No space for impunity for the armed forces
Print Intro: The Supreme Court judgment on Afspa is a great opportunity for the Centre to reorient its policies to build bridges of trust in the North-East
The Supreme Court’s verdict last week on the case involving alleged fake encounters in Manipur is a rebuke to the Centre, the state government, the army, different Central security forces and the local police on the manner in which people have been killed and brutalised with impunity.
One of the most significant parts of the judgment by justice Madan Lokur and justice UU Lalit was that no one was above the law. By affirming this fundamental truth, which is the very basis of a democratic nation, the court has again stood up for equality before the law.
The judgment runs into 85 pages, unequivocally upholding the right to life and asserting that the situation in Manipur was but an “internal disturbance”, not an armed rebellion or war as the Centre argued.
In the process, it tossed out the argument that having a stark six-clause law like the Armed Forces Special Powers Act (Afspa) was enough to give the Central forces the licence to act as they wished, without checks and balances. It was heartening to note that the court also said that a situation of conflict where such laws were used continuously for decades should not endure. That such conditions had continued for so long was a reflection on the capacity of the Central government and the army.
The roots of this judgment lie in the conditions that have existed in parts of the North-East for the past 60 years, since Afspa was passed by Parliament in 1958 to first deal with an armed insurrection in the then Naga Hills district (now Nagaland) of Assam. Although Afspa was upheld by the highest court in 1997 as constitutional, what justice Lokur and justice Lalit pointed out was the need for justice and equality before the law. This is important since Afspa’s Clause Four and Clause Six have been at the heart of the human rights debate key: Essentially, one allows the security forces to kill upon suspicion in a disturbed area and the other protects them from prosecution except with the sanction of the Central government.
It is this premise that the judgment over-ruled, saying that “there is no concept of absolute immunity from trial by the criminal court” under the Criminal Procedure Code. This is a crucial step forward for those who have suffered for no fault of their own have been arguing for years.
At the very beginning, the judgment laid out a singular premise — that whatever the situation, whoever the transgressor or victim, there must be a khoj, a quest for the truth in these kinds of cases. It was necessary to know the truth, the Court remarked, “so that the law is tempered with justice”.
The Supreme Court was hearing the petition of 1,528 cases of “extra judicial killings” brought before it by the Extra Judicial Execution Victim Families Association (EEVFAM) of Manipur, comprising relatives and friends of those killed in alleged fake encounters in the past 20 years, and Human Rights Alert. The case was filed in 2012.
It over-ruled the Central government’s argument that by either being part of a banned organisation or being caught in a “war-life situation”, the killing of victims was justified because they were viewed as “enemies” in counter-insurgency or anti-terrorist operations.
Dealing with the oft-voiced complaint by the State that if the armed forces were not empowered by Afspa but answerable to courts and the judicial system, they would be fighting “militants, insurgents and terrorists with one hand tied behind its back”. This, the Court said, was not a valid criticism since “there is a qualitative difference between use of force in an operation and use of such deadly force that is akin to using a sledgehammer to kill a fly; one is an act of self-defence while the other is an act of retaliation”.
It used the army’s own position to buttress its view, pointing out that it was “quite clear from the various instructions issued (and which are binding on the armed forces) that minimum force is to be used even against terrorists, militants and insurgents”.
Although the Court said that it was not taking a position on Clause Six of Afspa, it has resurrected the need not just to review the Act but to reconsider a larger issue: What strategy does the Centre need to follow in a situation where the armed insurrections have lost their edge, public fatigue has set in and there is a visible demand especially among the young for better economic prospects which can come only with peace? The latter is seen in the large out-migration from the region.
If the Act East Policy is to succeed, it will depend not just on infrastructure building but on the quality of trust that the Centre builds with its partners in the North-East. It can’t happen if laws endowing impunity continue to rule the land and its peoples.
This is a great opportunity for the Centre to reorient its policies to build bridges of trust instead of walls of fear and suspicion. Give the North-East a chance, enable the human rights campaigner Irom Sharmila to break her long hunger strike and win the confidence of ordinary people by showing that justice and the rule of law can and shall prevail.
Sanjoy Hazarika is director, Centre for Northeast Studies, Jamia Millia Islamia University
The views expressed are personal