The government wants the Supreme Court to reconsider a landmark decision that restrained the army from using “excessive or retaliatory force” in India’s conflict regions and ordered investigations into hundreds of alleged extra-judicial killings in Manipur between 1979 and 2012.
The top court’s judgment last July ruled that despite the Armed Forces (Special Powers) Act, or AFSPA, the armed forces cannot use “excessive and retaliatory force” in Manipur.
Human rights campaigners call the law “draconian” as it gives security forces extra-judicial powers during anti-insurgency operations. The Afspa shields troops from prosecution and is in force in parts of the Northeast and Jammu and Kashmir.
The Centre filed on Wednesday a curative petition, saying the court’s verdict is hampering the army’s ability to respond to insurgency-related situations and its daily operations in Kashmir and the Northeast, both regions torn by militancy.
“It’s an issue of national security,” attorney general Mukul Rohatgi said before a bench headed by Chief Justice JS Khehar, and appealed for the petition to be listed for an open-court hearing.
A curative petition is the last legal recourse available after a litigant exhausts all remedies such as appeals and review pleas.
Chances of success are rare. But in recent years, the court has admitted such pleas that raised important constitutional matters.
The top court had said in its verdict on Afspa last year that excessive force could be used only when a soldier is defending himself in a combat with terrorists.
The decision was seen as the strongest judicial rebuke of the army’s special shoot-to-kill powers, which trace their origins to a British-era ordinance used to suppress the Quit India Movement of 1942. The army denies misusing the law.
The Centre defended its military actions in conflict areas and said the army was not a “rogue”. Any proactive action in maintaining peace and law and order was curtailed by the verdict, it argued.
“Any retaliatory measure to neutralize terrorists/militants would be branded as excessive force or an extra-judicial execution which runs counter to the very purpose of Afspa,” the petition says.
The 2016 verdict was cheered by activists, who have long pointed to a lack of oversight of military personnel.
The decision came on petitions demanding investigation into 1,528 alleged cases of extra-judicial killings by the army in the northeastern state. The petitioners complained of the abuse of special powers available to army officers.
But, according to the Centre, the court’s interpretation of the law was not in consonance with the ground realities that the armed forces face in Manipur, which has several secessionist groups.
“If the position maintained by the impugned order continues it may, one day, be well-nigh impossible to maintain peace and security,” the Centre said.
The army has to take quick decisions that cannot be dissected nor can be judicially reviewed like any other murder appeal, the government argued.
Also, it contended that the verdict would lower the morale of the armed forces, especially personnel who spend a lifetime risking their lives to safeguard the nation’s sovereignty and integrity.