unrestricted powers to the armed forces to use any amount of force,
which might be disproportionate. The Offences under 4(a) are: “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 fire-arms, ammunition or explosive substances”.[13] In the offences stated above,
none of them necessarily involve the use of force, but even then the armed forces are allowed
to use disproportionate forces with any kind of offence.
There are many cases that show us the true picture about how Border Security Force (BSF)
and the army misuses their power which is vested by them through this legislation in the
North East that undoubtedly results in the violation of human rights. In a recent incident in
April 1995, in West Tripura a localite was reading a book near the border post when he was
asked to stop by a soldier and when the villager refused to stop, he was shot dead by the
soldier. There was an even more grave killing on the 5th of March 1995, when the Rastriya
Rifles thought that the tire blast was a bomb explosion and shot people dead randomly in
Kohima. This shooting went on for an hour that resulted in 7 deaths and 22 injured which
included 2 young girls and 7 children. These regular incidences show the level of arbitrary
killings in the North East.
Article 22 of the Constitution:
Article 22 of the Indian Constitution states that “(1) No person who is arrested shall be
detained in custody without being informed, as soon as maybe, of the grounds for such arrest
nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his
choice. (2) Every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the court of the magistrate and no such
person shall be detained in custody beyond the said period without the authority of a
magistrate.”[14] The other sections are dealing with the limits and extent on these two
sections in cases of Preventive Detention. Prima facie, AFSPA is not preventive detention
legislation, therefore the limitation of (1) and (2) would not always be applicable but should
be guaranteed to the arrested victims under AFSPA.
Sub clause (2) had been a subject matter of debate when the Constitutional framers were
drafting the Indian Constitution. There was an elaborate discussion regarding whether there
should be a time limit specified or whether “with the least possible delay” should be used and
leave it at the discretion of the armed forces. Dr. Ambedkar, stated that “with the least
possible delay” would lead to the accused being held for a shorter period of time, while “24
hours’ would lead to him being in custody for maximum 24 hours[15]. It can now be said that
a specified time frame would have been a better option which would constitute a greater
safeguard.
Article 21 of the Constitution:
Article 21: Right to life. “No person shall be deprived of his life or personal liberty except
according to procedure established by law”[9]. It was held in a landmark judgment of
Maneka Gandhi vs Union Of India[10] that “procedure established by law means a fair, just
and reasonable law”.
The Section 4(a)[11] gives unrestricted powers to the armed forces to shoot and kill anyone
arbitrarily which violated the right to life[12]. Such a legislation is by no means fair and
reasonable since it gives unrestricted powers to the armed forces to use any amount of force,
which might be disproportionate. The Offences under 4(a) are: “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 fire-arms, ammunition or explosive substances”.[13] In the offences stated above,
none of them necessarily involve the use of force, but even then the armed forces are allowed
to use disproportionate forces with any kind of offence.
There are many cases that show us the true picture about how Border Security Force (BSF)
and the army misuses their power which is vested by them through this legislation in the
North East that undoubtedly results in the violation of human rights. In a recent incident in
April 1995, in West Tripura a localite was reading a book near the border post when he was
asked to stop by a soldier and when the villager refused to stop, he was shot dead by the
soldier. There was an even more grave killing on the 5th of March 1995, when the Rastriya
Rifles thought that the tire blast was a bomb explosion and shot people dead randomly in
Kohima. This shooting went on for an hour that resulted in 7 deaths and 22 injured which
included 2 young girls and 7 children. These regular incidences show the level of arbitrary
killings in the North East.
Article 22 of the Constitution:
Article 22 of the Indian Constitution states that “(1) No person who is arrested shall be
detained in custody without being informed, as soon as maybe, of the grounds for such arrest
nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his
choice. (2) Every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the court of the magistrate and no such
person shall be detained in custody beyond the said period without the authority of a
magistrate.”[14] The other sections are dealing with the limits and extent on these two
sections in cases of Preventive Detention. Prima facie, AFSPA is not preventive detention
legislation, therefore the limitation of (1) and (2) would not always be applicable but should
be guaranteed to the arrested victims under AFSPA.
Sub clause (2) had been a subject matter of debate when the Constitutional framers were
drafting the Indian Constitution. There was an elaborate discussion regarding whether there
should be a time limit specified or whether “with the least possible delay” should be used and
leave it at the discretion of the armed forces. Dr. Ambedkar, stated that “with the least
possible delay” would lead to the accused being held for a shorter period of time, while “24
hours’ would lead to him being in custody for maximum 24 hours[15]. It can now be said that
a specified time frame would have been a better option which would constitute a greater
safeguard.
Article 21 of the Constitution:
Article 21: Right to life. “No person shall be deprived of his life or personal liberty except
according to procedure established by law”[9]. It was held in a landmark judgment of
Maneka Gandhi vs Union Of India[10] that “procedure established by law means a fair, just
and reasonable law”.
The Section 4(a)[11] gives unrestricted powers to the armed forces to shoot and kill anyone
arbitrarily which violated the right to life[12]. Such a legislation is by no means fair and
reasonable since it gives unrestricted powers to the armed forces to use any amount of force,
which might be disproportionate. The Offences under 4(a) are: “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 fire-arms, ammunition or explosive substances”.[13] In the offences stated above,
none of them necessarily involve the use of force, but even then the armed forces are allowed
to use disproportionate forces with any kind of offence.
There are many cases that show us the true picture about how Border Security Force (BSF)
and the army misuses their power which is vested by them through this legislation in the
North East that undoubtedly results in the violation of human rights. In a recent incident in
April 1995, in West Tripura a localite was reading a book near the border post when he was
asked to stop by a soldier and when the villager refused to stop, he was shot dead by the
soldier. There was an even more grave killing on the 5th of March 1995, when the Rastriya
Rifles thought that the tire blast was a bomb explosion and shot people dead randomly in
Kohima. This shooting went on for an hour that resulted in 7 deaths and 22 injured which
included 2 young girls and 7 children. These regular incidences show the level of arbitrary
killings in the North East.
Article 22 of the Constitution:
Article 22 of the Indian Constitution states that “(1) No person who is arrested shall be
detained in custody without being informed, as soon as maybe, of the grounds for such arrest
nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his
choice. (2) Every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the court of the magistrate and no such
person shall be detained in custody beyond the said period without the authority of a
magistrate.”[14] The other sections are dealing with the limits and extent on these two
sections in cases of Preventive Detention. Prima facie, AFSPA is not preventive detention
legislation, therefore the limitation of (1) and (2) would not always be applicable but should
be guaranteed to the arrested victims under AFSPA.
Sub clause (2) had been a subject matter of debate when the Constitutional framers were
drafting the Indian Constitution. There was an elaborate discussion regarding whether there
should be a time limit specified or whether “with the least possible delay” should be used and
leave it at the discretion of the armed forces. Dr. Ambedkar, stated that “with the least
possible delay” would lead to the accused being held for a shorter period of time, while “24
hours’ would lead to him being in custody for maximum 24 hours[15]. It can now be said that
a specified time frame would have been a better option which would constitute a greater
safeguard.
The use of “least possible delay”[16] under the AFSPA, has given free space to the armed
forces to keep accused people under custody for days, months and even years sometimes. In
Nungshitombi Devi v. Rishang Keishang[17], the victim was arrested by CRPF on 10th
January 1981 and the complaint was filed by his wife since he was missing till 22nd February
1981. He was arrested under section 4(c) [18]. The could held that such unnecessary delays
are illegal and too long even under section 5[19]. In the case of Civil Liberties Organisation
(CLAHRO) v. PL Kukrety, [20], people were arrested in Manipur’s village; Oinam, and held
in custody for 5 long days even before they were presented before the magistrate which is a
clear cut violation of Article 22 of the Constitution.
Arbitrary and illegal detention of innocent people is blatantly being practiced by the armed
forces in India because they get protection under AFSPA. Though there is a contention that
the provisions under AFSPA are preventive detention laws, it would be a clear violation of
Article 22[21]. Any person can be arrested for 3 months under the preventive detention
laws[22]. But for any detention that would be longer than 3 months, it is necessary that the
Advisory Board reviews it[23]. Article 22(5) says that when any detention is done under any
preventive detention legislation, the authority that passes such an order has to communicate
the grounds of such detention to the person detained as soon as possible and shall give him
ample opportunity to make his presentation against such an order[24]. But AFSPA is contrary
to such laws, it says that any person can be arrested by armed forces even without issuing any
warrant, on mere suspicion that the person is going to commit any offence[25]. The armed
forces do not have any obligation to communicate the grounds for such an arrest nor is there
any provision for an advisory board. These arbitrary and unrestricted arrests are volative of
the Fundamental Rights enshrined in the Constitution of India[26] . These armed forces have
very precisely and systematically tortured the innocent people that they arrest in the North
East[27]. The International Covenant on Civil and Political Rights (ICCPR) prohibits the use
of torture of any kind and has termed it as a non derogable right[28]. During the Operation
Bluebird, there was an extensive abuse of the rights conferred to the armed forces and
arbitrary atrocities and torture was committed by the Assam Rifles in Manipur. Just within
the initial few days of this operation, there were incidences of villagers being treated with all
kinds of cruelty and inhuman treatment that degraded human life by the Assam Rifles[29].
The armed forces then retaliated by inferring the same kind of atrocities on the villagers of
Oinam[30]. More than 300 villagers were beaten and tortured according to the Amnesty
International Report[31]