Army can’t use ‘excessive or retaliatory force’ even in Afspa-notified areas: SC

  • Bhadra Sinha, Hindustan Times, New Delhi
  • Updated: Jul 08, 2016 22:44 IST
Supreme Court of India (File Photo )

The Supreme Court dealt a blow to the army’s immunity under a controversial law on Friday, saying it can’t use “excessive or retaliatory force” even in troubled places, and agreed to an investigation into hundreds of alleged illegal killings by security forces in Manipur.

The Armed Forces (Special Powers) Act (Afspa), which shields troops from prosecution and is in force in parts of the northeast and Kashmir, is blamed by human rights groups for illegal killings and arbitrary detentions by security forces. The military denies misusing the law.

Friday’s court verdict came on petitions from rights groups demanding an investigation by the Central Bureau of Investigation (CBI) or any special team into 1,528 alleged cases of “extra-judicial killings” by the army in Manipur in a dozen years through to 2012.

“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 would be in grave danger,” the top court said.

“Society and the courts obviously cannot and do not accept such a death (extra-judicial killings) caused by the State since it is destructive of the rule of law and plainly unconstitutional,” a bench headed by Justice MB Lokur said.

The remarks are the strongest judicial rebuke yet 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. It said the situation in Manipur was, at best, an internal disturbance and not a “war-like” threat to national security.

“The army’s internal oversight mechanism is quite robust. Soldiers have been punished with life imprisonment in many cases,” said a senior army officer, who did not wish to be named as the matter is sub-judice.

“But most of the allegations of human rights violations against the army have been found to be false.”

Referring to the “Ten Commandments of the Chief of Army Staff”, the court said it didn’t matter whether the victim was a common person or a militant or a terrorist, nor did it matter whether the aggressor was a common person or the State. The law was the same for both and equally applicable to both, it added.

The court agreed to have an independent inquiry into the cases of extra-judicial killings in the northeastern state. It said a decision on who should investigate will be taken after it receives more data on all the cases.

The court said the army was free to initiate a court of inquiry against the accused personnel. Under army rules, court martial proceedings have to be time-bound but in Manipur many cases have dragged for years.

The top court will now take the up the matter after four weeks. By then, advocate Menaka Guruswamy, who is assisting the court in the case, has to gather data on 62 cases earlier investigated by the National Human Rights Commission (NHRC) and a court-appointed panel headed by former SC judge Justice Santosh Hedge.

The human rights watchdog had concluded that 31 of the 62 cases were fake, while the Justice Hedge committee said charges were trumped up in 15.

The Centre defended the killings, arguing they are “part of the sovereign function discharged by the Union of India through the army”. Attorney general Mukul Rohatgi had said security forces could not be blamed for collateral deaths that critics describe as extra-judicial murders in Manipur.

The petitioners – human rights organisations – say troops have not faced action as they operate under Afspa, which grants powers to them to arrest and shoot to kill without fear of prosecution.

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